IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

Respondent,

v.

LAVELLE KENNETH JOHNSON,

Appellant.

No. 84833-0-I

DIVISION ONE

UNPUBLISHED OPINION

BIRK, J. — A jury convicted Lavelle Johnson of assault in the second degree 

and unlawful possession of a firearm in the first degree. Johnson challenges the 

trial court’s admission of evidence about an incident that tied Johnson to the 

firearm involved in the charged crimes. Johnson also challenges the inclusion of 

juvenile offenses in his offender score and the imposition of a victim penalty 

assessment (VPA). We remand to strike the VPA, but otherwise affirm Johnson’s 

convictions and sentence. 

I

A jury found Johnson guilty of charges of one count of assault in the second 

degree and one count of unlawful possession of a firearm in the first degree. 

Johnson’s convictions were based on the State’s allegations that, on October 12, 

2019, Johnson pointed a gun at two individuals and fired multiple shots at a vehicle. 

Trial was held in August 2022, and according to testimony the State presented, 

Monique Worsham and her boyfriend, Ha Thach, were parked in Thach’s Jeep
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Cherokee in southeast Seattle on the evening in question. Thach’s Jeep was 

parallel parked behind Worsham’s car (a Chevrolet Lumina), which was, in turn, 

parked behind a silver BMW X5 sport utility vehicle (SUV). There were some tools 

and a gas can on the curb next to the SUV. 

A man pulled up in a dark BMW 530E (BMW), got out of the vehicle, and 

approached the SUV. He appeared to be the owner of the SUV and to believe that 

Worsham and Thach had tampered with and/or siphoned gasoline from the SUV. 

The man yelled at Worsham and Thach, returned to the vehicle he arrived in, 

retrieved a handgun, and pointed it at Thach and then at Worsham.1 The man 

then fired several shots at Worsham’s Chevrolet and sped away. The bullets 

shattered the Chevrolet’s rear window. 

Police officers responded. Worsham provided the license plate number of 

the BMW. Police collected shell casings on the street and determined that the 

SUV was registered to Johnson. 

A few days later, different police officers contacted Johnson in the BMW. 

Upon searching the vehicle, police officers found items connecting the BMW to 

Johnson. Within a week of the incident, Worsham identified Johnson in a photo 

montage as the assailant. 

 

1 The original information alleged that Johnson assaulted both Worsham 

and Thach. After the State was unable to locate Thach and determined that it

would not call him as a witness, the State amended the information so that the 

assault count related only to Worsham. 
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II

Johnson does not challenge the above evidence on appeal. He asserts the 

trial court erred by allowing additional evidence concerning events occurring 

approximately three months later, in January 2020, as a result of which the State 

brought a separate charge against Johnson for unlawful possession of a firearm. 

According to the State’s certification for determination of probable cause in that 

case, police responded on January 2, 2020, to a shooting on Bell Street in 

downtown Seattle. They found Johnson with a gunshot wound to his leg. They 

also found several shell casings. A witness told them that another person who 

was present, Rogelle Harris, had placed something in a garbage can after Johnson 

was injured. Police retrieved a handgun from a dumpster in the same location. 

Surveillance video from a nearby business showed “there was a shootout with at 

least two people shooting at each other,” from which two other persons fled after 

the shooting. Examination of the shell casings recovered in the January 2020 

incident showed that they matched those recovered in the October 2019 incident, 

and all had been fired from the gun retrieved at the January 2020 scene. The 

State moved to join the charges stemming from the October 2019 and January 

2020 incidents. The trial court denied joinder. In December 2021, a jury failed to 

reach a verdict on the unlawful possession charge against Johnson arising out of 

the January 2020 incident. 

Before trial in this case, Johnson presented a motion in limine to exclude 

reference to the events in January 2020 under ER 404(b) and ER 403. Johnson 

argued the jury would draw the implication that Johnson was “an active participant 
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in both cases,” even though he had never been accused of engaging in gunfire in 

the January 2020 events. The State sought permission to admit evidence that 

Johnson was shot and injured in January 2020, police recovered a firearm from 

the area where Johnson was found, and testing of the firearm revealed that it was 

a match for the casings found near Worsham’s Chevrolet. The State disclaimed 

intent to offer evidence of a “gunfight,” and sought only to show the gun was 

located nearby Johnson. The State argued that, to the extent the evidence fell

within the ambit of ER 404(b), it was admissible to establish Johnson’s identity. 

The State also noted that, because the firearm recovered was successfully test 

fired, the evidence was also relevant to establish the “operability” of the firearm.2

Johnson argued in response that the State’s proposed evidence would open 

the door to additional evidence to provide “context” and rebut the implication that 

Johnson had possessed and discarded the firearm. The defense indicated that it 

would seek to present video footage, evidence about the location of casings at the 

scene, and evidence that another individual placed the firearm in a garbage bin in 

the alley. Johnson again argued the evidence the State proposed to present would 

unfairly allow the jury to speculate that he was an “active participant” in a “gunfight.” 

The trial court granted the State’s motion, stating, “I’m going to grant the 

State’s motion to allow the State to introduce evidence that a gun was found in 

proximity, allegedly, to Mr. Johnson in January of 2020.” The court reserved ruling 

 

2

In order to prove that Johnson unlawfully possessed a firearm, the State 

had to prove that the object he possessed met the definition of a firearm; meaning 

that it was a “weapon or device from which a projectile may be fired by an explosive 

such as gunpowder.” 
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on what additional evidence about the January 2020 incident the defense would 

be allowed to present. 

At trial, the State presented evidence that in January 2020, police officers 

responded to an incident on Bell Street in downtown Seattle. Johnson had 

sustained a gunshot wound and police officers found a firearm in an alley, 

approximately 30 to 50 feet from where Johnson was found. A police officer tested 

the firearm, determined it was functional, and recovered the ejected casings. A 

forensic scientist specializing in firearms and toolmarks determined that the 

recovered firearm’s ejected casings matched those collected in October 2019 near 

Worsham’s Chevrolet. On cross-examination of the State’s witnesses, Johnson’s 

counsel elicited that there had been shell casings at the January 2020 scene, video 

showed two groups of people exchange shots, police never identified some of the 

gunfighters, Harris was present at the scene, and no fingerprints were recovered 

from the gun. Johnson’s counsel asked a police officer, “How did [the firearm] end 

up in the trash can,” to which the officer answered, “Harris took it from Lavelle 

Johnson and put it” there. 

Johnson contends the trial court abused its discretion when it admitted 

evidence that he “possessed a firearm and was involved in an unrelated shooting” 

because the evidence “carried great potential for unfair prejudice” and the State 

did not “need” it to prove identity or that the firearm was operable. We disagree.

“Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person or to show action in conformity therewith.” ER 404(b). 

However, such evidence may be admissible for other purposes “such as proof of 
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motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” ER 404(b). For evidence of “prior bad acts” to be admissible, 

the trial judge must (1) find by a preponderance of the evidence that the 

misconduct occurred, (2) identify the purpose for which the evidence is sought to 

be introduced, (3) determine whether the evidence is relevant to prove an element 

of the crime charged, and (4) weigh the probative value against the prejudicial 

effect. State v. Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090 (2014). “The trial 

court must also give a limiting instruction to the jury if the evidence is admitted.” 

Id. Other act evidence must be “relevant and necessary to prove an essential 

ingredient of the crime charged.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 

615 (1995). This court reviews a trial court’s decision to admit ER 404(b) evidence 

for abuse of discretion. State v. Denham, 197 Wn.2d 759, 771, 489 P.3d 1138 

(2021). A court abuses its discretion if its decision is based on untenable grounds 

or untenable reasons. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 

(2002).

The trial court acted within its discretion in ruling that any danger of unfair 

prejudice did not outweigh the probative value of the evidence. The main concern 

with the admission of ER 404(b) evidence is the risk of suggesting a defendant is

guilty because they are a criminal-type person who would likely commit the 

charged crime. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). 

The trial court’s ruling did not encompass evidence of Johnson’s involvement in a 

shooting, beyond his status as a shooting victim, and the State never suggested 

Johnson fired a gun in the January 2020 incident. Johnson made a strategic 
No. 84833-0-I/7

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choice to elicit evidence on cross-examination, over the State’s objection, which 

suggested an exchange of gunfire and that both he and Harris possessed the gun. 

On appeal, Johnson suggests that the State could have relied on expert testimony 

about the spent shell casings without presenting evidence about the circumstances 

in which the firearm was recovered. But the evidence that Johnson sustained a 

gunshot wound and the police nearby recovered a firearm that they were able to 

identify as the one used to assault Worsham established a link between Johnson 

and the firearm. The evidence the State presented was salient for its linking 

Johnson to the firearm used in the assault, not, as Johnsons argues, for suggesting 

unfairly a “propensity to engage in gun violence.” 

The evidence was admissible for its probative value notwithstanding the 

State’s having other evidence that Johnson was the person who had assaulted 

Worsham. Decisions interpreting ER 404(b) clarify that evidence is both “relevant 

and necessary” if it is “of consequence to the action and makes the existence of 

the identified fact more probable.” Powell, 126 Wn.2d at 259. Johnson points to 

no authority supporting the proposition that evidence is admissible under ER 

404(b) only in the absence of other evidence that may be sufficient to prove the 

State’s case. Rather, we understand Johnson to argue that the State’s having 

other evidence lessens the import of the January 2020 evidence, thereby making 

its probative value more readily outweighed by any unfair prejudice. Nevertheless, 

the relevance of expert testimony comparing the spent shell casings was directly 

probative that Johnson was the person who possessed a firearm and committed 

the assault on October 12, 2019. Contrary to Johnson’s argument, the evidence 
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establishing Johnson’s link to the gun recovered in Belltown was neither 

“cumulative” nor of “minimal value.” Johnson does not show an abuse of discretion 

by the trial court in ruling the probative value of the evidence was not outweighed 

by any unfair prejudicial effect and the record does not suggest that the jury was 

invited to find Johnson guilty because of his propensity to be involved in shootings 

or be near firearms.

For the first time on reply, Johnson further argues that the trial court erred 

by failing to conduct the required analysis under ER 404(b) or make the four 

specific findings on the record required by the Washington Supreme Court. 

Johnson’s opening brief argued only that the unfair prejudice of the evidence 

outweighed its probative value. Because Johnson raises the lack of all four

necessary findings for the first time on reply, we decline to reach that argument. 

RAP 10.3(c); Ainsworth v. Progressive Cas. Ins. Co., 180 Wn. App. 52, 78 n.20, 

322 P.3d 6 (2014) (“We will not consider issues argued for the first time in the reply 

brief. The reply brief is limited to a response to the issues in the responding brief.

To address issues argued for the first time in a reply brief is unfair to the respondent 

and inconsistent with the rules on appeal.” (citations omitted)). 

III

Johnson argues that an amendment to the offender score provision of the 

Sentencing Reform Act of 1981 (SRA), RCW 9.94A.525, applies to his sentence

and therefore, three juvenile convictions listed in his criminal history should be 

excluded from the calculation of his offender score. See LAWS OF 2023, ch. 415 

(Engrossed H.B. 1324). Because the amending law does not indicate clear intent 
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for retroactive application, we conclude that former RCW 9.94A.345 (2000) and 

RCW 10.01.040 control and require that the “law in effect at the time of a crime 

must be applied to the imposition of sentence for that crime.” 

Former RCW 9.94A.345, a provision of the SRA, declares,

Any sentence imposed under this chapter shall be determined in 

accordance with the law in effect when the current offense was committed.[3]

And RCW 10.01.040—referred to as a “saving clause statute,” State v. 

Jenks, 197 Wn.2d 708, 719, 487 P.3d 482 (2021)—presumptively saves an 

amendment of a criminal or penal statute from affecting offenses already 

committed and provides, in relevant part,

Whenever any criminal or penal statute shall be amended or repealed, all 

offenses committed or penalties or forfeitures incurred while it was in force 

shall be punished or enforced as if it were in force, notwithstanding such 

amendment or repeal, unless a contrary intention is expressly declared in 

the amendatory or repealing act, and every such amendatory or repealing 

statute shall be so construed as to save all criminal and penal proceedings, 

and proceedings to recover forfeitures, pending at the time of its enactment, 

unless a contrary intention is expressly declared therein.

(Emphasis added.)

Our courts have consistently relied on these statutory provisions to 

conclude that amendments to the SRA do not apply to crimes that occurred before 

amendments were enacted. See Jenks, 197 Wn.2d at 714 (amendment removing 

second degree robbery from the list of strike offenses); State v. Ross, 152 Wn.2d 

220, 237-40, 95 P.3d 1225 (2004) (amendment to provision reducing offender 

score for most drug offenses); State v. Kane, 101 Wn. App. 607, 610-19, 5 P.3d 

 

3

In 2021, the language of former RCW 9.94A.345 was amended but not 

substantively changed. LAWS OF 2021, ch. 286 § 2.
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741 (2000) (amendment expanding eligibility for drug offender alternative 

sentence).

The amendment of RCW 9.94A.525 took effect on July 23, 2023. LAWS OF

2023, ch. 415, § 2; LAWS OF 2023, at ii (see (5)(a) setting out the effective date). It 

provides that “adjudications of guilt pursuant to Title 13 RCW which are not murder 

in the first or second degree or class A felony sex offenses may not be included in 

the offender score.” RCW 9.94A.525(1)(b). Under RCW 9.94A.345 and 10.01.040 

and controlling case law, this amendment does not apply to pending prosecutions 

for crimes committed before the amendment’s effective date unless the legislature 

“ ‘fairly convey[s] that intention’ ” in the newly enacted statute. Jenks, 197 Wn.2d 

at 720 (quoting Ross, 152 Wn.2d at 238). 

The amending law includes no express statement of intent for the 

amendment to apply retroactively. Johnson relies on the intent section, which 

identifies several purposes of the amendment:

(1) Give real effect to the juvenile justice system’s express 

goals of rehabilitation and reintegration;

(2) Bring Washington in line with the majority of states, 

which do not consider prior juvenile offenses in sentencing range 

calculations for adults;

(3) Recognize the expansive body of scientific research on 

brain development, which shows that adolescent’s perception, 

judgment, and decision making differs significantly from that of 

adults;

(4) Facilitate the provision of due process by granting the 

procedural protections of a criminal proceeding in any adjudication 

which may be used to determine the severity of a criminal sentence; 

and
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(5) Recognize how grave disproportionality within the 

juvenile legal system may subsequently impact sentencing ranges in 

adult court.

LAWS OF 2023, ch. 415, § 1. The legislature’s explanation for changing the law and 

its recognition that the prior law was inconsistent in some respects with the goals 

of the juvenile justice system, does not fairly convey a specific intent for the law to 

apply to cases pending on appeal.

The legislative history runs against Johnson’s argument. When a bill initially 

includes a provision that is later stricken, the act of removing the provision from 

the final version of the bill indicates an intent by the legislature to exclude the 

stricken measure. State v. Hirschfelder, 170 Wn.2d 536, 546-47, 242 P.3d 876 

(2010). Chapter 415, as introduced, included a right to resentencing for any 

offender sentenced with an offender score that included points for prior juvenile 

convictions. H.B. 1324, § 3, 68th Leg., Reg. Sess. (Wash. 2023). The legislature 

later struck the provision before passage. See LAWS OF 2023, ch. 415. Even 

recognizing Johnson’s observation that striking a right to resentencing for all 

persons affected by prior juvenile dispositions does not necessarily refer precisely 

to cases not yet final due to the pendency of appeal, the actions of the legislature

still point away from intent to avoid the application of RCW 9.94A.345 and 

10.01.040. See Jenks, 197 Wn.2d at 721 (legislature signaled intent that 

individuals should be sentenced in accordance with law at the time of the crime by 

removing provision requiring resentencing of individuals previously sentenced as 

persistent offenders premised on convictions of second-degree robbery). 
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Johnson argues the statements of legislative intent accompanying the 

amendments are similar to statements of intent indicating an intent to apply new 

law to pending cases in State v. Rose, 191 Wn. App. 858, 869, 365 P.3d 756 

(2015). There, the State charged Rose with possession of cannabis and use of 

drug paraphernalia committed approximately six months before the people

decriminalized Rose’s acts under Washington law in Initiative 502. Id. at 861-62. 

The court held this was an instance of “the rare case” in which language short of 

explicitly displacing the effect of RCW 10.01.140 nevertheless fairly conveyed that 

intent. Id. at 871. The intent of the new law was to “ ‘stop treating’ ” Rose’s activity 

as a crime to allow law enforcement to focus on different crimes. Id. at 868-69

(quoting Initiative 502). Because the law was an initiative enacted by the people, 

it was necessary to evaluate that language from the perspective of the average 

informed lay voter. Id. at 869. The voters’ pamphlet statement likewise indicated 

“disapproval of continued prosecution of the offenses committed” by Rose. Id. at 

870. 

Johnson’s case is distinguishable. First, the statements of intent on which 

he relies signal an intent to shift Washington law, and give reasons for doing so, 

but they do not signal a similar intent to “ ‘stop’ ” a particular practice to re-deploy 

the government’s resources. The government’s continued prosecution of Rose 

despite the people’s signaled intention to stop such prosecutions in favor of other, 

more pressing crimes defeated the people’s stated intent. The same is not true 

here, where there is no intent to stop prosecution of Johnson’s crimes, but only to 

change the calculation of offender scores generally. The stated intent in this case 
No. 84833-0-I/13

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to bring Washington into a new approach lacks the suggested immediacy present 

in Rose to stop the former one. Second, the intent of Initiative 502 to decriminalize 

certain conduct altogether is a much stronger indication of intent to disapprove 

continuing prosecution than amending the sentencing scheme for conduct that 

remains criminal. Rose thus contrasts with Jenks, Ross, and Kane, which held 

that changes to the sentencing scheme did not displace sentencings imposed in 

accord with the law in effect at the time.

Johnson also relies on State v. Jefferson, 192 Wn.2d 225, 429 P.3d 467 

(2018) (plurality opinion) and State v. Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714 

(2018), to argue that the amendment to RCW 9.94A.525 applies here because his 

case was still pending on appeal when the amendment took effect. Johnson 

interprets these cases as requiring legislative changes to apply to cases pending 

on appeal when a “ ‘precipitating event’ ” takes places after the amendment’s 

effective date, and he contends that the termination of his direct appeal is that 

event. Ramirez, 191 Wn.2d at 749 (quoting State v. Blank, 113 Wn.2d 230, 248, 

930 P.2d 1213 (1997)). 

Ramirez addressed changes to statutes governing legal financial 

obligations and determined that because the amendments pertained to “costs 

imposed upon conviction,” id., that were not finalized until “the termination of all 

appeals,” the amendments applied to cases pending on appeal, Jenks, 197 Wn.2d 

at 723. Jefferson held that GR 37, a rule governing the use of peremptory strikes

that was not adopted until after Jefferson’s trial, did not apply to Jefferson’s case 

that was pending on appeal because the precipitating event was voir dire. 
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Jefferson, 192 Wn.2d at 243, 249. But both cases have been distinguished from 

sentencing. Jenks declined “to extend” Ramirez to a provision amending the SRA 

and confined its holding to the “narrow subject matter of ‘costs imposed upon 

conviction.’ ” Jenks, 197 Wn.2d at 723 (quoting Ramirez, 191 Wn.2d at 749). And 

this court has concluded that Jefferson, while including “expansive language” 

about the applicability of new statutes and amendments to cases pending on 

appeal, did not involve a sentencing statute and its applicability in that context is 

“limited.” State v. Molia, 12 Wn. App. 2d 895, 902, 460 P.3d 1086 (2020). In 

accordance with cases focused on sentencing changes, the more natural 

“precipitating event” for the determination and application of an offender score is 

sentencing, not the termination of the action triggering cost shifting. 

We conclude that there is no clear legislative intent to apply the 2023

amendments to the offender score provision to Johnson’s case. While this 

necessarily means that there will be individuals who do not benefit from the 

amended law, we do not agree with Johnson that the law will fail to “remedy the 

injustice” it was enacted to address. It will do so going forward as RCW 9.94A.345 

and 10.01.140 direct as the general rule. See Jenks, 197 Wn.2d at 711 

(recognizing that “[a]lthough the outcome is harsh, the legislature commands [the] 

result.”).

IV

Johnson contends that remand is required to strike the $500 VPA imposed 

as a mandatory fee at the time of sentencing based on new legislation. State v. 
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Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). The State concedes that 

remand to strike the VPA is appropriate. We accept the State’s concession.

V

We remand to strike the VPA from Johnson’s judgment. We otherwise 

affirm Johnson’s convictions and sentence.

WE CONCUR: