### FILED JULY21, 2015 In the Office ofthe Clerk ofCourt W A StateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 32996-8-111 ) 

### Respondent, ) ) 

### v. ) 

### UNPUBLISHED OPINION ) 

### ARTHUR DALE COOPER, ) ) 

### Appellant. ) LAWRENCE-BERREY, 

### 1. - 

### Ajury convicted Arthur Cooper ofsecond degree burglary, second degree vehicleprowling, and second degree possession ofstolen property. On appeal, he contends thatthe prosecutor, in closing arguments, improperly shifted the burden ofproofand commented on his rightnot to testifY attrial. Mr. Cooper also contends thatthetrial courtprohibited him from presenting ameaningful defense by excluding his hearsay statements made to the victim. Mr. Cooperfurther contends thathe did notreceive effective assistance ofcounseL We disagree with his contentions and affirm.No. 32996-8-III State 

### v. Cooper
FACTS John Gore and VeronicaDawkins shared a home at4309 TacomaAvenue South in Tacoma. In the early morninghours ofMarch 28, 2013, Ms. Dawkins woke up and noticed someone in Mr. Gore'spickup truck. Thetruckwas parked behind theirhouse in
an area surrounded by a chain-link fence. Ms. Dawkins saw a person leaning into the truck and rummaging through it. The internal dome light ofthe truck was on, highlightingthe person inside. Ms. Dawkins immediately woke up Mr. Gore and told him what shehad seen. Mr. Gorejumped out of bed, taking time onlyto put on a pair ofpants. He headed downstairs and outto the backyard. Ms. Dawkins saw Mr. Gore run out the backdoor and the man in the truck jump out. Theperson fled into the alley with Mr. Gore right behind. Ms. Dawkins had not seenthis man before. When Mr. Gore and the man were out ofsight, Ms. Dawkins noticed a second person coming out ofthe garage ofthe home. The man was moving fast. Ms. Dawkins did not know this man either. Atthatpoint, Ms. Dawkins ran to the telephone and called police.According to Mr. Gore, after Ms. Dawkins woke him, heheaded downstairs to the backyard. He looked through the kitchen window on the way out and saw a person


### 2

### No.**32996~8~III** State 

### v. Cooper 

### rummaging through his truck. The man's body was about**one~half** 

### to two-thirds inside. To Mr. Gore, it appeared that the manwas moving things inside the truck. Mr. Gore saw that the dome light was on, illuminating the man. Attrial, 

### Mr. Gore identified the man as Mr. Cooper. As soon as Mr. Gore got outside, Mr. Cooperjumpedout ofthe truck, tore down the gate to the home, and ran down the alley. Mr. Gore yelled, '" Stop thief.'" 2 Report ofProceedings (RP) at 202. Despitebeing barefoot, Mr. Gore chased Mr. 

### Coopermany blocks through the neighborhood over several fences and through backyards. Mr. Gore
never lost sight ofMr. 

### Cooper. Throughout the incident, Mr. Gore told Mr. 

### Cooper repeatedly that Mr. Cooperwas goingtojaiL According to Mr. Gore, Mr. 

### Cooper said he
was sorry for breaking into Mr. Gore's truck. At one point, Mr. 

### Gore chased Mr. Cooper through the front yard ofa house. WalterLarson, a private security guard, was waiting outside the house after responding to
atriggered alarm. Mr. Larson heard someoneyell for help and to call the police. Shortly thereafter, Mr. Larson heard what sounded like a fence rattling. He turned and saw two
men round the comer ofthe house. One man was chasing another, yelling to call the police. Mr. Larson put a spotlight on the first man, who stopped for a second. The first

3No. 32996-8-III State 

### v. Cooper

man then brushedpast Mr. Larson and keptrunning. Mr. Larson later identified the first
man as 

### Mr. Cooper. Mr. Larson flagged down TacomaPolice Officer Jeffrey Maahs and pointed him in the direction ofMr. Cooper and Mr. Gore. OfficerMaahs found Mr. Cooper and Mr. Gore running through the streets. Officer Maahs activated his lights, and the two men stopped and sat on the steps ofa nearby home. Mr. Cooper was out ofbreath and appeared tired and sweaty. OfficerMaahs arrested Mr. Cooper. On the way to the patrol car, Mr. Coopertold OfficerMaahs, "'Iwas stupid and I made a mistake.'" 2 RP at 252. OfficerMaahs brought Mr. Cooperto Pierce Countyjail for booking. TacomaPolice Officer Brian Hudspeth also responded. When he arrived, Officer Maahs was in theprocess ofdetaining Mr. Cooper, who was lying against some steps and fully out ofbreath. 

### Mr. Gore was also out ofbreath and sweating. Officer Hudspeth gathered information from 

### Mr. Gore, and the pair then walked backto the Gore residence. While there, Officer Hudspeth gathered information from Ms. Dawkins. He also looked through the kitchen window mentioned by Mr. Gore and noted that he could see the truck from the window.

4No. 32996-8-III State 

### v. Cooper
OfficerHudspeth and Mr. Gore examined the truck. Officer Hudspeth noticed that both doors were ajar. Mr. Gore usually did not lock his truck doors. However, he knew the doors to the truck were shut after he parked it and the fence gates were closed. When Officer Hudspeth fully opened the doorto the truck, he saw a large pile ofobjects on the front seat. 

### Mr. Gore explained that the items were previously in the backseat. Items in the truck included several GPS I units, somephotography equipment, a tripod, and miscellaneous electronics. 

### Mr. Gore also noticed that his glove boxhad been ritled through
.

. OfficerHudspeth described theplacement ofthe items in the front seat as "staging." 3 RP at 278. Based on his years ofresponding to burglaries, OfficerHudspeth explained at trial that "staging" is when a perpetrator goes through thehouse or car, gathers all the items he wants to take, and puts those items in a pile. Once the perpetrator is ready to leave, he can quickly pick up the pile ofitems on his way out. Mr. Gore recalled that the doorto his garage was latched earlierin the day. However, after returning to his house with Officer Hudspeth, the door appeared unlatched. OfficerHudspeth saw that the walk-in door to the garage was fully open.

I Global positioning system. 5

### No. 32996-8-111 State v. Cooper


### Officer Hudspeth and Mr. Gore walked through the garage and determined that nothing appeared to bemissing. The same was true for the truck. Meanwhile, Officer Maahs remained at thejail with Mr. Cooper. During the booking process, corrections officers searched Mr. Cooper's wallet. Inside the wallet, they found a debit card bearing the name ofAmanda Dillard. OfficerMaahs collected the card and booked it into evidence. OfficerMaahs contactedMs. Dillard and herhusband, Jason Dillard, about the debit card. Ms. Dillard's card was stolen when someone broke into Mr. Dillard's truck less than two months earlier and took Mr. Dillard's wallet. The debit card was inside the wallet. The Dillards' truck was located in the alley behind the Dillard house. The Dillard house and the Gore house are about ablock and a halfapart. TheDillards discovered that someone used the card at a business located within a three mile radius oftheir home after the card was stolen. Neither ofthe Dillards gave Mr. 

### Cooper or anyone else permission to possess Ms. Dillard's debit card. The Dillards did not know Mr. Cooper. Mr. Cooperdid not contact the Dillards to return the stolen card. Mr. Cooper was charged by amended information with residential burglary and second degree vehicle prowling for breaking into Mr. Gore's fenced yard and truck, and second degree possession ofstolen property for possessing Ms. Dillard's debit card. The


### 6No. 32996-8-III 

### State v. 

### Cooper charges were tried to ajury. At the conclusion ofthe State's case, Mr. Cooper moved to dismiss all counts for insufficient evidence. The trial court grantedhis motion as to the charge ofresidential burglary but allowed the Stateto submitthe count to thejury on the lesser charge ofsecond degree burglary. The court denied Mr. Cooper's motion to dismiss the remaining counts. Ajury found Mr. Cooperguilty ofseconddegree burglary, second degree vehicle prowling, and second degreepossession ofstolen property. Mr. Cooper's extensiveprior criminal history resulted in an offender score of9+. The court sentenced Mr. Cooperto 55 months for the burglary and 25 months for the possession ofstolenproperty, to run concurrently. Mr. Cooper appeals. He contends that a new trial is warranted because of prosecutorial misconduct during closing arguments and ineffective assistance ofcounsel. He also maintains that the trial courtprecluded him from presenting a meaningful defense by excluding certain hearsay statements. ANALYSIS 

### A. Whether theprosecutor's comments improperly shiftedthe burden of proof To establishprosecutorial misconduct, a defendant must showthat the prosecutor's statements were improper and, as a result, prejudicial. 

### State v. 

### Dhaliwal, 150 Wn.2d 559,
7No. 32996-8-III State v. Cooper 578, 79 P.3d 432 (2003). For improper statements thatwere followed by a proper objection, a prosecutor's statements are prejudicial ifthe statement had a substantial likelihood ofaffecting thejury'sverdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). However, "[i]fthedefendant did not object at trial, the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and 

### ill intentioned that an instruction could not have cured the resulting prejudice." 

### ld. at 760­ 61. "Underthis heightened standard, the defendant must show that (1) 'no curative instruction would have obviated any prejudicial effectonthejury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood ofaffecting thejuryverdict.'" Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 PJd43 (2011)). "Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant
or 

### ill intentioned and more onwhetherthe resulting prejudice could have been cured." 

### ld. at 762. A properjuryinstruction generally cannot cure a statementthat has an inflammatory effect. 

### ld. at 763. "Any allegedly improper statements should be viewed within the context ofthe prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and thejuryinstructions." Dhaliwal, 150 Wn.2d at 578.

8 

# I
t



# ! \No. 32996-8-111 State 

### v. Cooper
In closing arguments, prosecutors are allowed latitude to argue the facts in evidence and reasonable inferences from the facts. Id. at 577. However, they are not permitted to make prejudicial statements that are not sustained by the record. [d. Nor mayaprosecutor's argument shiftthe burden ofproofto the defendant. Thorgerson, 172 Wn.2d at453. "Aprosecutor generally cannot comment on the defendant's failure to present evidence because the defendant has no duty to presentevidence." [d. "Remarks ofthe prosecutor, even ifthey are improper, are not grounds for reversal ifthey were invited orprovoked by defense counsel and are in reply to his orher acts and statements, unless the remarks are not a pertinent reply or are soprejudicial that a curative instruction wouldbe ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). A prosecutorcan argue that the evidence does not supportthe defense theory; a prosecutor is entitled tomake a fair response to defense arguments. [d. at 87. The mere mention that a defendant is lacking evidence does not constitute prosecutorial misconduct or shiftthe burden ofproofto the defense. State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553 (2009). A prosecutor is entitled to point out a lack ofevidentiary support for a defendant's theory ofthe case. State v. Killingsworth, 166 Wn. App. 283, 291-92, 269 P.3d 1064 (2012).

9No. 32996-8-111 State 

### v. Cooper
Mr. Cooper contends that theprosecutorurged thejurytopresume Mr. Cooper knew the card was stolen because he possessed the card. Thus, according to Mr. Cooper, the prosecutor was relieved ofher constitutionally mandatedburden ofprovingthe element ofknowledge beyond a reasonable doubt. Mr. Cooper did not objectto the challenged statement at trial. Theprosecutor's challenged statement is set forth below: One ofthe other elements for possession ofstole[n] property is that the card was being withheld from the true owner, from Mrs. Dillard, and it definitely was being withheld from her. She didn'tknow the defendant. SergeantDillard doesn'tknow the defendant. Neither ofthem gave the defendant permission to have the debit card. Neither ofthem even knew thatthe defendant had the debit card, and the defendant had it in a wallet, in apocket, on his person, so there's no way that ifthe Dillards had walked by him on the streetthat they would have known he had it. He was definitely withholding it from the Dillards, And the incident occurred in the state ofWashington, specifically, again, in the City ofTacoma. So the only issue in this particularcharge is whether the defendant knew that the card was stolen. Again, we'renow looking at circumstantial evidence. We're looking at the fact that the debit card was in the name of Amanda Dillard, which was clearly on the card, and you will seethat when you take itback into thejuryroom, that the defendant is not Amanda Dillard, thatthe defendant is not known by either ofthe Dillards. One could conclude that he doesn'tknow them. And when you look at the "knowledge" instruction, which is Instruction No. 18, itbasically says thatthe individual knew orreasonably could have known that the card was stolen. Andyou reasonably would know that the card was stolen because you're not entitledto it. And keep in mind thatthe Dillards live basically about a block away from where Mr.


### 10 

# INo. 32996-8-III State v. Cooper
Gore lives
.... Yes, we'retalking about two different dates, but they're pretty close to each other. These are the facts thatthe State would ask you to consider. 3 RP at 362-64. Defense counsel during closing arguments noted that there was no evidence whatsoever that Mr. Cooperhad anything to do with the theft ofthe card and also no evidence that Mr. Cooper wouldhave known or did know it was stolen. Defense counsel said thatpeople find things all the time. Counsel then gave examples ofpeople who lost items, reporting that sometimes the items were turned in and sometimes not. In rebuttal the prosecutor responded to defense counsel's argument thatpeople find things all the time and hopefully tumthem in. Her response was that there was no evidence that Mr. Cooperturned the card in. The prosecutor stated, "There is no way that either [of] the Dillards would have known that the defendanthad this card, and there is no
reason for him to have kept the card except for the fact that it was stolen. There's no evidence that he turned it in.
. .. 

### Itis reasonable to concludethat the defendant knew or should have known that it was stolen." 3 RP at 368. When taken in context, the prosecutor in closing argument did not attempt to relieve the State ofproving the element ofknowledge. Instead, the prosecutor identified the evidence that thejurycould use to reasonably conclude that Mr. Cooper had
11No. 32996-8-III State 

### v. Cooper knowledge. In her closing statement, the prosecutor addressed the knowledge elementof the charged crime, recited thejury instruction for the knowledge element, and provided circumstantial evidence that would support a finding ofknowledge, including the fact that Mr. Cooper was not entitled to have the card. This was notburden shifting butwas identifYing circumstantial evidence in the record to support the prosecution's theory. Burden shifting did not occur in the prosecutor's rebuttal statements either. The prosecutor simply responded to the defense argument that the stolen property could be in
aperson'spossession because they found it. Theprosecutor noted there was no evidence that Mr. Cooper found the card, and that fact canbe used to support a finding of knowledge. The prosecutor did not tell thejuryto presume knowledge simply because 

### Mr. Cooperpossessed the stolen debit card. Theprosecutor set forth thejury instructions and circumstantial evidencethat the jury could use to find that Mr. Cooperhadknowledge. "Althoughbare possession of recently stolen property will not support the assumption that a person knew the property
was stolen, that fact plus slight corroborative evidence ofother inculpatory circumstances tending to show guilt will support a conviction." State v. Ford, 33 Wn. App. 788, 790, 658 P.2d 36 (1983). "Knowledge may not bepresumed because a reasonable person wouldhave knowledge under similar circumstances, but such knowledge may be
12

### No. 32996-8-111 State v. Cooper
inferred." 

### ld. Here, the fact that Mr. Cooperhadthe stolen debit card with Ms. Dillard's
name on it yet made no attempttoreturn it was circumstantial evidence to support an inference that he knew the cardwas stolen. Theremarks ofthe prosecutor were not improper. B. Whether theprosecutor impermissibly commentedon Mr. Cooper's right not to testifY Mr. Cooper contends that the prosecutor improperly commented on his rightnotto testifY. Mr. Cooper challenges the prosecutor'sremark in rebuttal that Mr. Cooper did not have a legitimate reason to be in Mr. Gore's backyard. Mr. Cooper contends that because he was the onlyperson who could testifY to why he was in the backyard, the prosecutor's statement drew attention to the fact that Mr. Cooper did not testifY. Mr. Cooper did not object at trial. The prosecutor's statement was not improperbut instead was a response to Mr. Cooper's theory ofthe case presented in defense counsel's closing argument. Defense counsel argued that there were legitimate reasons why a person may be out and about in the evening, pointing out that aperson on a bicycle was seen riding onthe night ofthe incident. Defense counsel argued that it wasjustas reasonable to believe thatMr. Cooper
came across the truck in the middle ofthe night and observedthe odd circumstances. Counsel argued thatwhile some people keep going, others become involved and look into 

### 13 

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# I ¥ ,

### No. 32996-8-III State v. Cooper


### the circumstances, and for instance, call 911 orpound on doors. He suggested that this could be Mr. Cooper's situation. Counsel added, "There is no doubt he is in the wrong place at the wrong time, but I would submit to you that to leap to the conclusion that he's there with criminal intent, criminal knowledge, is more thanjustreasonably inferring that he's there with the intent to commit a crime." 3 RP at 378. In rebuttal, the prosecutor stated, There is no testimony that has been presented in this case that you can conclude that the defendant had any legitimate reason to be in Mr. Gore's fully fenced-in backyard in the early morning hours ofMarch 28th, 2013. What we have is more than sufficientevidence to show that the reason the defendant was there was for an intent to commit a crime, and that crime was theft. We know the property had been moved from the back to the front seat. We know the defendant was found rummaging in that pickup truck. There was no reason for him to have done any ofthose ifhe was there for some legitimate reason, butthe State contends that, based upon all the evidence in this case, he wasn'tthere for any legitimate reason. 3RP at 386-87. Theprosecutor's rebuttal argument-thatno testimony was presented in the case to conclude that Mr. Cooper had a legitimate reason for being in the yard-was in direct response to Mr. Cooper's argument that he simply wanted to help and was in the wrong place at the wrong time. Theprosecutor's rebuttal statement was not improper.

14No. 32996-8-III State 

### v. Cooper


### C. Whether excludinghearsayprecludedMr. Cooper frompresentinga meaningful defense A trial court's decision regarding the admission ofevidence is reviewed for an abuse ofdiscretion. State v. Thomas, 150 Wn.2d 821,856,83 P.3d 970 (2004), abrogated inparton othergrounds by Crawfordv. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). "[T]hetrial court's decision will be reversed only ifno reasonableperson would have decided the matter as the trial court did." 

### Id. "Proper objection mustbe made at trial toperceived errors in admitting orexcluding evidence and failure to do soprecludes raising the issue on appeal." 

### Id. Mr. Cooper contends that the trial court infringed on his right to present a defense by excluding Mr. Gore from testifying abouttwo statements made by Mr. Cooperto 

### Mr. Gore. The trial court excluded these statements as hearsay. Mr. Cooper soughtto admit his two "admissions"to Mr. Gore-thathe did nottake anything and thatthe truckwas open. The SixthAmendmentprovides, in part, "In all criminal prosecutions, the accused shall enjoy theright
...tohave compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI. The Sixth Amendmentright ofcompulsory process is applicable to the states through the FourteenthAmendment. Thomas, 150 Wn.2d at 857. Dueprocess provides a defendantthe right to offerwitnesses, topresent a defense, and to 15No. 32996-8-III 

### State 

### v. Cooper present the defendant's and prosecution's versions ofthe facts to thejuryfor determination ofthe truth. 

### Id. The right to compulsoryprocess is not absolute. 

### Id. Hearsay is not admissible attrial except as provided by rule or statute. ER 802. '" Hearsay' is a statement, other than one made by the declarant whiletestifying at the trial orhearing, offered in evidence to prove the truth ofthe matter asserted." ER 80I(c). In 

### Thomas, the defendant contended thatthetrial court should have allowed him to cross-examine a police officer about a witness's out-of-court identification ofa man, without having to call the witness. 150 Wn.2d at 859. The trial courtexcluded the statementunless the witness testified because it considered the statement hearsay. 

### Id. The appeals courtupheld the trial court'sruling, finding that Mr. Thomas did not object and could have called the witness to testify to what she saw, but declined to do so. 

### Id. Thus, Mr. Thomas waived a hearsay objection and the ruling did not infringe on his right topresent evidence. 

### Id. Here, as in 

### Thomas, the trial court did not infringe on Mr. Cooper's right topresent evidence to support a defense. Mr. Cooper soughtto presenthis own statements through
a witness. The court correctly determined thatthese statements were hearsay and excluded the testimony. Mr. Cooperwas available to testify to his statements but instead exercised his right not totestify attrial. Thus, the consequence ofexercising this right
16No. 32996-8-111 State 

### v. Cooper

was that his statements to Mr. Gore could not bepresented attrial to supporthis defense, absent an exception to the hearsay rule. 2 Mr. Coopercontends on appeal that the statements should have been allowed under ER 803(a)(3) to show his state ofmind. However, he did not pursue this exception at trial. He waivedthe right to raise the issue on appeal. D. Whether Mr. Cooper's counselwas ineffective To demonstrate ineffective assistance ofcounsel, a defendant must show 

### (1) defense counsel's representation was deficient, i.e., it fell below an objective standard ofreasonableness based on consideration ofall the circumstances, and (2) defense counsel's deficient representation prejudiced that defendant, Le., there is a reasonable probability that except for counsel's unprofessional errors, the result ofthe proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 

### In a claim ofineffective assistance ofcounsel based on a failure to challengethe admission ofevidence, a defendant must show (1) an absence oflegitimate strategic or tactical reasons supportingthe challenged conduct, (2) that an objection to the evidence

2 An admission by a party opponent is not hearsay ifthe statement is offered againstthe party. ER 801(d)(2). This rule does not apply to Mr. Cooper's statements because he offered his statements to supporthis defense. 17No. 32996-8·III State 

### v. Cooper
would have likely been sustained, and (3) the result ofthe trial would have been different had the evidence not been admitted. State v. Sexsmith, 138 Wn. App. 497, 509, 157 P.3d 901 (2007). Mr. Cooper's counsel was not deficient for failing to object during closing argument. Theprosecutor's statements wereproper so there was no need for defense counsel to object. As for Mr. Cooper's out-of-court statements, even ifwewere to conclude that counsel was deficient for failing to argue an ER 803(a)(3) hearsay exception, the result of the trial would not have been different withthe admission ofthe evidence. The admission ofthe two statements that Mr. Cooper did not take anything and that the truck
was open was cumulative evidence. Mr. Gore testified that nothing was missing from the truck and that he normally leaves his truck unlocked. Also, Mr. Cooper's out-of·court statements did not negate the element ofintent, which was the primary challenged element for the vehicleprowling and burglary charges. Forvehicle prowling, a reasonablejuror could still infer that Mr. Cooper had the intent to steal whenhe was found rummaging through the truck, even though the truck was unlocked and he did not manage to take anything. Similarly for second degree burglary, a reasonableperson could conclude that Mr. Cooper unlawfully entered Mr. Gore's fenced
18No. 32996-8-III State v. Cooper backyardwithoutpermission, regardless ifthe truck was unlocked and Mr. Cooperdid not take items from the truck. The admissions ofthe two out-of-court statements would nothaveproduced a different result. Mr. Cooper's ineffective assistance ofcounsel challenge fails. STATEMENT OF ADDITIONAL GROUNDS FORREVIEW Inhis statement ofadditional grounds, Mr. Cooper contends that his counsel was ineffective for failing to challenge Mr. Gore's and Ms. Dawkins's testimonies that the backyardwas fully fenced.3 Counsel was not defective for failing to further question these witnesses on this issue. Rather, this decision not to ask such questions was likely strategic. Both Mr. Gore and Ms. Dawkins testified that the yard was fenced. Had defense counsel further inquired into this subject, the witnesses would have had a further opportunity to repeat theirtestimony. Instead ofchallenging this evidence, defense counsel's tactic was to focus thejuryon the intent element for second degree burglary, which was a harder element for the State to establish.

3 The charge for second degree burglary required thejuryto find in partthat Mr. Cooperremained unlawfully in a building otherthan a dwelling. Thejury was instructed that a building, in addition to its ordinary meaning, includes a fenced in area. "Fenced area ... includes an area that is completely enclosed eitherby fencing alone or a combination offencing and other structures." Clerk'sPapers at 67. 19 

# INo. 32996-8-II1 

### State 

### v. Cooper
Mr. Cooper also challenges the trial court's decision notto grant a drug offender sentencing alternative (DOSA). Mr. Coopercontends that the basis ofthe court's refusal to impose a DOSA sentence was improper. Here, the courtrefusedto impose a DOSA sentence because Mr. Cooper continuedto believe in his own innocence. The DOSAprogram authorizes trialjudges to sentence eligible, nonviolent offenders to a reduced sentence, substance abuse treatment, and increased supervision in
an attempt to help the offenderrecover from addiction. 

### State v. 

### Grayson, 154 Wn.2d 333, 337-38, 111 P.3d 1183 (2005). Whetherto give a DOSA is a decision left to the trial judge's discretion. 

### Id. at 335. The trial court's decision will notbe disturbed on appeal unless the court's decision is '" manifestly unreasonable orbased on untenable grounds or untenable reasons.'" 

### State v. 

### Dye, 178 Wn.2d 541,548,309 P.3d 1192 (2013) (quoting 

### In re Marriage o/Littlefield, 133 Wn.2d 39, 46-47,940 P.2d 1362 (1997)). Generally, the DOSA sentencing decision is not reviewable. 

### Grayson, 154 Wn.2d at 338 (citing RCW 9.94A.585(1)). However, an offendermay always challenge the procedure by which a sentence is imposed. 

### Id. Although no defendant is entitledto an exceptional sentence below the standard range, every defendant is entitledto ask the trial court for such a sentence "andto have the alternative actually considered." 

### Id. at 342. When a trial court categoricallyrefuses to consider a DOSA, orrefuses to consider a
20No. 32996-8-111 State v. Cooper
DOSA for a class ofoffenders, the trial court fails to exercise discretion and is subject to reversal. Id. Here, the trial court considered imposing a DOSA sentence but determined that it
was not appropriate in Mr. Cooper's situation. While the court had not seen a DOSA evaluation, the court noted that a DOSA was not appropriate because Mr. Cooper denied committing the crimes. The efficacy ofDOSA is largely dependent on a person's being truthful and cooperative in his or her treatment. A defendant is entitled to require the State to prove his or her guilt beyond a reasonable doubt. However, once ajuryhas made the determination, a court may consider a defendant's continued protestation ofinnocence as
an indicator militating against a successful DOSA outcome. State v. Hender, 180 Wn. App. 895,902,324 P.3d 780 (2014). We conclude that the trial court's decision was not manifestly unreasonable. APPELLANT'S MOTION TO STAY CONSIDERATION AND TO FILE SUPPLEMENTAL BRIEFING Mr. Cooper filed a motion to stay consideration ofhis case so to allow supplemental briefing. He filed his motion the day priorto this panel's consideration of his case. The basis ofhis motion is the Supreme Court's recent decision ofState v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). 21No. 32996-8-111 State v. Cooper There, two cases were discussed. In each, the trial court imposed LFOs (legal financial obligations) without making an individual determination ofthe defendant's ability to pay. The Blazina court held that RAP 2.5(a) generally gives appellate courts discretion to refuse to review errors that were notraised to the trial court. Id. at 834-35. TheBlazina court determined that "[n]ational and local cries for reform ofthe broken LFO [legal financial obligations] systems demand that this court exercise its RAP 2.5(a) discretion and reach the merits ofthis case." Id. at 835. TheBlazina court ultimately held, "[T]he sentencingjudge must considerthe defendant's individual financial circumstances and make an individualized inquiry into the defendant's current and future ability to pay[, and] the record mustreflect this inquiry." Id. at 837-38. 

# I Here, Mr. Cooper did not raise the LFO issue before the trial court or in his assignments oferror on appeal. We, therefore, exercise our discretion under RAP 2.5(a) 

# I
and deny his request to file a supplemental briefcontesting imposition ofLFOs. By 

# 1 

# , implication, we also deny his request to stay consideration ofhis case. Nevertheless, we 

# t deem it most consistentwith the policy announced in Blazina to authorize Mr. Cooperto raise this issue before the trial court. 

# I

We therefore affirm on all issues, but weremand to the trial court for the limited purpose ofcomplying with Blazina.
22No. 32996-8-II1 State 

### v. Cooper
A majority ofthe panel has detenninedthis opinionwill notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# Kors~

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