### 2016 AUK -1 An 9=29

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. JOSEPH D. STRANGE, Appellant. No. 72953-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 1.2016 

### Spearman, J. —Joseph Strange challenges imposition ofthe mandatory 

### deoxyribonucleic acid (DNA) collection fee under RCW 43.43.7541 as violating substantive due process and equal protection. Because he makes this challenge for the first time on appeal but fails to establish manifest constitutional error, we 

### reject his claims. In a statement ofadditional grounds, Strange also argues that the trial court erred in excluding evidence, thatthe prosecutorcommitted reversible misconduct, and thatthe trial court improperly imposed an exceptional sentence. Finding no error, we affirm. FACTS 

### Strange was driving a truck inBothell one evening when he passed a 

### police car. The policeofficerran a routine check of the license plate and determined thatthe vehicle was stolen. After calling for backup, Officer AtterburyNo. 72953-5-1/2 signaled Strange to stop. Strange did not stop but sped up and turned onto the freeway. Atterbury followed with his lights and sirens activated. Another officer joined Atterbury inthe pursuit. Police department policy only authorized vehicular pursuit in limited situations, and Atterbury's sergeant gave the orderto terminate the pursuit. Atterbury turned off his lights and siren and slowed. When Strange exited the freeway, Atterbury and the otherofficer followed. Atterbury observed Strange 

### turn intothe parking lot of an AM/PM minimart and strike a Ford Taurus. Strange continued to flee and the officers resumed their pursuit. Strange eventually ran a 

### red light, collided with an oncoming car, and fatally injured the driver. 

### Strange was convicted ofsecond degree felony murder and possession of

a stolen vehicle. The trial court calculated an offender score of 18 and 37, 

### respectively. On the murder charge, the court imposed a standard range sentence of397 months. On the stolen vehicle charge, the court determined an 

### exceptional sentence waswarranted based onRCW9.94A.535(2)(c).1 It imposed a sentence of 75 months, exceeding the standard range of 43-57 months, and ordered the terms to runconsecutively instead of concurrently. The 

### court imposed only mandatory fees, including the one hundred dollars DNA collection fee required by RCW43.43.7541. The court informedStrange of his

1The statute establishes an aggravating circumstance as follows: The defendant has committed multiplecurrentoffenses and the defendant's high offender score results in some of the current offenses going unpunished.No. 72953-5-1/3 

### obligation to begin making payments on the fees within 60 days of his release from confinement and to complete the payments within 60 months after release. DISCUSSION For the first time on appeal, Strange challenges the trial court's order imposing the DNAcollection fee as a condition of his sentence. He claims the orderviolates substantive due process as applied to indigent defendants and equal protection as applied to a repeatfelony offender. We conclude that he is not entitled to raise these claims for the first time on appeal because in neither
case can he show manifest constitutional error as required under RAP 2.5. In State v. Shelton, No. 72848-2-1, 2016 WL 3461164 (Wash. Ct. App. 

### June 20, 2016) we held that a substantive due process challenge to the DNAfee statute is not ripe for review untilthe State attempts to collectthe fee. jd. at *6. And in State v. Lewis, No. 72637-4-I, 2016 WL 3570550 (Wash. Ct. App. June 

### 27, 2016), we rejected an equal protection challenge to imposition ofthe DNA collection fee on defendants who had previously paid it, concluding there is a 

### rational basis to impose the DNA collection fee forevery felony. In light of Shelton and Lewis, Strange cannot showthatthe order imposing the DNA 

### collection fee implicates eitherofthe asserted constitutional rights. Accordingly, his claims may not be raised for the first time on appeal. Statement ofAdditional Grounds 

### Strange asserts three further challenges in his statementof additional 

### grounds. First, he argues that the trial court erred in excluding evidence that OfficerAtterbury was sanctioned by the Bothell policedepartmentforengaging in
3No. 72953-5-1/4


### a vehicular pursuit contrary to department policy. Statement of Additional Grounds (SAG) 1. He asserts that excluding this evidence prevented him from impeaching Atterbury and violated his due process right to a fair trial. We review a trial court's evidentiary decisions for abuse ofdiscretion. In re Pers. Restraint ofDuncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009) (citing State v. McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999). The trial court abuses its discretion if its decision is manifestly unreasonable or if it is based on untenable grounds. Id. Strange moved in limine to admit evidence thatAtterbury had been suspended for one day as a sanction for violating department policy concerning 

### pursuit of fleeing vehicles. Strange soughtto introduce the sanction to attackthe 

### credibility ofAtterbury's statement concerning the pursuit. The trial court held that evidence aboutthe departmental policy, the department's investigation into 

### Atterbury's conduct, and the possibility ofcivil liability were admissible, but it excluded evidence ofthe actual sanction imposed as irrelevant. Strange argues thatthe exclusion of this evidence prevented him from exposing Atterbury's bias 

### to the jury. But at trial, Strange questioned Atterburyextensively concerning 

### department policy, whether his pursuit ofStrange compliedwith that policy, department investigation into the pursuit, and potential civil liabilityforviolating the policy. There was no abuse ofdiscretion. 

### Strange next argues that the prosecutorcommitted reversible misconduct 

### bytrying toelicit sympathy for the victim of an uncharged crime. Toprevail on a claim of prosecutorial misconduct, the defendant must establish that the
4No. 72953-5-1/5 

### prosecutor's conductwas "'both improperand prejudicial inthe context of the entire record and the circumstances at trial.'" State v. Thorqerson. 172 Wn.2d 438, 442, 258 P.3d 43, 46 (2011) (quoting State v. Maqers. 164Wn.2d 174, 191, 

### 189 P.3d 126 (2008)). When raised forthe first time on appeal, the defendant must show thatthe misconductwas flagrant and so prejudicial that it could not have been cured by timely objection at trial. Id. at443 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). A prosecutor has wide latitude to argue reasonable inferences from the evidence, jd. at 453. But a prosecutor must not referto evidence outside the record or encourage thejury to convict on improper grounds. State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (citing State
v. Belqarde. 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988)). 

### Inclosing argument, Strange argued that he had driven negligently but not 

### recklessly. He asserted that the State had failed to showthat he acted with indifference to human life. Inrebuttal, the prosecutor argued thatthe collision at the AM/PM demonstrated Strange's lack ofconcern for the people he 

### endangered.2 The prosecutorargued: What aboutthis driver atthe am/pm? What aboutthat guy? How concerned was the defendant about his welfare? He could have been 

### seriously injured in this collision. Did he stop and get out and see what 

### was going on? Not a bit ofit. He's allaboutgetting away from the police. So he just left that guy back there. That's how much concern forpeople the defendant had that particular night. Verbatim Report ofProceedings (VRP) (11/19/14) at 36.

2Strange asserts that the prosecutor argued "'[t]he victim of the Taurus, where is their justice?'" SAG 3. He provides no citation to the record. The quoted sentence does notappearto be partofthe prosecutor's closing argument.No. 72953-5-1/6 The prosecutor's comments were reasonable inferences from the 

### evidence and did notencourage the jury to convict on improper grounds. There

was no misconduct. 

### Finally, Strange argues thatthe trial court erred in imposing an exceptional sentence. SAG 2. He appears to argue thatthe State encouraged this error by including a misleading statement in its sentencing memorandum. The trial courtfound that because of Strange's offender score of 37, the possession of stolen vehicle conviction would go unpunished unless an exceptional sentence was imposed. The court concluded that itwas appropriate to impose an exceptional sentence of 75 months consecutive to the 397 months for second degree murder. 

### Strange does not challenge the finding of fact or conclusion of law supporting the exceptional sentence. Strange objects to a sentence in the State's sentencing memorandum which states thatthe prosecutor "soughtfrom the beginning to punish Mr. Strange to the fullest extent ofthe law." SAG 2. Strange argues thatthis statement is untrue. He alleges thatthe State had previously offered to recommend the lowend at sentencing ifStrange pleaded guilty to first 

### degree murder. Neither the sentencing memorandum nor the plea offerare in our record on review, but even iftrue, Strange's assertion is irrelevantto the court's 

### authority to impose an exceptional sentence on a ground undisputedlywithin its statutory authority. The claim is without merit.No. 72953-5-1/7
Affirmed.

WE CONCUR: 

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