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

ADRIAN G. SASSEN VANELSLOO, Appellant. No. 72553-0-1 DIVISION ONE UNPUBLISHED OPINION
FILED: February 6, 2017 

### Appelwick, J. — Sassen Vanelsloo argues that the dismissal of a sitting 

### jurorwas error requiring a new trial. He contends that hemust beresentenced, because the firearmenhancements are not supported by sufficient evidence. He 

### argues that the Statefailed toprovethattheshotgunwasoperable orthat he was armed, where the shotgun wasfound in the rear cargo area ofthecar. Weaffirm but remand for a hearing on legal financial obligations. FACTS 

### On September7,2012, AthenaAardema had acourtdate. Herboyfriend, Adrian Sassen Vanelsloo, drove her to the courthouse in a black Kia sport utility 

### vehicle (SUV). He picked herup afterward. Theywere ontheirwaytoAardema's father's house when Sassen Vanelsloo took a right turn at a traffic lightwhere no 

### rightturns were permitted on red lights.No. 72553-0-1/2 

### Bellingham Police Officer Lewis Leake was monitoring traffic that morning. He observed the black Kia SUV turn right on the red light. OfficerLeake activated 

### his lights to pull over the Kia. However, as soon as he turned tofollow the Kia, the 

### Kia began moving veryrapidly, trying to elude him. Hefollowed the Kia through several intersections, as it moved erratically, forcing other cars to stop abruptly to
avoid a collision. Inthe middle ofan intersection, Sassen Vanelsloo stopped the car, jumped 

### out, and ran. When Officer Leakearrived at the car, he asked Aardema who had 

### been driving the car. At first, she told him a man named Jesse was driving, because itwas an alias Sassen Vanelsloo sometimes used. Eventually, Aardema admitted to Officer Leake that Sassen Vanelsloo was the driver ofthe car. OfficerLeake allowed Aardema to leave the scene. As he was helping her 

### collect herpersonal belongings from the car, he noticed a gun in the rearcargo 

### area. Atthatpoint, hedecided toimpound the car andrequest a searchwarrant. 

### When the police officers later executed a search warrant ofthe Kia, they found severalfirearms, a backpackcontaining bags with controlled substances in them, drug paraphernalia, and multiple cellphones. 

### Bellingham police encountered SassenVanelsloo again on December 11, 2012. Sassen Vanelsloo was charged with unlawful possession of a controlled 

### substance, attempting toelude a pursuing police officer, threecounts ofunlawful 

### possession ofafirearm inthefirstdegree, and fourcounts ofunlawful possession of a controlled substancewith intent to deliver. The State also alleged that Sassen 

### Vanelsloo was armed with a firearm—specifically, a 12 gauge shotgun—when heNo. 72553-0-1/3
committed the unlawful possession of a controlled substance and unlawful possession with intent to deliver offenses. The jury found Sassen Vanelsloo guilty as charged. And, itfound that he
was armed with a firearm. The trial court imposed five firearm sentence enhancements. Sassen Vanelsloo appeals. DISCUSSION Sassen Vanelsloo makes multiple arguments on appeal. He contends that the trial court erred in dismissing a sitting juror. He challenges the firearm enhancements, asserting that the State failed to prove that the shotgun was operable and that he was armed. He asserts that the trial court failed to inquire 

### into his ability to pay before imposing legal financial obligations. In a statement of 

### additional grounds, he argues that the convictions were supported byinsufficient evidence, the prosecutor committed misconduct, the trial court erred byadmitting portions of letters and telephone calls, and that cumulative error deprived him of a fair trial. I. Dismissal ofa Sitting Juror 

### Sassen Vanelsloo argues that the trial court erred in dismissing juror 12 based solely on her limited priorcontactwith a witness, Sharon Burton. Heasserts 

### that juror 12did not indicate an inability to be fair and impartial, so she was fit to

serve.No. 72553-0-1/4
This court reviews a trial court's decision to dismiss a jurorfor an abuse of discretion. State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000). RCW 2.36.110 provides, Itshall be the duty of ajudge to excuse from furtherjury service any juror, who inthe opinion ofthejudge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficientjury service. CrR 6.5 similarly states, "Ifat any time before submission ofthe case to thejury a juror is found unable to perform the duties the court shall order the juror 

### discharged, and the clerk shall draw the name of an alternate who shall take the juror's place on the jury." Together, these provisions impose an ongoing duty on the trial court to excuse anyjuror who is unfit. Jorden, 103 Wn. App. at 227. The trial court has discretion to hear and resolve issues regarding whether 

### a sittingjuror should be dismissed. \_± at 229. In acting in this capacity, the trial court has factfinding discretion, jd. This means that the judge may rely on his or her own observations in assessing thejuror's credibility. ]d, Sharon Burton testified on Sassen Vanelsloo's behalf. Burton is the in 

### patient coordinatorand drug and alcohol counselorfor the Lummi Nation. Burton's 

### testimony was critical to SassenVanelsloo's defense, because itplaced him at her house during the morning ofthe chase. 

### After Burton's testimony, juror 12 told the bailiff that she was previously 

### acquainted with Burton. The court brought juror 12 into the courtroom for questioning. Juror 12 revealed that Burton helped stage an intervention and find 

### treatment for juror 12's nephew. The State asked juror 12 whether she had aNo. 72553-0-1/5 positive experience with Burton. Juror 12 recognized that Burton assisted her family in helping her nephew to go into treatment. But, she was unsure whether she would classify her interactions with Burton as a positive experience, stating, "[Tjhere was no good or bad, itwasjustall, you know, normal as itwould be trying 

### to just getthe help Iwanted for myfamily member." When the State pressed her on this, saying it sounds like she had a positive feeling about Burton, juror 12 

### resisted, ultimately saying, "I guess. It's not, Iwouldn't call it from her. I'd call it from our own community for the help so that's what your tribe is for is to try to help the funds with our community people that need the assistance." Juror 12 also stated that she never socialized with Burton and probablywould not remember her ifshe saw her again. After this questioning, the court ruled, It's a close case, but Ithink I'm going to rule that the juror should be 

### let go. Counsel points out correctly that Ms. Burton is a critical witness[. E]ven though there is not a real strong relationship between the juror and the witness[,] Ithink given the importance of the witness's role in the case it's appropriate for Juror 12 to be excused. 

### Sassen Vanelsloo compares this case to Hough v. Stockbridqe, 152 Wn. 

### App. 328, 216 P.3d 1077(2009). There, thetrial courtdenied a motion todismiss a sittingjuror who wrote a note suggesting that Hough had mental oremotional problems and should be evaluated. \± at 340. On appeal, the courtheld that the record supported the judge's decision not to dismiss thisjuror, because the juror's note did not state that the juror could not be fair and impartial. \± at 341.No. 72553-0-1/6 Therefore, the trial courtdid not abuse its discretion inrefusing to dismiss thejuror, jd, Sassen Vanelsloo argues that under Hough, a juror must suggest an inability to be fair and impartial before the trial court can dismiss the juror. We disagree. The Hough courtwas focused on whetherthe record supported the trial court's decision, jd. Because the record provided a tenable reason to deny the motion to dismiss thejuror, the trial court did not abuse its discretion, jd. Here too, we must focus on the record before the trial court. Juror 12 did not state that she could not be fair or impartial. In fact, she suggested that her interactions with Burton were minimal and unimportant. However, she also 

### acknowledged that her tribe's support in helping her nephew get treatment had a 

### positive effect on her. The trial court was in the best position to gauge juror 12's demeanor, facial expressions, and other nonverbal communications to assess whether she was biased. This court defers to the trial court's factual 

### determinations. Jorden, 103 Wn. App. at 229. We conclude that the trial court did not abuse its discretion in dismissingjuror 12.

II. Operabilitv ofthe Shotgun 

### Sassen Vanelsloo argues that there was insufficient evidence that the 

### shotgun was operable, as necessary to support the firearm enhancements. He asserts that the Statefailed to produce evidence that the gun had ever been fired. When faced with a sufficiency of the evidence challenge, this court asks 

### whether, viewing the evidence in the lightmost favorable to the State, anyrational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas,No. 72553-0-1/7
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence are drawn in favor ofthe State. Jd, Sassen Vanelsloo's argument rests on State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008). The issue in Recuenco was whether a harmless error 

### analysis was appropriate when the State did not submit a firearm enhancementto the jury. Id, at 433. The State charged Recuenco with a deadly weapon enhancement, and thejury found that Recuenco was armed with a deadlyweapon, 

### jd. at431-32. But, the trial court imposed afirearm enhancement. Id,at 432. The 

### Supreme Court vacated the firearm enhancement, because it was not charged, 

### sought attrial, orfound bythejury, id, at 442. In reaching thisholding, themajority responded to the dissent's argument that the State could seek the firearm enhancement at sentencing, because the only deadly weapon discussed at trial
was a handgun. Jd, at 437. The court rejected this argument: The dissent overlooks here that in order to prove a firearm enhancement, the State must introduce facts upon which the jury 

### couldfind beyond a reasonable doubt the weapon in question falls underthe definition of a "firearm": "a weapon or device from which a 

### projectile may be fired by an explosive such as gunpowder." 11 Washington Practice: Washington Pattern Jury Instructions: 

### Criminal 2.10.01 (2d ed. Supp. 2005) (WPIC). We have held that a 

### jury must be presented with sufficient evidence to find a firearm operable under this definition in order to uphold the enhancement. Statev. Pam, 98 Wn.2d 748, 754-55, 659 P.2d 454 (1983), overruled in parton othergrounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588(1988). Id, Other divisions of this court have interpreted this language. In State v. 

### Pierce, 155Wn. App. 701, 713, 230 P.3d237 (2010), the appellantwas chargedNo. 72553-0-1/8
with a deadly weapon enhancement, but the trial court sentenced him to a firearm enhancement. Division Two held that this was error, because under Recuenco, 

### the State must presentthe jury with sufficientevidence to find a firearm operable, 

### id, at 714. Without evidence that the firearm was capable offiring a projectile, there was insufficientevidence that the firearm was operable.1 Id, In State v. Raleigh, 157 Wn. App. 728, 733, 238 P.3d 1211 (2010), the 

### appellant argued that the Statefailed to prove he possessed afirearm, because it was not operable on the date the crime was committed. Division Two rejected Raleigh's argument, holding that the quoted language from Recuenco was 

### nonbinding dicta. Id, at 735. TheRaleigh courtconcluded that afirearm need not 

### beoperable during thecommission ofa crime toconstitute afirearm, jd,at734. The relevant question is rather whether the firearm is a gun in fact or a toygun. Id, 

### Mostlyrecently, DivisionThree agreed thatthestatementfrom Recuenco is 

### nonbinding dicta. Statev. Tasker, 193 Wn. App. 575, 592, 373 P.3d 310 (2016). The Taskercourt ruled that in order to be a firearm forpurposes of RCW9.41.010, 

### "adevice must becapable ofbeing fired, either instantly orwith reasonable effort and within a reasonable time. Evidence that a device appears to be a real gun 

### and is beingwielded incommitting acrimeis sufficientcircumstantialevidencethat it is a firearm." Id. at 594. 

### 1Notably, the Statein Piercedid notcontendthatithad presented sufficient 

### proofofoperability, arguing insteadthatitdid notneedtopresentthefirearm itself. 155 Wn. App. at 714 n.11. The court noted that the firearm itself may not be 

### necessary "when there is other evidence ofoperability, such as bullets found, gunshots heard, or muzzle flashes." id,

8No. 72553-0-1/9

We follow Raleigh and Tasker and conclude that a firearm must be capable of being fired instantly or with reasonable effort within a reasonable time. Here, the shotgun itself was introduced into evidence at trial. Officer Leake, who originallydiscovered the shotgun, testified. Officer Leake examined the shotgun and verified that itwas a Mossberg Pistol Grip Pump Action 12 gauge shotgun. 

### He explained that when he found the shotgun, it had a 12 gauge shell in the 

### magazine, but not in the firing chamber. So, if someone wanted to use the 

### shotgun, they would have to grab the weapon and pull the pistol grip forward to rack a shell into the firing chamber. Officer Leake also stated that based on his 

### experience around firearms, having received stringent law enforcement training, that the shotgun is "a real authentic firearm capable offiring." 

### Officer Bernard Vodopich, who assisted in searching the Kia, also testified. 

### He also identified the shotgun as the one that was found in the Kia. The State asked Officer Vodopich whether the shotgun appeared to be a fully functional firearm, and he responded that itdid. He also confirmed that it is an object that is designed to propel a projectile through the explosion of gunpowder. 

### From this testimony, the jury could infer that the shotgun was capable of 

### being fired with minimal effort. Itwas a real firearm, not atoy. Whilethe State did not introduce evidence that the shotgun had been fired before, such evidence is 

### notnecessary to support a firearm enhancement.2 We conclude that the finding that the shotgun was a firearm is supported by sufficientevidence. 2 In fact, even if we were to adopt Pierce's interpretation of Recuenco, 

### Pierce does notsuggest that operability turns on whether the gun had ever been fired before. Rather, Pierce suggests that evidence such as spent bullets,No. 72553-0-1/10

III. Armed with a Firearm Sassen Vanelsloo also asserts that this court should vacate the firearm enhancements, because the State failed to show that he was armed with a firearm. Whether a person is armed is a mixed question of law and fact. State v. Schelin, 147 Wn.2d 562, 565-66, 55 P.3d 632 (2002). When the court determines whether the facts are sufficient as a matter of law to prove that the defendant was armed, it is a question of law reviewed de novo, jd, at 566. A person is armed for the purposes of a sentencing enhancement ifthe 

### weapon is easily accessible and readily available for offensive or defensive 

### purposes during the time of the crime. State v. Brown, 162 Wn.2d 422, 431, 173 P.3d 245 (2007); State v. O'Neal, 159 Wn.2d 500, 503-04, 150 P.3d 1121 (2007). But, a person is not armed simply because he or she owns orpossesses a weapon. State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007). Instead, there must be a nexus between the defendant, the weapon, and the crime, id. In 

### examining this nexus, courts look at the nature of the crime, the type of weapon, and the circumstances under which it is found, such was whether itwas out in the 

### open, in a locked container, orin a closet. State v. Ague-Masters. 138Wn. App. 86, 104, 156 P.3d 265 (2007). 

### Sassen Vanelsloo argues that the shotgun was too far away from him to 

### qualify as easily accessible and readily available. The shotgun was found in the rear cargo area of the Kia, which was behind the backseat area. For Sassen 

### gunshots, or muzzle flashes can help proveoperability when the gun itselfis not offered intoevidence. 155 Wn. App. at 714 n.11. Here, the shotgun was offered into evidence.
10No. 72553-0-1/11
Vanelsloo to reach the shotgun, he would have had to exitthe caror move intothe backseat. Sassen Vanelsloo compares this case to State v. Gurske, 155 Wn.2d 134, 

### 118 P.3d 333 (2005) and State v. Mills, 80 Wn. App. 231, 907 P.2d 316 (1995). Gurske was arrested aftera traffic stop, and police officers conducted an inventory search of his truck. Gurske, 155 Wn.2d at 136. In the backseat ofthe truck was 

### a backpack, id. The backpack contained an unloaded pistol, a fully loaded 

### magazine, and three grams of methamphetamine. id. The trial court imposed a 

### deadly weapon enhancement, id, at 136-37. On appeal, the SupremeCourtheld that there was insufficient evidence to show that the pistol was easily accessible 

### andreadilyavailableforoffensiveordefensive use. id,at 143. Thecourtreasoned that to meet this test, the weapon must be easy to access for use against another 

### person, anditmay be used tofacilitate thecommission ofacrime, escape, protect contraband, or preventpolice investigation, id, at 139. But, the facts of thatcase did not indicate whether the gun was within Gurske's reach, id, at 143. Gurske would have had to unzip the backpack and remove other objects to access the 

### pistol, jd. And, there were no facts to suggest thatGurske had used thepistol or had access to itat another time, id. InMills, the defendantwas arrested and put in a patrol car. 80 Wn. App. at 233. The officer noticed Mills's furtive movements inthe patrol carand discovered 

### a motel key in the seat cushions, id, A search of the motel room revealed 

### methamphetamine and a pistol, id. The Court ofAppeals held that these facts constituted insufficientevidence that Millswas armed, id, at 234, 237. There was

11No. 72553-0-1/12

no evidence that Mills, the gun, and the drugs were all in the hotel room together
on the date charged as the date ofthe crime, id. at234. Instead, Mills would have had to travel several miles to retrieve the gun. id, at 237. But, the Washington Supreme Court has applied the nexus analysis to find that sufficient evidence supported firearm enhancements where the defendants

were not armed at the time of arrest. See O'Neal, 159 Wn.2d at 504-05, 507; Eckenrode, 159 Wn.2d at 492, 496. Police officers arrived at Eckenrode's home 

### after he called 911 sayingthattherewas an intruder in his home and he was armed 

### and ready to shoot. Eckenrode, 159 Wn.2d at 491. The police swept his house 

### and found drugs, a rifle, and a pistol, id, at 491-92. Asearch warrant revealed 

### signs of a marijuana grow operation in the house, id. The rifle was loaded, id, at 494. Eckenrode had a policescannerwhich he could use to protectagainstpolice 

### investigation, id. Evidence of the drug manufacturing operation pervaded the house, id. Officers arrested Eckenrode in hisfront yard, farfrom the weapons in his home. Jd, at 492. But, the Supreme Court nonetheless held that there was sufficient evidence of a connection between Eckenrode, the guns, and the drug 

### manufacturing operation, id,at 494. Fromthisevidence, thejurycould havefound 

### thattheweapons were presenttoprotecttheongoing criminal enterprise.3 Jd, Similarly, in O'Neal, none of the defendants were holding weapons when they were arrested. 159 Wn.2d at 502. But, a search of their mobile home 3 In reaching this conclusion, the Supreme Courtdistinguished Gurske, because inthat case the State never tried to prove that the weapon was readily accessible at a relevant time or that there was a connection between the weapon and the crime. Eckenrode, 159 Wn.2d at 494-95. Instead, the State proved only 

### possession, whichwas notenough. Jd,

12No. 72553-0-1/13
revealed extensive evidence of drug use and manufacturing, over 20 guns, body armor, a police scanner, and night vision goggles. Jd, at 503. The Supreme Court held that there was sufficient evidence for thejury to find that the deadly weapons
were easily accessible and readily available to the defendants, and thatthere was a nexus between the weapons, the crimes, and the defendants, id, at 507. The
court reasoned that the defendant need not be armed at the moment of arrest to be armed for purposes of a firearm enhancement, id, at 504. WhereanAR-15
was found leaning against a walland a pistol under a mattress, the State's theory 

### that the weapons were easily accessible and readily available to protect the continuing criminal enterprise was appropriate, id, at 504-05. We further note that firearm enhancements have been upheld on unlawful 

### possession offenses, not merelydrugmanufacturing ordeliverycrimes. See, e.g., State v. Easterlin, 159 Wn.2d 203, 207, 210, 149 P.3d 366 (2006). In Easterlin, 

### the defendant was found asleep in a car with a gun on his lap and cocaine in his sock. jU at 207. The court held that these facts constituted sufficient evidence that Easterlin was armed to protect the drugs, id, at 210. It noted that, "[s]o long
as the facts and circumstances support an inference of a connection between the 

### weapon, the crime, and the defendant, sufficient evidence exists" to support a 

### finding that the defendant was armed. Id, The court affirmed the firearm enhancement on Easterlin's conviction for unlawful possession ofcocaine. Id. at 206-07,210. 

### In this case, the State's theory was that Sassen Vanelsloo was conducting 

### an ongoing criminal operation. Aardema testified that both she and Sassen

13No. 72553-0-1/14
Vanelsloo were dealing drugs at that time, usually methamphetamine and heroin. Ashotgun found inthe rearcargo area was admitted intoevidence. Officer Leake testified that its grip was facing at an angle toward the passengercompartmentof the car, so someone entering the car could easily grab the gun. The backpack
was admitted. Officer Leake testified thatthe backpackwas foundjusta foot away from the barrel of the shotgun. Officers testified that within this backpack, they 

### found a locked bank bag. This bank bag was unlocked with keys found in the centerconsole of the car. The bank bag contained pillssuspected to be controlled 

### substances. The bank bag also contained substances suspected to be heroin and 

### methamphetamine.4 It contained a digital scale, an item often used in the sale of controlled substances. There was a packetof small glassine envelopes in the bag


### as well. And, a pouch in the bank bag contained multiple small plastic baggies. 

### There were seven cellphones in the car. There were two prepaid phone cards in the center console. 

### Additionally, there was evidence that connected Sassen Vanelsloo to the 

### drug operation in the Kia. Aardema testified that Sassen Vanelsloo was driving the Kia on September7, 2012. The officers found a locked safe on thefloorboard behind the driver's seat ofthe vehicle. The safe contained a box containing a roll 

### of $1 bills, totaling $20. It also contained a vehicletitle for a 1990 Lincoln Town 

### Car. And, a revolverand a small semiautomatic handgun werefound in thesafe.5 4 Later tests of these pills and substances confirmed that they were clonazepam, alprazolam, methamphetamine, and heroin. 

### 5The State specified that the firearmenhancementwas based solely on the 

### shotgun, which was easily accessible and readily available, while the guns found in the safe were not.
14No. 72553-0-1/15
Aardema testified that this safe belonged to Sassen Vanelsloo, and he took it everywhere with him. The backpack contained several receipts with Sassen Vanelsloo's name on them. Sassen Vanelsloo's DNA was found on the shotgun. When Officer Leake came into contactwith Sassen Vanelsloo again on December 11, 2012, Sassen Vanelsloo was driving the Lincoln Town Car to which the title 

### belonged. And, Officer Leake spoke with him about the pursuit of the Kia on 

### September7, 2012. OfficerLeake stated that SassenVanelsloo responded," 'Oh, yeah, Iheard itwas a 19-yearold guy, but you and Iknow who was driving.'" We conclude that there was sufficient evidence to demonstrate that the 

### shotgun was easily accessible and readily available, and that there was a nexus between Sassen Vanelsloo, the shotgun, and the drugs. The State charged the 

### firearm enhancements on onlythe unlawful possession and possession with intent to deliveroffenses, not the attempting to elude a police officer offense. The State also based the firearm enhancements solely on the shotgunfound in the rearcargo 

### hatch, not the two other firearms foundinthe locked safe. Under O'Neal, the State 

### does not have to prove that thefirearm was easilyaccessible and readily available 

### at a specific time and place. 159Wn.2d at 504-05. It is enough that the State establishes the weapon was easily accessible and readily available at thetime of the crime, id. Here, the backpack was the sole source ofthe drug charges. Itwas 

### in close proximity to the shotgun. When Sassen Vanelsloo was near or in 

### possession ofthedrugs, he was necessarily near andin possession ofthefirearm. The shotgun had a shell in the magazine and could have been easily chambered and fired against another person.

15No. 72553-0-1/16 Additionally, from Aardema's testimony, the numerous cell phones, digital scale, glassine envelopes, and the small baggies, a reasonable person could have concluded that Sassen Vanelsloo was selling drugs out of the Kia. Unlike the firearms found in the locked safe, the shotgun was found just one foot away from the backpack containing the controlled substances. When Sassen Vanelsloo sold the drugs, the shotgun would have been easily accessible and readily available for him to protect the ongoing criminal enterprise. We affirm the firearm enhancements.

IV. Legal Financial Obligations Sassen Vanelsloo argues that the trial court failed to consider his ability to 

### pay before imposing discretionary legal financial obligations (LFOs). Sassen Vanelsloo also asserts that his trial counsel provided ineffective assistance by failing to objectto the imposition ofdiscretionary LFOs. The trial court imposed mandatory and discretionary LFOs. The record does not show that the trial court inquired into Sassen Vanelsloo's current and future ability to pay before itimposed any LFOs. Under RCW 10.01.160(3), trial courts must conduct an individualized 

### inquiry on the record about a defendant's current and future ability to pay before imposing LFOs. State v. Blazina, 182 Wn.2d 827, 838-39, 344 P.3d 680 (2015). The Blazina court reached this issue, even though the appellants did not objectto 

### the imposition of discretionary LFOs at sentencing, id, at 831-32, 834-35. It did
so because RAP 2.5(a) permits the appellate courts to exercise discretion to 

### accept review of claimed errors not appealed as a matter ofright, id, at 834-35.

16No. 72553-0-1/17
The need for reform of the LFO systems demanded that the court exercise its discretion to do so. id. Here, the record does not show that Sassen Vanelsloo objected to the imposition of discretionary LFOs. However, the State agrees that remand is proper. Because the State concedes that it would be appropriate to remand this
case for the trial court to reconsider the LFOs, we exercise our discretion to address this issue. And, because the record does not contain an individualized 

### inquiry intoSassen Vanelsloo's current or future ability to pay discretionary LFOs, we remand for the trial court to perform such an inquiry.6

V. Substantial Evidence to Support Convictions 

### In a statementof additional grounds, Sassen Vanelsloo makes a numberof 

### arguments. First, he argues that he isactually innocent of the crimes ofwhich he
was convicted. We review this argument as a challenge to the sufficiency of the
evidence. Sassen Vanelsloo contends that several weaknesses in the State's case 

### prove his innocence. He points to the testimony of Cheri Mulligan, the defense investigator. Mulligantestified about herinterviewof NathanielHuckaby. Huckaby told her thathe was the one who was drivingthe carthatwas involved inthe police 

### chase on September 7, 2012. And, Sassen Vanelsloo points to the testimony of

6As a result, we decline to reach Sassen Vanelsloo's ineffective assistance 

### ofcounsel claim. Any prejudice that resulted as a result ofcounsel's failure to 

### objectto theimpositionofLFOswill be cured byan inquiryinto SassenVanelsloo's ability to pay.
17No. 72553-0-1/18

his alibi witness, Burton. Burton testified that Sassen Vanelsloo was at her house
on September 7, 2012. This evidence does not conclusively demonstrate that Sassen Vanelsloo
was not the driver of the Kia. Instead, this evidence required the jury to decide which version of events to believe. Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60. 71. 794 P.2d 850 (1990). This court does not disturb them on appeal, id. We hold that sufficientevidence supports Sassen Vanelsloo's convictions. VI. Prosecutorial Misconduct Sassen Vanelsloo further contends that the State committed prosecutorial misconduct by (1) vouching for a witness's credibility, (2) offering false testimony, 

### and (3)failing to disclose Brady7 material. To succeed on a claim ofprosecutorial misconduct, a defendantmust show 

### that the prosecutor's conduct was improper and prejudicial in light of the entire record and the circumstances at trial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). The failure to objectto an improperremark waives any error, unless the remarkis soflagrantand ill-intentionedthatthe resulting prejudicecould not have been cured by an admonition to thejury, id, at 443. The prosecutor improperly vouches for a witness by expressing a personal beliefinthe truthfulness ofthe witness or indicating thatevidence not presented at trial supports the witness's testimony, id, Sassen Vanelsloo argues that the 

### prosecutor improperlyvouched forAardema during opening statement by saying, 7 Bradv v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).
18No. 72553-0-1/19
"Youwill hearthat Ms. Aardema has previously been convicted of a crime and she is facing charges at the present. You will be advised that she has been offered a resolution ofthose charges inexchange for testifying truthfullybefore this Court." But, the State is permitted to address the expected evidence during opening statement, id. at 444. Rather than guarantee that Aardema's testimony will be truthful, this statement previewed the evidence that would come before the jury. 

### Namely, that Aardema was testifying in accordance with a plea deal. The prosecutordid not commit misconduct in doing so. 

### The State has a duty not to elicit perjury orpresentfalse evidence. State v. 

### Finnegan, 6 Wn. App. 612, 616, 495 P.2d 674 (1972). If State witnesses testify 

### falsely, the prosecutor mustcorrect them. \± To succeed on a claim that the prosecutor presented false evidence, Sassen Vanelsloo must show (1) the testimony was actually false, (2) the prosecutor knew orshould haveknown that the testimony was actually false, and (3) the false testimony was material. See United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). 

### Sassen Vanelsloo argues that the prosecutor knew or should have known thatAardema and Officer Leake testified falsely. He contends this is so, because Officer Leake claimed to have identified the driver yet failed to communicate this 

### description to his fellow officers via dispatch, did not include Sassen Vanelsloo's description in the police report, and was contradicted byOfficerVodopich. And, 

### he argues that the prosecutor knew Aardema wastestifying falsely, because she
was biased as a result ofthe plea agreement.

19No. 72553-0-1/20
But, Sassen Vanelsloo has alleged only that Aardema's bias and Officer Leake's contradictions demonstrate that their testimony was false. Conflicting testimony is not evidence of falsity, but rather a matter of credibility for thejury to resolve. See Camarillo. 115 Wn.2d at 71. The prosecutor informed the jury of Aardema's plea deal and acknowledged the arguable mistakes made bythe police officers in this case. Therefore, the record does not support Sassen Vanelsloo's allegations that the prosecutor relied on false testimony. Under Bradv v. Maryland, the prosecutor violates due process by 

### suppressing favorable evidence where the evidence is material to guilt or 

### punishment. 373 U.S. 83, 87, 83 S. Ct. 1194,10L Ed. 2d215 (1963). To establish a Bradv violation, the defendant must show: (1) the evidence is favorable to him 

### or her, because it is either exculpatory or impeaching, (2) the evidencewas willfully 

### orinadvertently suppressed by the State, and (3) the evidence is material. State
v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015). However, Sassen Vanelsloo has not produced evidence that the State 

### willfully or inadvertently suppressed any favorable evidence to him. He alleges that the State was aware that Aardema wanted Andrea Kohler to lie on the stand, 

### and that it suppressed this evidence by opting not to call Kohler. But, Sassen 

### Vanelsloo provided a memorandum from the defense investigator to defense counsel dated June 13, 2014—over a month before trial began. This document reveals that the defense team had been contacted by Kohler, who informed them that Aardema wanted her to lie to the police. Sassen Vanelsloo also alleges that the State did not disclose that Huckaby admitted to being the driver. But, the

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defense interviewed Huckaby, and the defense investigator testified as to this conversation attrial. Thus, the record does not support Sassen Vanelsloo's claims ofa Bradv violation. We conclude that Sassen Vanelsloo has not established that the prosecutor committed misconduct. VII. Admitted Letters and Phone Calls Sassen Vanelsloo also asserts that the trial court erred by admitting pieces of letters and phone calls, in violation of the rule of completeness. After several lengthy conversations, the court decided to admit two portions of phone calls SassenVanelsloo made in jail. And, the courtadmitted a numberofletters Sassen Vanelsloo wrote to Aardema while he was in jail. Sassen Vanelsloo has the burden of providing an adequate record to establish error. State v. Siouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012); 

### RAP 9.2(b). This court may decline to address a claimed error when faced with a material omission inthe record. State v. Ward, 138Wn.2d 460, 465, 979 P.2d 850 

### (1999). The letters and phone calls Sassen Vanelsloo challenges were not made part of the record on appeal. As such, we decline to considerthis issue. VIII. Cumulative Error Sassen Vanelsloo further argues that the doctrine of cumulative error 

### warrants reversal. He alleges that the trial court erred in imposing the firearm enhancements when the State did not prove that he physically held the firearm on 

### the day of the incident. And, he contends that the trial court erred in not 

### suppressing Officer Leake's and Aardema's testimony considering the inconsistencies in their stories.

21No. 72553-0-1/22
The cumulative error doctrine applies only in circumstances where there
were several trial errors that standing alone may notbe sufficientto justify reversal, butviewed togethermay deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). As discussed above, sufficient evidence supports the firearm enhancements in this case. And, the fact that Officer Leake and Aardema contradicted each otheris not a trial error. This was a matterofcredibility forthejury to weigh. See Camarillo, 115 Wn.2d at 71. Sassen Vanelsloo has not alleged any errors that combined to deny him a fair trial. IX. Appellate Costs Sassen Vanelsloo asks this court not to impose costs of appeal. He cites State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016). Inthat case, the trial 

### court made findings in support of an order ofindigency. 192Wn.App. at 393. The Court of Appeals presumed that where there was no trial court order finding that his financial condition had improved or was likely to improve, Sinclair remained 

### indigent, id As a result, the court exercised itsdiscretion torulethat an award of appellate costs to the State was improper, id. Here, Sassen Vanelsloo filed a motion and affidavit for order of indigency. 

### The courtgrantedthis motion,finding that SassenVanelsloo was unable byreason of poverty to pay any of the expenses ofappellate review. As a result, the court 

### appointed appellate counsel and ordered preparation of the record at public 

### expense. The State has not presented any evidence that Sassen Vanelsloo's financial condition has changed since this order was entered. We presume that

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Sassen Vanelsloo remains indigent and decline to award appellate costs to the State. We affirm the convictions and remand for reconsideration of Sassen Vanelsloo's ability to pay LFOs.

WE CONCUR: 

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