ii-l i r__; -d Ail 9; 35

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UNPUBLISHED OPINION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

juror was error requiring a new trial. He contends that he must be resentenced,

because the firearm enhancements are not supported by sufficient evidence. He

argues that the State failed to prove thatthe shotgun was operable orthat he was

armed, where the shotgun was found in the rear cargo area ofthe car. We affirm

but remand for a hearing on legal financial obligations.

FACTS

On September 7, 2012, Athena Aardema had a court date. Her boyfriend,

Adrian Sassen Vanelsloo, drove her to the courthouse in a black Kia sport utility

vehicle (SUV). He picked her up afterward. They were on their way toAardema's

father's house when Sassen Vanelsloo took a right turn at a traffic light where 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. Officer Leake activated

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

Kia began moving very rapidly, trying to elude him. He followed the Kia through

several intersections, as it moved erratically, forcing other cars to stop abruptly to

avoid a collision.

In the middle of an intersection, Sassen Vanelsloo stopped the car, jumped

out, and ran. When Officer Leake arrived 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 of the car.

Officer Leake allowed Aardema to leave the scene. As he was helping her

collect her personal belongings from the car, he noticed a gun in the rear cargo

area. At that point, he decided to impound the car and request a search warrant.

When the police officers later executed a search warrant of the Kia, they found

several firearms, a backpack containing bags with controlled substances in them,

drug paraphernalia, and multiple cell phones.

Bellingham police encountered Sassen Vanelsloo again on December 11,

2012. Sassen Vanelsloo was charged with unlawful possession of a controlled

substance, attempting to elude a pursuing police officer, three counts of unlawful

possession of a firearm in thefirst degree, and four counts of unlawful possession

of a controlled substance with intent to deliver. The State also alleged that Sassen

Vanelsloo was armed with a firearm—specifically, a 12 gauge shotgun—when he
No. 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, it found 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 by insufficient

evidence, the prosecutor committed misconduct, the trial court erred by admitting

portions of letters and telephone calls, and that cumulative error deprived him of a

fair trial.

I. Dismissal of a Sitting Juror

Sassen Vanelsloo argues that the trial court erred in dismissing juror 12

based solely on her limited prior contact with a witness, Sharon Burton. He asserts

that juror 12 did 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 juror for an abuse of

discretion. State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000). RCW

2.36.110 provides,

It shall be the duty of a judge to excuse from further jury service any

juror, who in the opinion of the judge, 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 efficient jury service.

CrR 6.5 similarly states, "If at any time before submission of the case to the jury 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 any juror who is unfit. Jorden, 103 Wn. App. at 227.

The trial court has discretion to hear and resolve issues regarding whether

a sitting juror should be dismissed. \_± at 229. In acting in this capacity, the trial

court has fact finding discretion, jd. This means that the judge may rely on his or

her own observations in assessing the juror's credibility. ]d,

Sharon Burton testified on Sassen Vanelsloo's behalf. Burton is the in

patient coordinator and drug and alcohol counselor for the Lummi Nation. Burton's

testimony was critical to Sassen Vanelsloo's defense, because it placed him at her

house during the morning of the 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 a
No. 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, itwas just all, you know, normal as itwould be trying

to just get the help Iwanted for my family 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, I wouldn'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 probably would 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[,] I think 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, the trial courtdenied a motion to dismiss

a sitting juror who wrote a note suggesting that Hough had mental or emotional

problems and should be evaluated. \± at 340. On appeal, the court held 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 court did not abuse its discretion in refusing to dismiss the juror,

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 court was focused on whether the record supported the trial

court's decision, jd. Because the record provided a tenable reason to deny the

motion to dismiss the juror, 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 dismissing juror 12.

II. Operabilitv of the 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 State failed 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 light most favorable to the State, any rational

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 of the 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 enhancement to

the jury. Id, at 433. The State charged Recuenco with a deadly weapon

enhancement, and the jury found that Recuenco was armed with a deadly weapon,

jd. at 431-32. But, the trial court imposed a firearm enhancement. Id,at 432. The

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

sought at trial, orfound bythe jury, id, at 442. In reaching this holding, the majority

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

could find beyond a reasonable doubt the weapon in question falls

under the 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.

State v. Pam, 98 Wn.2d 748, 754-55, 659 P.2d 454 (1983), overruled

in part on other grounds 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, 155 Wn. App. 701, 713, 230 P.3d 237 (2010), the appellant was charged
No. 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 present the jury with sufficient evidence to find a firearm operable,

id, at 714. Without evidence that the firearm was capable of firing a projectile,

there was insufficient evidence 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 State failed to prove he possessed a firearm, 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. The Raleigh court concluded that a firearm need not

be operable during the commission ofa crime to constitute a firearm, jd, at 734.

The relevant question is rather whether the firearm is a gun in fact or a toy gun.

Id,

Mostly recently, Division Three agreed thatthe statement from Recuenco is

nonbinding dicta. State v. Tasker, 193 Wn. App. 575, 592, 373 P.3d 310 (2016).

The Tasker court ruled that in order to be a firearm for purposes of RCW 9.41.010,

"a device must be capable of being fired, either instantly or with reasonable effort

and within a reasonable time. Evidence that a device appears to be a real gun

and is being wielded in committing a crime is sufficient circumstantial evidence that

it is a firearm." Id. at 594.

1Notably, the State in Pierce did not contend that it had presented sufficient

proof of operability, arguing instead that it did not need to present thefirearm itself.

155 Wn. App. at 714 n.11. The court noted that the firearm itself may not be

necessary "when there is other evidence of operability, such as bullets found,

gunshots heard, or muzzle flashes." id,

8
No. 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

originally discovered the shotgun, testified. Officer Leake examined the shotgun

and verified that it was 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 of firing."

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. It was a real firearm, not a toy. While the State did

not introduce evidence that the shotgun had been fired before, such evidence is

not necessary to support a firearm enhancement.2 We conclude that the finding

that the shotgun was a firearm is supported by sufficient evidence.

2 In fact, even if we were to adopt Pierce's interpretation of Recuenco,

Pierce does not suggest 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 if the

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 or possesses 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 it was out in the

open, in a locked container, or in a closet. State v. Ague-Masters. 138 Wn. 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 prove operability when the gun itself is not

offered into evidence. 155 Wn. App. at 714 n.11. Here, the shotgun was offered

into evidence.

10
No. 72553-0-1/11

Vanelsloo to reach the shotgun, he would have had to exit the car or move into the

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 after a traffic stop, and police officers conducted an inventory

search of his truck. Gurske, 155 Wn.2d at 136. In the backseat of the 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 Supreme Court held

that there was insufficient evidence to show that the pistol was easily accessible

and readily available for offensive ordefensive use. id,at 143. Thecourt reasoned

that to meet this test, the weapon must be easy to access for use against another

person, and it may be used to facilitate the commission ofa crime, escape, protect

contraband, or prevent police investigation, id, at 139. But, the facts of that case

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 that Gurske had used the pistol or

had access to it at another time, id.

In Mills, the defendant was arrested and put in a patrol car. 80 Wn. App. at

233. The officer noticed Mills's furtive movements in the patrol car and discovered

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

methamphetamine and a pistol, id. The Court of Appeals held that these facts

constituted insufficient evidence that Millswas armed, id, at 234, 237. There was

11
No. 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 of the crime, id. at 234. 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 saying that there was 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. A search warrant revealed

signs of a marijuana grow operation in the house, id. The rifle was loaded, id, at

494. Eckenrode had a police scanner which he could use to protect against police

investigation, id. Evidence of the drug manufacturing operation pervaded the

house, id. Officers arrested Eckenrode in hisfront yard, far from 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. From thisevidence, the jury could havefound

thatthe weapons were present to protect the ongoing 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 Court distinguished Gurske,

because in that 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, which was not enough. Jd,

12
No. 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 the jury to find that the deadly weapons

were easily accessible and readily available to the defendants, and that there 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 wall and 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 merelydrug manufacturing or delivery crimes. 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 of cocaine. 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

13
No. 72553-0-1/14

Vanelsloo were dealing drugs at that time, usually methamphetamine and heroin.

A shotgun found in the rear cargo area was admitted into evidence. Officer Leake

testified that its grip was facing at an angle toward the passenger compartment of

the car, so someone entering the car could easily grab the gun. The backpack

was admitted. Officer Leake testified that the backpack was found just a 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

center console 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 packet of small glassine envelopes in the bag

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

There were seven cell phones 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 September 7, 2012. The officers found a locked safe on the floorboard

behind the driver's seat of the vehicle. The safe contained a box containing a roll

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

Car. And, a revolver and a small semiautomatic handgun were found in the safe.5

4 Later tests of these pills and substances confirmed that they were

clonazepam, alprazolam, methamphetamine, and heroin.

5The State specified that the firearm enhancement was based solely on the

shotgun, which was easily accessible and readily available, while the guns found

in the safe were not.

14
No. 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 contact with 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

September 7, 2012. OfficerLeake stated that Sassen Vanelsloo responded," 'Oh,

yeah, I heard itwas a 19-year old guy, but you and I know 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 deliver offenses, not the attempting to elude a police officer offense. The State

also based the firearm enhancements solely on the shotgun found in the rear cargo

hatch, not the two other firearms found in the locked safe. Under O'Neal, the State

does not have to prove that the firearm was easily accessible and readily available

at a specific time and place. 159 Wn.2d at 504-05. It is enough that the State

establishes the weapon was easily accessible and readily available at the time of

the crime, id. Here, the backpack was the sole source ofthe drug charges. It was

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

possession ofthe drugs, he was necessarily near and in possession ofthe firearm.

The shotgun had a shell in the magazine and could have been easily chambered

and fired against another person.

15
No. 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 object to the imposition of discretionary 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 it imposed 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 object to

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 of right, id, at 834-35.

16
No. 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 into Sassen 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 statement of additional grounds, Sassen Vanelsloo makes a number of

arguments. First, he argues that he is actually 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. Mulligan testified about her interview of Nathaniel Huckaby. Huckaby

told her that he was the one who was driving the car that was involved in the 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

of counsel claim. Any prejudice that resulted as a result of counsel's failure to

objectto the imposition of LFOs will be cured byan inquiry into Sassen Vanelsloo's

ability to pay.

17
No. 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 sufficient evidence 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 of prosecutorial misconduct, a defendant must 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 object to an improper remark waives any error,

unless the remark is so flagrant and ill-intentioned that the resulting prejudice could

not have been cured by an admonition to the jury, id, at 443.

The prosecutor improperly vouches for a witness by expressing a personal

belief in the truthfulness of the witness or indicating that evidence not presented at

trial supports the witness's testimony, id, Sassen Vanelsloo argues that the

prosecutor improperly vouched for Aardema during opening statement by saying,

7 Bradv v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).

18
No. 72553-0-1/19

"You will hear that 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 of those charges in exchange for testifying truthfully before 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

prosecutor did not commit misconduct in doing so.

The State has a duty not to elicit perjury or present false evidence. State v.

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

falsely, the prosecutor must correct 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 or should have known 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

that Aardema 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 by Officer Vodopich. And,

he argues that the prosecutor knew Aardema was testifying falsely, because she

was biased as a result of the plea agreement.

19
No. 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 the jury 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 by the 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. 1194,10 L Ed. 2d 215 (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 evidence was willfully

or inadvertently 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

20
No. 72553-0-1/21

defense interviewed Huckaby, and the defense investigator testified as to this

conversation at trial. Thus, the record does not support Sassen Vanelsloo's claims

of a 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

Sassen Vanelsloo made in jail. And, the court admitted a number of letters 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 in the record. State v. Ward, 138 Wn.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 consider this 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.

21
No. 72553-0-1/22

The cumulative error doctrine applies only in circumstances where there

were several trial errors that standing alone may not be sufficient to justify reversal,

but viewed together may 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 other is not a trial error. This was a matter of credibility

for the jury 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). In that case, the trial

court made findings in support of an order of indigency. 192 Wn. 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 its discretion to rule that an award of

appellate costs to the State was improper, id.

Here, Sassen Vanelsloo filed a motion and affidavit for order of indigency.

The court granted this motion,finding that Sassen Vanelsloo was unable by reason

of poverty to pay any of the expenses of appellate 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

22
No. 72553-0-1/23

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:

\C\cM*y AO

23