IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Appellant,

v.

THOMAS LEE OLSON,

Respondent.

No. 72965-9-1 « cV;_

en s:^"

DIVISION ONE ^ g|[

UNPUBLISHED OPINION cf<"

°1 o—'

FILED: August 15, 2016

Appelwick, J. — Olson appeals his conviction and sentence for felony

driving under the influence, driving while license suspended/revoked, and

possession ofa controlled substance. He asserts that his due process rights were

violated when the State failed to prevent 911 call recordings from being

automatically destroyed after he requested that they be preserved. He maintains

that this behavior constituted governmental misconductwarranting reversal under

CrR 8.3(b). Forthe first time on appeal, he contendsthat as applied to an indigent

defendant, the statutes that require imposition of a mandatory deoxyribonucleic

acid (DNA) fee and a victim penalty assessment (VPA) fee at sentencing violate

substantive due process. We affirm.

FACTS

On January 22, 2014, Officer Daniel Finan and Lieutenant Daniel Young

responded to a report of a single vehicle traffic accident near the intersection of

Lakemont Boulevard Southeast and Newport Way Southeast in Bellevue.

A witness, Marianne Jones, was at the scene. Jones had been driving

northbound on Lakemont Boulevard behind the truck. Jones noticed the truck

swerve into the opposite lane of traffic, and she called 911. Jones continued
No. 72965-9-1/2

following the truck. She could see that there was one person in the truck—the

driver. She observed the truck swerve into a concrete barrier over a grass

embankment, swerve again across oncoming traffic, drive up onto a sidewalk, and

knock down a lamp post. She noticed that parts of the truck were falling off onto

the road. She saw the truck stop before it reached the intersection. Jones saw

the driver get out of the truck and begin picking up pieces of the truck that had

fallen onto the road.

Joel Lessing also called 911 that day afterwitnessing the accident. Lessing

was parked near the intersection when he saw a blue truck drive across all lanes

of traffic, strike a guardrail, and grind to a halt before reaching the intersection.

After the truck stopped, Lessing proceeded through the intersection toward the

truck, rolled down his window, and asked the driver if he was okay.

When Lieutenant Young arrived, he saw someone sitting in the driver's seat

of a heavily damaged pickup truck. When Officer Finan arrived on the scene, he

observed a damaged blue pickup truck with its driver's side airbag deployed. A

male individual was standing outside the driver's side door of the truck. Jones

pointed toward the individual and told Officer Finan that he had been driving the

truck. Officer Finan and Lieutenant Young approached the vehicle. The male

individual identified himself as Thomas Olson. During the course of their contact

with Olson, Officer Finan and LieutenantYoung saw drug paraphernalia in Olson's
No. 72965-9-1/3

sweatshirt. Olson admitted to smoking heroin about an hour earlier. Olson was

arrested and read his Miranda1 rights.

Olson told Officer Finan that a friend of his had been driving the truck and

that Olson had been riding in the passenger seat. He said they had been following

behind a friend driving another vehicle. Olson said the other car was driving

erratically and caused the truck to crash. Olson stated that once the truck crashed,

he and the driver of the truck got out, the driver got into the other friend's car, and

those two drove away to get a tow truck for the truck. Olson told Lieutenant Young

that he was waiting for the other driver to come back. LieutenantYoung remained

on the scene for an hour and a half, and no one ever returned with a tow truck.

On January 29, 2014, the State charged Olson with felony driving while

under the influence of or affected by intoxicating liquor or any drug (DUI) and

driving while license suspended/revoked in the first degree. On January 30, 2014,

an attorney appeared on behalf of Olson and entered a request for discovery.

Among otherthings, Olson's attorney requested thatthe State preserve all physical

evidence relating tothe alleged offense, including, butnot limited to 911 recordings

until final disposition of the case or until further order of the court.

The Bellevue Police Department contracts with the North East King County

Regional Public Safety Communication Agency (NORCOM), a company that

handles dispatch and 911 calls. 911 Norcom, http://www.norcom.org (last visited

July 28, 2016). Pursuant to NORCOM's policy, the calls are retained for 90 days

1 Miranda v. Arizona. 384 U.S. 436, 467-68, 86 S. Ct. 1602, 16 L. Ed. 2d

694(1966).
No. 72965-9-1/4

unless a preservation request is made. The State never provided the recordings

to Olson, and the recordings were destroyed.

On September 19, 2014, the State amended the charges to include violation

of the Uniformed Controlled Substances Act.2 A jury found Olson guilty as

charged. Atsentencing, the court imposed $600 in LFOs—a $100 DNA fee and a

$500 VPA fee. Olson appeals.

DISCUSSION

Olson argues that this court should reverse, because his due process rights

were violated when the 911 recordings were destroyed. He asserts that the State's

failure to preserve the 911 recordings constituted "government mismanagement"

of the case warranting reversal under CrR 8.3(b). For the first time on appeal, he

claims that RCW 43.43.7541 and RCW 7.68.035—the statutes mandating the

imposition ofthe $600 in LFOs—are unconstitutional as applied todefendants who

do not have the ability or likely future ability to pay LFOs. And, he maintains that

the LFOorder should be stricken, because the trial court failed to comply with RCW

10.01.160(3) by not making an individualized inquiry into his ability to pay.

I. Due Process Violation

Olson argues that his right to due process was violated, because the State

failed to preserve the 911 recording evidence afterdefense counsel made a proper

discovery request.

2 RCW 69.50.4013.
No. 72965-9-1/5

The government's failure to preserve evidence significant to the defense

may violate a defendant's due process rights. State v. Wittenbarqer, 124 Wn.2d

467,475, 880 P.2d 517 (1994). Whether destruction of evidence constitutes a due

process violation depends on the nature ofthe evidence and the motivation oflaw

enforcement. State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183 (2011). If the

State has failed to preserve "materialexculpatory evidence," criminal charges must

be dismissed. Wittenbarqer, 124 Wn.2d at 475. In order to be considered "material

exculpatory evidence," the evidence must both possess an exculpatory value that

was apparent before it was destroyed and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available

means. Id. at 475.

By contrast, the State's failure to preserve evidence that is merely

"potentially useful" does not violate due process unless the defendant can show

bad faith on the part oftheState. State v. Burden, 104 Wn. App. 507, 512,17 P.3d

1211 (2001). "Potentially useful" evidence is " 'evidentiary material of which no

more can be said than that it could have been subjected to tests, the results of

which might have exonerated the defendant.' " Groth, 163 Wn. App. at 557

(quoting Arizona v. Younqblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d

281 (1988)). The presence or absence of bad faith must necessarily turn on the

State's knowledge ofthe exculpatory value ofthe evidence at the time it was lost

or destroyed. \± at 558. Thus, a defendant must show the destruction was

improperly motivated. ]d. at 559.
No. 72965-9-1/6

Here, neither the State nor the defense heard the tapes and neither knew

of any exculpatory value. Olson concedes that the 911 recordings were only

potentially useful to the defense. The disagreement between the parties stems

from what constitutes a sufficient showing of bad faith and whether Olson has

satisfied his burden. Specifically, the State claims that Olson has no evidence of

improper motivation and that without that evidence, he cannot prove bad faith. By

contrast, Olson asserts that he need not show improper motivation in order to show

bad faith and that the State's reliance on Wittenbarqer and Groth to support this

proposition is misplaced.

In Wittenbarqer, defendants moved to suppress evidence of a chemical

breath analysis test based on the fact that the State failed to preserve maintenance

and repair records for the breath test machines. 124 Wn.2d at 472. By not

preserving the evidence, the State was adhering to new procedures and record

keeping policies,3 which did notrequire the preservation ofthe records, jd. at 477-

78. Defendants argued that unlike a typical preservation of evidence case, the

procedures themselves constituted a pattern of bad faith designed bythe State to

systematically deny defendants access to useful evidence. ]d at 477, 472. The

defendants alleged that the State opted to no longer keep the records, because

3 By statute, the State Toxicologist has the delegated authority to approve

breath testing procedures and protocols. Wittenbarqer, 124 Wn.2d at 472. The

toxicologist drafted revised protocols and proceduresfor breath testing to reflect a

switch to updated breath-testing technology. \_± Under the new quality assurance

protocol, the State's record keeping policies changed. Id at 473. Specifically,

data from the inspections was no longer recorded and instead of recording

information such as initial voltage values, adjusted voltage values, and calibration

factors, the technicians merely indicated that the required tests were performed

with satisfactory results by checking a box on the inspection forms, id.
No. 72965-9-1/7

defense attorneys had used them successfully to challenge prosecutions in the

past. ]d at 477.

The Wittenbarqer court noted that the fact that the State was aware that

defense counsel had found the old records useful did not lead it to conclude that

the State acted in bad faith when it made the policy changes regarding record

retention, id And, the court noted that the new procedures represented a good

faith effort on the part of the State to verify that the machines were working and

accurate, id at 478. It ultimately concluded that the defendants failed to convince

it that the State's reduction in the amount of data retained from the results of the

tests performed on the machine was improperly motivated, id Consequently, it

declined to make a finding of bad faith, id

In Groth, Groth was convicted in 2009 for a murder that occurred in 1975.

163 Wn. App. at 551. In 1987, while the investigation wasstill pending, a sergeant

ordered destruction of all of the physical evidence4 from the crime scene except

the murder weapon and crime scene photographs, id at 554. Groth argued that

the destruction of the evidence constituted a violation of his due process rights, id

at 556-57. The Groth court noted that it was unclear why the evidence was

destroyed, id at 559. It ultimately concluded thatthere was no indication thatthe

sheriff's office knew of any exculpatory aspect of the evidence or that the

4Asubstantial amount of physical evidence was destroyed: plaster casts of

footwear impressions, blood samples found at the crime scene, samples of the

victim's clothing, blood, hair and fingernail scrapings from the autopsy, another

suspect's boots and clothing from the night ofthe murder, anylaboratory analyses,

and the crime laboratory analyst's notes, reports, and conclusions concerning the

forensic testing. Groth, 163 Wn. App. at 557-58, 553.
No. 72965-9-1/8

evidence's destruction in 1987 was improperly motivated, id It stated that to the

extent any conclusions could be drawn from the record, it appeared that the

sheriff's office negligently destroyed evidence of which any exculpatory value was

not apparent, id It noted that the standard of bad faith required under Younqblood

and Wittenbarqer was, consequently, not met. Jd

Olson asserts that here, unlike in Wittenbarqer, there is no allegation of

systemic bias oran improperly motivated policy.5 And, Olson argues that unlike in

Groth, the government here had notice at the time the evidence was destroyed

that the evidence was useful to the defense. Olson is correct. Neither case is

dispositive in determining whether, factually, Olson has adequately shown bad

faith exists here.

However, Wittenbarqer stands for the proposition that a defendant must

show that the destruction of the evidence was improperly motivated. See

Wittenbarqer, 124 Wn.2d at 478. And, the Groth court clearly announced that a

showing of improper motivation is required. 163 Wn. App. at 559. Olson fails to

support his argument that—although these cases are factually distinguishable—

the general rule announced in these cases is inapplicable here. Thus, Olson must

show that the destruction of the 911 recordings was improperly motivated in order

to support the presence of bad faith, id

5 We note that Olson is not alleging that the State has a policy of not

responding to discovery requests, resulting in the automatic destruction of

evidence.

8
No. 72965-9-1/9

We impute NORCOM's destruction of the 911 recordings to the State. The

destruction of evidence here is serious given the State's obligation under CrR 4.7.

We are troubled by the State's failure to comply with Olson's discovery request.

The State should have complied with the discovery request, and it provides no

meaningful explanation for its failure to do so. But, the question before us is

whether the automatic destruction of potentially useful evidence, after a request

for preservation, rises to the level of bad faith. While the facts may invite an

inference of bad faith, they do not constitute affirmative evidence of improper

motivation required by our case law.

Moreover, on these facts, any error in allowing the destruction of the

evidence is harmless. See State v. Gulov. 104 Wn.2d 412, 425, 705 P.2d 1182

(1985) (stating that it is well established that a constitutional error may be so

insignificant as to be harmless); Younqblood, 488 U.S. at 59 (Stevens, J.,

concurring) (considering whether the defendant was prejudiced by lost evidence).

An error of constitutional magnitude is harmless when the reviewing court is

convinced beyond a reasonable doubt that any reasonable jury would have

reached the same result in the absence of the error. Gulov, 104 Wn.2d at 425.

Constitutional errors are presumed to be prejudicial and the State bears the burden

of proving that the error was harmless, jd

Olson's theory of the case at trial was that he was not the individual who

was actually driving the truck, that someone else had driven the truck, and that the

other person left the scene in another car. Olson asserts that any error here was
No. 72965-9-1/10

not harmless, because having access to the 911 recordings would have bolstered

the defense's theory so as to establish reasonable doubt.

It is unclear from the computer-aided dispatch (CAD) log how many

witnesses actually called 911 on the day of the incident. Below, Olson argued that

as many as seven people called 911 to report the incident. The CAD log includes

a list of seven "call persons." The list includes Jones, Cecily Novak, and five calls

identified by telephone service providers that are not identified by number or

name—one from Verizon, two from AT&T, and two from T-Mobile. In other places,

the CAD lists incoming phone calls from callers by name, some by partial name,

and some by telephone service provider. By name, it lists receiving calls from

Clarissa Schaaf and Jones. It also identifies a call from "Joel"6 and it lists an

accompanying phone number. It is unclear from the CAD whether the "call

persons" identified only by service providers were allseparate callers. Either way,

at least four separate callers were identified from the CAD log—Schaaf, Jones,

Novak, and Lessing. At least three of the witnesses who called 911 testified at

trial: Jones, Lessing, and Schaaf. The State did not list Novak as a witness.

Lessing spoke with the driver of the truck on the day of the incident, and he

identified Olson as the driver at trial. Lessing testified that he saw no one else in

the car and did not see anyone else at the scene. Jones also identified Olson.

She testified that she could see there was only one person in the truck while it was

moving and that she saw only one person get out of the truck. Schaaf testified that

6Joel's last name is Lessing.

10
No. 72965-9-1/11

she saw a light pole fall and saw a truck backing away from it. She testified that

she saw the truck continue moving down the hill toward her. But, she testified that

she was unable to see who was driving the vehicle or whether there were multiple

people in the vehicle.

Still, Olson argues that the 911 calls had the potential of revealing that the

eyewitness drivers were distracted. He asserts the recordings would have allowed

him to impeach the eyewitnesses. This is purely speculative. He claims that if

either of the witnesses was distracted for even 30 seconds, it would have

supported his theory of the case that in the chaos, the actual driver left. But, the

unavailability of the 911 recordings did not preclude Olson from presenting his

theory of the case. He cross-examined the witnesses about their potential

distractions. Olson's attorney highlighted that Jones was traveling with her

children and was worried about their safety and the safety of a pedestrian. Olson's

attorney highlighted that Lessing was on the phone with 911 while driving and that

he never actually identified Olson from a lineup, and that he was not concentrating

on what the driver looked like the day of the incident. On direct examination,

Schaaftestified that itall happened very fast and that she was not paying attention.

And, she stated that her young daughter was in the car at the time. Olson declined

to cross-examine Schaaf. The jury had the opportunity to observe the witnesses'

demeanor, weigh their answers, and judge their credibility.

And, during closing argument Olson's counsel reiterated that Jones was

distracted. Counsel also argued that the State's eyewitnesses were generally

11
No. 72965-9-1/12

concerned with the safety of their passengers, other people on the scene, and that

they had to navigate the intersection and pay attention during the critical moments.

Counsel noted that the distractions meant that the witnesses did not have the

ability to observe everything that occurred that day.

We conclude that any reasonable jury would have reached the same result

even with the 911 recordings available. Therefore, we reject Olson's claim that the

due process violation entitles him to reversal.

II. CrR 8.3(b)

Also related to the State's failure to preserve the 911 recording evidence,

Olson argues that the trial court erred when it did not dismiss the case due to

"government mismanagement" of the case under CrR 8.3(b). CrR 8.3(b) states

that the court may dismiss any criminal prosecution due to arbitrary action or

governmental misconduct where there has been prejudice to the rights of the

accused which materially affects the accused's right to a fair trial. This court

reviews a trial court's denial of dismissal under CrR 8.3(b) for abuse of discretion.

State v. Qppelt. 172 Wn.2d 285, 297, 257 P.3d 653 (2011).

Two things must be shown before a court can require dismissal of charges

under CrR 8.3(b). State v. Michielli. 132 Wn.2d 229, 239, 937 P.2d 587 (1997).

First, a defendant must show arbitrary action or governmental misconduct, id.

Governmental misconduct need not be of an evil or dishonest nature; simple

mismanagement is sufficient, id at 239-40. Yet, Washington courts have clearly

maintained that dismissal is an extraordinary remedy to which the court should

12
No. 72965-9-1/13

resort in only truly egregious cases of mismanagement or misconduct. State v.

Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003). The second necessary element a

defendant must show is prejudice affecting the defendant's right to a fair trial. Id.

An analysis under CrR 8.3(b) may well support a conclusion of

governmental misconduct. But, because the same governmental conduct as

viewed above through the lens of a constitutional violation is harmless, we

conclude that Olson cannot establish prejudice sufficient to justify dismissal under

this rule. Wilson, 149 Wn.2d at 9. Consequently, we hold that the trial court did

not abuse its discretion when it denied Olson's CrR 8.3(b) motion to dismiss.

III. LFOs

At sentencing, the trial court imposed $600 in mandatory LFOs—a $500

VPA fee and a $100 DNA fee. RCW 43.43.7541 and RCW 7.68.0357 establish

that the court's imposition of the DNA and VPA fees are mandatory. Specifically,

RCW 7.68.035(1 )(a) states that when a person is found guilty of having committed

a crime, there "shall be imposed by the court upon such convicted person a penalty

assessment." And, RCW 43.43.7541 states that "every sentence imposed . . .

must include a fee of one hundred dollars."

For the first time on appeal, Olson argues that as applied to an indigent

defendant, imposition of the mandatory VPA fee under RCW 7.68.035 and the

mandatory DNA fee under RCW 43.43.7541 violates substantive due process.

7 The legislature amended both of these statutes in 2015. See Laws of

2015, ch. 265 § 31; Laws of 2015, ch. 265 § 8. Because the salient portion of

these statutes did not change and because the amendments do not affect this

court's analysis, we refer to the current version of these statutes in this opinion.

13
No. 72965-9-1/14

The Washington Supreme Court considered and rejected a constitutional

challenge to the imposition of the mandatory VPA fee under RCW 7.68.035(1) in

State v. Curry. 118Wn.2d 911, 917, 829 P.2d 166(1992). The Curry court held

that, generally, constitutional principles are implicated only when the State seeks

to enforce collection of the mandatory assessment. Id The court noted that

imposition of the penalty assessment, standing alone, is not enough to raise

constitutional concerns, id at 917 n.3.

And, we recently considered the ripeness of a defendant's as-applied

substantive due process challenge to the imposition of the mandatory DNA fee in

State v. Shelton, No. 72848-2-I, 2016 WL 3461164, at *1 (Wash. Ct. App. June 20,

2016). The Shelton court considered the same as-applied substantive due

process challenge to the mandatory DNA fee statute. Id at *2. We held that until

the State attempts to enforce collection of the DNA fee or impose sanctions for

failure to pay, the claim is not ripe for judicial review and is not an error of

constitutional magnitude subject to review under RAP 2.5(a)(3).8 Shelton, 2016

WL 3461164, at *6.

8 Olson argues that the Washington Supreme Court already rejected the

proposition that a challenge to the imposition ofthe DNA and VPA fees is not ripe

until the State attempts to collectin State v. Blazina, 182Wn.2d 827, 832, n.1, 344

P.3d 680 (2015). In Blazina. the court concluded that the defendant's challenge

to the trial court's entry of an LFO order under RCW 10.01.160(3) was ripe for

review at the time the order was imposed. 182 Wn.2d at 832 n.1. But, as recently

noted bythis courtin Shelton. Blazina is distinguishable. 2016WL 3461164, at *6.

The Blazina court did not address the imposition of mandatory fees. Rather, it held

only that RCW 10.01.160(3) requires the sentencing court to make an

individualized inquiry into the defendant's ability to pay discretionary LFOs. 182

Wn.2d at 830. And, unlike discretionary LFOs, the legislature unequivocally

requires—notwithstanding RCW 10.01.160(3)—imposition ofthe mandatory DNA

14
No. 72965-9-1/15

Olson argues that Curry is distinguishable. He argues that, unlike in Curry,

rather than challenging the constitutionality of the LFO statutes based on the

fundamental unfairness of their ultimate enforcement potential (incarceration), he

is challenging the, "unconstitutional exercise of the State's regulatory power that is

irrational when applied to defendants who have not been shown to have the ability

to pay."

But, even if Curry is distinguishable in this regard, this court's recent

pronouncement in Shelton is clear: an as-applied substantive due process

challenge to the DNA fee statute is not ripe for review until the State attempts to

enforce collection of the fee. Shelton. 2016 WL 3461164, at *6. And, there is

nothing in Shelton's reasoning that limits its application to only the mandatory DNA

fee statute as opposed to also the mandatory VPA fee statute.

Still, Olson argues that his claim is ripe for review, because Washington's

LFO scheme provides for immediate enforced collection processes, penalties, and

sanctions through wage garnishment, payroll deduction, and the accrual of interest

at the time of the entry of judgment. In other words, he implies that his claim is

ripe, because the State may begin enforcing collection rightaway. But, Olson does

not identify any evidence in his case indicating that the State has employed these

or any enforcement mechanisms to collect the mandatory LFOs. In fact, the record

shows that the trial court waived interest as to the $600 of LFOs in Olson's case.

fee and the mandatory VPA at sentencing without regard to the ability to pay. See

RCW 43.43.7541; RCW 7.68.035; Shelton, 2016 WL 3461164, at *6.

15
No. 72965-9-1/16

We adhere to the decisions in Curry and Shelton and hold that Olson's asapplied substantive due process challenges to the mandatory DNA fee and VPA

fee are not ripe for review and that they do not constitute manifest constitutional

error warranting review for the first time on appeal.

We affirm.

WE CONCUR:

^&;.n4Jl, ty- TW^

16