IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DALLAS JOHN PAUL LANGE,

Appellant.

In the Matter of the Personal Restraint of:

DALLAS JOHN PAUL LANGE,

Petitioner.

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No. 36501-8-III

(consolidated with

No. 37035-6-III)

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Dallas Lange appeals his conviction for the crime of 

first degree assault while armed with a deadly weapon and aspects of his sentence. We 

affirm Mr. Lange’s conviction, but remand for additional findings to support the 

requirement that he receive a mental health evaluation and for the trial court to strike the

drug evaluation requirement and the criminal filing fee.

FILED

JANUARY 26, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36501-8-III; No. 37035-6-III

State v. Lange

2

FACTS1

Dallas Lange swung an axe down on Jerry Billings, fileting his cheek and cutting 

deeply into his chest. The State originally charged Lange with attempted first degree 

murder and asserted a deadly weapon enhancement. Lange asserted the defenses of selfdefense and diminished capacity. He hired Dr. Stephen Cummings, a licensed 

psychologist, to assess whether various factors prevented him from forming the mental 

intent to murder or assault Billings. 

Dr. Cummings reviewed the various written witness accounts and interviewed 

Lange to learn what happened. Lange had been in prison for 10 months by the time of the 

interview. 

According to Lange, he and his girlfriend, Theresa Pauling, lived in a recreational 

vehicle next to a house rented by Billings and Kirsten Pauling, Theresa’s mother. Lange 

paid rent to Billings, and Billings paid rent to his landlord. 

Theresa Pauling went to the trailer and asked her mother to ask Billings for keys to 

a car that Lange was purchasing from Billings. Billings, who had received an eviction 

 

1 The only issue that requires a recitation of facts is whether the trial court erred 

when it granted the State’s motion to exclude Dr. Stephen Cummings from testifying. 

For this reason, our statement of facts comes from the information the trial court 

considered in its ruling, Dr. Cummings’s report, and Officer Leo Lucatero’s certified 

statement of probable cause. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

3

notice, refused unless Lange paid him $250. This led to an argument between Lange and 

Billings. The argument escalated and Lange swung at Billings and missed. Billings, who 

is much larger than Lange, grabbed him. Lange tried to leave the house and slammed the 

door on Billings who was following him outside. The two men continued fighting and 

gouged at each other’s eyes. Kirsten Pauling then separated the two men. They went 

inside, with Billings going into his office, and Lange going into the living room. There 

were several hunting knives laid out in the kitchen area.

A few minutes later, Billings came out of his office and told Lange and Theresa 

Pauling they were “‘out of here,’” possibly meaning evicted from the mobile home. 

Clerk’s Papers (CP) at 5. Lange responded, “‘no, you’re out of here,’” and grabbed a 

large axe that was hanging on the wall next to the wood stove. CP at 5. 

Lange described to Dr. Cummings what he was feeling: “‘I had a mental 

breakdown from stress, the money, and sleep deprivation. I wasn’t expecting to get 

attacked. I had tunnel vision and picked up the nearest thing on the wall. A big axe. 

I took a step forward and swung it.’” CP at 27.

In his report, Dr. Cummings stated that his role was “to explain why Dallas Lange 

engaged in the actions which resulted in being charged with assault, then attempted 

murder.” CP at 23. Dr. Cummings gave Lange the Millon Clinical Multiaxial Inventory-
No. 36501-8-III; No. 37035-6-III

State v. Lange

4

IV (MCMI-IV), a psychological test comprised of 195 true-false questions. He noted in 

his report that the testing algorithm did not account for the fact that Lange had been in 

prison for 10 months. 

Based on interviews with Lange and his mother, and administering the testing 

algorithm, Dr. Cummings concluded: 

Dallas is[2]experiencing a severe mental disorder. He appears to fit the 

following personality disorders best: Melancholic Disorder, with Avoidant 

Personality Type; Schizoid Personality Type, and Borderline Personality 

Style. Furthermore, clinical syndromes suggested by his test profile 

include: Major Depression, recurrent, severe; Generalized Anxiety 

Disorder, and Posttraumatic Stress Disorder.

CP at 28.

Based on this diagnosis, Dr. Cummings explained why Lange acted in the manner 

he did:

My best professional guess is that Dallas Lange harbored increasing 

resentment towards Jerry Billings for his deceitfulness and financial 

exploitation. . . . Thus we have a defining moment in time . . . when he 

reacted to mounting internal stress and genuine perception of danger to his 

well being, by securing the nearest potent weapon in order to neutralize the 

very source of that immediate danger, to wit, Mr. Billings, who weighs 145 

kgs. (about 320 pounds). His momentary impulsive decision was surely 

regrettable but reflected a build-up of deep anger that had been masked via 

his passive-aggressive demeanor until he snapped.

 

2

 The context of the report suggests that the diagnosis relates to Lange’s condition 

at the time of the interview, not at the time of the alleged assault.
No. 36501-8-III; No. 37035-6-III

State v. Lange

5

. . . Like many fights, this one was verbally provocative and with its 

escalation and the nearby access to lethal weapons, the likelihood of 

inflicting physical harm was clearly enhanced. . . . When his very existence 

seemed to be threatened, he lost control and his actions have accordingly 

changed the course of his life.

CP at 30-31.

Well before trial, the State moved to amend the charges to include first degree 

assault. The trial court granted the motion. Also at that time, the State moved to exclude 

the testimony of Dr. Cummings. The court heard argument, reserved ruling, and days 

later entered a written ruling explaining its decision to exclude the expert’s testimony. 

We highlight the following aspects of the court’s written ruling: 

It is not enough that a defendant may be diagnosed as suffering from 

a particular mental disorder. The diagnosis must, under the facts of the 

case, be capable of forensic application in order to help the trier of fact 

assess the defendant’s mental state at the time of the crime. The opinion 

concerning a defendant’s mental disorder must reasonably relate to 

impairment of the ability to form the culpable mental state to commit the 

crime charged.

. . . .

. . . While Dr. Cummings opines that the defendant appears 

depressed he does not logically and reasonably articulate that the 

defendant’s medical condition precluded the defendant from forming the 

premeditated “intent” to cause . . . the death of the alleged victim.

CP at 19-20.3

 

3 The trial court had recently granted the State’s motion to amend charges to 

include first degree assault. However, the order excluding Dr. Cummings discusses only 
No. 36501-8-III; No. 37035-6-III

State v. Lange

6

The matter proceeded to trial. After the parties submitted their evidence, the trial 

court provided the jury with instructions on the law, including the law of self-defense and 

the standard first aggressor instruction. Lange did not object to the first aggressor 

instruction. 

The jury could not unanimously agree on the charge of attempted first degree 

murder, but returned a guilty verdict on the charge of first degree assault. It also found 

that the State had proved the deadly weapon enhancement. 

The trial court sentenced Lange to 147 months of confinement and 36 months of 

community custody. As part of community custody, the trial court ordered Lange to 

undergo treatment for substance abuse disorder and mental health disorder. The trial 

court also ordered Lange to pay the criminal filing fee and community custody 

supervision fees.

Lange timely appealed to this court.

 

the original charge of attempted first degree murder.
No. 36501-8-III; No. 37035-6-III

State v. Lange

7

ANALYSIS

DUE PROCESS RIGHT TO PRESENT A DEFENSE

Lange contends the trial court violated his constitutional right to present a defense. 

He argues that Dr. Cummings’s testimony was relevant to his diminished capacity defense

and his claim of self-defense. 

Constitutional principles

We review constitutional claims de novo, as questions of law. State v. Jones, 168 

Wn.2d 713, 719, 230 P.3d 576 (2010). We review a trial court’s decisions admitting or 

excluding evidence for abuse of discretion. State v. McDonald, 138 Wn.2d 680, 693, 981 

P.2d 443 (1999). 

The Fifth Amendment to the United States Constitution and article I, section 3 of 

the Washington Constitution guarantee that no person shall be “deprived of life, liberty, 

or property, without due process of law.” This right to due process includes the right to 

be heard and to offer testimony. Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 

97 L. Ed. 2d 37 (1987). The accused’s right to due process “is, in essence, the right to a 

fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 

U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). And the right “to call witnesses 

in one’s own behalf [has] long been recognized as essential to due process.” Id. “Just as 
No. 36501-8-III; No. 37035-6-III

State v. Lange

8

an accused has the right to confront the prosecution’s witnesses for the purpose of 

challenging their testimony, he has the right to present his own witnesses to establish a 

defense. This right is a fundamental element of due process of law.” Washington v. 

Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

A criminal defendant’s right to present witnesses has limits. A defendant must “at 

least make some plausible showing of how [a witness’s] testimony would have been both 

material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 

867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). The defendant’s right must yield to 

“established rules of procedure and evidence designed to assure both fairness and 

reliability in the ascertainment of guilt and innocence.” State v. Finch, 137 Wn.2d 792, 

825, 975 P.2d 967 (1999). 

Evidentiary principles with respect to diminished capacity

“To maintain a diminished capacity defense, a defendant must produce expert 

testimony demonstrating that a mental disorder, not amounting to insanity, impaired the 

defendant’s ability to form the specific intent to commit the crime charged.” State v. 

Ellis, 136 Wn.2d 498, 521, 963 P.2d 843 (1998). “The opinion of an expert concerning a 

defendant’s mental disorder must reasonably relate to impairment of the ability to form 
No. 36501-8-III; No. 37035-6-III

State v. Lange

9

the culpable mental state to commit the crime charged.” State v. Atsbeha, 142 Wn.2d 

904, 918, 16 P.3d 626 (2001).

Dr. Cummings’s opinions did not meet this standard. In his report, Dr. Cummings 

sought to explain why Lange assaulted Billings. Dr. Cummings did not conclude that 

Lange’s disorders caused him to be unable to form the intent to assault or kill Billings. 

Instead, Dr. Cummings concluded that Lange’s passive-aggressive personality disorder 

caused him to react impulsively and snap. A person can react impulsively and snap and 

still intend to assault or kill someone. Most violent acts occur due to a combination of 

impulsivity and loss of control.

Lange likens his case to Ellis. There, the Supreme Court concluded that the trial 

court abused its discretion in excluding expert testimony to support a diminished capacity 

defense. 136 Wn.2d at 523. There, Ellis was charged with premeditated first degree 

murder of his mother and his two-year-old half sister. Id. at 500. One defense expert 

opined that Ellis suffered from a borderline personality disorder and intermittent 

explosive disorder. Id. at 520. He explained that these disorders underlay Ellis’s killings 

because they related to his “emotional discontrol.” Id. This expert opined that Ellis was

“‘an individual whose perceptional process, whose interpreting process, his decision 

making capacity and his ability to properly regulate his behavior, was severely 
No. 36501-8-III; No. 37035-6-III

State v. Lange

10

compromised as a direct result of this ongoing personality disturbance.’” Id. The expert 

concluded that Ellis’s “‘continuously disregulated state’” caused him to kill his sister 

because the maternal attachment between his mother and young half sister triggered an 

“‘intense exasperation of an already existing level of emotional discontrol.’” Id. 

But in Ellis, the defense presented an opinion from a second expert that tied 

together Ellis’s mental disorders with his inability to form the requisite intent. The 

second expert opined that Ellis suffered from an antisocial personality disorder and 

impulse control disorder. When asked how Ellis’s mental disorders causally connected 

the lack of intent, this second expert testified: 

“[W]hen he went over three in that situation with his mother, he walked in 

there with this history of problems, this history of mental disorder. . . . He 

is in a situation where certain stressors arise. And given the weaknesses in 

his psychological makeup, the mind is overpowered basically by—there is a 

breakdown in the deliberation process, in forming judgments and decisions, 

and the person ends up acting from disarray and from confusion and 

emotional forces, rather than from a deliberate forming of intent. . . .”

Id. at 520-21 (alterations in original). 

We distinguish Ellis. There, expert testimony demonstrated that mental disorders

impaired the defendant’s ability to form the specific intent to commit the crime charged. 

Here, nothing in Dr. Cummings’s report demonstrated that Lange’s mental disorders 

impaired his ability to form the intent to assault or kill Billings. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

11

Evidentiary principles with respect to self-defense

Lange also argues that Dr. Cummings’s testimony was erroneously excluded 

because it was relevant to self-defense. Lange argued to the trial court: “At a minimum, 

even if they don’t find that there is diminished capacity, it is relevant mental state 

evidence that the jury should be able to use given Dr. Cummings’ background and his 

examination of Mr. Lange.” Report of Proceedings (RP) at 26. On this point, we do not 

believe the trial court abused its discretion.

Evidence of self-defense “must be assessed from the standpoint of the reasonably 

prudent person, knowing all the defendant knows and seeing all the defendant sees.” 

State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). This approach incorporates 

both subjective and objective components. Id. It is subjective in that the jury is entitled 

to stand as nearly as practicable in the shoes of the defendant and from this point of view 

determine the character of the act. Id. It is also subjective in that the jury is to consider 

the defendant’s actions in light of all the facts and circumstances known to the defendant. 

Id. The defendant must subjectively believe in good faith that he was in imminent danger 

of being injured. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002). The evaluation 

is objective in determining what a reasonably prudent person similarly situated would 

have done. Janes, 121 Wn.2d at 238.
No. 36501-8-III; No. 37035-6-III

State v. Lange

12

Excluding Dr. Cummings’s testimony had no effect on Lange’s own ability to 

testify about his subjective point of view. Lange was able to and did testify what he knew 

about Billings. Lange testified that Billings is a very aggressive person who does not stop 

fighting, and he feared for his life when Billings entered the kitchen and so many lethal 

weapons were nearby. 

We acknowledge that expert testimony, if relevant, should be allowed to support a 

claim of self-defense. See State v. Kelly, 102 Wn.2d 188, 196 n.2, 685 P.2d 564 (1984)

(Evidence of battered woman syndrome is admissible to show subjective state of mind to 

support self-defense.). Here, Dr. Cummings would have testified that (1) Lange had pent 

up anger toward Billings, lost control of his anger, and (2) took the axe off the wall 

because he genuinely perceived a threat to his existence. The first portion of the opinion 

ties Lange’s passive-aggressive disorder to his loss of control. But loss of control is not 

relevant and is even antithetical to self-defense. The second portion of the opinion does 

not tie any of Lange’s various mental disorders to why he possibly overreacted. We 

conclude that Dr. Cummings’s testimony was not relevant to Lange’s self-defense claim, 

and the trial court did not abuse its discretion when excluding that testimony.
No. 36501-8-III; No. 37035-6-III

State v. Lange

13

FIRST AGGRESSOR INSTRUCTION

Lange contends the trial court erred by giving the jury a first aggressor instruction. 

He argues the instruction allowed the jury to surmise that words alone constituted a 

provocation that disqualified his defense of self-defense. But Lange did not object to the 

first aggressor instruction at trial.

This court typically does not review issues that were not first raised in the trial 

court. RAP 2.5(a). One of the exceptions to this rule is where the alleged error is a 

manifest error of constitutional magnitude. RAP 2.5(a)(3). In State v. Grott, 195 Wn.2d 

256, 458 P.3d 750 (2020), our Supreme Court recently addressed manifest constitutional 

error in the context of a court giving a first aggressor instruction.

Claim of constitutional error

In Grott, the court recognized that jury instructional errors that relieve the State of 

its burden of proof qualify as constitutional errors. Id. at 268. The court clarified that 

“first aggressor instructions are used to explain to the jury one way in which the State 

may meet its burden: by proving beyond a reasonable doubt that the defendant provoked 

the need to act in self-defense.” Id. And for this reason, the giving of a first aggressor 

instruction does not necessarily relieve the State of its burden of proof. Id. at 268-69. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

14

Lange argues the error he claims is one of constitutional magnitude because an 

inaccurate first aggressor instruction is tethered to a self-defense claim. He argues the 

instruction given failed to adequately inform the jury that words alone are insufficient 

provocation for purposes of the first aggressor instruction and thus relieved the State of 

its burden to disprove self-defense. We agree that such a claim of error is of 

constitutional magnitude.

Manifest error

Lange must also establish that the claimed constitutional error is manifest. 

“Manifest error” requires a plausible showing by the appellant that the asserted error had 

practical and identifiable consequences in the trial of the case. Id. at 269.

Lange argues the error is manifest because the jury was permitted to find that the 

State disproved his self-defense claim on the erroneous basis that he verbally provoked 

Billings. Lange fails to persuade us that this theoretical error plausibly occurred. 

Nowhere during closing argument did the State suggest that Lange’s self-defense 

claim was precluded because of words alone. Rather, the State argued: “And who’s the 

first person who brings violence to it? The defendant. He slams the door in [Billings’s] 

face, then [Lange] punches him.” RP at 434. This is not “words alone,” but an act of 

physical aggression. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

15

Because Lange cannot plausibly show an identifiable consequence of the alleged 

error, any potential error is not manifest. Therefore, we will not review it.

PROSECUTORIAL MISCONDUCT 

Lange contends the prosecutor committed misconduct during closing arguments. 

He argues the prosecutor misstated the law for the first aggressor standard and for the 

self-defense standard. We disagree.

When reviewing an allegation of prosecutorial misconduct, this court looks at the 

prosecutor’s statements, within the context of the entire case, to determine whether the 

conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 

258 P.3d 43 (2011). Where a defendant has not objected to the statements, he waives the 

error unless he can show the statement is so flagrant and ill intentioned that it caused 

enduring prejudice that could not be neutralized by an admonition to the jury. Id. at 443.

We have already discussed Lange’s first argument above. Unlike how Lange 

characterizes the State’s closing argument, the prosecutor did not argue that Lange was 

the first aggressor because of his words or threats. He stated plainly to the jury that 

Lange was the first aggressor because of the physical attacks he made on Billings. This is 

well within the proper argument for a first aggressor instruction. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

16

Lange further argues that the prosecutor misstated the law on the first aggressor 

instruction by stating Lange created the “situation” where he would need to act in selfdefense as opposed to provoking the necessity to act in self-defense. He argues creating 

the “situation” involves scenarios where the defendant did or said something that 

provoked the complaining witness, but would not qualify as legal provocation. Again, 

within the context of the case as a whole, this was not what the State argued. It argued 

that the act of slamming the door and hitting Billings was provocation for a fight. We 

need not look at hypothetical scenarios here. Within the context of the case, the 

prosecutor’s arguments regarding first aggressor were proper.

Finally, Lange contends the prosecutor omitted part of the self-defense standard. 

He argues the State only gave the jury part of the standard, what a reasonable person 

would believe is necessary to defend themselves, and ignored the subjective part of the 

standard, Lange’s own perceptions at the time. Again, unlike Lange’s characterizations, 

the prosecutor did not tell the jury to ignore Lange’s subjective perception, implicitly or 

explicitly. In fact, the prosecutor stated in its argument, “It’s got to be reasonable to what 

the perceived threat is, and here there is no threat.” RP at 434. The prosecutor did not 

commit misconduct in his statements.
No. 36501-8-III; No. 37035-6-III

State v. Lange

17

Lange argues, in the alternative, that his counsel was ineffective for not objecting 

to the prosecutor’s statements. However, since we find there was no misconduct, it 

cannot be ineffective assistance to have not objected here. 

MENTAL HEALTH TREATMENT CUSTODY CONDITION

Lange contends the trial court erred by ordering mental health evaluation and 

treatment as part of his community custody conditions. He argues the trial court did not 

make the statutorily required findings. The State correctly concedes this issue and we 

agree.

The trial court is empowered to order mental health evaluations and treatment only 

when the court has made a finding “that reasonable grounds exist to believe that the 

offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is 

likely to have influenced the offense.” RCW 9.94B.080. The trial court in this case made 

no such findings. Because the trial court never found Lange mentally ill and never found 

any mental illness likely influenced his attack of Billings, it abused its discretion in 

ordering a mental health evaluation and treatment. 

The State contends the proper remedy is to remand to allow the trial court to 

determine whether Lange is mentally ill and, if so, make the proper findings. State v. 
No. 36501-8-III; No. 37035-6-III

State v. Lange

18

Shelton, 194 Wn. App. 660, 676, 378 P.3d 230 (2016). We agree and remand to the trial 

court to make this determination. 

DRUG EVALUATION AND TREATMENT CONDITION

Lange contends the trial court erred in ordering an evaluation and treatment for a 

substance abuse disorder. Lange argues that there was no evidence that any drug use on 

his part was reasonably related to his assault on Billings and that it is not crime related. 

We agree.

The court is authorized to require an offender to “[p]articipate in crime-related 

treatment or counseling services” and in “rehabilitative programs or otherwise perform 

affirmative conduct reasonably related to the circumstances of the offense, the offender’s 

risk of reoffending, or the safety of the community.” RCW 9.94A.703(3)(c), (d). 

However, the trial court may only impose drug abuse treatment where evidence in the 

record supports the proposition that an offender’s drug use was related to the underlying 

offense. State v. Munoz-Rivera, 190 Wn. App. 870, 892-93, 361 P.3d 182 (2015). 

Substantial evidence must support this determination. State v. Irwin, 191 Wn. App. 644, 

656, 364 P.3d 830 (2015). 
No. 36501-8-III; No. 37035-6-III

State v. Lange

19

The State contends Dr. Cummings’s report shows that Lange regularly smoked 

“dabs”4 on a regular basis since his adolescence and had routinely done so just prior to his 

projected drive to work that day. It further argues that Lange, when asked about 

concentrated tetrahydrocannabinol, said “‘you just don’t want to move . . . like a high 

dose of OxyContin.’” CP at 25. However, nothing about this evidence shows that 

Lange’s habitual drug use led to his assault of Billings. 

Because substantial evidence was not presented to support Lange’s drug use being 

crime related, we remand to have the condition struck. 

LEGAL FINANCIAL OBLIGATIONS (LFOs)

Lange contends the trial court erred by imposing discretionary LFOs despite 

finding him indigent. He argues the criminal filing fee and community supervision fees 

are discretionary and are barred from being imposed. 

Engrossed Second Substitute House Bill 1783, 65th Leg., Reg. Sess. (Wash. 2018), 

which became effective June 7, 2018, prohibits trial courts from imposing discretionary 

LFOs on defendants who are indigent at the time of sentencing. LAWS OF 2018, 

ch. 269, § 6(3); State v. Ramirez, 191 Wn.2d 732, 738, 747, 426 P.3d 714 (2018). This 

change to the criminal filing fee statute is now codified in RCW 36.18.020(2)(h). As held 

 

4 CP at 25.
No. 36501-8-III; No. 37035-6-III

State v. Lange

20

in Ramirez, these changes to the criminal filing fee statute apply prospectively to cases 

pending direct appeal prior to June 7, 2018. Id. at 738. Accordingly, the change in law 

applies to Lange’s case. Because Lange is indigent, the criminal filing fee must be struck 

pursuant to Ramirez.

In State v. Spaulding, No. 53253-1-II, slip op. at 8-9 (Wash. Ct. App. Nov. 17, 

2020), https://www.courts.wa.gov/opinions/pdf/D2%2053253-1-II%20Published%

20Opinion.pdf, Division Two of this court held that a sentencing court is not 

prohibited by RCW 10.01.160(3) from imposing community supervision fees on an 

indigent defendant. Spaulding recognizes that RCW 10.01.160(3) prohibits discretionary 

costs from being imposed on an indigent defendant. Spaulding then notes that 

RCW 10.01.160(2) “defines ‘cost’ as an expense incurred by the State to prosecute the

defendant, to administer a deferred prosecution program, or to administer pretrial 

supervision.” Id. at 9. Spaulding correctly concludes that community supervision fees do 

not qualify as a “cost” under that definition. Id.

Nevertheless, RCW 9.94A.703(2)(d) explicitly permits a trial court to waive 

community custody supervision fees. There is no evidence here the trial court intended to 

waive such fees. If it declined to waive these fees, it acted within its discretion. But if it 
No. 36501-8-III; No. 37035-6-III 

State v. Lange 

overlooked this and desires to waive such fees, it is not foreclosed from doing so on 

remand. 

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG) 

SAG I: PROSECUTORIAL MISCONDUCT 

Lange contends the prosecutor committed misconduct by misstating the law on 

self-defense. Because we have addressed this above, we need not readdress it here. 

SAG II: CLOSING COURTROOM 

Lange contends the trial court erred by denying two members of the public from 

sitting in on his voir dire. This assertion relies on facts outside the record on appeal, and 

this court cannot review it. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 

(1995). 

Affirmed in part; remanded. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

~NCUR: 

• JI.., c::r ' . . 

Lawrence-Berrey, 1.\ 

.1 

dZ 'dh w~ ft. Pennell, C.J. Siddoway, 1: 

21