IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JOSEPH M. GRAY,

Appellant.

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No. 39249-0-III

UNPUBLISHED OPINION

COONEY, J. — Joseph Gray was charged with first degree murder and first degree 

robbery. A jury acquitted him of murder and found him guilty of robbery. Mr. Gray 

appeals his sentence, arguing that his due process rights were violated during the 

sentencing hearing when the trial court considered a video and photomontage

commemorating the life of the victim. Mr. Gray also appeals the trial court’s imposition 

of the DNA collection fee and the victim penalty assessment (VPA). We affirm Mr. 

Gray’s sentence and remand for the trial court to strike the DNA collection fee and VPA

from the judgment and sentence.

BACKGROUND

Mr. Gray was charged with first degree murder and first degree robbery. The 

charges stemmed from an incident in which Mr. Gray shot and killed Christopher Smith 

over drug-related money. 

FILED

JULY 2, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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State v. Gray

2

At trial, Mr. Gray testified that he had arranged to buy heroin from a known drug 

dealer, Kevin Beaver. Mr. Beaver arrived with Mr. Smith, whom Mr. Gray knew to have 

been recently released from prison, gang-affiliated, and active in trafficking guns and 

drugs. Mr. Gray gave Mr. Smith $4,500 in exchange for heroin, only to later discover the 

heroin was not genuine. Upset with being “ripped off” and intent on retrieving his 

$4,500, Mr. Gray then traveled to Mr. Beaver’s home. Rep. of Proc. (RP) at 578. Mr. 

Smith, who was also at Mr. Beaver’s home, denied having the money. 

After Mr. Smith told Mr. Gray to speak with some people in a car parked in front 

of the home, Mr. Smith ran out a back door on foot. Mr. Gray tracked Mr. Smith’s 

footprints in the snow to a nearby “old folks’ home.” Id. at 582. When Mr. Gray 

encountered Mr. Smith, an argument ensued. RP at 583. Mr. Gray snatched a bag from 

Mr. Smith that he thought contained the $4,500. RP at 585. After he purloined the bag, 

Mr. Gray testified that Mr. Smith told him, “You’re fucking dead.” Id. at 586. Mr. Gray 

then shot Mr. Smith in the chest. Mr. Smith died from his injuries. 

A jury acquitted Mr. Gray of first degree premeditated murder but found him 

guilty of first degree robbery and returned a special verdict finding that Mr. Gray was 

armed with a firearm during the commission of the robbery. 

Among others, Mr. Smith’s mother, girlfriend, and daughter were present at Mr. 

Gray’s sentencing. Mr. Smith’s mother and girlfriend presented victim impact statements 

to the court. The State, on behalf of Mr. Smith’s family, requested permission to play a 
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3

short video and display a photomontage depicting Mr. Smith. Mr. Gray’s counsel 

objected to the admission of the video and photomontage on the basis that they were 

“improper” because “we’re here for a sentencing for a robbery and not for the sentencing 

of murder.” Id. at 714. 

The court explained that it had “wide discretion to determine the manner and 

extent of . . . crime victim impact statement[s]” and recognized that crime victims have 

constitutional rights. Id. The court further stated it was “taking into account that Mr. 

Gray has been convicted of a most serious offense, during the course of which Mr. Smith 

died” and that “[w]hat I’m doing today is not based on anything for which he was 

acquitted; it’s that for which he was convicted.” Id. The court further recognized Mr. 

Smith’s family’s desire to rebut Mr. Gray’s depiction of Mr. Smith being a gangaffiliated drug dealer who was always armed with a gun. The court admitted both the 

video and photomontage. 

The video was over four minutes in length and contained images and short 

recordings of Mr. Smith with family, friends, his girlfriend, and his young daughter. The 

video opened with a recorded message from Mr. Smith, presumably to his girlfriend, in 

which he stated he loved her. The majority of the video was set to Bill Withers’ “Lean 

on Me.” The video concluded with a photo of Mr. Smith as a child and artwork created 

by his daughter with a message that said “Dear Daddy, my dad is important to me 

because he loves me no matter what even if he’s not here, love E[ ].” Ex. 3, at 3 min., 57
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sec. to 4 min., 4 sec. The photomontage contained 38 images of Mr. Smith with family, 

friends, his girlfriend, and his daughter. 

Ultimately, the court sentenced Mr. Gray to 48 months of confinement, the highend of the standard range, consecutive to a 60-month firearm enhancement. The court 

also ordered the then-mandatory DNA collection fee and VPA. 

Mr. Gray appeals. 

ANALYSIS

On appeal, Mr. Gray argues that his due process rights under the Fourteenth 

Amendment to the United States Constitution were violated at sentencing and, because he 

is indigent, the court erred when it ordered the VPA and the DNA collection.

We disagree with Mr. Gray’s first contention and accept the State’s concession on 

the second. 

I. WHETHER MR. GRAY’S DUE PROCESS RIGHTS WERE VIOLATED AT 

SENTENCING

Mr. Gray argues that his due process rights under the Fourteenth Amendment were 

violated at sentencing. Specifically, Mr. Gray contends the trial court’s consideration of

a photomontage and video presented during Mr. Smith’s family’s victim impact 

statements rendered the sentencing hearing fundamentally unfair. We disagree. 

Washington Constitution’s article I, section 35 (amend. 84) provides crime victims 

and their families or representatives the opportunity to make a statement at a defendant’s 
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sentencing. See also State v. Gentry, 125 Wn.2d 570, 624, 888 P.2d 1105 (1995). As it 

relates to the rights of victims and their families, the amendment provides, “[t]his 

provision shall not constitute a basis for error in favor of a defendant in a criminal 

proceeding.” WASH. CONST. art. I, § 35. In addition to constitutional protections,

RCW 7.69.030(m) and (n) permit victims and victim’s families or representatives to 

submit victim impact statements to the court and to personally make a statement at a 

sentencing hearing in a felony case. Judges also possess discretion to consider written 

materials provided by crime victims and their families. State v. Lindahl, 114 Wn. App. 1, 

15, 56 P.3d 589 (2002). 

“[T]rial courts, which are experienced in balancing the probative against the 

prejudicial, should exercise their informed discretion in deciding the scope of permissible 

victim impact evidence in a given case.” Gentry, 125 Wn.2d at 632-33. However, if 

“victim impact evidence is introduced that is so unduly prejudicial that it renders the trial 

fundamentally unfair, the Fourteenth Amendment’s Due Process Clause provides a 

mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 809, 111 S. Ct. 2597, 115 L.

Ed. 2d 720 (1991).

Generally, this court reviews constitutional issues de novo. State v. Mullen, 171 

Wn.2d 881, 893-94, 259 P.3d 158 (2011). 
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A. RULE OF APPELLATE PROCEDURE 2.5

The State first asserts that any perceived error was not preserved for our review. 

We disagree. 

The State recognizes that defense counsel did object to the admission of the video 

and photomontage, but seems to contend that Mr. Gray was required to state specifically 

that he was objecting on the basis that the video and photomontage violated his due 

process rights. Indeed, defense counsel stated, “[W]e oppose that the video is played and 

we oppose the poster board because we’re here for a sentencing for a robbery and not for 

the sentencing of murder.” RP at 714. Further, defense counsel stated, “[I]t’s improper 

to show the video of Mr. Smith.” Defense counsel’s objection sufficiently preserved the 

alleged error for our review.

B. APPEALABILITY OF STANDARD RANGE SENTENCE

The State next argues that because Mr. Gray received a standard range sentence, 

the sentence cannot be appealed. We disagree. 

Generally, a defendant may not appeal a standard range sentence. State v. 

Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). However, a defendant is “not 

precluded from challenging on appeal the procedure by which a sentence within the 

standard range was imposed.” State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719 

(1986). Mr. Gray challenges the procedure by which his sentence was imposed. His 

argument focuses on the court’s consideration of materials he alleges were unduly 
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prejudicial, rendering his sentencing hearing fundamentally unfair. Thus, he is permitted 

to appeal his standard range sentence. 

C. DUE PROCESS

Turning to the merits, Mr. Gray contends the admission of the video and 

photomontage presented by Mr. Smith’s family violated his due process rights. We 

disagree. 

In State v. Schierman, our Supreme Court addressed whether admission of a 

memorial service video at a sentencing hearing violated Mr. Schierman’s due process 

rights. 192 Wn.2d 577, 694-702, 438 P.3d 1063 (2018).

1

 There, the video at issue was 

prepared by the victims’ family members, was 15 minutes in length, and included still 

and moving images of the victims, and “a few captions with phrases like ‘you are gone, 

but not forgotten.’” Id. at 701. The video also included images of the adult victims and 

children and a few images of “clouds and coastlines.” Id. The trial court admitted the 

video, but ruled that the video must be played without audio because the soundtrack 

accompanying the video “magnif[ied] tremendously” the religious and spiritual aspects of 

the victims’ lives and was an “inappropriate attempt[ ] to influence through those means 

the jury’s decision.” Id. at 696. 

 

1 The penalty phase in Schierman lasted nearly one month and involved a jury that 

voted to impose the death penalty. Id. at 595. Here, sentencing was before a judge.
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On review, the Supreme Court held that “[t]he captions and images of nature are 

the kind of stylized elements that courts have deemed inflammatory and therefore 

inadmissible.” Id. at 701. It also found that the images of the adult victims as children 

were “problematic.” Id. However, the court ruled that the “emotional impact of those 

fleeting elements [was] negligible compared with the impact of the many still and 

moving images.” Id. at 702. Ultimately, the court held, “In light of our precedent 

allowing the State to present victim impact evidence, the trial court did not err by 

admitting the video without sound.” Id. 

Though defense counsel objected to the court’s consideration of the video and 

photomontage, the court overruled the objection noting that the court had “wide 

discretion to determine the manner and extent of a crime victim impact statement.” Id. at 

715. The court also recognized that there was “not a jury here” and reiterated that, “What 

I’m doing today is not based on anything for which [Mr. Gray] was acquitted; it’s that for 

which he was convicted.” Id. The court also recognized the victim’s family members’ 

“constitutional right to be heard on who Mr. Smith was and the impact of his loss,”

especially after Mr. Gray’s characterization of Mr. Smith as a gang-affiliated drug dealer 

who was always armed with a gun. Id. at 716. 

Mr. Gray argues the video was improper because he was being sentenced for 

robbery, not murder. However, as the court recognized, “Mr. Smith’s death didn’t occur 

in a vacuum.” Id. at 733. The court was well aware that Mr. Gray shot and killed Mr. 
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Smith during the commission of the robbery. Forsooth, at trial Mr. Gray even testified to 

shooting Mr. Smith. It was not unduly prejudicial for the trial court to consider the 

impact that Mr. Smith’s death had on his family due to Mr. Gray’s actions while 

committing the robbery. 

Further, admission of the video and photomontage did not violate Mr. Gray’s due 

process rights by rendering the sentencing hearing fundamentally unfair. The video

consisted of pieced together photos and videos, primarily depicting objective 

representations of Mr. Smith and his girlfriend and daughter, not a stylized production of 

tributes. The video was also informational, containing a short voice message from Mr. 

Smith telling his girlfriend how much he loved her, and a single image of him as a child. 

Even if the voice message and the single photo of Mr. Smith as a child were problematic, 

like in Schierman, those brief elements were fleeting. 192 Wn.2d at 702. 

Similar to the video, the photomontage consisted of objective representations of 

Mr. Smith’s life, not a stylized production of tributes to him. The video and 

photomontage were not unduly prejudicial. Mr. Grays’ sentencing hearing was not 

fundamentally unfair. 

Lastly, although sentenced within the standard range, Mr. Gray inveighs the trial 

court’s imposition of a high-end sentence. In deciding the sentence, the trial court looked 

to “the facts and circumstances” of the crime and reiterated “for the record that I am not 

doing this because a jury didn’t find you guilty of premeditated murder and I’m exacting 
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a pound of flesh for that.” RP at 735. There is no evidence that the court’s sentencing 

decision was influenced by the video or photomontage. Mr. Gray’s sentencing hearing 

was not fundamentally unfair;2 his due process rights were not violated. 

II. WHETHER THE DNA COLLECTION FEE AND VPA SHOULD BE STRUCK 

FROM MR. GRAY’S JUDGMENT AND SENTENCE

Mr. Gray requests that we remand for the trial court to strike the DNA collection 

fee and the VPA from the judgment and sentence. The State concedes. 

Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual 

found guilty of a crime in superior court. In April 2023, the legislature passed Engrossed 

Substitute H.B. 1169 (H.B. 1169), 68th Leg., Reg. Sess. (Wash. 2023), that amended

RCW 7.68.035 to prohibit the imposition of the VPA on indigent defendants. RCW 

7.68.035 (as amended); H.B. 1169, § 4. H.B. 1169 took effect on July 1, 2023. 

Amendments to statutes that impose costs upon convictions apply prospectively to cases 

pending on appeal. See State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018).

Similarly, pursuant to former RCW 43.43.7541 (2018), the trial court was required 

to impose a $100 DNA collection fee for every sentence imposed for the crimes specified 

in RCW 43.43.754. Effective July 1, 2023, the legislature amended RCW 43.43.7541 by 

eliminating language that made imposition of the DNA collection fee mandatory. See

LAWS OF 2023, ch. 449, § 4.

 

2 Mr. Gray argues that resentencing should be before a different judge. Because 

remand is unnecessary, that issue is not addressed. 
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Because Mr. Gray’s case is pending on direct appeal, the amendments apply. 

Further, Mr. Gray was found to be indigent. Thus, we remand for the trial court to strike

the DNA collection fee and VPA from the judgment and sentence. 

We affirm Mr. Gray’s sentence and remand for the trial court to excise from the 

judgment and sentence the DNA collection fee and VPA.

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.

Cooney, J.

WE CONCUR:

Fearing, J. Staab, A.C.J.