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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

STEVEN MIKEAL SOMMER,

Appellant.

No. 68958-4-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: January 13, 2014

Leach, C.J. — In this prosecution for acts of domestic violence, Steven

Sommer appeals convictions for felony harassment, felony violations of a court

order, and malicious mischief. Because the evidentiary errors he asserts on

appeal were not preserved and because he demonstrates no basis for reviewing

them for the first time on appeal, we affirm his convictions. We accept the

State's concession that Sommer's sentence exceeds the statutory maximum for

his offenses and remand for further proceedings consistent with this opinion.

FACTS

Based on allegations that Sommer harassed Krishna Lee and violated nocontact orders, the State charged him with felony harassment, three counts of

violation of a court order, and third degree malicious mischief.

Sommer's first trial ended in a mistrial. Before his second trial, the State

moved to admit Lee's and Sommer's phone records as business records. The

State pointed out that the records were accompanied by a certification from the
No.68958-4-1 / 2

records custodian. Defense counsel did not object to the phone records

themselves but objected to a demonstrative exhibit created by a police officer to

explain the records. Sommer argued that the officer manipulated the data and

that the exhibit prepared by the officer was hearsay and violated his right to

confrontation. After clarifying that Sommer only objected to the officer's

demonstrative exhibit and not to the underlying phone records prepared by

Verizon, the court admitted the records and the demonstrative exhibit.

At trial, the State's evidence established that Sommer and Lee began

dating in 2007. That same year, Sommer moved in with Lee, her father, and her

children. In 2009, Sommer and Lee had a daughter, C.L.

In December 2010, Lee was sitting in her car with C.L. when Sommer

grabbed Lee's neck from behind and struck her in the mouth. Lee's teenage

daughter and father called the police. But when they arrived, Lee declined to

cooperate. Lee's father asked Sommer to move out of the house.

Later in December, Lee brought C.L. to a motel to spend time with

Sommer. Angry about having to move out of Lee's home, Sommer grabbed

Lee's neck, refused to let her leave the room, and pulled the phone out of the

wall when she threatened to call police. Lee left the motel room with C.L. and

ran to her car. Sommer followed her outside and punched and broke the car's

windshield.

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No.68958-4-1 / 3

In May 2011, Sommer showed up at Lee's home late at night. He threw a

drink at Lee's father, pushed Lee down, kicked down the bathroom door, and

destroyed Lee's cell phone.

In June 2011, after receiving threatening phone calls from Sommer, Lee

called the police. The State charged Sommer with a domestic violence offense

and issued a pretrial no-contact order.

In July 2011, following another threatening phone call in late June, Lee

obtained an additional protection order prohibiting Sommer from having any

contact with her or C.L. for one year.

On September 22, 2011, Sommer met Lee and C.L. in a parking lot. He

was upset because he had been charged with violating the no-contact order. He

blamed Lee for his legal troubles and thought she should pay for his courtordered parenting classes. Sommer angrily told two-year-old C.L. that "Mommy

is trying to put daddy in jail." He told Lee that if he had to go back to jail, he

would kill her. Lee believed him. She quickly got back into her car and locked

the doors. Sommer then broke the window near C.L.'s car seat, shattering glass

onto her. Lee called her father and drove home.

During the drive home, Sommer called Lee's cell phone repeatedly. She

testified that "[sjometimes there would just be silence and I would hang up, and

he would call back. Other times he was crying and I would hang up and he
No.68958-4-1 / 4

would call back." At one point, Sommer threatened to jump off a bridge. The

calls continued after Lee got home. "[A]s soon as I would hang up, he would call

back, so my phone was continually engaged with his on these calls, and I was

scared. I was scared that he would come there and hurt us, and I was scared

that he was going to hurt himself."

Lee attempted to calm Sommer down, but he "said he was going to come

over with his AK-47 and shoot me and my family." This concerned Lee because

she knew that Sommer possessed this weapon. Sommer told her he "had

nothing left to lose" and assured her that "I always do what Isay I'm going to do."

Lee called the police and subsequently gave a statement to Bellevue

Police Officer Sarah Finkel. Officer Finkel took photos of the shattered car

window and numerous screens on Lee's phone. The latter depicted calls and

text messages from and to Sommer.1 Officer Finkel also located the scene ofthe

parking lot incident and took photos of broken glass on the ground.

Officer Finkel eventually obtained a search warrant for Lee's and

Sommer's Verizon phone records. The records mirrored the call and text data

from Lee's phone.

In closing argument, the prosecutor argued that the felony harassment

count rested on either Sommer's threat to kill Lee when they were in the parking

1 The calls and texts span September 20 through September 22, 2011.

Many of the photographed screens show Sommer's phone number. There are

photos of 42 separate calls or texts on September 22, 2011.
No.68958-4-1 / 5

lot or his subsequent threat to kill her with an AK-47. The first count for violation

of a court order rested on Sommer's violation of the July 2011 order for

protection. The prosecutor argued that Sommer violated the order when he

called Lee and asked to arrange a visit with C.L., remained outside her car when

she was seated inside it, sat next to C.L. in the backseat, and said to C.L., "Mom

is trying to put me in jail."

The other counts for violation of a court order related to the June 2011 nocontact order. The prosecutor argued that Sommer violated that order by "the

contact in the parking lot or the countless calls on the phone."

The jury convicted Sommer as charged. He appeals.

DECISION

Sommer first contends the trial court abused its discretion in admitting the

e-mail containing the Verizon phone records. He argues that the accompanying

"Certification of Custodian of Records" did not meet statutory requirements for

admitting records without testimony from the person who prepared the records.

He concludes the records were not properly authenticated and were therefore

inadmissible hearsay. But the State correctly points out that Sommer did not

raise this argument below and therefore waived it under RCW 10.96.030(4).2

Sommer does not respond to the State's argument in his reply brief. Nor does he

2 RAP 2.5(a); RCW 10.96.030(4) states in part, "Failure by a party to

timelyfile a motion [opposing admission of the record before trial] shall constitute

a waiver of objection to admission of the evidence."
No.68958-4-1 / 6

offer any basis for considering the argument for the first time in this court. To the

extent he suggests the trial court had a duty to review the certifications sua

sponte for compliance with the statute, he cites no supporting authority.3 Thus,

his first contention fails.

Sommer next contends the court's admission of the telephone records and

documents entitled "Explanation Form For Historical Records" violated his right to

confrontation. The State counters, and the record confirms, that Sommer did not

raise this contention below. This court generally will not address claims raised

for the first time on appeal unless they involve manifest constitutional error.4 To

invoke this exception, "[t]he defendant has the initial burden of showing that (1)

the error was 'truly of constitutional dimension' and (2) the error was 'manifest.'"5

Sommer has not met this burden.

Sommer nowhere acknowledges that he raises this issue for the first time

on appeal. Nor does he address RAP 2.5(a) or its requirements. While he does

argue that constitutional error occurred, he fails to demonstrate that the alleged

error is manifest. To do so, he must show actual prejudice by identifying how the

3 RAP 10.3(a)(6); State v. Veliz, 160 Wn. App. 396, 409 & n.5, 247 P.3d

833 (2011) (appellate court need not consider arguments unsupported by

authority).

4RAP 2.5(a).

5 State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011)

(quoting State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)), review

denied, 175 Wn.2d 1010 (2012).
No.68958-4-1 / 7

alleged constitutional error actually affected his rights at trial.6 Sommer argued in

his opening brief that the phone records provided vital corroboration for Lee's

testimony that he called her in violation of a court order. But the State points out,

and the record confirms, that Lee's testimony was also corroborated by photos of

her cell phone screens. The State also correctly notes our recent holding in a

similar case that no manifest error occurred in the admission of phone records

where the records proved what other evidence had already established.7

Despite filing a reply brief, Sommer did not respond to the State's arguments.

In light of the State's arguments, which we find persuasive, and Sommer's

failure to respond to them, we conclude he has failed to carry his burden of

demonstrating manifest error.

Last, Sommer argues, and the State concedes, that the combination of his

terms of confinement and community custody exceeds the statutory maximum

sentence for his offenses. We accept the concession and remand for the trial

court to either amend the community custody term or resentence Sommer

consistentwith RCW 9.94A.701(9).8

6 State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).

7 State v. Fraser, 170 Wn. App. 13, 24-29, 282 P.3d 152 (2012), review

denied, 176 Wn.2d 1022 (2013).

8See State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
No.68958-4-1 / 8

We affirm Sommer's convictions but remand his sentence for proceedings

consistent with this opinion.

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WE CONCUR:

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