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STATE CF WASHING!OH 20IUAN 13 A!i 8=27

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UNPUBLISHED OPINION FILED: January 13, 2014 Leach, C.J. — In this prosecution for acts of domestic violence, Steven Sommer appeals convictions for felony harassment,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 consistentwith 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 courtorder, 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 theNo.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, herfather, and her children. In2009, Sommerand 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 Sommerto move outofthe 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.

-2No.68958-4-1 / 3

In May 2011, Sommershowed 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 contactwith herorC.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. Sommerthen broke the window near C.L.'s car seat, shattering glass
onto her. Lee called her father and drove home. 

### Duringthe drive home, Sommer called Lee's cell phone repeatedly. She testified that "[sjometimes there wouldjust be silence and Iwould hang up, and he would call back. Other times he was crying and I would hang up and heNo.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]ssoon as Iwould hang up, he would call 

### back, so my phone was continually engaged with his on these calls, and Iwas scared. Iwas scared that he would come there and hurt us, and Iwas scared that he was going to hurt himself." 

### Lee attempted to calm Sommerdown, but he "said he was going to come overwith 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 

### textmessagesfrom and toSommer.1 OfficerFinkelalsolocatedthe scene ofthe parking lot incident and tookphotos 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 threatto kill Lee when they were inthe parking 

### 1The 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 separatecalls or texts onSeptember22, 2011.No.68958-4-1 / 5
lot or his subsequentthreatto kill herwith an AK-47. The first countfor 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 carwhen she was seated inside it, sat nextto C.L. in the backseat, and said to C.L., "Mom is trying to putme in jail." The other counts for violation ofa court order related to the June 2011 nocontact order. The prosecutor argued that Sommer violated that order by "the contact inthe parking lot orthe countless calls on the phone." 

### Thejury convicted Sommeras charged. He appeals. DECISION Sommerfirst contends the trial court abused its discretion in admitting the 

### e-mail containing the Verizon phone records. He argues thatthe 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 Sommerdoes not respond to the State's argumentin his reply brief. Nordoes 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 beforetrial] shall constitute a waiverofobjectionto admission ofthe evidence."No.68958-4-1 / 6 

### offer any basis for considering the argument for thefirsttimein this court. To the extent he suggests the trial court had a duty to review the certifications sua 

## sponteforcompliancewiththe statute, he cites no supporting authority.3 Thus, his first contention fails. Sommernextcontends the court's admission ofthe telephone records and 

### documents entitled "Explanation Form For HistoricalRecords" violated his right to confrontation. The State counters, and the record confirms, that Sommerdid not 

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

## forthefirsttime on appeal unlesstheyinvolve manifestconstitutionalerror.4 To invoke this exception, "[t]he defendant has the initial burden of showing that (1) 

## theerrorwas'trulyofconstitutionaldimension' and (2)theerrorwas 'manifest.'"5 Sommer has not met this burden. 

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

### on appeal. Nordoes he address RAP 2.5(a) or itsrequirements. While he does 

### argue thatconstitutional erroroccurred, hefails todemonstrate that the alleged error is manifest. To do so, he must show actual prejudice byidentifying howthe


### 3RAP 10.3(a)(6); State v. Veliz, 160Wn. 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, 175Wn.2d 1010 (2012).No.68958-4-1 / 7 

## allegedconstitutionalerroractuallyaffectedhisrightsattrial.6 Sommerarguedin his opening brief that the phone records provided vital corroboration for Lee's testimony that he called her inviolation of a court order. But the State points out, and the record confirms, that Lee's testimony was also corroborated byphotos 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 Despitefiling a reply brief, Sommer did not respond to the State's arguments. 

### In lightof the State's arguments, which wefind persuasive, and Sommer's failure to respond to them, we conclude he has failed to carry his burden of demonstrating manifesterror. 

### Last, Sommer argues, and the State concedes, that thecombination 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 RCW9.94A.701(9).8

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

### 7State v. Fraser, 170 Wn. App. 13, 24-29, 282 P.3d 152 (2012), review denied, 176Wn.2d 1022 (2013). 8See State v. Boyd, 174Wn.2d 470, 473, 275 P.3d 321 (2012).No.68958-4-1 / 8
We affirm Sommer's convictions but remand his sentence for proceedings consistentwith this opinion. 

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WE CONCUR: 

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