IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 77957-5-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION BENJAMIN ALLEN MARTIN, Appellant. FILED: July 1,2019 CHUN, J. —After Benjamin Martin failed to report in accordance with the conditions of his community supervision, the Department of Corrections (DOC) issued a warrant for his arrest. Police set up a drug-deal sting operation, arresting Martin on the DOC warrant when he arrived atthe designated meeting place. The State then charged Martin with possession ofa controlled substance with intentto deliverwhile on community custody. Ajury convicted him as charged. Martin appeals, claiming (1) the probationersearch1 of his cell phone violated his constitutional rights because it (a) improperly bypassed the warrant requirement and (b) exceeded the permissible scope; (2) the trial court admitted

1 “Probationersearch” refers to the exception to thewarrant requirement codified in ROW 9.94A.631(1), which provides: If an offender violates any condition or requirement of a sentence, a community corrections officermay arrestorcause the arrestofthe offenderwithoutawarrant, pending a determination by the court or by the department. Ifthere is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offenderto submitto a search and seizure of the offender’s person, residence, automobile, or other personal property.No. 77957-5-1/2

evidence precluded by ER 404(b); and (3) the court should not have imposed legal financial obligations. Because any errors were harmless, we affirm Martin’s conviction. Given Martin’s indigency atthe time ofsentencing, we remand his Judgment and Sentence to the trial courtto strike the $300 in legal financial obligations. The State concedes thatwe should strike these fees. BACKGROUND A. The Arrest In December2016, Martin failed to reportto the DCC, violating his community custody conditions. Consequently, the DCC issued a warrantfor his arrest.The DCC and Everett police encountered difficulty locating Martin. On December6, 2016, OfficerAnatoliy Kravchun2 discovered a Facebook profile underthe name “Benjamin Brackett,” which he thought belonged to Martin. Due to the trouble in locating Martin, the police decided to tryto arrest him on the warrant by setting up a drug deal. OfficerAnatoliytexted the phone number on the Brackett profile seeking to purchase methamphetamine. Martin responded. Through text messages, the two agreed on an amount of methamphetamine and
a purchase price forthe sale. They decided to meet at an Everettthrift store. Officers Anatoliy, Oleg, and DuaneWantland wentto the thrift store in an unmarked surveillance van and waited for Martin to arrive. OfficerAnatoliytold Martin he was in a Corolla. Martin came to the parking lot on foot and walked to

2 Because we also mention Officer Oleg Kravchun, OfficerAnatoliy Kravchun’s brother, we referto both by theirfirst names forclarity. We intend no disrespect. 2No. 77957-5-1/3

a Corolla. Martin began to open the Corolla’s front passengerdoorwhen the officers pulled up and arrested him. Martin denied that he had gone to the thrift store to meet anyone. During the arrest, however, Martin asked who had “set him up.” A search incident to arrestyielded a bag of methamphetamine, $696 in cash, and a cell phone. As an officer removed the cell phone from Martin’s pocket, the screen lit up and displayed OfficerAnatoliy’s phone number and the lasttext message he had sent. Officer Oleg activated the phone’s “airplane” mode to preserve evidence. Aftertaking photos ofthe cell phone’s lock screen, Officer Oleg turned it offand placed it in his locker. B. The Cell Phone Search Nine days later, the police notified their DOC liaison, CCO Louis Mahre, thatthey had arrested Martin and seized his cell phone. The police asked CCO Mahre if he wanted to conduct a probationersearch ofthe cell phone. CCC Mahre thoughtthat, based on Martin’s actions on the day of his arrest, he had reasonable cause to believe that Martin had violated his community custody supervision. Specifically, CCC Mahre thought Martin may have violated the conditions to obey all laws and notto possess controlled substances. Accordingly, he agreed to the search. On December 15, 2016, CCC Mahre conducted a search of Martin’s cell phone with OfficerOleg present. CCC Mahre discovered several text exchanges arranging sales ofcontrolled substances. Officer Oleg took photos ofthe exchanges.
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C. Trial On December 23, 2016, the State charged Martin with one count of possession ofa controlled substancewith intentto deliverwhile on community custody. Martin moved to suppress the evidence collected from his cell phone on the grounds that CCO Mahre conducted the search without a warrant and the search exceeded the permissible scope. The trial court held a CrR 3.6 hearing
on June 1,2017. Determining thatthe probationersearch exception in RCW 9.94A.631(1) permitted the warrantless search of Martin’s cell phone, the court denied his motion. On June 16, 2017, during motions in limine, Martin moved to suppress (1) testimonythat he had had a DOC warrant, and (2) the text exchanges showing drug dealing with individuals otherthan OfficerAnatoliy. The court allowed testimony thatthe warrant existed, but precluded anystatements thatthe DOC had issued it. As to the phone evidence, the court admitted othertext exchanges from the day of Martin’s arrest, but excluded exchanges from previous days. Martin’s trial3 began in January 2018. In Martin’s closing argument he admitted to possessing the methamphetamine, but argued thatthe State had

~ Martin had two trials. The same trialjudge presided over both trials. The second trial also maintained all rulings on motions in limine from the firsttrial. At Martin’s firsttrial, the defense did not knowthat some ofthe officerswere going to testifythatthey arrested Martin after he began to enterthe Corolla. The officers had not mentioned the Corolla in their reports ortheir interviews with the defense. Because ofthe new information, the court declared a mistrial. 4No. 77957-5-1/5

failed to prove intentto deliver. Accordingly, he asked thejuryto convict him of the lesser included crime of possession ofa controlled substance. On January 10, 2018, thejury convicted Martin as charged. The court entered ajudgment and sentence on January 22, 2018, and imposed a $200 filing fee and $100 DNAfee as legal financial obligations. Martin appeals. ANALYSIS A. Cell Phone Evidence Martin contends thatthe probationersearch of his cell phone violated the Washington and United States Constitutions because the police used itto improperly circumventthe warrant requirement. He furtherasserts that even if the CCO could search his phone, the search exceeded the statutoryscope. As
an alternative argument, the State asserts that, iferroneous, the failure to suppress the evidence collected from Martin’s cell phone constituted harmless
error. We agree. When a trial court commits constitutional error, an appellate court should
reverse and remand fora newtrial unless the prosecution can prove thatthe
errorwas harmless beyond a reasonable doubt. State v. Coristine, 177Wn.2d 370, 380, 300 P.3d 400 (2013). To meetthis burden, the prosecution must convince the court “beyond a reasonable doubtthatthe evidence nottainted by the error is, by itself, so overwhelming that it necessarily leads to a finding of guilt.” State v. Truiillo, 112 Wn. App. 390, 404 n.10, 49 P.3d 935 (2002).

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Here, the cell phone search led to the admission of 12 photos4 of Martin’s cell phone. The photos depicted the text exchange between Martin and Officer Anatoliy and the two otherexchanges setting up drug deals. Butthe trial court also admitted photos ofthe exchange with OfficerAnatoliyfrom the officer’s phone. Thus, the photos ofthis exchange from Martin’s cell phone, in large part, constituted cumulative evidence. Furthermore, the unchallenged evidence admitted attrial included the following: police located a Facebook page they believed belonged to Martin and texted the number associated with the account; officers then had a text exchange setting up an illegal drug transaction for methamphetamine;5 Martin arrived atthe chosen location forthe drug deal and atthe designated time; afterofficers arrested Martin they discovered a cell phone on his person that displayed the last text message sentfrom OfficerAnatoliy; Martin possessed methamphetamine at the time ofthe arrest; and, afterthe arrest, Martin insisted someone had “set him up.” Attrial, Martin admitted to possessing methamphetamine but argued that the State could not prove intentto deliver. Butthe unchallenged~ evidence

~The court also admitted a photo ofthe cell phone lock screen taken during the probationersearch. The State also had a photo ofthe lock screen taken from the day of Martin’s arrest, but it did not offerthis photo into evidence. Both photos show OfficerAnatoliy’s phone numberand the lasttext message he had sent. The trial court determined that “[t]he initial information on the illuminated lock screen is plain view evidence, not a search.” Martin does not challenge this conclusion on appeal. Thus, we do not include the photo ofthe cell phone’s lock screen in the list ofcell phone photos that Martin challenges.

~ Martin contends the photos ofthe text exchanges from OfficerAnatoliy’s phone are “not the equivalent” ofthe ones on his phone. But he does not pointto any difference between the photos. He says thejurywould doubt the authenticity ofthem due to “the officers’ blatant dishonesty, as shown bytheir conspiring to omit material facts.” Though, as the trial court noted, the officers’ failure to disclose the facts aboutthe Corolla before the firsttrial shows thatthey may “have been neglectful in theirduty,” the record does not demonstrate the malicious conspiracy alleged by Martin. The other physical evidence corroborates the authenticity ofthe photos. 6No. 77957-5-117

overwhelmingly demonstrates Martin’s guilt of possession with intentto deliver. We conclude that even ifthe trial court erred by admitting the challenged evidence from Martin’s cell phone, that errorwas harmless beyond a reasonable doubt. B. WarrantTestimony and Cell Phone Evidence Showing Prior Communications ofOther Drug Dealing Martin also contends the trial court erred by allowing testimony that he had
a warrantfor his arrest. Additionally, he claims the court erroneouslyadmitted evidence showing his text exchanges from the day of his arrest regarding other drug deals. Assuming, without deciding, thatthe trial court erred, we again conclude the admissions were harmless. Erroneous admissions ofevidence under ER 404(b) require a harmless
erroranalysis. State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). But because an error under404(b) does not raise constitutional issues, the harmless erroranalysis is less demanding. Compare Coristine, 177 Wn.2d at 380 (noting the prosecution must prove harmlessness beyond a reasonable doubtfor constitutional errors), with Gunderson, 181 Wn.2d at 926 (stating defendant must showthat an error under404(b) had a reasonable probability of affecting the outcome oftheirtrial). For non-constitutional errors, an appellate court need determine only “whether, within reasonable probabilities, had the error not occurred, the outcome ofthe trial would have been materially affected.” Gunderson, 181 Wn.2d at 926 (internal quotation marks omitted). As discussed above, the evidence unchallenged on appeal demonstrates Martin’s guilt beyond

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a reasonable doubt. Thus, the trial court admitting the testimony about Martin’s warrant and the priortext exchanges at issue did not materially affectthe outcome ofthe trial.6 We conclude any errorwas harmless.7 C. Legal Financial Obligations Finally, Martin seeks to have the $200 filing fee and $100 DNAfee stricken from hisjudgment and sentence pursuantto State v. Ramirez, 191 Wn.2d 732, 739, 426 P.3d 714 (2018). Ramirez, decided afterthe trial court imposed the fees in this case, held thattrial courts may not impose discretionary costs on an indigent criminal defendant. 191 Wn.2d at 746. Here, the trial court recognized Martin’s indigence when it allowed him to pursue his appeal at public expense. The State agrees thatthis court should strike the fees. Accordingly,
we strike the criminal filing and DNAfees from Martin’s Judgment and Sentence. Affirmed and remanded forfurther proceedings consistentwith this opinion.

WE CONCUR:

6 Martin argues the admission ofthe warranttestimony requires reversal because the limiting instruction the court gave did not eliminate the unfair prejudice. The limiting instruction provided thatthejury could only considerthe warrant evidence forthe purpose of lawfulness of the arrest. While we agree with Martin thatthis was not a proper purpose forthejuryto consider, we nevertheless determine that, assuming admitting the warranttestimony constituted error, the errorwas harmless because ofthe otheroverwhelming unchallenged evidence of his guilt.

~ Martin also argues thatthis court should reverse his conviction undera cumulative error analysis. But because we determine thatany errorwas harmless, we rejectthis argument. See State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990) (no prejudicial error). Even excluding all the evidence challenged by Martin overwhelming evidence ofguilt remains. 8