### FILED December4, 2014 In the Officeofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURTOF APPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OFWASHINGTON, 

### ) No. 31599-1-111 

### ) Respondent, 

### ) ) 

### v. ) ) DARIN RICHARD BARRY, 

### ) PUBLISHED OPINION 

### ) Appellant. 

### ) BROWN, 

### J.

- Darin Richard Barry appeals his convictionsfortwo counts of malicious mischiefin thethird degreeand one countofmalicious mischiefin the second degree. Mr. Barry contends thetrial courterred in (1) denying his motionto dismissfor discoveryviolations under CrR 4.7(h)(7)(i) and CrR 8.3(b), (2) denying his motionto dismissthe count III third degree malicious mischiefconviction without due consideration ofhis requestforcompromise underchapter 10.22 RCW, and (3) in admitting certain evidence he claims is irrelevant and prejudicial, We affirm his convictions on counts I and II for malicious mischiefin the second and third degree, and remand forthe trial courtto consider Mr. Barry's compromise requestfor count III. FACTS InAugust2012, Mr. Barry damaged three different properties byspray painting threatening languageon various items and breaking a window and doors. Because his 

# INo. 31599-1-111 State v. Barry

own house had been burglarized, hejustified hisvandalism as seeking to "putthe fear" into those he believed had committed the crime. Report of Proceedings (RP) at 56,84. Mr. Barry admitted his vandalism when confronted by officers. With Mr. Barry's consent, his confession was recorded in two parts on two different compact discs (CD)s. The officers' narrative report stated the confession was recorded and summarized. Mr. Barry was charged with one count ofmalicious degree in the second degree, a felony, and two counts ofmalicious mischiefin thethird degree, a gross misdemeanor. Mr. Barry's two-daytrial started February 20, 2013. In December2012, Mr. Barry's attorney demanded discovery, including any recorded statements Mr. Barry had made. The narrative report and the CD ofthefirst part of Mr. Barry's confession were sentto Mr. Barry on December 5,2012. Mr. Barry's property damage admissionswere not included. Because ofa State mistake, the second CD containing Mr. Barry's confession was not provided to Mr. Barry until February 15, 2013 at 8:45 a.m. The discovery delivered to Mr. Barry in December2012 included five photographs of items spray painted with the letters Ku Klux Klan "KKK," a business card from Eric Heise, and Mr. Heise's estimate ofthe cost to remove the spray paintfrom damaged property. The State did not disclose itswitness list until 4:35 p.m. on February 19, 2013. The witness list indicated Mr. Heise and SandyTrump would testify
on the extent ofdamageto property and the costto repair. Prior criminal convictions of individuals on the witness listwere notdisclosed until the afternoon of February 19, 2013.

2No. 31599-1-111 State 

### v. Barry
On February 20, the first morning oftrial, Mr. Barry broughtfour pretrial motions, three ofwhich are at issue here: forsanctions ordismissal, to dismiss count III of III, andin limine. The motion for sanctions or dismissal, based on the State's discovery violations, argued Mr. Barry had to choose between his right to adequately prepared counsel and his right to a speedytrial. Mr. Barry's speedytrial period was set to run on February 28, 2013, but he did not seek a continuance. The motion to dismiss count III
was based on the misdemeanor compromise statute. The motion in limine objected to the admission of irrelevant and prejudiCial photographs depicting "KKK" in orange spray paint. The trial court noted Mr. Barry's ongoing objection tothe State's discovery violations but stated it would hear Mr. Barry's motions post-trial at sentencing. Mr. Barry was convicted as charged. At sentencing, the trial courtdenied all of Mr. Barry's motions. Mr. Barry appealed. ANALYSIS A. Discovery Violation Rulings Not Reversible Error The issue is whetherthe trial court erred in not dismissing the charges against Mr. Barry under erR4.7(h)(7)(i) or erR 8.3(b) for discovery mismanagement. Mr. Barry mainly contends the Statefailed to timely complywith its obligations under erR4.7. He argues the State's failure to provide his recorded confession, the State'switness list, and the criminal convictions ofthosewitnesses constituted governmental prejudicial misconduct depriving him ofa fairtrial.



### 3No. 31599-1-111 State v. Barry
erR 4.7 lists the State's responsibilities when engaging in discovery. State v. Blackwell, 120Wn.2d 822,826,845 P.2d 1017 (1993). Generally, the State must disclose "evidence that is material and favorable to the defendant." 

### Id.; erR4.7(a)(3). The purpose behind discovery disclosure is to protect against surprise that might prejudice the defense. State v. Bradfield, 29 Wn. App. 679, 682, 630 P.2d 494 (1981). Ifthe Statefails to disclose such evidence or comply with a discovery order, a defendant's constitutional right to a fairtrial may be violated; as a remedy, atrial court
can granta continuance, dismiss the action, orenteranotherappropriate order. Blackwell, 120Wn.2d at 826; erR4.7(h)(7)(i). A trial courtexercises discretion when deciding howto deal with a discovery violation. Bradfield, 29 Wn. App. at682. A defendant must show the prosecution did not actwith due diligence and "material facts were withheld from the defendant

...which essentially compelled the defendantto choose between two distinct rights": the right to a speedytrial and the right to adequately prepared counsel. State v. Woods, 143Wn.2d 561, 582-83, 23 P.3d 1046 (2001); State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980) (injecting new facts forces the choice between the rights). Similarly, erR 8.3(b) authorizes a courtto "dismiss any criminal prosecution due to arbitrary action or governmental misconductwhen there has been prejudice to the rights ofthe accused which materially affectthe accused's rights to a fair trial." A defendant must maketwo showings tojustifydismissal under erR 8.3(b): (1) arbitrary 

## f action orgovernmental misconduct and (2) prejudice affecting the defendant's right to a 

# I i 

# I J 4No. 31599-1-111 

## i State v. Barry 

## I 

# I 

# I fair trial. State v. Michielli, 132Wn.2d 229,239,937 P.2d 587 (1997). Governmental misconduct can be something as basic as simple mismanagement. Id. at239. 

## j**~** Prejudice under erR 8.3(b) includes the right to a speedytrial and the right to 

# 1 adequately prepared counsel. Id. at 240. 

## i 

# I I 1 Dismissal under erR 4.7 or erR 8.3 for a violation ofa discovery order is an extraordinary remedy. See State v. Ramos, 83 Wn. App. 622, 636-37, 922 P.2d 193 (1996). We review discoveryviolation sanctions for an abuse ofdiscretion. State v. Smith, 67Wn. App. 847, 851, 841 P.2d 65 (1992). Discretion is abused when a trial court's decision is exercised on untenable grounds or for untenable reasons or is manifestly unreasonable. Blackwell, 120Wn.2d at 830. First, Mr. Barry contends his recorded confession was the key to his conviction. He unconvincingly argues, had his counsel known earlier about the recorded confession, he would have been advised differently on whetherto accept the State's plea offer. While the State should have provided Mr. Barry with the confession earlier, hefails to show reversible prejudice. He cites to State v. Brooks, 149Wn. App. 373, 203 P.3d 397 (2009), to argue Washington has ruled summaries ofstatements are insufficient and prejudicial. But he misidentifies the quoted portion as the ruling rather than a case fact recitation. Id. at 379. Here, Mr. Barry received a copy ofthe officers' narrative report back in December2012, showing a confession had been obtained and recorded with a detailed summary ofthe confession. A comparison ofthe summary and the confession shows no material inconsistencies; thus, no prejudice resulted. See



### 5No. 31599-1-111 State v. Barry
State v. Farnsworth, 133Wn. App. 1, 14, 130 P.3d 389 (2006) (no prejudice shown where the State failed to provide defendantwith a video copy ofa witness' statement implicating defendant in a robbery because defendant "had timely received a comprehensive summary of[the] statement" in a police report"). Moreover, Mr. Barry himselfwas aware he had confessed and he knew his confession was recorded. Second, Mr. Barry contendsthe trial court erroneously permitted expert testimony by Mr. Heise and Ms. Trump when hewas not informed ofthe existence of thesewitnesses orthe substance oftheirtestimony until a day before trial. Mr. Heise and Ms. Trump testified aboutthe amount ofdamage Mr. Barry caused and the cost to repairthis damage. One charge against Mr. Barry was malicious mischief in the second degree, requjring the State prove "physical damage to the property ofanother in an amount exceeding seven hundred fjfty dollars." RCW 9A.48.080(1)(a). By charging Mr. Barrywith this crime, hewas placed on notice the State intended to introduce evidel1ce relating to the amount ofphysical damage. See State v. Cannon, 130Wn.2d 313, 329, 922 P.2d 1293 (1996) (no interjection of newfacts and thus no prejudice caused by delay in producing deoxyribonucleic acid (DNA) results where defendantwas "placed on noticefrom the time ofcharging thatthe State intended to introduce scientific evidence relating to blood samples

... in orderto tie [defendant] to the crime"). The State provided Mr. Barrywith Mr. Heise's business card and estimate back in December 2012. When the State became aware Mr. Barry challenged the State's estimate of



### 6No. 31599-1-11\ State v. Barry damage, the State procured anotherwitnessto buttress Mr. Heise'svaluation and timely disclosed this to Mr. Barry. Third, Mr. Barry's argument concerning the State'sfailure to disclose its witnesses' criminal convictions appears as part ofa long list ofdiscovery violations he claims shows government mismanagement and prejudice. But no prejudice resulted from the State's late disclosure ofthe criminal convictions ofits witnesses. Mr. Barry contends his counsel was not adequately prepared to cross-examine the witnesses, however, he provides no specifics. Notably, defense counsel did not bring up any convictions attrial even though he knew ofthem. In sum, Mr. Barry does not persuade us he was surprised by eitherthe existence ofa recording of his confession or its substance. Mr. Barry knew the State had to prove thejurisdictional amountto convict him of malicious mischiefin the second degree and would have to use experts to dothis. Mr. Barry's counsel made no showing as to how hewould have prepared differently had he known ofthe convictions months before trial. While the State did commitdiscoveryviolations, no prejudice resulted. Finally, although eight days remained on Mr. Barry's speedytrial limit, he did not askfor a continuance to preparefurther after receiving the late discovery. B. Misdemeanor Compromise Request Requires Remand The issue is whetherthe trial court erred in denying Mr. Barry's motion to dismiss count III, malicious mischief in the third degree, underthe misdemeanor compromise



### 7No. 31599-1-111 State v. Barry
statute. Mr. Barry contends the court abused its discretion because it erroneously denied his motion by incorrectly interpreting and applying a local court rule. The purpose ofthe misdemeanor compromise statute is '''restitution to crime victims and avoidance ofprosecution for minor offenders.'" State v. Ford, 99 Wn. App. 682,686,995 P.2d 93 (2000) (quoting State v. Norton, 25Wn. App. 377, 380,606 P.2d 714 (1980)). The misdemeanor compromise statute "allows a defendantto avoid conviction for certain misdemeanors" under circumstances detailed in RCW 10.22.010. Id. at 685. Subjectto afew exceptions, to qualifyfor a misdemeanorcompromise, the crime charged must be a misdemeanorand an independent civil remedy must exist. RCW 10.22.010. Gross misdemeanors are subjectto dismissal underthe statute. State v. Britton, 84 Wn. App. 146, 150, 925 P.2d 1295 (1996). No limitations appearfor using a misdemeanorcompromise in superior court. See RCW 10.22.010-.030. The trial court has discretion to approve a compromise. Compromises are allowed when the injured party appears in court and attests, in writing, he orshe received satisfaction for the injury. RCW 10.22.020. Decisions relating to dismissing charges under RCW 10.22
are reviewed for an abuse ofdiscretion. State v. Stalker, 152 Wn. App. 805, 810, 219 P.3d 722 (2009); see also State v. Perciang, 38 Wn. App. 141, 145-46,684 P.2d 781 

# I (1984) (discretion requires atrial courtto consider a defendant's individual 

# l 

# I j t circumstances). From this record, we cannot say the trial court gavefull consideration to Mr. Barry's personal circumstances and the case facts. The court arguably based its denial 

# I 

# I I

# I 8No. 31599-1-111 State v. Barry
of Mr. Barry's motion to dismiss pursuantto the misdemeanor compromise statute solely on timing. The court indicated itwould have granted the motion had it been brought before the readiness hearing. But Mr. Barry was not able to procure the injured party's signature until a week before trial. Whitman County Local Rule 3.3(i)(2) provides that afterthe readiness hearing, the case will be tried by ajury unless charges are dismissed. Charges can be dismissed underthe misdemeanor compromise statute. Nothing in the local rule appearsto prevent dismissal ofcharges up to and through trial. Given all, we conclude Mr. Barry's compromise motion is entitled to full consideration by the trial court. To the extentthetrial court limited its consideration, it erred. 1 On remand the trial court retains the discretion to grant or denythe compromise. Ifgranted, the trial courtwill vacate the conviction on count III and resentence Mr. Barry. C. KKK Evidence Admissibility Was Within Trial Court's Discretion The issue is whether, considering ER 403, the trial court erred in its decision to admit into evidencetestimony and photographs of"KKK" in orange spray paint. Mr. Barry contends the evidence contains little to no probative value yet has a high danger for unfair prejudice. "Relevancy and the admissibility of relevant evidence are governed by ER 401 and ER 402." State v. Rice, 48 Wn. App. 7,11,737 P.2d 726 (1987). Relevant

1 The reasons the State provides in support ofthe court's decisions are without merit. First, ajurywould have been needed regardless ofwhetherone count of malicious mischiefwas dismissed because two othercounts remained. Second, both parties still would have had to prepare fortrial. Third, while the witness forthe count in question had been subpoenaed, he still would have been required to appear in court. See RCW 10.22.020. 

### 9No. 31599-1-111 State v. Barry
evidence is evidence with probative value, meaning atendencyto prove ordisprove a material fact. ER 401; Rice, 48 Wn. App. at 12. Relevant evidence is generally admissible, and irrelevant evidence is inadmissible. ER 402. ER 403 provides relevant evidence can "be excluded if its probative value is substantially outweighed by the dangerofunfair prejudice." A dangerof unfair prejudice exists '''[w]hen evidence is likelyto stimulate an emotional response ratherthan a rational decision.'" State v. Beadle, 173Wn.2d 97, 120,265 P.3d 863 (2011) (quoting State v. Powell, 126Wn.2d 244,264,893 P.2d 615 (1995». Trial courts have considerable discretion to considerthe relevancy ofevidence and to balance "the probative value ofthe evidence against its possible prejudicial impact." Rice, 48 Wn. App. at 11. As such, we review atrial court's decision on relevance and prejudicial effectfor manifest abuse ofdiscretion. Id. "Abuse of discretion is discretion manifestly unreasonable, orexercised on untenable grounds, or for untenable reasons." Id. (internal quotations omitted). Any error in a trial court's decision '''requires reversal only if, within reasonable probabilities, it materially affected the outcome ofthe triaL'" Beadle, 173Wn.2d at 120-21 (quoting State v. Russell, 125 Wn.2d 24,94,882 P.2d 747 (1994». Mr. Barrywas charged with malicious mischief in the second and third degree. "A person is guilty ofmalicious mischief in the second degree ifhe

... knowingly and maliciously [clauses physical damageto the property ofanother in an amount

10

# I No. 31599-1-111 State 

### v. Barry exceeding seven hundred fifty dollars." RCW 9A.4S.0S0(1)(a). itA person is guilty of malicious mischief in the third degree ifhe

... [w]rites, paints, ordraws any inscription

... on any ... private building orotherstructure" owned by another. RCW 9A.4S.090(1){b). The five photographs depicting "KKK" spray painted on various items on the three injured properties are relevant to the crimes charged because they show physical damage on each ofthe three properties. Two ofthe photographs relate to the more serious second degree malicious mischief. On the other hand, the "KKK" depictions have potentially high dangerof unfair prejudice, especially ifany particularly offended person may have been on thejury. Mr. Barry aptly notes, ajury's emotions could be so inflamed by a perceived showing ofracism that thejury used emotion ratherthan
reason as a basis for conviction. Even so, we cannot say the trial court's weighing of the probative value againstthe unfair prejudice was an abuse ofdiscretion. And, even if the trial court had erred in admitting the evidence, the errorwould be harmless. Mr. Barry had confessed on tape to the charges. In the end, the court allowed one "KKK" photograph on one ofthe minor charges, two "KKK" photographs on the other minor charge, and two "KKK" photographs on the more serious charge. Considering all, we do not conclude the trial court abused its discretion in admitting the five photographs to depictthe damagetothe three different properties.

11

### No. 31599-1-111 State v. Barry Affirmed, except we remand forfurther proceedings consistent with this opinion.
Brown, 

### J. WE CONCUR:

Lawrence-Berrey, 

### J.

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