* State of Washington v. Tegan M. Rushworth

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
TEGAN M. RUSHWORTH,
Appellant.
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No. 36077-6-III
OPINION PUBLISHED IN PART
PENNELL, J. — Tegan Rushworth’s appeal involves two under-examined
evidentiary issues: (1) whether a trial judge who sustains an objection to testimony should
also grant an accompanying motion to strike, and (2) whether the “open door doctrine”
permits bilateral violations of the rules of evidence. The answer to the first question is
yes; the answer to the second is no.
During Ms. Rushworth’s trial, the court reached the opposite conclusions. It denied
defense motions to strike inadmissible evidence and allowed the State to introduce
hearsay evidence under the guise of the open door doctrine. Though erroneous, those
rulings did not deny Ms. Rushworth the right to a fair trial. We therefore affirm the
judgment of conviction.
FILED
FEBRUARY 20, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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BACKGROUND
Spokane police officer Mark Brownell was looking for an individual at Spokane’s
Knights Inn1 motel when he spotted a black 1999 Ford Expedition. With the assistance of
a flashlight, Officer Brownell could see inside the Expedition and spotted the target of his
search riding as a passenger. Officer Brownell stopped the vehicle and identified the
driver as Tegan Rushworth. He also learned the vehicle had been stolen a month earlier.
Officer Brownell questioned Ms. Rushworth about the vehicle. Ms. Rushworth
denied knowing the Expedition was stolen. She stated she had bought the Expedition
from a man named Raymond Pfluger, and that the vehicle’s title was at her home. Ms.
Rushworth was accompanied to her home. Once there, Ms. Rushworth and her boyfriend,
Adam Wilkening, spent approximately 30 minutes unsuccessfully searching for the
vehicle’s title. Officer Brownell asked Ms. Rushworth about Mr. Pfluger. Ms. Rushworth
stated she had known Mr. Pfluger for several years, and admitted he had previously been
involved in criminal activity, but had been recently trying to live above board.
Officer Brownell contacted Mr. Pfluger to inquire about the Expedition’s sale.
Mr. Pfluger admitted to knowing the vehicle was stolen. According to the officer,
Mr. Pfluger also “said he never had a title for the vehicle” and “wanted to off load” it.
1 The motel had since been renamed the Roadway Inn.
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Clerk’s Papers at 4. Following that conversation, Officer Brownell believed he had
probable cause to arrest Ms. Rushworth.
The State charged Ms. Rushworth with possessing a stolen vehicle. At trial, the
State presented much of its evidence through law enforcement officers, including Officer
Brownell. Neither Mr. Pfluger nor Mr. Wilkening testified. The jury convicted Ms.
Rushworth as charged.
On appeal, Ms. Rushworth makes numerous assignments of error. In the
published portion of this opinion, we discuss Ms. Rushworth’s evidentiary arguments.
Her additional contentions are addressed in the opinion’s unpublished section.
ANALYSIS
Tegan Rushworth objected to three portions of Officer Brownell’s trial testimony.
The first two objections were made during direct examination and the third was made
during redirect. The trial court issued favorable rulings as to Ms. Rushworth’s first two
objections, but denied her subsequent motions to strike. The court overruled Ms.
Rushworth’s third objection, finding that Ms. Rushworth opened the door to Officer
Brownell’s testimony through a question posed during cross-examination.
We review de novo the trial court’s interpretation of the evidentiary rules, see State
v. Hatch, 165 Wn. App. 212, 217, 267 P.3d 473 (2011), and its application of the rules for
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abuse of discretion. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 766, 389 P.3d 517
(2017). Our review necessitates examining the challenged testimony in detail. Thus, the
contested areas of testimony are recounted below.
Contested areas of testimony
The first objection involved Officer Brownell’s discussion of the Knights Inn
motel, where he first observed the stolen Ford Expedition. When describing the Knights
Inn, Officer Brownell stated:
[OFFICER BROWNELL]: . . . [I]t’s a fairly busy place but not busy in
the sense of I want to go there and stay there with my family. It’s busy in
the sense of where can I buy drugs, let’s go to the Knights Inn.
[DEFENSE COUNSEL]: Objection, your Honor. That’s not relevant to
this case.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Move to strike.
THE COURT: I’ll deny that.
Go ahead, Counsel.
1 Report of Proceedings (RP) (Sept. 12, 2017) at 167-68.
The second objection pertained to Officer Brownell’s testimony regarding a
statement made by Ms. Rushworth’s boyfriend, Adam Wilkening:
[PROSECUTOR:] And what, if anything, did [Mr. Wilkening] do after
you talked with him about the status of the vehicle?
[OFFICER BROWNELL:] He didn’t want to be involved.
[PROSECUTOR:] Is that what he said?
[OFFICER BROWNELL:] Yeah.
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[DEFENSE COUNSEL]: Objection, your Honor. Hearsay. Move to
strike.
THE COURT: It is, Counsel, but it’s been asked and answered so let’s
just go on to the next question.
Id. at 179.
Finally, Officer Brownell provided the following testimony during redirect
examination regarding information Officer Brownell obtained from Mr. Pfluger
(the individual from whom Ms. Rushworth claimed to have bought the vehicle):
[PROSECUTOR:] Officer Brownell, when you talked to Mr. Pfluger,
did he dispel your suspicions that the defendant knew the car was stolen?
[DEFENSE COUNSEL]: Objection, your Honor.
[PROSECUTOR]: I think the door has been opened, Judge.
THE COURT: So do I. Overruled.
[OFFICER BROWNELL:] Yeah. He knew the car was stolen.
2 RP (Sept. 13, 2017) at 217.
The trial court’s open door ruling was based on the following colloquy during
cross-examination:
[DEFENSE COUNSEL:] And after talking to . . . Mr. Pfluger, were you
able to corroborate through your investigation that Mr. Pfluger had, in fact,
given or supplied the car to Ms. Rushworth?
[OFFICER BROWNELL:] That Mr. Pfluger had given the car to
Ms. Rushworth?
[DEFENSE COUNSEL:] Yeah.
[OFFICER BROWNELL:] Yes, sir.
Id. at 216.
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Denial of the motions to strike
With respect to the first two contested areas of testimony, the trial judge rejected
Ms. Rushworth’s motions to strike. That was error. A motion to strike should be granted
when a litigant successfully objects to an answer already provided by a witness. Cf. State
v. Neukom, 17 Wn. App. 1, 4, 560 P.2d 1169 (1977) (motion to strike is the remedy for
objectionable testimony already put on the record); Magana v. Hyundai Motor Am.,
123 Wn. App. 306, 316, 94 P.3d 987 (2004) (explaining fact finders may not consider
information not admitted). By granting a motion to strike, the court informs the jury that
it cannot rely on the evidence in question. State v. Stackhouse, 90 Wn. App. 344, 361,
957 P.2d 218 (1998); see also WPIC 1.02 (“If evidence was not admitted or was [struck]
from the record, then you are not to consider it in reaching your verdict.”).2 Striking
evidence does not erase it from the record or hide it from the public; it properly eliminates
the evidence from the jury’s consideration or from an appellate court’s subsequent
assessment of evidentiary sufficiency. The trial court should have granted Ms.
Rushworth’s motions to strike.
2 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY I NSTRUCTIONS:
CRIMINAL 1.02, at 20 (4th ed. 2016) (WPIC). This standard instruction was provided
in Ms. Rushworth’s case.
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The open door ruling
The concept of evidence being admissible under an “open door” theory is a
remnant of the common law. See State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17
(1969) (recognizing the open door doctrine prior to passage of the rules of evidence in
1979). While modern, written rules of evidence have not specifically adopted the open
door concept,3 our case law recognizes the doctrine’s persistent validity. See, e.g., Taylor,
187 Wn.2d at 766. Continued reliance on the doctrine despite its absence from the written
rules has resulted in “‘notoriously imprecise’” applications. State v. Gomez, 367 S.W.3d
237, 246 (Tenn. 2012) (quoting 21 C HARLES A LAN WRIGHT E T A L, FEDERAL PRACTICE
& PROCEDURE E VIDENCE § 5039 (2d. ed. 1987)). Clarification is in order.
The open door doctrine is often conflated with related doctrines pertaining to
curative admissibility and invited error. This inexactitude is problematic. When the
open door doctrine is not precisely identified and distinguished from related doctrines, a
trial can become an evidentiary free-for-all; important constitutional protections and the
rules of evidence are undermined. We therefore endeavor to outline the contours of the
open door, curative admissibility, and invited error doctrines prior to discussing their
3 The concept is nevertheless implicit in ER 106 (remainder of related writings or
recorded statements), and ER 404(a) and ER 608 (regarding rebuttal character evidence).
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application to Ms. Rushworth’s case.
The open door doctrine
Put simply, the open door doctrine is a theory of expanded relevance. It permits a
court to admit evidence on a topic that would normally be excluded for reasons of policy
or undue prejudice when raised by the party who would ordinarily benefit from exclusion.
The open door doctrine recognizes that a party can waive protection from a forbidden
topic by broaching the subject. Should this happen, the opposing party is entitled to
respond. As explained in Gefeller, “when a party opens up a subject of inquiry on direct
or cross-examination, [the party] contemplates that the rules will permit cross-
examination or redirect examination, as the case may be, within the scope of the
examination in which the subject matter was first introduced.” 76 Wn.2d at 455 (emphasis
added).
The fact that an ordinarily forbidden topic has gained increased relevance does not
result in automatic admission of evidence. Relevance is only one test for admissibility.
Evidence is still subject to possible exclusion based on constitutional requirements,
pertinent statutes, and the rules of evidence. ER 402.
The open door doctrine typically comes into play in the context of Title IV of the
rules of evidence. Title IV protects against the introduction of certain types of relevant
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evidence for reasons of policy or prejudice. See, e.g., ER 404 (generally excluding
character evidence), ER 407 (generally excluding evidence of subsequent remedial
measures), and ER 412 (generally excluding evidence of alleged victim’s sexual history
in sexual misconduct cases). For example, ER 410 provides that evidence of a guilty
plea, later withdrawn, is generally inadmissible. Although a guilty plea statement is
relevant to the issue of guilt, overarching legal and policy concerns weigh against
allowing a jury to learn about a withdrawn plea. State v. Nelson, 108 Wn. App. 918, 925,
33 P.3d 419 (2001) (noting “purpose of ER 410 is to encourage criminal dispositions by
protecting plea negotiations from disclosure”). However, if a defendant introduces
testimony that can only be rebutted by reference to a withdrawn plea, then evidence of the
withdrawn plea will be admissible under the open door theory, despite ER 410. See State
v. Korum, 157 Wn.2d 614, 645-47, 141 P.3d 13 (2006).4
4 See also, e.g., State v. Swan, 114 Wn.2d 613, 653, 790 P.2d 610 (1990) (noting
defendant may open door to impeachment with ER 404(b) evidence “by testifying to
[their] own past good behavior and denying prior acts of misconduct”); State v. Smith,
115 Wn.2d 434, 442-44, 798 P.2d 1146 (1990) (concluding “since defendant himself
raised the issue of his limited income,” he opened door to questions regarding sources of
income, including public assistance otherwise excludable under ER 401 and ER 403).
Cf. State v. Avendano-Lopez, 79 Wn. App. 706, 714-15, 720-22, 904 P.2d 324 (1995)
(holding defendant did not open door to evidence precluded by ER 404(b) and ER 403
by testifying he was recently released from jail and was born in Mexico).
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No. 36077-6-III
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Another example of the application of expanded relevance under the open door
doctrine arises under the Constitution. Because an accused person has a constitutional
right to silence, due process prohibits the State from introducing evidence on the topic of
a defendant’s post-arrest silence at trial. State v. Fricks, 91 Wn.2d 391, 395, 588 P.2d
1328 (1979). But the accused can waive this constitutional protection. If an accused
elicits evidence pertaining to post-arrest silence, then the State can introduce rebuttal
evidence on the same subject under the open door rationale. See State v. Kendrick,
47 Wn. App. 620, 630-31, 736 P.2d 1079 (1987) (concluding defendant opened door to
evidence of post-arrest silence by eliciting testimony that he cooperated with police).
Given the foregoing principles, we hold the open door doctrine permits trial courts
to admit evidence on a subject normally barred on policy or prejudice grounds, so long as
the party who otherwise stands to benefit from exclusion has increased the subject’s
relevance through actions at trial.
The curative admissibility doctrine
The curative admissibility doctrine is much broader than the open door doctrine.
Also aptly known as “fighting fire with fire,” the curative admissibility doctrine permits
the introduction of evidence that is inadmissible for reasons other than relevance.
1 M CCORMICK ON E VIDENCE § 57 at 472 (Kenneth S. Broun ed. 8th ed. 2020). But see
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5 K ARL B. T EGLAND , WASHINGTON PRACTICE: E VIDENCE L AW AND PRACTICE § 103.14,
at 76 (6th ed. 2016) (quoting McCormick’s firefight simile as an explanation for opening
the door). “Curative admissibility, in its broadest form, allows a party to introduce
otherwise inadmissible evidence when necessary to counter the effect of improper
evidence previously admitted by the other party without objection.” Wright v. Virginia,
23 Va. App. 1, 7, 473 S.E.2d 707 (1996); see also United States v. Nardi, 633 F.2d 972,
977 (1st Cir. 1980); State v. Middleton, 998 S.W.2d 520, 528 (Mo. 1999); Gomez, 367
S.W.3d at 248.
Our Supreme Court has never recognized the validity of the curative admissibility
doctrine. At least in criminal cases, allowing the State to introduce evidence under the
doctrine is inappropriate. In the criminal system, a defendant has a due process right to a
fair trial. State v. Jones, 144 Wn. App. 284, 290, 183 P.3d 307 (2008). Even if the defense
improperly introduces inadmissible evidence, “the prosecutor is not absolved of [their]
ethical duty to ensure a fair trial by presenting only competent evidence on the subject.”
Id. at 298. If the defense introduces inadmissible evidence, the prosecutor has a remedy.
The “proper course of action [is] to object.” Id. at 295. But the prosecutor may not
“seize[] the opportunity to admit otherwise clearly inadmissible” evidence by failing to
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act. Id. “A criminal defendant can ‘open the door’ to testimony on a particular subject
matter, but [they do] so under the rules of evidence.” Id.
Because applying the curative admissibility doctrine in the State’s favor in a
criminal setting would be tantamount to condoning misconduct, we hold the curative
admissibility doctrine inapplicable in the current context. When a defendant does not
merely open the door to a newly relevant topic, but attempts to introduce incompetent
evidence such as hearsay, the prosecutor’s recourse is to object. If the objection is
successful, nothing more need be done to correct the record (other than a possible motion
to strike). If unsuccessful, the prosecutor may either seek an interlocutory appeal or (more
realistically) accept the trial court’s ruling as the law of the case and introduce responsive
evidence within the terms of the court’s ruling. In the latter scenario, the doctrine of
invited error will likely protect against reversal on appeal, as explained below.
Invited error doctrine
The invited error doctrine, unlike curative admissibility, does not condone
misconduct. Also unlike curative admissibility, invited error is a doctrine specifically
recognized by our Supreme Court. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514
(1990). Invited error is not a substantive rule of evidence. Rather, it is an appellate
remedy that “prohibits a party from ‘setting up error in the trial court and then
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complaining of it on appeal.’ ” State v. Armstrong, 69 Wn. App. 430, 434, 848 P.2d 1322
(1993) (quoting State v. Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991)). The
invited error doctrine usually applies in the context of jury instructions. See Henderson,
114 Wn.2d at 870-71 (citing several cases addressing invited error related to jury
instructions). But it can also apply to evidentiary rulings. See, e.g., In re Estate of Muller,
197 Wn. App. 477, 484-85, 389 P.3d 604 (2016).
In the context of a criminal trial, the invited error doctrine provides the State
redress for a defendant’s evidentiary errors without condoning misconduct. Consider the
following scenario: A defendant seeks to introduce a portion of a hearsay statement at
trial. The State properly objects, but the defendant persists, arguing the statement is not
hearsay. The trial court agrees with the defense and overrules the State’s objection. Under
these circumstances, it would likely not be misconduct for the State to acquiesce in the
trial court’s ruling and request introduction of the remaining portion of the statement in
question, if relevant. Should the trial court admit the balance of the statement, the invited
error doctrine would prohibit the defendant from reversing course on appeal and claiming
error in the admission of the evidence.
The foregoing scenario is based on Division One’s decision in State v. Hartzell,
156 Wn. App. 918, 237 P.3d 928 (2010). Hartzell declined to find error in the State’s
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introduction of hearsay evidence under the rubric of the open door doctrine.5 156 Wn.
App. at 935. It would have been more precise (and less solicitous of misconduct) for
Hartzell to have denied the defendant’s request for relief on the basis of invited error.
In summary, the invited error doctrine provides the State adequate redress in
circumstances where the defense induces the trial court to commit evidentiary error. To
be clear, a prosecutor should not take advantage of a clearly erroneous evidentiary ruling
that endangers the accused’s right to a fair trial. But it is not misconduct for a prosecutor
(who has limited appellate remedies) to advocate for a correct evidentiary ruling and then
abide by the trial court’s disposition should their advocacy prove unsuccessful. The
doctrine of invited error will protect the prosecutor from the defendant reversing course
on appeal and claiming evidentiary error.
Application of the open door doctrine to Ms. Rushworth
Here, Officer Brownell’s testimony regarding his conversation with Mr. Pfluger
was not admissible under the open door doctrine. The problem with Officer Brownell’s
testimony was not relevance, it was hearsay. As such, the open door doctrine was
not responsive to Ms. Rushworth’s objection. On appeal, the State raises a curative
5 We are not bound by Division One’s conclusion in Hartzell. In re Pers. Restraint
of Arnold, 190 Wn.2d 136, 148-49, 410 P.3d 1133 (2018).
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admissibility argument (characterized as open door). It asserts that because Ms.
Rushworth elicited hearsay statements from Officer Brownell, the State should have been
entitled to do so in kind. But, as noted, we reject application of the curative admissibility
doctrine in this context. If the prosecutor believed Ms. Rushworth’s question to Officer
Brownell called for hearsay, they should have objected. The rules of evidence do not
envision a tacit quid pro quo when it comes to inadmissible evidence. The prosecution
was not entitled to waive its hearsay objections in order to gain the ability to introduce
otherwise inadmissible evidence. Had the prosecutor’s objection been unsuccessful, then
it is possible (depending on the nature of the trial court’s ruling) that the prosecutor would
have been able to introduce evidence in reliance on the court’s ruling. But that is not what
happened here. The trial court’s admission of Officer Brownell’s hearsay testimony under
the open door doctrine was error.
Analysis of prejudice
While Ms. Rushworth has established three evidentiary errors in her case, reversal
is not automatic. Instead, the question is whether the trial errors, alone or in some
combination, deprived Ms. Rushworth of her right to a fair trial. See State v. Weber,
159 Wn.2d 252, 279, 149 P.3d 646 (2006). As the party asserting error, Ms. Rushworth
has the burden of establishing prejudice. Id.
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No. 36077-6-III
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As previously noted, three of Officer Brownell’s statements are at issue: (1) his
characterization of the Knights Inn as a hub of drug activity, (2) the out-of-court
statement by Mr. Wilkening (Ms. Rushworth’s boyfriend) that he did not want to get
involved with the investigation, and (3) the out-of-court statement by Mr. Pfluger that he
knew the Ford Expedition was stolen.6 While inadmissible, these statements did not
impair Ms. Rushworth’s right to a fair trial.
First, any prejudice from the testimony associating the Knights Inn with drug
activity was offset by the trial court’s agreement that the evidence was not relevant.
Second, the statement from Mr. Wilkening that he did not want to get involved with the
police was nothing more than a neutral fact. Mr. Wilkening spent at least a half hour
helping Officer Brownell search for the Expedition’s title. The testimony therefore did
not suggest that Mr. Wilkening did not believe in Ms. Rushworth’s innocence. Finally,
Mr. Pfluger’s admission that he knew the Expedition was stolen did not undermine Ms.
Rushworth’s theory of the case. It was uncontested that the Expedition was in fact stolen.
6 Officer Brownell also responded affirmatively to the State’s question of whether,
as a result of the conversation with Mr. Pfluger, Officer Brownell elected to file charges.
Ms. Rushworth did not object to this statement. On appeal, the defense argues Officer
Brownell’s response relayed improper opinion testimony regarding Ms. Rushworth’s
guilt. This objection was not preserved and therefore will not be reviewed on appeal.
RAP 2.5(a).
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In addition, Ms. Rushworth admitted knowing Mr. Pfluger had a criminal past. Given
these circumstances, Officer Brownell’s testimony that Mr. Pfluger knew the Expedition
was stolen was not particularly surprising. Ms. Rushworth’s trial may not have been
perfect, but it was not fundamentally unfair.
Ms. Rushworth’s judgment of conviction is affirmed.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Ms. Rushworth makes three additional claims of error: (1) the trial court
improperly conducted a portion of jury selection off the record, in violation of the right to
a public trial, (2) the trial evidence was insufficient to support guilt, and (3) several legal
financial obligations (LFOs) should be struck. We agree with Ms. Rushworth’s third
argument, but not the first two.
Jury selection
As the appellant, Ms. Rushworth has the burden of establishing the factual basis
for a public trial violation. State v. Koss, 181 Wn.2d 493, 503-04, 334 P.3d 1042 (2014).
She has not done so.
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The trial transcript shows that immediately prior to facilitating counsel’s
peremptory strikes, the trial judge went off the record twice. First, the judge asked to
speak to his judicial assistant. Immediately after that, the judge invited counsel to join
him and his assistant off the record in order to address “some instructions” that should
have been discussed during the pretrial motions process. 1 RP (Sept. 12, 2017) at 118.
From context, it appears the trial judge went off record in order to explain the
peremptory strike process. To the extent this inference is correct, this was a proper
sidebar that did not implicate public trial rights. State v. Whitlock, 188 Wn.2d 511, 521-
22, 396 P.3d 310 (2017).
Ms. Rushworth proffers that something more must have taken place during the off-
record exchanges. She points to court records indicating two jurors were struck for cause
and speculates that the jurors were struck during the off-record session. We are
unpersuaded. One of the two jurors at issue (number 7) was removed by the court on the
record, during questioning. The other juror (number 3) was an agreed strike, submitted by
the parties in writing. The record suggests the agreed strike took place during the time
that the parties completed paperwork for peremptory challenges. No public trial violation
occurs in this context. State v. Love, 183 Wn.2d 598, 606-07, 354 P.3d 841 (2015).
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No. 36077-6-III
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Because Ms. Rushworth has not established a public trial violation, her arguments
on appeal cannot be sustained.7
Sufficiency of the evidence
Ms. Rushworth argues the trial evidence was insufficient to prove she knew the
Ford Expedition was stolen. Viewing the evidence and all reasonable inferences available
therefrom in the light most favorable to the State, State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992), we disagree. Ms. Rushworth was discovered in possession of the
Expedition approximately one month after it was reported stolen. She claimed she
acquired the vehicle two weeks prior. The evidence at trial indicated the Expedition was
partially repainted. Ms. Rushworth also admitted she obtained the Expedition from an
individual with a criminal past. These facts, coupled with Ms. Rushworth’s inability to
find the Expedition’s title at her house, were sufficient to allow a jury to discredit Ms.
Rushworth’s claim to have innocently come into possession of the Expedition. The facts
at trial were sufficient for the jury to find the knowledge element satisfied.
7 Even if there had been a public trial violation, reversal would be unwarranted as
the violation would be de minimis. State v. Schierman, 192 Wn.2d 577, 614-15, 438 P.3d
1063 (2018) (plurality opinion).
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No. 36077-6-111
State v. Rushworth
LFOs
Ms. Rushworth argues that two LFOs should be struck from her judgment and
sentence based on recent changes to Washington law: ( 1) the $200 criminal filing fee and
(2) the $100 DNA 8 collection fee. We agree. The $200 filing fee should be struck based
on Ms. Rushworth's indigence pursuant to RCW 10.101.010(3)(c). RCW
36.18.020(2)(h). The $100 DNA fee should be struck because Ms. Rushworth's history of
felony convictions indicates her DNA has already been collected. RCW 43.43.7541. 9
CONCLUSION
Ms. Rushworth' s judgment of conviction is affirmed. We remand with instructions
to strike the $200 criminal filing fee and $100 DNA collection fee.
Pennell, J.
WE CONCUR:
LA"""<."' c. vAm" 1' 	C. · ~ .Lawrence-Berrey, C.J.
8 Deoxyribonucleic acid.
9 The State has superior access to the DNA database and does not suggest that the
presumption of prior collection should not apply in Ms. Rushworth' s case.
20
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