State Of Washington, Respondent V. Cleanthony Jimerson, Deceased, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CLEANTHONY JIMERSON,
Appellant.
No. 77789-1-I
DIVISION ONE
UNPUBLISHED OPINION
S MITH, J. — In March 2013, a crowded bar in Auburn, Washington, had
just announced last call, ushering hundreds of individuals into the parking lot.
That night, following what was later described as a brawl, three individuals,
including Lorenzo Duncan and Nick Lindsay, were shot and killed, and
Cleanthony Jimerson was shot and paralyzed.
In 2015, the State charged Cleanthony1 with two counts of first degree
murder for the fatal shooting of Duncan and Lindsay. After a hung jury in the first
trial, Cleanthony was retried, and the jury convicted him of two counts of the
lesser included offense, second degree murder, both with firearm enhancements.
Cleanthony timely filed an appeal, alleging a number of errors. However, while
this appeal was pending, Cleanthony died in custody in December 2019, and his
1 For clarity, we refer to the Jimerson relatives by their first names. We
intend no disrespect. In addition, because Cleanthony’s mother, Carolyn
Jimerson, has been substituted as appellant, we refer to the arguments on
appeal as coming from her. We also note that both parties and the court spelled
Carolyn’s name numerous ways. We utilize her counsel’s most recent spelling.

No. 77789-1-I/2
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mother now appeals in his place.
Cleanthony challenges a number of the trial court’s orders and findings.
While we agree that the trial court erred when it denied his motion to suppress
illegally obtained personal belongings, we conclude that the error was harmless.
And we conclude that his other challenges are without merit, except that the trial
court improperly imposed a DNA (deoxyribonucleic acid) collection fee.
Therefore, we remand to the trial court to strike the fee.
FACTS
On March 30, 2013, hundreds of people gathered at the Sports Page bar
in Auburn, Washington. Cleanthony and his family and friends, including his
girlfriend Kathleen Kovach, his mother Carolyn, his brother Cleden Jimerson, and
his cousins, Nicholas2 and Ricky Pierce and Javon (Do-Do), met at the bar for
Cleden’s going-away party. Also at the bar, Clarence Whiting celebrated his
birthday with a group of friends, including Tiffany Johnson, the mother of
Whiting’s children, Duncan, Lindsay, Michael Simmons, Malcom Jones,3 Sam
Henderson, and Xavier Ragland. Sharelle Little, Ciarra Beaver, and her brother,
Nevante Chaney, were at the bar, as well, and ended up spending time with
Whiting’s friend group.
At some point in the evening, Johnson confronted Whiting for dancing with
Little. While confronting Whiting, Johnson accidently bumped into Little and
2 Nicholas Pierce is referred to as “Nick” by witnesses and as “Nicholas”
throughout the opinion.
3 We refer to Malcom Jones by his first name, because this case also
involves a Detective Jones. We intend no disrespect.

No. 77789-1-I/3
3
stepped on Little’s “new shoes.”
At around 1:40 a.m. following last call, the bar’s security guards ordered
everyone to leave. As everyone exited the bar, a convoluted series of events
unfolded involving a multitude of individuals and witnessed by the hundreds of
patrons exiting the bar. To this end, at trial, there was conflicting testimony from
many witnesses.
In the parking lot, Little and Ragland fought, cursing at one another.
Chaney and another person, later identified as Cleden,4 who was wearing a
white t-shirt came up behind Little and began defending her. Malcom joined
Ragland. A crowd, including someone in “a striped Polo,” formed around the
group as they argued. Beaver testified that the Polo looked like it had orange
and blue stripes.5 Malcom punched Cleden, beginning “a brawl.” Many more
individuals became involved in the fight: running, punching, and yelling at one
another. Lindsay, who had tattoos and was wearing a tank top, also ran “towards
the fight to figure out who he was going to fight.” Beaver testified that the man in
the striped polo ran away as he yelled back to Chaney and Cleden to get the
person with the tattoos and another individual in a white shirt.
Ragland testified that at one point, he saw a few individuals “jumping”
Lindsay. Ragland “heard shots fired” and “ducked in between cars.” When he
4 At trial, testimony established that the individual in the white t-shirt was
Cleden. Specifically, Beaver identified a man in a white t-shirt who was with
Cleanthony as the “dude with [her] brother,” and Kovach testified that that
individual was Cleden.
5 The main group of individuals involved in the fight at this point included
someone in a polo shirt, Cleden, Ragland, Chaney, Cardell Ashford, Little,
Malcom, Rahel Tassew and Beaver.

No. 77789-1-I/4
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“looked up to see where it was coming from,” he testified that Malcom was
holding a pistol, pointing it towards the ground. But Ragland testified that he
never saw Malcom fire his gun. Ragland then ran to his car to retrieve his gun
and returned to where Lindsay had been. He saw someone “walking down the
middle of the parking lot . . . holding a pistol.” The person with the gun did a
“sweeping motion” with his gun, and Ragland ducked behind a car. When he
stood back up, he “saw [Lindsay] on the ground and the guy standing over him,”
and “that’s when [he] shot towards the guy standing over” Lindsay, believing the
person was going to shoot Lindsay. At trial, he testified that he had previously
described what the man was wearing “differently on a couple different occasions”
but that he could no longer recall what the man was wearing.6 Ragland also told
police that he had fired 7.62 x 25 mm Tokarev ammunition from a CZ 52
handgun.7 The same caliber casings were later discovered near a car in the
parking lot.
Another witness, Danielle Psachos, after refreshing her recollection with
her prior statement to the police, testified that she saw a “‘heavy-set’” man with
“‘short dreads in his hair’” fall to the ground, while someone with a silver gun
stood over him. She testified that she saw the man “take the gun and put it to
[the other man’s] head,” and then she “saw the fire from the gun.” Psachos
testified that the shooter was a black skinny male with short hair. Another
witness, Alissa Garza, testified that the shooter was “a little bit husky” with a
6 Specifically, Ragland had previously contended that the shooter was a
“[b]lack male, early 20s, 6 to 6’3, medium build, wearing a white” tank top.
7 At trial, Ragland testified that he received immunity for his testimony.

No. 77789-1-I/5
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white “Polo type shirt with stripes.”
Henderson also testified that he saw someone “standing over [Lindsay]
shooting.” Henderson testified that after the man shot Lindsay, he saw Duncan
“come to help” him, but that Duncan quickly turned and ran away. Henderson
testified that, as Duncan ran away, he saw “another flash” and that it looked like
the man shot Duncan. Then, as Duncan “fell and started crawling,” the shooter
allegedly “walked up on him,” and “[i]t looked like he shot [Duncan] again.”
Henderson testified that, after shooting Duncan again, the shooter suddenly fell
over. Gunshots were still “going on everywhere” and from “[a]ll over the place.”
Beaver testified that she heard a total of “[m]aybe . . . 30, 40” gunshots that night.
Kovach testified that, as she was running towards her car, she heard
gunshots and saw Cleanthony “laying [sic] next to the car” and that he “had been
shot.” Kovach, Nicholas, and Cleden put Cleanthony into Nicholas’s car and
drove him to the hospital. At the hospital, a bullet consistent with Ragland’s gun
was removed from Cleanthony’s back.
Lindsay and Duncan died in the parking lot that evening. Another
individual in the parking lot, Antuan Greer, also died from a gunshot wound.
Around 2:15 a.m., Auburn Police Detective Robert Jones arrived at
Auburn Regional Medical Center to investigate a gunshot victim. There,
Detective Jones and Officer Andrew Lindgren spoke with Kovach, Cleden,
Nicholas, and Carolyn. Medical staff informed Detective Jones that Cleanthony
was receiving medical treatment for his gunshot wounds and that once “he was
stabilized, he would be sent to” Harborview Medical Center. The staff then

No. 77789-1-I/6
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“directed” Detective Jones to Cleanthony’s personal belongings in his private
emergency examination room.
While Cleanthony’s room was unlocked and unoccupied, Detective Jones
found Cleanthony’s clothing in a dark green, opaque bag labeled personal
belongings, which was under Cleanthony’s hospital gurney or bed. He later
testified that he believed the bag contained clothing based on his “personal
experience” and because “you can practically see through the thing.” The bag
contained Cleanthony’s polo shirt, a white tank top, his wallet, and his shoes.
Following the incident, the police found bullet casings from multiple
different firearms in the bar’s parking lot.8 A medical examiner found one
gunshot wound at the tip of Lindsay’s left shoulder. They also found that Duncan
was shot “[o]n his right cheek just below the eye” and on the left side of his chest.
The medical examiner recovered a bullet from the latter gunshot wound. At trial,
Kathy Geil, a ballistics expert, testified that the bullet fragments in both Lindsay
and Duncan were consistent with having been fired from the same “44 caliber
class” gun.
In its investigation, the police interviewed many individuals. During a
photographic montage, which included an image of Cleanthony, Ragland was
unable to identity anyone that he saw firing a gun that evening; Henderson
identified Ragland as someone shooting a gun that night but could not identify
anyone else from the photographic montage. Henderson, however, provided a
8 At the CrR 3.5 hearing, Detective Francesca Nix testified that casings
from five different firearms were found at the scene.

No. 77789-1-I/7
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statement alleging that the shooter was a black male between the age of 23 and
28, around six feet tall, slender, with short hair and little to no facial hair, and that
he wore a navy blue and yellow polo. And at trial, the State called Detective Nix
to testify that Cato White, an individual drinking at the Sports Page bar the night
of the incident, had identified Cleanthony in a montage as the person who shot
Lindsay and Duncan, telling the officers that Cleanthony wore a yellow and black
striped polo shirt.
On April 25, 2013, Detective Nix interviewed Cleanthony at Harborview
Medical Center. Cleanthony stated that, when the bar closed, he saw a
confrontation beginning in the parking lot and “scrambl[ed]” to find his mother and
older cousin and get them into their vehicle. He recalled that while looking for his
girlfriend and little brothers, he heard gunshots. “And in the midst of that [his]
legs went numb.” He then “crawled . . . with just arms to” his and his cousin’s
cars. Cleanthony stated that the bullets came from behind him.
After years of investigation, in April 2015, the State charged Cleanthony
with two counts of murder in the second degree. At the time, Cleanthony was in
Georgetown, Texas, visiting his family. The King County Prosecutor’s Office
procured a nationwide extradition warrant, which it sent to the Texas police.
Detective Nix called Cleanthony and alleged that she was a crime victim
compensation staffer and that she needed Cleanthony to fill out outstanding
paperwork. When he arrived at the agreed upon location, United States
marshals arrested Cleanthony. Detectives Doug Faini and Nix flew to Texas. In
the meantime, Kovach had procured counsel for Cleanthony. The detectives

No. 77789-1-I/8
8
spoke with Cleanthony at Williamson County Jail in Georgetown, Texas, on two
separate occasions.
During the first interview, on April 11, 2015, Detective Faini read
Cleanthony his rights, and Cleanthony signed the waiver of his rights. At some
point during the interview, Cleanthony mentioned he had procured an attorney.
During the second interview the next day, Cleanthony affirmed his prior waiver of
his rights. The Detectives also clarified Cleanthony’s statement about his
attorney, which he provided to the detectives the day before. Specifically,
Cleanthony stated that he had spoken with his attorney and that “she was fine
with” him speaking to the detectives about the statement he provided to the
police while he was at Harborview Medical Center.
Throughout the second interview, Detective Faini pressed a self-defense
theory, to which Cleanthony replied, “‘[I]f I did [shoot them,] it would have to have
been self defense because the only thing I wanted to do was get my mom in her
car.’” Cleanthony later stated, “[I]f I did pick up a gun, it had to have been when I
hit the ground it was something next to me already; you know, somebody falling
or dropped dead or whatever.” He stated that the incident was a “kill-or-be-killed”
situation and agreed with the detectives that he “had to do what [he] did in order
to protect people, and unfortunately the person doesn’t live anymore.” Towards
the end of the interview, Cleanthony stated that he did pick a gun up off the
ground and used it in self-defense.
In June 2015, the State amended the information and charged Cleanthony
with two counts of murder in the first degree and one count of unlawful

No. 77789-1-I/9
9
possession of a firearm in the second degree.
In December 2016, Cleanthony moved to suppress the statements
obtained by the officers while he was in Texas. He argued that the statements
were obtained in violation of his right to remain silent and his invocation of his
right to counsel. The court denied his motion to suppress his statements and
concluded that Cleanthony made the statements voluntarily.
Cleanthony also moved to suppress the clothing evidence seized from his
hospital room. The court held a hearing on Cleanthony’s motion to suppress the
evidence. Among other findings, it found that the room with Cleanthony’s
clothing was not a private room. It concluded that the plain view exception
applied, because “Det. Jones was lawfully in a place from which Mr. Jimerson’s
clothes could be viewed as evidenced by the fact that he had unfettered
permission to enter and remain in all areas of the Auburn Hospital E.R. and had
previously been supplied with an access code,” he had “a lawful right of access
to the clothing,” and “[o]nce he located the bag of clothing[,] the incriminating
character of the items was immediately apparent.” Thus, the court determined
that the items and photographs were admissible at trial.
At trial, White testified that he did not remember whether he saw Lindsay
or Cleanthony. He testified that he did not see anyone in the courtroom that was
in the fight at the bar and that he did not see anyone shooting a gun. When
pressed by the State, White stated he could not remember anything and that he
did not believe that he had “different memories at earlier times of things that
happened” at the bar. In response, the State provided an exhibit to refresh his

No. 77789-1-I/10
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memory. White then stated that he remembered talking to Detective Nix. And
after he read his statement identifying the shooter as someone matching
Cleanthony’s description, he stated that the statement was “not the events [as
he] remember[ed them].” He also stated that he did not remember placing an X
on Cleanthony’s photo in the photographic montage he was provided following
the incident.
Following a month-long trial, the jury convicted Cleanthony of the lesser
included offense, second degree murder, as well as unlawful possession of a
firearm in the second degree.
At sentencing, the court concluded that it would enter a no-contact
provision for all of the testifying witnesses, except his family. Instead, the
judgment and sentence included a no-contact provision pertaining to the “families
of Lorenzo Duncan and Nick Lindsay or testifying witnesses, except for officers
or experts.” Accordingly, the judgment and sentence barred Cleanthony from
contacting his family and his longtime girlfriend, Kovach.
Cleanthony timely appealed. However, he passed away while in custody,
and his mother moved to substitute herself as appellant.9 We granted her
motion, and Cleanthony’s attorney moved to represent her pro bono.
ANALYSIS
Motions To Suppress
“When reviewing a trial court’s ruling on a motion to suppress, we determine
9 After remanding to the trial court to determine whether Cleanthony’s
appellate counsel could represent Carolyn, as an issue of public expense,
counsel advised the court it would be representing Carolyn pro bono.

No. 77789-1-I/11
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whether substantial evidence supports the trial court’s findings of fact and whether
the findings of fact support the trial court’s conclusions of law.” 	State v. Russell,
180 Wn.2d 860, 866, 330 P.3d 151 (2014). “Conclusions of law are reviewed de
novo.” State v. Lakotiy, 151 Wn. App. 699, 706, 214 P.3d 181 (2009).
Search and Seizure
Carolyn contends that the trial court erred when it concluded that, under
the plain view doctrine’s exception to the warrant requirement, Detective Jones
did not violate Cleanthony’s right to be free of unreasonable searches and
seizures pursuant to Washington Constitution article I, section 7. Cleanthony’s
examination room constituted a private area, and therefore, we conclude that the
plain view doctrine did not apply. Nonetheless, any error in the admission of the
clothing was harmless beyond a reasonable doubt.
“The privacy protections of article I, section 7 are more extensive than
those provided under the Fourth Amendment.” State v. Buelna Valdez, 167
Wn.2d 761, 772, 224 P.3d 751 (2009).10 “Article I, section 7 of the state
constitution provides: ‘No person shall be disturbed in [their] private affairs, or
[their] home invaded, without authority of law.’” Buelna Valdez, 167 Wn.2d at
10 Latinx and Spanish-language dominant communities commonly utilize
the patrilineal last name (the first of two family names) as their primary identifier.
And although “[t]he rules mandate that things be called by their given names . . . ,
this does not necessarily result in calling things by their right names.” See Berta
Esperanza Hernández Truyol, Building Bridges--Latinas and Latinos at the
Crossroads: Realities, Rhetoric and Replacement, 25 COLUM. HUM. RTS . L. REV .
369, 417, 430 (1994) (discussing the “need to decode language . . . [to]
accommodate diversity” of Latinas/os in our Nation and to “avoid a system whose
appellations are designated by ‘founding fathers’”). A great place to start is in
recognizing the difference in an individual’s name. Therefore, we refer to this
case as Buelna Valdez.

No. 77789-1-I/12
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771. Under article I, section 7’s “robust privacy protections . . . , any state
intrusion into private affairs” generally must be done pursuant to a valid “warrant
or a well-established exception to the warrant requirement.” State v. Morgan,
193 Wn.2d 365, 369, 440 P.3d 136 (2019), cert. denied, 140 S. Ct. 1243 (2020).
In evaluating an article I, section 7 argument,
“[f]irst, we must determine whether the state action constitutes a
disturbance of one’s private affairs. . . . [I]f a privacy interest has
been disturbed, the second step in our analysis asks whether
authority of law justifies the intrusion. The ‘authority of law’
required by article I, section 7 is satisfied by a valid warrant, limited
to a few jealously guarded exceptions.”
Buelna Valdez, 167 Wn.2d at 772 (quoting York v. Wahkiakum Sch. Dist. No.
200, 163 Wn.2d 297, 306, 178 P.3d 995 (2008)). “The State ‘must establish the
exception to the warrant requirement by clear and convincing evidence.’”
Morgan, 193 Wn.2d at 370 (quoting State v. Garvin, 166 Wn.2d 242, 250, 207
P.3d 1266 (2009)).
Disturbance of Private Affairs
Carolyn contends that the trial court erred when it concluded that
Cleanthony’s examination room was not private.11 Because the examination
room was subject to a reasonable expectation of privacy, we agree that the court
erred in its factual and legal findings regarding the examination room.
11 The trial court labeled this conclusion a “Finding[ ] as to disputed facts.”
However, because this finding is more appropriately deemed a conclusion of law
as to whether the room was subject to privacy interests under article 1, section 7
of our state constitution, we review the conclusion de novo. State v. Z.U.E., 178
Wn. App. 769, 779 n.2, 315 P.3d 1158 (2014), aff’d, 183 Wn.2d 610, 352 P.3d
796 (2015) (“Where a conclusion of law is erroneously labeled as a finding of
fact, we review it de novo as a conclusion of law.”).

No. 77789-1-I/13
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Article 1, section 7’s “scope is not limited to subjective expectations of
privacy but, more broadly, protects ‘those privacy interests which citizens of this
state have held, and should be entitled to hold, safe from governmental trespass
absent a warrant.’” State v. Parker, 139 Wn.2d 486, 493-94, 987 P.2d 73 (1999)
(quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). “To
determine whether a privacy interest exists under article I, section 7, we must
examine whether a particular expectation of privacy is one that a citizen of this
state should be entitled to hold.” State v. Reeder, 184 Wn.2d 805, 814, 365 P.3d
1243 (2015). “Part of this inquiry focuses on what kind of protection has been
historically afforded to the interest asserted, and part of it focuses on the nature
and extent of the information that may be obtained as a result of government
conduct.” Reeder, 184 Wn.2d at 814.
With regard to the historical protection afforded to a hospital examination
room, there has not been an explicit determination as to whether there is a
privacy interest in an unlocked, unoccupied examination room. While courts
have reviewed an individual’s expectation of privacy regarding items within an
examination room,12 they have not looked at whether the examination room itself
is subject to a privacy interest. Rather, courts have assumed that the
examination room is subject to a reasonable expectation of privacy.13 Here,
12 See Morgan, 193 Wn.2d at 370 (Morgan did not argue that the officers
had no lawful reason to be in the hospital room.). Morgan is discussed in detail
below. 13 See Morgan, 193 Wn.2d at 368-70 (holding that, where the officer and
the defendant spoke for hours regarding the alleged crime in the defendant’s
hospital room, the officer’s seizure of the defendant’s clothing and a knife fell
under the plain view exception).

No. 77789-1-I/14
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under these facts, Cleanthony had a right to privacy in the examination room. To
this end, other case law can serve as guidance.
For example, in State v. Boland, the police searched and seized Brad
Boland’s trash after receiving an anonymous letter alleging that Boland had been
distributing “legend drugs,” “which federal law prohibits . . . without a prescription
from a physician.” 115 Wn.2d 571, 573, 800 P.2d 1112 (1990). After receiving
the letter, the “police began a series of four warrantless searches of defendant’s
garbage” when Boland took his trash out to the corner for collection. Boland, 115
Wn.2d at 573. On appeal, the court held that the warrantless search of Boland’s
garbage fell “squarely within the contemplated meaning of a ‘private affair,’”
because “Boland’s trash was in his can and sitting on the curb in expectation that
it would be picked up by a licensed garbage collector.” Boland, 115 Wn.2d at
578.
In State v. Smith, Harold Bernard Smith was convicted of first degree
murder after his son was found drowned in a creek near his home. 88 Wn.2d
127, 128, 131, 559 P.2d 970 (1977). Police had seized Smith’s clothing from an
“anteroom or entryway which led from a public hallway of the hospital to the
security room occupied by” Smith. Smith, 88 Wn.2d at 132. The court noted that
“[t]he anteroom . . . was semipublic,” and “was equipped with a sink . . . and was
open and accessible to doctors and nurses who frequently used the sink to wash
their hands.” Smith, 88 Wn.2d at 132. The court did not go through a state
constitutional analysis, finding that the Fourth Amendment “and article 1,
section 7 of the Washington State Constitution are comparable and are to be

No. 77789-1-I/15
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given comparable constitutional interpretation.” Smith, 88 Wn.2d at 133. It
concluded that the police acted according to a probable cause and exigent
circumstance exception to the warrantless seizure prohibition. Smith, 88 Wn.2d
at 138.
Like the situation in Boland, where an individual reasonably expects that
only their trash collector, not strangers, will see their trash, an individual
reasonably expects that their private examination room will not be invaded by
strangers, even though a nurse or a doctor is expected to enter the room. This is
particularly true where here, unlike in Smith, to access the emergency room, a
nurse or doctor must let an individual into the area containing the examination
rooms, or the person seeking entrance must know a security code and enter it.
And contrary to the State’s contention and the trial court’s conclusion, the
hospital providing access to the emergency room area does not necessarily lead
to the conclusion that the individual rooms are open to the public. See, e.g.,
State v. Thomson, 71 Wn. App. 634, 645, 861 P.2d 492 (1993) (in discussing the
criminal burglary statute, noting “each tenant has a privacy interest in his or her
room or apartment, and that interest is separate from the interests of other
tenants”).
Similarly, while Smith is distinguishable because it applied the United
States Constitution and did not apply the plain view exception,14 its conclusion
that the anteroom to a private emergency room was semipublic logically extends
14 Since Smith, as noted above, article I, section 7 of Washington’s
Constitution affords defendants greater protections than the United States
Constitution’s Fourth Amendment.

No. 77789-1-I/16
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to the conclusion that individual examination rooms are not public. Therefore,
the trial court erred because the facts do not support the trial court’s conclusion
that Cleanthony’s emergency room was not a private room.
Plain View Doctrine
Carolyn contends that the plain view doctrine does not justify Detective
Jones’s seizure of Cleanthony’s clothing. We agree.
“Exceptions to the warrant requirement are limited and narrowly drawn.”
Parker, 139 Wn.2d at 496. “The State, therefore, bears a heavy burden to prove
the warrantless searches at issue fall within the exception it argues for.” Parker,
139 Wn.2d at 496. One exception is the plain view doctrine. “[A] plain view
seizure is legal when the police (1) have a valid justification to be in an otherwise
protected area, provided that they are not there on a pretext, and (2) are
immediately able to realize the evidence they see is associated with criminal
activity.” Morgan, 193 Wn.2d at 371. “Officers are not restricted to seizing
evidence solely when they come across the evidence unintentionally and
inadvertently.” Morgan, 193 Wn.2d at 371. However, “‘the law does not vest in
police the discretion to seize first and decipher a piece of evidence’s
incriminating nature later.’” Morgan, 193 Wn.2d at 371 (quoting Katie Farden,
Recording a New Frontier in Evidence-Gathering: Police Body-Worn Cameras
and Privacy Doctrines in Washington State, 40 S EATTLE U. L. REV. 271, 284-85
(2016)).
Morgan is instructive. There, a jury found David Morgan guilty of first
degree assault, attempted murder, and arson after his ex-wife, Brenda, was

No. 77789-1-I/17
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found “nonresponsive and badly injured” in Morgan’s garage while the house was
on fire. Morgan, 193 Wn.2d at 367-68. At the scene of the crime, Morgan’s and
Brenda’s clothing smelled of gasoline, and Officer Christopher Breault was
instructed to “‘collect Morgan’s clothing [from the hospital].’” Morgan, 193 Wn.2d
at 368 (alteration in original). “Officer Breault spoke with Morgan in his hospital
room for hours” and, at one point, noticed Morgan’s clothing in “‘several plastic
shopping like bags’ . . . on the counter in Morgan’s hospital room,” as well as “a
utility knife with dried blood on the handle.” Morgan, 193 Wn.2d at 368. Officer
Breault later seized the clothing bags, and before trial, Morgan unsuccessfully
moved to suppress the evidence. Morgan, 193 Wn.2d at 368-69.
On appeal, Morgan did not challenge the officer’s lawful reason to be in
the hospital room. Morgan, 193 Wn.2d at 371. Rather, he argued that the
incriminating nature of the clothing was not readily apparent and that, therefore,
the plain view doctrine did not apply. Morgan, 193 Wn.2d at 371. Our Supreme
Court held that “Officer Breault reasonably concluded that Morgan’s clothing
would have evidentiary value given the conversation he had with Morgan and
observations he made during that time, including spotting a knife with dried blood
on the handle.” Morgan, 193 Wn.2d at 372. It therefore concluded that “the
State met its burden to show that Officer Breault lawfully seized Morgan’s
clothing under the plain view doctrine.” Morgan, 193 Wn.2d at 372-73.
With regard to the first step of the analysis, unlike in Morgan, Carolyn
asserts that Detective Jones did not have a lawful right to be in the room. In
cases where the officers have entered a hospital room without a warrant, courts

No. 77789-1-I/18
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have assumed the officer had a lawful right to be present in the examination
room. See, e.g., Morgan, 193 Wn.2d at 371 (assuming the officer had a lawful
reason to be in the hospital room because the appellant did not challenge it).
However, those cases involved instances where the assumed victim or
perpetrator of a crime was present in the room. For example, in Morgan, the
officer was speaking with Morgan about the events leading up to the fire. 193
Wn.2d at 368. But here, Detective Jones was in the room for the sole purpose of
finding and seizing Cleanthony’s clothing. Cleanthony was not in the room, so
Detective Jones was not permissibly investigating the shooting. Indeed, he could
not gain any information regarding the shooting while Cleanthony was not
present, except information provided by the clothing. Therefore, Detective Jones
was not lawfully in the examination room.
Furthermore, the incriminating nature of the items seized was not
immediately apparent based on observation of the bag. Rather, Detective Jones
recognized that the bag contained clothing “based on the packaging.” When
asked whether he knew the contents of the bag before looking into the bag, he
testified, “I was told it was clothing. I believed it was clothing. But exactly what
the content was, I can’t tell you.” In addition, the exhibit shows a bag that is not
transparent, but green. Thus, the incriminating nature of the seized evidence
was not immediately apparent, and the trial court erred.
Finally, while inadvertence is not a requirement under article I, section 7, it
is a characteristic of most valid plain view seizures.15 But here, Detective Jones
15 To the extent that Carolyn relies on State v. Kull, 155 Wn.2d 80, 85, 118

No. 77789-1-I/19
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sought out and was directed to the clothing. Accordingly, Detective Jones did not
inadvertently discover the evidence. For these reasons, the plain view doctrine
did not apply, and the trial court erred in concluding it did.16
In the alternative to the applicability of the plain view doctrine, the State
contends that the examination room was not private and that the open view
exception applied to the bag of clothing. “[T]he open view doctrine . . . stand[s]
for the proposition that there is no legitimate expectation of privacy ‘in those
areas of the curtilage that are impliedly open to the public.’” State v. Browning,
67 Wn. App. 93, 96, 834 P.2d 84 (1992) (quoting Robert F. Utter, Survey of
Washington Search & Seizure Law: 1988 Update, 11 U. P UGET S OUND L. REV .
411, 430 (1988)). Specifically, “the observation of incriminating evidence from”
areas that are not subject to a reasonable expectation of privacy, like the
curtilage of the residence, does “not constitute a search.” Browning, 67 Wn. App.
at 96. But the area with the private examination rooms was not impliedly open to
the public. This is particularly true because an individual could not gain access
to the area with the examination rooms unless they had authorization to enter
from the staff or with a security code. Therefore, the State’s assertion is without
P.3d 307 (2005), for the proposition that inadvertence is a requirement, Morgan
recently clarified that it is not. See Morgan, 193 Wn.2d at 371 (Inadvertence “‘is
not a necessary condition’” to the application of the plain view doctrine; rather, it
“‘is a characteristic of most legitimate plain-view seizures.’” (internal quotation
marks omitted) (quoting Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301,
110 L. Ed. 2d 112 (1990))).
16 Carolyn asserts that taking the items out of the bag and photographing
them was an additional search. However, she provides no case law to support
her position, and because the seizure of the bag was unconstitutional, the
assertion is unnecessary.

No. 77789-1-I/20
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merit.
Similarly, the State’s assertion that the hospital staff had authority to
provide consent is unpersuasive. “[A] valid consensual search” requires
(1) voluntary consent, (2) “granted by a party having authority to consent, and
(3) the search must be limited to the scope of the consent granted.” State v.
Blockman, 190 Wn.2d 651, 658, 416 P.3d 1194 (2018). The State relies on the
common authority rule, which provides that cohabitants have authority to consent
to a search. Specifically, the “[c]ommon authority [rule] . . . is grounded upon the
theory that when a person, by his actions, shows that he has willingly
relinquished some of his privacy, he may also have impliedly agreed to allow
another person to waive his constitutional right to privacy.” State v. Morse, 156
Wn.2d 1, 8, 123 P.3d 832 (2005). But an individual’s need to seek medical
treatment does not imply that they have willingly relinquished some of their
privacy. And because the hospital staff did not have a privacy interest in the
room, they did not have authority to consent to its search. See, e.g., State v.
Bowman, 14 Wn. App. 2d 562, 569-70, 472 P.3d 332 (2020) (holding that where
an individual had no privacy interest in a text message conversation, they lacked
the authority to consent to a search of the conversation), review granted, 196
Wn.2d 1031 (2021). Therefore, the hospital staff did not have authority to
consent to Detective Jones’s entrance into, or search of, Cleanthony’s private
room.
Harmless Error
Carolyn alleges that the prosecution’s reliance on Cleanthony’s clothing

No. 77789-1-I/21
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undermines the verdict. Because the State had testimony and photographs that
provided evidence that Cleanthony wore a blue and yellow polo shirt that
evening, we disagree.
“Failure to suppress evidence obtained in violation of a defendant’s” right
under article 1, section 7 of our constitution is “constitutional error and is
presumed to be prejudicial.” State v. McReynolds, 117 Wn. App. 309, 326, 71
P.3d 663 (2003). A “[c]onstitutional error is harmless only if the State establishes
beyond a reasonable doubt that any reasonable jury would have reached the
same result absent the error.” State v. Quaale, 182 Wn.2d 191, 202, 340 P.3d
213 (2014).
Here, despite Carolyn’s assertion to the contrary, the clothing was not
material to the prosecution’s case. The State used the physical clothing as
evidence that Cleanthony was wearing a blue and yellow polo shirt on March 30
and 31. However, the State also introduced photographs from that evening
where Cleanthony was wearing the blue and yellow striped polo shirt. Kovach
also testified that Cleanthony was wearing a blue and yellow polo shirt that
evening. With or without the seized evidence, the State provided ample
evidence that Cleanthony was wearing a blue and yellow striped polo that
evening. Thus, to the extent that the jury was convinced of Cleanthony’s guilt
because of his attire, the State met its burden to show that, beyond a reasonable
doubt, a reasonable jury would have reached the same conclusion. Accordingly,
any error by the court was harmless.

No. 77789-1-I/22
22
Sixth Amendment Right to Counsel
Carolyn claims that the trial court erred when it denied Cleanthony’s
motion to suppress his statements to the detectives, violating either his Sixth
Amendment or article 1, section 22 rights. We disagree.
Under the Sixth Amendment to the federal constitution and article 1,
section 22 of the Washington Constitution, “[a] criminal defendant has a right to a
lawyer after the State files charges.” State v. Radcliffe, 164 Wn.2d 900, 905, 194
P.3d 250 (2008). Under United States’ precedent, “once the adversary judicial
process has been initiated, the Sixth Amendment guarantees a defendant the
right to have counsel present at all ‘critical’ stages of the criminal proceedings,”
including interrogation. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct.
2079, 173 L. Ed. 2d 955 (2009).
“The right to counsel may be affirmatively waived, but such a waiver must
be knowing, voluntary, and intelligent.” State v. Afeworki, 189 Wn. App. 327,
344, 358 P.3d 1186 (2015). “[W]hen an accused has invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights.” Edwards v.
Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). But, “[i]f
the suspect’s statement is not an unambiguous or unequivocal request for
counsel, the officers have no obligation to stop questioning him.” Davis v. United
States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
Here, the trial court found that “[a]t no point before or during either taped

No. 77789-1-I/23
23
statement in Texas did the defendant state he wanted to have an attorney
present.” It also found that “[t]he defendant told the detectives that the attorney
had suggested that he should wait until he was back in Washington to give a
statement. He did not assert or convey that he wanted to wait; rather, he was
repeating his attorney’s advice or suggestion.” The court found that Cleanthony
did “not unequivocally invoke his right to counsel or his right to remain silent” on
April 11 or April 12.17 “[O]n April 12, 2015, the defendant confirmed he wanted to
speak with the detectives. These findings are supported by substantial evidence.
Cleanthony did not unequivocally request his counsel’s presence on either
day. Specifically, Cleanthony stated that in their unrecorded conversation on
April 11, 2015, he had told the detectives that his attorney was fine with him
speaking with them. From the clarification of the unrecorded conversation,
Cleanthony agreed that he “had explained to [the detectives] that [he] had
communication with [his family] . . . and that [his attorney] had suggested just
waiting” to speak with the detectives until he returned to Washington. However,
he did not say that he refused to speak with the detectives. Moreover, prior to
his discussion with the detectives on April 11, 2015, Cleanthony was read his
rights and voluntarily and knowingly signed a waiver acknowledging that he
understood them.18
On April 12, 2015, he acknowledged having signed the waiver both days.
17 The trial court labeled these “conclusions as to disputed facts,” likely
meaning, “findings as to disputed facts.”
18 This is particularly true considering Cleanthony’s statements to Kovach
indicating that he willingly agreed to speak with the detectives.

No. 77789-1-I/24
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At no point in the conversation on either April 11 or 12 did Cleanthony state that
he wanted his attorney present. In fact, he said that his attorney was fine with
him speaking with the detectives about his previous statement to the police.
Therefore, the trial court’s findings of fact were supported by substantial
evidence, and Cleanthony did not invoke his right to counsel.
Cleanthony relies on United States v. Santistevan19 for the proposition that
he unequivocally invoked his right to counsel. In Santistevan, the Federal
Bureau of Investigation (FBI) was investigating a series of robberies. 701 F.3d at
1290. Manuel Santistevan turned himself in to the police on unrelated charges,
but an FBI agent attempted to discuss the robberies with Santistevan while he
was in custody. Santistevan, 701 F.3d at 1290. Santistevan declined to speak
with the agent. Santistevan, 701 F.3d at 1290. The agent later received calls
from (1) Santistevan’s girlfriend advising the agent that Santistevan would speak
with the agent and (2) Santistevan’s attorney advising the agent that Santistevan
did not want to speak with him and that he had a letter for the agent.
Santistevan, 701 F.3d at 1290-91. At the jail, Santistevan handed the agent the
letter, which was from the attorney and stated that Santistevan would not speak
to him without his counsel present. Santistevan, 701 F.3d at 1291. The agent
nevertheless proceeded with an interview. Santistevan, 701 F.3d at 1291. The
court held that Santistevan unequivocally invoked his right to counsel by
presenting the agent the letter. Santistevan, 701 F.3d at 1293.
Here, prior to both interviews, the detectives were aware that Cleanthony
19 701 F.3d 1289 (10th Cir. 2012).

No. 77789-1-I/25
25
had obtained an attorney. However, neither Cleanthony nor his attorney made
an unequivocal statement that he did not wish to speak with the detectives.
Indeed, Cleanthony told the detectives that his attorney was fine with him
speaking to them. Accordingly, Santistevan is not analogous.
Carolyn also asserts that the trial court erred when it did not undertake a
Gunwall20 analysis regarding article I, section 22 of the Washington Constitution
and the Sixth Amendment. Furthermore, she contends that the Gunwall analysis
supports her conclusion that article I, section 22 provides greater protections
than the Sixth Amendment. However, even if article I, section 22 required an
independent analysis, Cleanthony did not invoke his right to counsel under
Washington law, and while the detectives knew that Cleanthony had an attorney,
he explicitly agreed to speak with them.
Carolyn cites no authority that supports her assertion that the State
violated Cleanthony’s right to counsel under article I, section 22. For example,
she inappropriately relies on Aichele v. Rhay21 for the proposition that “the record
must show more than ‘[m]erely asking the defendant whether he wants a
lawyer.’” But in Rhay, the court addressed an officer’s duty to inform a defendant
of their right to counsel. 57 Wn.2d at 179-80. The court did not address a
defendant’s invocation of their right to have counsel present. Rhay, 57 Wn.2d at
179-80. And Washington courts require that a defendant unambiguously invoke
their right to counsel. See, e.g., State v. Mayer, 184 Wn.2d 548, 556 n.5, 362
20 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
21 57 Wn.2d 178, 179-80, 356 P.2d 326 (1960).

No. 77789-1-I/26
26
P.3d 745 (2015) (“The police must stop an interrogation if a suspect makes ‘an
unambiguous or unequivocal request for counsel.’” (quoting Davis, 512 U.S. at
461-62)). Therefore, we are unpersuaded.
Similarly, Carolyn’s reliance on State v. Tully for the proposition that “when
an accused person hires a lawyer, he has the right to their ‘guiding hand’ at
‘every stage’ of the case even non-critical proceedings” is misplaced. 4 Wn. App.
720, 727, 483 P.2d 1268 (1971). In Tully, the defendant’s counsel failed to
appear for a preliminary hearing, and the trial court denied defendant’s request to
continue the hearing until his counsel was present. 4 Wn. App. at 721. Tully had
to represent himself at the hearing. Tully, 4 Wn. App. at 721. Therefore, Tully is
factually distinguishable.
For the foregoing reasons, Cleanthony’s right to counsel under either the
Sixth Amendment or Washington Constitution article I, section 22 was not
violated, and the trial court did not err when it denied Cleanthony’s motion to
suppress his statements.
Juror 48’s Dismissal for Cause
Carolyn asserts that Cleanthony was denied his right to a fairly selected
jury when the court and the State excused juror 48 for “impermissible reasons.”
Because the juror’s removal was not based on race, we disagree.
Jury selection “is ‘the primary means by which a court may enforce a
defendant’s right to be tried by a jury free from ethnic, racial, or political
prejudice, or predisposition about the defendant’s culpability.’” State v. Irby, 170
Wn.2d 874, 884, 246 P.3d 796 (2011) (quoting Gomez v. United States, 490 U.S.

No. 77789-1-I/27
27
858, 873, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989)). “The dismissal of a
potential juror during voir dire is primarily governed by statute.” State v. Sassen
Van Elsloo, 191 Wn.2d 798, 808, 425 P.3d 807 (2018). “RCW 4.44.170 . . .
outlines three reasons potential jurors may be challenged for particular cause:
implied bias, actual bias, and physical inability.” Sassen Van Elsloo, 191 Wn.2d
at 808. We review a trial court’s dismissal of jurors for cause under an abuse of
discretion standard. State v. Brett, 126 Wn.2d 136, 158, 892 P.2d 29 (1995).
The reason for this deference is that “[t]he trial judge is in the best position to
evaluate whether a particular potential juror is able to be fair and impartial based
on observation of mannerisms, demeanor and the like.” 	State v. Gonzales, 111
Wn. App. 276, 278, 45 P.3d 205 (2002).
At voir dire, juror 48 indicated that she knew Cleanthony’s last name
because, as an employee with Seattle Housing Authority, she “come[s] across a
lot of last names,” that she had heard it in the community and at her church, and
that she had heard the last name Jimerson “not represented in a good way.” But
she did not recognize any of the witnesses’ names. And when asked whether
her awareness of the Jimerson name would affect how she judged the case or
credibility of witnesses, she stated, “I feel like I can be fair and impartial.”
However, juror 48 expressed concerns that her personal experience with
the court would affect her impartiality. Specifically, her brother was involved in a
gang, and he shot and killed someone. Thus, Cleanthony’s case “pulled [on her]
heartstrings” because her brother’s actions were not because he chose that life,
but because life “wasn’t fair to him,” his experiences “pushed him there,” and “it’s

No. 77789-1-I/28
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just hurtful.”22 However, when asked whether her awareness of Cleanthony or
her experience with the criminal justice system would affect how she judged the
case or credibility of witnesses, she stated, “I feel like I can be fair and impartial.”
In dismissing juror 48 for cause, the court noted that in Seattle
communities of color, it is difficult to get many degrees of separation between
individuals in those communities and that it would not give “weight to” juror 48’s
knowledge of the Jimerson name. Nonetheless, the court concluded, “I think
there is enough specific about her in terms of her brother convicted of murder
about which she’s clearly and understandably quite emotional, and the nature of
her job and her work.” On this basis, the court dismissed juror 48 for cause. And
the trial judge is in the best position to determine a juror’s ability to be impartial.
See Gentry, 125 Wn.2d at 634. Because there was reason to believe that
juror 48 would not be impartial based on her personal experiences with the
justice system and that the stress from her job would affect her ability to focus on
the trial, the trial court did not abuse its discretion.
Carolyn disagrees and contends that even though juror 48 was removed
for cause, rather than pursuant to a peremptory strike, “the constitutional
imperative of prohibiting juror challenges that objectively appear rooted in the
juror’s race applies equally.” However, Carolyn failed to show that the court’s
22 Juror 48 discussed how she believed the system didn’t work for her
brother: “By him being kind of pushed in that family of the gang life and having
that surrounding of friends and people who love you when he wasn’t treated right
in his early days and at home, some of the things that he experienced that I saw
that he did not deserve kind of forced him to live in a life that you try to survive. I
just think it’s not fair.”

No. 77789-1-I/29
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dismissal of juror 48 was objectively rooted in race. Therefore, her contention is
unpersuasive.
Townsend Instruction
Carolyn contends that the trial court erred when it used a Townsend23
instruction regarding the death penalty.
In Townsend, the court created a “strict prohibition against informing the
jury of sentencing considerations [to] ensure[ ] impartial juries and prevent[ ]
unfair influence on a jury’s deliberations.” 142 Wn.2d at 846. But in State v.
Pierce, our Supreme Court overturned Townsend: “We hold that Townsend is
incorrect and harmful because it artificially prohibits informing potential jurors
whether they are being asked to sit on a death penalty case.” 195 Wn.2d 230,
244, 455 P.3d 647 (2020).
Here, after two jurors expressed concerns regarding the death penalty’s
potential application to the case, the court instructed the jurors, “I cannot tell you
whether this case is subject to the death penalty.” The court removed both jurors
for cause. Because the court appropriately relied on the then-existing precedent,
Townsend, the court did not err. And even given our Supreme Court’s decision
in Pierce, Carolyn failed to show prejudice resulting from either juror’s dismissal,
and she does not adequately brief the issue. Instead, Carolyn provides
conclusory statements that the errors undermined the fairness of the proceeding
and that a new trial is necessary. But “[w]e will not consider arguments that a
23 State v. Townsend, 142 Wn.2d 838, 15 P.3d 145 (2001), overruled by
State v. Pierce, 195 Wn.2d 230, 455 P.3d 647 (2020) (plurality opinion).

No. 77789-1-I/30
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party fails to brief.” Sprague v. Spokane Valley Fire Dep’t, 189 Wn.2d 858, 876,
409 P.3d 160 (2018). Therefore, any error stemming from Townsend was
harmless and did not result in an unfair trial.
Evidentiary Issues
Carolyn asserts that the trial court erred when it “admitted unreliable
identification evidence.” Specifically, she challenges the admission of the
recording of Henderson’s out-of-court statement identifying the shooter’s clothing
and Detective Nix’s testimony regarding what White told her in June 2014. We
disagree.
We review decisions to admit evidence for abuse of discretion. State v.
Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). “‘Abuse of discretion’
means ‘no reasonable judge would have ruled as the trial court did.’” State v.
Arredondo, 188 Wn.2d 244, 256, 394 P.3d 348 (2017) (quoting State v. Mason,
160 Wn.2d 910, 934, 162 P.3d 396 (2007)). “Put another way, to reverse we
must find the decision is ‘unreasonable or is based on untenable reasons or
grounds.’” Arredondo, 188 Wn.2d at 256 (internal quotation marks omitted)
(quoting Mason, 160 Wn.2d at 922).
Hearsay is an out-of-court statement offered “to prove the truth of the
matter asserted” and is inadmissible absent an exception. ER 801(c); ER 802.
However, “[a] statement is not hearsay if” it is a prior statement of the witness,
“[t]he declarant testifies at the trial or hearing and is subject to cross examination
concerning the statement, and the statement is” (i) offered for impeachment
purposes, (ii) a consistent statement “offered to rebut an express or implied

No. 77789-1-I/31
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charge against the declarant of recent fabrication or improper influence or
motive, or (iii) one of identification of a person made after perceiving the person.”
ER 801(d)(1)(i)-(iii). “Whether or not the statement[s] here w[ere] hearsay is a
question of law we will review de novo.” State v. Edwards, 131 Wn. App. 611,
614, 128 P.3d 631 (2006).
At trial, Henderson testified that he saw Lindsay and Duncan get shot and
that he saw the shooter fall, but that he “wasn’t really paying attention to what he
was wearing and things like that.” And he stated that the description he gave to
the police was based partially on what he saw and partially on conversations he
had following the incident. The State proffered the recording of Henderson’s
statement describing the shooter and played it for the jury. Detective Nix also
testified that Henderson told her that a man in a yellow and blue polo shirt was
the shooter.
Carolyn challenges the admission of Henderson’s identification to the
police in the recording and via Detective Nix’s testimony. However, because
both statements were offered to impeach Henderson’s trial testimony that he did
not know who the shooter was or what he looked like, they were not hearsay.
Therefore, the trial court did not act manifestly unreasonable when it admitted
Henderson’s prior statements.
Similarly, the trial court did not err when it admitted White’s prior
statement. White testified at trial that he could not recall what he discussed with
Detective Nix and Detective Faini. Specifically, he said, “I don’t recall what we
discussed. I mean, I really don’t recall the conversation besides what’s written

No. 77789-1-I/32
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down here.” White testified that he could not recall describing the shooter’s shirt
to Detective Nix and that he could not recall the individual he had identified in
photograph 5, whom he “identified as Cleanthony,” as the shooter. Detective Nix
testified regarding what White told her about the night of the shooting. She
testified that White pointed out “Big Cle”—or Cleanthony—in the photo montage
and described the shooter as someone who had been shot and who wore a
yellow and black striped polo.
Detective Nix’s statement regarding what White told her was not hearsay
because it pertained to White’s prior identification of the shooter and White was
present and subject to cross examination. ER 801(d)(iii). Furthermore, despite
Carolyn’s assertion to the contrary, the State introduced White for more than one
reason, including to provide a basis for the admission of his identification of
Cleanthony as substantive evidence.24 Therefore, Detective Nix’s statement was
not hearsay, and the trial court did not abuse its discretion when it admitted the
testimony.
DNA Collection Fee
Carolyn contends and the State concedes that the DNA collection fee
should be stricken. Because “the State’s records show that [Cleanthony’s] DNA
24 Under ER 607, “[t]he credibility of a witness may be attacked by any
party, including the party calling the witness.” However, “‘[a]lthough the State
may impeach its own witness, it may not call a witness for the primary purpose of
eliciting testimony in order to impeach the witness with testimony that would be
otherwise inadmissible.’” State v. Hancock, 46 Wn. App. 672, 683, 731 P.2d
1133 (1987) (alteration in original) (quoting State v. Lavaris, 106 Wn.2d 340, 345,
721 P.2d 515 (1986)), aff’d, 109 Wn.2d 760, 748 P.2d 611 (1988); see also State
v. Gunderson, 181 Wn.2d 916, 930, 337 P.3d 1090 (2014).

No. 77789-1-I/33
33
was previously collected prior to sentencing” and because a trial court cannot
impose a DNA collection fee where the State has previously collected the
offender’s DNA,25 we agree.
We affirm that judgment and sentence but remand for the trial court to strike
the DNA collection fee.26
WE CONCUR:
25 See RCW 43.43.7541; State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d
714 (2018).
26 As a final matter, we note that the trial court erred when it failed to
quickly correct its clerical error that prevented Cleanthony from contacting his
friends and family. See CrR 7.8(a) (“Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the motion of
any party and after such notice, if any, as the court orders.”).