I
FILED
JULY 26, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32811-2-111
II Respondent, )
)
)
v.
Ji
• )
JASON D. FLETT, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. -A jury found Jason Flett guilty of first degree murder and
returned a special verdict finding he committed the crime with deliberate cruelty.
Relying on the aggravating factor of deliberate cruelty, the court sentenced Mr. Flett to an
exceptional sentence. On appeal, Mr. Flett argues the State presented insufficient
evidence to support a finding of deliberate cruelty. Mr. Flett additionally challenges the
trial court's imposition of legal financial obligations (LFOs) and raises a number of
challenges to the DNA 1 collection fee. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On December 10, 2013, the State charged Jason Flett with the premeditated first
degree murder of Ramona Childress. The amended information alleged the commission
1 Deoxyribonucleic acid
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State v. Flett
of the offense manifested deliberate cruelty to the victim-an aggravating factor. The
case went to trial in August of 2014.
Testimony at trial showed that on October 29, 2012, Mr. Flett drove Ms. Childress
and Isha Al-Harbi (his then-girlfriend) to a remote residence in Elk, Washington. The
residence, which was on a 90-acre lot, belonged to the family of Mr. Flett's half-brother,
Skylar Jones.
Upon reaching the driveway to the residence, Mr. Flett parked the car, got out,
walked to the passenger side of the vehicle, opened the passenger door, and dragged Ms.
Childress out of the car by her hair. He then hit Ms. Childress multiple times with a
closed fist. Ms. Childress screamed and begged him to stop.
Mr. Flett choked Ms. Childress for five to eight minutes and Ms. Childress "put up
a fight." Report of Proceedings (RP) at 158. After choking her, Mr. Flett pulled out a
knife and stabbed Ms. Childress multiple times in the neck.
At this point in the attack, Mr. Flett left Ms. Childress on the ground and walked
the distance of the driveway-about a quarter mile-to the Jones's home. Mr. Flett was
gone for about five minutes. During that time, Ms. Al-Harbi remained at the car with Ms.
Childress on the ground outside. She remembers Ms. Childress gasping for air and
gurgling blood during this time.
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When Mr. Flett arrived at the residence, he asked for help and instructed Mr. Jones
to get shovels. Together, Mr. Flett and Mr. Jones walked back down the driveway to
where Ms. Childress's body was located.
Upon Mr. Flett's return to the car and Ms. Childress's body, Ms. Al-Harbi
informed him that Ms. Childress was still breathing. In response, Mr. Flett hit Ms.
Childress repeatedly in the face with the shovel-it sounded like "metal ... hitting a
rock." RP at 128.
Mr. Flett then dug a shallow hole in the woods near the driveway. Together, Mr.
Flett and Mr. Jones dragged Ms. Childress's body to the shallow grave and buried her.
Nearly a year later, in the fall of 2013, an anonymous tip led investigators to the
Jones's residence and Ms. Childress's body was discovered.
A medical examiner confirmed the body was Ms. Childress, that she had suffered
cranial, facial, and neck trauma, that she sustained at least eight stab wounds to the neck,
and that her facial bones were fractured into hundreds of small pieces. The degree of
facial fracturing suggested that Ms. Childress likely suffered brain damage. The medical
examiner concluded the cause of death was homicidal violence.
The State presented testimony that Mr. Flett killed Ms. Childress because she had
information that would put him in jail.
During the jury instruction conference, defense counsel objected to the jury being
instructed on deliberate cruelty, arguing that the State presented insufficient evidence to
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support such an instruction. The court concluded the State presented sufficient evidence
for the matter to go to the jury.
The jury found Mr. Flett guilty of first degree murder with a deadly weapon.
Additionally, the jury determined Mr. Flett committed the crime with deliberate cruelty.
At sentencing, the court found that the facts justified an exceptional sentence. The
court also imposed $800 in mandatory LFOs, including a $100 DNA collection fee.
Mr. Flett timely appeals.
ANALYSIS
Mr. Flett argues the trial court erred in instructing the jury on deliberate cruelty
because the State did not present evidence that he acted gratuitously. Mr. Flett also
challenges the imposition of mandatory LFOs and raises a number of constitutional
arguments challenging the validity of the DNA collection fee. Each argument is
addressed in tum.
l Substantial evidence was presented to support a finding of deliberate cruelty
Mr. Flett contends the State did not present sufficient evidence to permit a rational
trier of fact to find the existence of the aggravator, and because of the insufficient
evidence, the court erred in instructing the jury on deliberate cruelty.
A party is entitled to have the jury instructed on its theory of the case if there is
sufficient evidence to support that theory. State v. Williams, 132 Wn.2d 248, 259, 937
P .2d 1052 ( 1997). "On the other hand, it is prejudicial error to submit an issue to the jury
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when there is not substantial evidence concerning it." State v. Hughes, 106 Wn.2d 176,
191, 721 P .2d 902 (1986). Substantial evidence means evidence in the record of a
sufficient quantity to persuade a fair-minded, rational person of the truth of the finding.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
When determining whether the evidence was sufficient to warrant an instruction,
the appellate court must view the evidence in the light most favorable to the party that
requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d
1150 (2000). "Mere possibility, suspicion, speculation, conjecture, or even a scintilla of
evidence, is not substantial evidence." State v. Taplin, 9 Wn. App. 545, 557, 513 P.2d
549 (1973).
"' Deliberate cruelty' requires a showing 'of gratuitous violence or other conduct
that inflicts physical, psychological, or emotional pain as an end in itself.'" State v.
Gordon, 172 Wn.2d 671,680,260 P.3d 884 (2011) (quoting State v. Tili, 148 Wn.2d 350,
369, 60 P.3d 1192 (2003)). The cruelty must be "'ofa kind not usually associated with
the commission of the offense in question."' State v. Copeland, 130 Wn.2d 244, 296,
922 P .2d 1304 (1996) (quoting State v. Crane, 116 Wn.2d 315, 334, 804 P .2d 10 (1991 ),
overruled on other grounds by In re Pers. Restraint ofAndress, 147 Wn.2d 602, 56 P.3d
981 (2002)). This is not to say that the additional criminal activity that is not an element
of the charged crime must occur in order to find the existence of the aggravator.
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[A ]n exceptional sentence can be based on facts that make the crime
unusually severe, even if those facts relate to an element of the crime.
Accordingly, a trial court should be able to impose an exceptional sentence
for unusually cruel acts, even when those acts were done for the purpose of
accomplishing the crime.
138 SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINAL LAW §
3902, at 393 (2d ed. 1998) (footnote omitted).
The existence of deliberate cruelty, as with other aggravating factors, must be
found beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000).
In Gordon, the court determined sufficient evidence existed to support a finding of
deliberate cruelty when evidence showed that the defendants, who were convicted of
second degree murder, "savag[ely] beat" the victim prior to the victim's death. 172
Wn.2d at 681. There, a verbal confrontation between the victim and the defendants
escalated to a point where the victim was on the ground with multiple defendants around
him. Id. at 674, 681. The victim was no longer a threat to the defendants. Nonetheless,
the defendants placed him in a chokehold, continued hitting him, stomped on his head,
and kicked him repeatedly. Id. at 681. Although alive when the defendants left him, the
victim died en route to the hospital. Id. at 674-75. The court concluded there was
sufficient evidence to support a finding that the defendants acted with deliberate cruelty.
Id.
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Similarly, in Copeland, the defendant was convicted of premeditated murder as
well as felony murder with rape in the first or second degree as the predicate offense.
130 Wn.2d at 250-51. The defendant received an exceptional sentence based on multiple
aggravating factors, one of which was deliberate cruelty. Id. at 294-97. On review, the
Washington Supreme Court upheld the exceptional sentence and in particular the
deliberate cruelty aggravating factor, explaining: "The strangulation, rape, multiple stab
wounds, and stabbing with a fork, with attacks occurring in at least two locations in the
victim's home, show a prolonged, exceedingly violent assault on the victim." Id. at 297.
Because the conduct far exceeded that required for conviction of premeditated murder
and felony murder, the court found the crime was committed with gratuitous violence that
amounted to deliberate cruelty.
Conceding the State presented evidence demonstrating multiple wounds had been
inflicted on Ms. Childress, Mr. Flett argues multiple wounds, alone, are insufficient to
prove deliberate cruelty. In support of his contention, he cites State v. Serrano, 95 Wn.
App. 700, 977 P.2d 47 (1999) and State v. Payne, 58 Wn. App. 215, 795 P.2d 134 (1990).
In both Serrano and Payne, evidence demonstrated the victim was shot numerous
times-five in Serrano, six in Payne. Each court declined to find the existence of the
aggravator based on the multiple wounds, finding that inflicting multiple wounds does
not, by itself, suggest the defendant acted gratuitously or inflicted pain as an end in itself.
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Here though, the State presented evidence suggesting far more than that Ms.
Childress suffered multiple wounds. The drawn-out attack could permit a jury to find
that Mr. Flett intended to inflict physical, psychological, or emotional pain as ends in
themselves. And it established that Mr. Flett attacked Ms. Childress in an unnecessarily
barbaric and cruel manner-even for the crime of premeditated murder. Similar to
Copeland, where the defendant strangled, raped, and stabbed the victim with a fork, the
attack here was an exceedingly violent and prolonged assault. Evidence was sufficient
for the court to instruct the jury on deliberate cruelty.
The jury, in tum, could assess whether the evidence was credible. To the extent
Mr. Flett is challenging the jury's finding, this court reviews "whether the record
supports the jury's special verdict on the aggravating circumstances" under the clearly
erroneous standard. State v. Hale, 146 Wn. App. 299,307, 189 P.3d 829 (2008); State v.
State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Here, as discussed above, there
was sufficient evidence to support the jury's finding of the aggravating circumstance. It
is not clearly erroneous.
II. LFOs
Mr. Flett challenges the trial court's imposition of mandatory LFOs, as well as the
constitutionality of the DNA collection fee statute.
Mr. Flett challenges the trial court's imposition of LFOs, arguing the court erred
when it imposed obligations without first conducting an individualized inquiry as
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required by RCW 10.01.160(3). As a preliminary matter, this court must consider
whether to accept review of Mr. Flett's challenge. Mr. Flett made no objection to the
finding that he was able to pay the costs imposed at the time of sentencing and thereby
failed to preserve a claim of error. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827, 833,
344 P.3d 680 (2015) ("[u]npreserved LFO errors do not command review as a matter of
right"). Nonetheless, this court has discretion to review the challenge, and a majority of
the panel chooses to exercise such discretion.
RCW 10.01.160(3) requires a court to consider a defendant's present or future
ability to pay LFOs prior to imposing discretionary costs. This requirement does not
extend to mandatory LFOs-"for mandatory legal financial obligations, the legislature
has divested courts of the discretion to consider a defendant's ability to pay when
imposing these obligations." State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).
Here, the LFOs imposed-a $500 victim assessment, a $200 criminal filing fee, a $100
DNA collection fee, and $5,750 in restitution-were mandatory. RCW 7.68.035; RCW
36.18.020(2)(h); RCW 43.43.7541; RCW 9.94A.753(7). As a result, the trial court was
not required to make an individualized inquiry and there was no error.
Ill. Substantive due process and the DNA collection fee
Mr. Flett next argues the mandatory imposition of the DNA collection fee (RCW
43.43.7541) violates substantive due process as applied to him. This argument is also
raised for the first time on appeal, but unlike Mr. Flett's LFO challenge, he does not ask
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No. 32811-2-III
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this court to exercise discretion to consider it. Presumably he contends the error is
"manifest error affecting a constitutional right," which is an exception from RAP 2.5(a)'s
requirement of issue preservation. RAP 2.5(a)(3).
To qualify for the exception provided by RAP 2.5(a)(3), an appellant must
demonstrate "(1) the error is manifest and (2) the error is truly of constitutional
dimension." State v. 0 'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). An error will be
considered manifest when there is actual prejudice, meaning a plausible showing by the
appellant that the asserted error had practical and identifiable consequences in the trial.
State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015) (citing State v. Gordon, 172
Wn.2d at 676. "[T]he focus of the actual prejudice [inquiry] must be on whether the error
is so obvious on the record that the error warrants appellate review." O'Hara, 167 Wn.2d
at 99-100.
RCW 43.43.7541 requires every felony sentence imposed on an adult to include a
$100 DNA fee. The funds are applied toward state and local costs of maintaining a DNA
database that facilitates future criminal identification. State v. Brewster, 152 Wn. App.
856, 860, 218 P .3d 249 (2009). Mr. Flett admits this is a legitimate state interest.
Appellant's Br. at 26. He contends, however, that the legislation cannot survive even the
most deferential "rational basis" review if it is applied to individuals who cannot afford to
pay the fee, and that he is such an individual. Id. at 25.
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A state may not invidiously discriminate against, or arbitrarily punish, indigent
defendants for their failure to pay fines they cannot pay. State v. Johnson, 179 Wn.2d
534, 552, 315 P.3d 1090 (2014) (citing Bearden v. Georgia, 461 U.S. 660, 665, 103 S.
Ct. 2064, 76 L. Ed. 2d 221 (1983)). So far, however, this court has refused to entertain a
substantive due process challenge to the DNA fine on a threshold basis: no challenger to
date has presented a record on appeal that is sufficient to review the argument. E.g., State
v. Stoddard, 192 Wn. App. 222, 228-29, 366 P.3d 474 (2016).
The record on this appeal is similarly inadequate. It contains no information that
Mr. Flett lacks funds to pay a $100 fee. While he directs us to his statutory indigence for
purposes of court appointment of appellate counsel, evidence of statutory indigence is
unhelpful because the cost of appellate representation in a criminal matter "exponentially
exceeds $100." Id. at 228. Mr. Flett has failed to show manifest error and we decline to
review his substantive due process challenge.
IV Equal protection and the DNA collection fee
In a second and distinct challenge to the mandatory $100 DNA collection fee, Mr.
Flett argues that RCW 43 .43. 7 541 offends equal protection because it irrationally
requires some defendants (repeat offenders) to pay the fee multiple times. He contends
that when an offender has already paid a DNA collection fee and submitted his DNA,
imposing a second fee (whether or not the second sample is collected), is not rationally
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related to the admittedly legitimate purpose of collecting, analyzing, and retaining felony
offenders' DNA.
This argument is made for the first time on appeal. Again, Mr. Flett fails to
indicate on what basis review is appropriate. And again, it is assumed that he believes
review is appropriate under RAP 2.5(a)(3).
While there is evidence that Mr. Flett has been convicted of other felonies, the
record before this court contains no evidence that Mr. Flett has previously paid the
collection fee. This court cannot assume, as Mr. Flett seems to ask it to, that he has in
fact previously paid this fine. Because the record is insufficient to demonstrate manifest
prejudice, we need not review the claim. See RAP 2.5(a)(3).
Further, even if review were appropriate, this court has previously held that RCW
43.43.7541 is neutral on its face, and that absent evidence of the legislature's
dis.criminatory intent in enacting the statute, there is no violation of constitutional equal
protection. State v. Johnson, No. 32834-1-III, 2016 WL 3124893 (Wash. Ct. App. June
2, 2016). Mr. Flett has not made any showing of discriminatory intent. As a result, Mr.
Flett's equal protection challenge fails.
V Second collection of DNA sample
Finally, Mr. Flett argues the trial court erred by ordering him to submit another
DNA sample when he already submitted a sample in connection with a previous
conviction. Washington law provides: "If the Washington state patrol crime laboratory
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already has a DNA sample from an individual for a qualifying offense, a subsequent
submission is not required to be submitted." RCW 43.43.754(2). Importantly, the statute
does not mandate that only one sample be taken; instead, the statute gives the trial court
discretion whether to order the collection of a DNA sample from an offender who has
already provided one. Here, no evidence suggests that the court abused its discretion,
particularly given that Mr. Flett supplies no evidence to show he already provided a DNA
sample. See State v. Thornton, 188 Wn. App. 371, 373-74, 353 P.3d 642 (2015).
VI. Statement ofAdditional Grounds
In a pro se statement of additional grounds, Mr. Flett raises two additional
arguments. He challenges the admission of evidence as violative of ER 404(b) and
further argues he received ineffective assistance of counsel.
ER 404(b). Mr. Flett argues the trial court abused its discretion in admitting
evidence of his assaults of Ms. Al-Harbi. Under ER 404(b), evidence of a defendant's
other crimes, wrongs, or acts, is not admissible to show the defendant's character. It is,
however, admissible for certain other limited purposes. ER 404(b ). Before admitting the
evidence, the court must: "( 1) find by a preponderance of the evidence that the
misconduct occurred, (2) identify the purpose for which the evidence is sought to be
introduced, (3) determine whether the evidence is relevant to prove an element of the
crime charged, and (4) weigh the probative value against the prejudicial effect." State v.
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No. 32811-2-111
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Thang, 145 Wn.2d 630,642, 41 P.3d 1159 (2002). "It must conduct this analysis on the
record." State v. Slocum, 183 Wn. App. 438, 448, 333 P.3d 541 (2014).
In the present case, the defense filed a motion in limine to exclude evidence of Mr.
Flett's prior assaults of his girlfriend, Ms. Al-Harbi. Mr. Flett argues that admission of
the evidence was inappropriate because the assaults on Ms. Al-Harbi were not established
to have occurred, and were not relevant to the crime charged.
In support of his argument that there was no evidence the attacks occurred, Mr.
Flett asserts the State did not present evidence of a conviction for assaulting Ms. Al-
Harbi. Evidence of a conviction is not required, though. Rather, the court must only
determine that the proffering party established the occurrence of the prior bad act by a
preponderance of the evidence. Here, where there was testimony from Ms. Al-Harbi
concerning the specifics of the attacks, there was sufficient evidence for the court to find
by a preponderance of the evidence that the attacks occurred.
Mr. Flett additionally argues that the specific testimony that he hit Ms. Al-Harbi
with a crow-bar was not relevant. Part of the defense's trial strategy was to implicate Ms.
Al-Harbi in the crime. As a result, the evidence became relevant in order to rebut the
attack on Ms. Al-Harbi's credibility. The evidence was admitted to explain why Ms. Al-
Harbi complied on the night of the murder as well as why she remained silent after the
murder. The court did not abuse its discretion.
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Mr. Flett also challenges the admission of Skylar Jones's testimony that Mr. Flett
was motivated to murder Ms. Childress because she had information that would send him
to prison. He argues the State could not prove the supposed criminal activity actually
occurred. This testimony was a subject of a motion in limine. The State informed the
court it intended to elicit such testimony, and argued it was admissible to establish Mr.
Feltt's motive, an exception to ER 404(b). Defense counsel did not object, and rather
merely requested that the witness refrain from saying "' back to prison.'" RP at 93. Mr.
Flett cannot argue for the first time on appeal that the testimony was inadmissible. RAP
2.5(a).
Finally, Mr. Flett challenges other portions of Mr. Jones's testimony, including
references to Mr. Flett wantirig to bury his mother, and comments concerning Mr. Flett's
intent to harm a friend over a debt of $40. This testimony, while heard by the jury, was
objected to and the trial court sustained the objections and provided the jury with limiting
instructions. We presume the jury followed the court's instruction and disregarded the
testimony. State v. Stenson, 132 Wn.2d 668, 730, 940 P.2d 1239 (1997). The court did
not abuse its discretion.
Ineffective assistance of counsel. Mr. Flett alleges he received ineffective
assistance of counsel, because his trial counsel did not cross-examine Ms. Al-Harbi
during the motion in limine hearing. A successful ineffective assistance of counsel claim
requires the defendant to show (1) that counsel's performance was deficient and (2) that
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the defendant was prejudiced by the deficient performance. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court need not
consider both prongs of Strickland if a petitioner fails one. Id. at 697.
"Prejudice" for this purpose is the "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694. Mr. Flett has failed to demonstrate prejudice. Mr. Flett fails to
demonstrate anything that would have been revealed in cross-examination that would
have caused Ms. Al-Harbi's testimony to be excluded. Mr. Flett has not established
ineffective assistance of counsel.
We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, A.C ..
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