State of Washington v. Aaron T. Mack

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
AARON T. MACK,
Appellant.
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No. 36094-6-III
UNPUBLISHED OPINION
P ENNELL, C.J. — A jury convicted Aaron Mack of unlawful possession of a
controlled substance (heroin). On appeal, Mr. Mack argues his case should have been
dismissed due to late disclosure of evidence. He also argues the trial court erroneously
imposed legal financial obligations (LFOs) at sentencing. We affirm Mr. Mack’s conviction
and remand to strike the LFOs pursuant to recent changes in Washington law.
FACTS
When Washington State Patrol troopers arrested Aaron Mack, they seized “a balled
up piece of plastic containing brown residue[,] . . . two pen tubes that were burnt and some
pieces of tin foil.” Clerk’s Papers at 75. The troopers suspected the brown residue was
FILED
MARCH 24, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 36094-6-III
State v. Mack
2
heroin, but Mr. Mack claimed it was THC1 oil and that the pen tubes were used for smoking
THC. At first, the State tested only the residue from the piece of plastic; this test confirmed
the presence of heroin. Mr. Mack was charged with unlawful possession of heroin.
About 10 days before trial, the deputy prosecuting attorney who had been handling
Mr. Mack’s case left the office for new employment. A new prosecutor received the case.
The new prosecutor reviewed the file and questioned why all items seized from Mr. Mack
had not been tested. The crime lab informed the prosecutor this was not its policy. The
prosecutor disagreed with this approach and directed the laboratory to test the remaining
items. The report came back indicating one of the pen tubes seized from Mr. Mack was
examined. It tested positive for heroin.2
The State disclosed the new test results immediately upon receipt, which was the day
before trial. On the day of trial, after the jury was selected and sworn, Mr. Mack notified the
court of the new test result and asked that the evidence be excluded. Mr. Mack argued the
new evidence was prejudicial because it undercut his theory of unwitting possession. He
claimed that had he received the pen tube result on an earlier date, he would have had a
1 Tetrahydrocannabinol, the psychoactive constituent of marijuana.
2 Although the prosecutor had asked the crime lab to test all items, the lab technician
only tested one of the pen tubes, as well as a piece of foil.

No. 36094-6-III
State v. Mack
3
stronger basis for requesting independent testing of the State’s evidence.3 He also may have
had a new perspective on plea negotiations.
The trial court declined to exclude the newly disclosed test result. As a remedy for
the late disclosure, the court decided to admit Mr. Mack’s self-serving hearsay statement
that he used the pen tubes to smoke THC. The State also agreed to stipulate that the untested
pen tube could have been used for THC. As for the issue of plea negotiations, the court
expressed a willingness to give the parties time to engage in negotiations. Neither side took
the court up on this offer.
The case proceeded to trial and the jury convicted Mr. Mack as charged.
At sentencing, Mr. Mack’s attorney reiterated his concerns regarding the late test
result and the purported lost opportunity for plea negotiations. According to defense
counsel, had the second test result been disclosed earlier, the parties likely would have
engaged in early negotiations, resulting in an agreement for no jail time. The trial court
expressed skepticism, noting the parties did not pursue the court’s offer to take a recess
from trial to allow for plea negotiations. The court went on to sentence Mr. Mack to four
months’ custody, and imposed a $200 criminal filing fee and $100 DNA4 collection fee.
Shortly after sentencing, Mr. Mack moved for a new trial, again arguing he had been
3 A previous motion for independent testing was denied.
4 Deoxyribonucleic acid.

No. 36094-6-III
State v. Mack
4
prejudiced by the State’s late test result. The prejudice argument focused solely on Mr.
Mack’s reduced ability to obtain a favorable plea agreement. The trial court again disagreed
with Mr. Mack’s claim of prejudice. Nevertheless, the court ordered Mr. Mack’s sentence
lowered from four months’ incarceration to three.5
Mr. Mack appeals, arguing the trial court (1) abused its discretion by failing to
exclude evidence of the late test results, and (2) erroneously imposed $300 in LFOs.
ANALYSIS
Late disclosure of discovery
Under CrR 4.7(a)(1)(iv) a prosecutor is required to disclose expert reports to the
defense by the time of a pretrial omnibus hearing. The failure to abide by discovery
obligations set by CrR 4.7 can constitute prosecutorial misconduct, even in the absence of
intentional wrongdoing or bad faith. State v. Salgado-Mendoza, 189 Wn.2d 420, 429-31,
403 P.3d 45 (2017). The trial court has broad discretion to regulate discovery and rectify
violations. State v. Hutchinson, 135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998). Exclusion
of evidence and dismissal of charges are possible remedies for discovery violations. Id.;
Salgado-Mendoza, 189 Wn.2d at 428. But lesser sanctions should be imposed if adequate
to address issues of prejudice. Salgado-Mendoza, 189 Wn.2d at 431.
5 Mr. Mack’s sentencing range was zero to six months.

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State v. Mack
5
As a preliminary matter, it is doubtful the late disclosure in this case constituted
misconduct. The prosecutor was the opposite of dilatory and he never withheld anything
from the defense. As a newly-assigned attorney, the prosecutor simply saw Mr. Mack’s case
in a different light than previous counsel. Particularly given Mr. Mack’s claim that he
consumed THC, not heroin, it was not unreasonable for the prosecutor to continue
examining Mr. Mack’s case. Had additional testing revealed the presence of THC, the
defense case would have been bolstered and chances of acquittal increased.
In addition, regardless of misconduct, the trial court adequately exercised its
discretion in handling Mr. Mack’s discovery complaint. The new test results were limited to
one item of evidence and did not eliminate Mr. Mack’s theories of unwitting possession and
THC consumption. Mr. Mack fails to demonstrate how the new test results would have
strengthened his arguments for independent testing. And the slight prejudice to Mr. Mack’s
case from the new test information was sufficiently addressed by the court’s evidentiary
rulings. In addition, although the relevant prejudice inquiry goes to a defendant’s right to a
fair trial, not plea negotiations, the trial court further reduced any harm to Mr. Mack by
reducing his sentence.
LFOs
As the parties agree, retroactive changes to Washington’s LFO laws require striking
Mr. Mack’s $200 criminal filing fee on the basis of indigence and the $100 DNA

No. 36094-6-III
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collection fee on the basis of prior collection. RCW 10.01.160(3); RCW 36.18.020(2)(h);
RCW 43.43.7541.
CONCLUSION
Mr. Mack’s conviction is affirmed. This matter is remanded with instructions to
strike the $200 criminal filing fee and $100 DNA collection fee from the judgment and
sentence.
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.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Korsmo, J.
______________________________
Lawrence-Berrey, J.