526987MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 52698-7-I
Title of Case: State of Washington, Respondent v. Mark Thomas Freeman
File Date: 11/29/2004


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-1-08403-2
Judgment or order under review
Date filed: 06/11/2003
Judge signing: Hon. Carol a Schapira


JUDGES
------
Mary Kay Becker
C. Kenneth Grosse
Faye C. Kennedy


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101

David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Mark Thomas Freeman (Appearing Pro Se)
5501 South Leo Street
Seattle, WA 98178

Counsel for Respondent(s)
Carla Barbieri Carlstrom
King Co Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2390

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION I

STATE OF WASHINGTON, ) NO. 52698-7-I
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
MARK THOMAS FREEMAN, )
)
)
Appellant. ) FILED

PER CURIAM -- Mark Freeman was convicted of attempted felony
harassment and unlawful display of a weapon, stemming from an incident
where he threatened a bookstore employee with a knife. Freeman appeals the
portion of his sentence that requires him to submit a biological sample for
the purpose of DNA (deoxyribonucleic acid) identification analysis.
Neither of Freeman's offenses are enumerated by relevant statute as
predicate offenses requiring the submission of a sample. He is entitled to
have that requirement stricken from his sentence.
The statute mandates the collection of the biological sample for purposes
of DNA identification from individuals convicted of certain crimes:
Every adult or juvenile individual convicted of a felony, stalking under
RCW 9A.46.110, harassment under RCW 9A.46.020, communicating with a minor
for immoral purposes under RCW 9.68A.090, or adjudicated guilty of an
equivalent juvenile offense must have a biological sample collected for
purposes of DNA identification analysis.

RCW 43.43.754(1).
Attempted harassment is neither a felony nor one of the enumerated crimes.
The State nevertheless contends that Freeman's conviction for attempted
harassment qualifies because he was charged under RCW 9A.46.020, the
statute that defines the crime of harassment. The State cites no authority
for this proposition.
Statutory interpretation is a question of law, which the court reviews de
novo. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). When
statutory language is unambiguous, the court will look only to that
language to determine legislative intent. The court cannot add words or
clauses to an unambiguous statute when the Legislature has chosen not to
include that language. The court should assume that the Legislature means
exactly what it says. Delgado, 148 Wn.2d at 727. Statutory language is
unambiguous when it is not susceptible to two or more interpretations.
State v. Delgado, 148 Wn.2d 723, 726, 63 P.3d 792 (2003).
The statute requiring the submission of a biological sample is unambiguous
because there is only one interpretation that can be drawn from it. The
statute lists specific qualifying crimes which require the submission of a
biological sample. Harassment is listed, but attempted harassment is not.
There is no basis to add any offense not listed.
Attempted harassment is a distinct crime with distinct penalties.1 All
that is required in an attempted crime is that the accused take a
substantial step towards the commission of a particular crime. Freeman was
convicted of taking a substantial step toward committing harassment, but he
was not convicted of 'harassment under RCW 9A.46.020' as required by the
statute. RCW 43.43.754(1). See People v. Sanchez, 52 Cal. App. 4th 997,
60 Cal. Rptr. 2d 880 (1997) (DNA identification statute could not be
imposed on defendant convicted of attempted murder, where murder but not
attempted murder was one of the enumerated crimes).
Congress and all 50 states have enacted legislation similar to RCW
43.43.754. See State v. Surge, 122 Wn. App. 448, 457, 94 P.3d 345 (2004),
and cases cited therein. Many, but not all states have included attempted
crimes when enumerating the specific offenses that would require the
submission of a biological sample. See e.g., Cal. Penal Code sec. 296
(2004); Ohio Rev. Code Ann. sec. 2901.07 (2004); Nev. Rev. Stat. sec.
176.0913 (2004); Alaska Stat. sec. 44.41.035(2) (2004). Our Legislature
could have included attempted harassment, but it did not. We cannot
conclude that the omission of the attempted crimes was mere oversight. In
defining various categories of crimes for purposes of sentencing, the
Legislature explicitly includes attempted crimes as well as the completed
crimes. For example, a seriously violent offense includes not only first
degree murder, assault, manslaughter, kidnapping, and rape, but an attempt
to commit these crimes as well. RCW 9.94A.030(37).
Because the statute lists harassment as a qualifying crime, but not
attempted harassment, the trial court did not have the statutory authority
to order Freeman to submit a biological sample.
The order requiring Freeman to submit a biological sample is reversed.
FOR THE COURT:

1 '(1) A person is guilty of an attempt to commit a crime if, with intent
to commit a specific crime, he or she does any act which is a substantial
step toward the commission of that crime.
' . . .
'(3) An attempt to commit a crime is a:
'(a) Class A felony when the crime attempted is murder in the first
degree, murder in the second degree, arson in the first degree, child
molestation in the first degree, indecent liberties by forcible compulsion,
rape in the first degree, rape in the second degree, rape of a child in the
first degree, or rape of a child in the second degree;
'(b) Class B felony where the crime attempted is a class A felony other
than an offense listed in (a) of this subsection;
'(c) Class C felony when the crime attempted is a class B felony;
'(d) Gross misdemeanor when the crime attempted is a class C felony;
'(e) Misdemeanor when the crime attempted is a gross misdemeanor or
misdemeanor.' RCW 9A.28.020.
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