       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION ONE


STATE OF WASHINGTON,
                                                 No. 72102-0-1
                     Respondent,
                                                 ORDER GRANTING MOTION
              v.                                 FOR RECONSIDERATION,
                                                 WITHDRAWING OPINION, AND
ALAN JAMES SINCLAIR, II,                         SUBTITUTING PUBLISHED
                                                 OPINION


                     Appellant.


       Appellant, Alan Sinclair II, has moved for reconsideration of this court's

opinion filed on December 7, 2015. Respondent, State of Washington, has filed

an answer to appellant's motion for reconsideration.

       The court has determined that appellant's motion for reconsideration

should be granted, the opinion filed on December 7, 2015, should be withdrawn,

and a published substitute opinion should be filed. Now, therefore, it is hereby

       ORDERED that appellant's motion for reconsideration is granted, the

opinion filed on December 7, 2015, is withdrawn, and a published substitute

opinion is filed and shall be printed in the Washington Appellate Reports.

        DATED this ff7 day of ITPTHAT U 2016.                                       f
                                                                                    r-o




                                                               W                    CO


                                                                                    en




                                                                     •J
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                          )      No. 72102-0-1
                     Respondent,
                                                                                   no
                                          )      DIVISION ONE
              v.


                                                                                   CO
ALAN JAMES SINCLAIR, II,                  )      PUBLISHED OPINION
                                                                                   OD

                     Appellant.           )      FILED: January 27, 2016


       Becker, J. —Appellant, convicted of sexually abusing his granddaughter,

contends the trial court improperly admitted a recording of an incriminating

communication obtained without the consent of the participants in the

communication. The recording resulted from an inadvertent "pocket dial" from

appellant's cell phone to the recipient's voice mail. Finding that any statutory

violation was harmless, we affirm.

       A jury found appellant Alan Sinclair guilty of two counts of second degree

rape of a child, two counts of third degree child molestation, and one

misdemeanor count of communication with a minor for immoral purposes. All

charges arose from Sinclair's sexual abuse of his granddaughter. According to

her testimony at trial, Sinclair began kissing her "tongue to tongue" when she

was 11 or 12 years old and progressed to oral sex when she was 13 or 14.

       The recording at issue occurred one afternoon when the granddaughter

was home alone and Sinclair was visiting her. The granddaughter testified that
No. 72102-0-1/2


Sinclair kissed her "tongue to tongue" and then she and Sinclair went outside and

continued a conversation. During the conversation, Sinclair unintentionally dialed

the girl's mother with his cell phone. The mother did not answer. Her cell phone

transferred the call to voice mail. The voice mail system recorded Sinclair

saying, "I love that tongue. ... I don't know if you love mine." The conversation

continued with Sinclair making veiled threats that his dead ancestors would inflict

physical injury on the girl for not being "nice." The mother later listened to the

voice mail recording on her phone and heard the conversation. This led to the

filing of the criminal charges against Sinclair.

       Sinclair moved to suppress the voice mail under the Washington privacy

act, chapter 9.73 RCW. The privacy act makes it unlawful for any "individual" to

record any private conversation "without first obtaining the consent of all the

persons engaged in the conversation." RCW 9.73.030(1 )(b). There is an

exception for conversations "which convey threats," which "may be recorded with

the consent of one party to the conversation." RCW 9.73.030(2). Neither

Sinclair nor his granddaughter consented to the recording.

       Sinclair contends the lack of consent made the recording inadmissible at

trial. The trial court considered a number of issues in connection with Sinclair's

motion to suppress. Was the conversation private? Did an "individual" record it?

Does an individual incur criminal liability for an inadvertent recording, or must

someone be acting with a criminal mens rea to engage the prohibitions of the

act? It was undisputed that the call was made inadvertently. The trial court
No. 72102-0-1/3


denied the motion to suppress, concluding the privacy act did not apply because

of "the absence of any unlawful act by anybody."

       The issues are interesting and novel. But we conclude it is unnecessary

to resolve them in this case because any error was harmless. We refrain from

attempting a "definitive construction" of the statute in a case involving somewhat

"bizarre" facts. State v. Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975).

       Admission of evidence in violation of the privacy act is a statutory

violation, not a constitutional one. An error is not prejudicial unless the

erroneous admission of the evidence materially affected the outcome of the trial.

State v. Courtney. 137 Wn. App. 376, 383-84, 153 P.3d 238 (2007), review

denied, 163 Wn.2d 1010 (2008). Here, there is no reasonable probability that the

outcome of Sinclair's trial would have been different if the recording of the

pocket-dialed voice mail had been excluded.

       The granddaughter's testimony at trial provided independent,

unchallenged evidence of the contents of the inadvertently recorded

conversation. Her account was corroborated by sexually explicit photographs

and a video seized from Sinclair's cell phone and computer. During his closing,

Sinclair admitted guilt as to the charges of child molestation in the third degree

and communicating with a minor for immoral purposes. The only charges

Sinclair disputed were the two counts of second degree child rape. He argued

that the State presented insufficient evidence to prove that he engaged in sexual

intercourse with the girl before her 14th birthday. He does not make this

argument on appeal.
No. 72102-0-1/4



       It is unlikely that the jury's verdict of guilt on the two disputed counts was

affected by the admission of the recorded conversation. There was no allusion in

that conversation either to sexual intercourse or to the age of the granddaughter.

Assuming the recording to be inadmissible, we conclude Sinclair has not shown

that the error materially affected the outcome at trial.

       We now address Sinclair's motion for reconsideration regarding the issue

of appellate costs. He asks this court to exercise discretion to amend the

decision terminating review by determining that an award of appellate costs to

the State is not warranted.


       Neither the State nor Sinclair raised the issue of costs in their appellate

briefs. Generally, to timely raise an issue for review, a party must present

argument in the appellate briefs, with citation to supportive authority and

information in the record. Nevertheless, we will consider Sinclair's motion for

reconsideration because the issue of appellate costs is systemic in nature, it

needs to be addressed, and both parties' positions are well briefed.

       Under RCW 10.73.160(1), appellate courts "may require an adult offender

convicted of an offense to pay appellate costs." (Emphasis added.) The statute

provides that appellate costs "shall be requested in accordance with the

procedures contained in Title 14 of the rules of appellate procedure." RCW

10.73.160(3). Under the Rules of Appellate Procedure, the State may simply

present a cost bill as provided in RAP 14.4. State v. Blank. 131 Wn.2d 230, 251,

930 P.2d 1213 (1997). The State is not obliged to request an award of costs in
No. 72102-0-1/5


its appellate briefs, although it does not appear there is any rule preventing the

State from doing so. See Blank. 131 Wn.2d at 251.

       The commissioner or clerk "will" award costs to the State if the State is the

substantially prevailing party on review, "unless the appellate court directs

otherwise in its decision terminating review." RAP 14.2 (emphasis added).1

Consequently, it appears that a clerk or commissioner has no discretion under

the rules to deny an award of costs when the State has substantially prevailed on

review. See State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000). The

appellate court, however, may "direct otherwise in its decision." Nolan, 141

Wn.2d at 626.

      An award of appellate costs becomes part of the judgment and sentence.

RCW 10.73.160(3). A defendant may petition the sentencing court at any time

for the remission of costs if the amount due "will impose manifest hardship on the

defendant or the defendant's immediate family." RCW 10.73.160(4).

      We filed our opinion affirming Sinclair's conviction on December 7, 2015.

On December 9, 2015, the State filed a cost bill requesting an award of

$6,983.19 in appellate costs. Of this amount, $6,923.21 would be paid to the

Washington Office of Pubic Defense for recoupment of the cost of court

appointed counsel ($2,917), preparation of the report of proceedings ($3,907),

copies of clerk's papers ($90), and appellate court copying charges ($9.21). The

remainder, $59.98, would be paid to the King County Prosecutor's Office.




       1 The definition of "a decision terminating review" is found in RAP 12.3(a).
                                         5
No. 72102-0-1/6


       On December 21, 2015, Sinclair filed both an objection to the cost bill and

a motion for reconsideration of the opinion. Sinclair's objection to the cost bill

characterized Division One's current system of handling appellate costs as "a

blanket refusal to exercise discretion after a cost bill is filed" (Objection to Cost

Bill, at 10). Sinclair cited the policy concerns identified in State v. Blazina, 182

Wn.2d 827, 344 P.3d 680 (2015). He argued that notwithstanding Nolan,

commissioners should exercise discretion to deny a cost bill even if the court has

not so directed in the decision terminating review. Alternatively, he requested

that we direct the trial court to hold a hearing regarding his ability to pay. A ruling

on Sinclair's objection to the cost bill was deferred pending resolution of the

motion for reconsideration.


       In his motion for reconsideration, Sinclair again asserts that Division One's

commissioners routinely decline to exercise discretion to deny costs and that the

court routinely denies motions to modify. It is unclear, he says, what must

happen for this court to exercise discretion. "Must a party raise anticipatory cost

objections in his or her opening brief based on the assumption the party's

substantive arguments will fail? Or will elected judges exercise appropriate

discretion following an indigent party's motion to modify a commissioner's ruling

awarding costs?" Motion for Reconsideration at 2. "To the extent that a

challenge to appellate costs must be raised in the briefs so that the court can

exercise discretion in the decision terminating review, Sinclair asks this court to

reconsider and amend its decision terminating review so that it can exercise this

discretion." Motion for Reconsideration at 3.
No. 72102-0-1/7




       On January 15, 2016, at the court's request, the State answered the

motion. The State takes the position that the appellate court should not consider

a cost award until after the decision terminating review is filed. The State

acknowledges that an appellate court's failure to exercise discretion in the

decision terminating review, coupled with the commissioner's lack of discretion

under RAP 14.2, generally results in the award of costs to the State as the

prevailing party. In the State's view, this is because a motion to modify a

nondiscretionary commissioner's ruling awarding costs "is likely to fail, unless the

commissioner has overlooked a flaw in the cost bill, or unless the objecting party

has correctly identified some discrepancy between the cost bill and the

information available to counsel." Answer to Motion for Reconsideration at 10.

       The State maintains that a virtually automatic award of appellate costs

upon request by the State is preferable to this court's exercise of discretion in the

decision terminating review. The State claims there is not enough information

available to this court to facilitate an exercise of discretion. Without specifically

mentioning Blazina, the State argues that a future trial court remission hearing

under RCW 10.73.160(4) is the solution to the problem of indigent offenders who

upon release from confinement face a substantial and compounded repayment

obligation in addition to the difficulties of finding housing and employment. The

State points out that in Blank, 131 Wn.2d at 246, the court rejected a due

process challenge to RCW 10.73.160 in part because an offender always has the

right to seek remission from an award of costs.
No. 72102-0-1/8


       The problem with the State's argument is that it requires this court to

refrain from exercising the discretion that we indisputably possess under RCW

10.73.160 and Nolan. Contrary to the State's suggestion, our Supreme Court

has rejected the proposition that the broad discretion to grant or deny appellate

costs under RCW 10.73.160(1) should be exercised only in "compelling

circumstances." See Nolan, 141 Wn.2d at 628.

       The future availability of a remission hearing in a trial court cannot

displace this court's obligation to exercise discretion when properly requested to

do so. The statute vests the appellate court with discretion to deny or approve a

request for an award of costs. Under RAP 14.2, that discretion may be exercised

in a decision terminating review.

       In his objection to the cost bill, Sinclair proposed as an alternative that we

remand the cost bill to the trial court to conduct an inquiry into his current and

future ability to pay $6,983.19 in appellate costs. As a model for that alternative,

Sinclair submitted a cost bill ruling from Division Two. The Division Two

commissioner ruled that the State, as prevailing party, was entitled to its costs,

but also ruled that an award of appellate costs is a discretionary legal financial

obligation that can be imposed only as provided in Blazina. The commissioner

ruled that under Blazina, the costs would be imposed only upon the trial court

making an individualized finding that the defendant had "the current or likely

future ability to pay his appellate costs." Sinclair's Objection to Cost Bill,

Appendix C.




                                           8
No. 72102-0-1/9


       The problem with Sinclair's suggested remedy of a remand to the trial

court is twofold. Not only would it delegate the issue of appellate costs away

from the court that is assigned to exercise discretion, it would also potentially be

expensive and time-consuming for courts and parties. We disagree with the

Division Two commissioner's statement that an award of appellate costs is a

discretionary legal financial obligation controlled by Blazina's decision to "remand

the cases to the trial courts for new sentence hearings." Blazina, 182 Wn.2d at

839. The statute considered in Blazina, RCW 10.01.160, does not govern

appellate costs. For costs that "may" be imposed upon a convicted defendant at

the trial court level, it specifically sets forth parameters and limitations,

prominently including the defendant's ability to pay and financial resources.

RCW 10.01.160(3).

       Our statute, RCW 10.73.160, does not set forth parameters for the

exercise of discretion. Ability to pay is certainly an important factor that may be

considered under RCW 10.73.160, but it is not necessarily the only relevant

factor, nor is it necessarily an indispensable factor. Factors that may be relevant

to an exercise of discretion by an appellate court under RCW 10.73.160 can be

set forth and factually supported at least as efficiently in appellate briefs as in a

trial court hearing.

       To summarize, we are not persuaded that we should refrain from

exercising our discretion on appellate costs. Nor are we attracted to the idea of

delegating our discretion to a trial court. We conclude that it is appropriate for
No. 72102-0-1/10


this court to consider the issue of appellate costs in a criminal case during the

course of appellate review when the issue is raised in an appellant's brief.2

        We recognize that this approach is not without some practical

inefficiencies. The State historically does not ask for an award of costs in every

case. Appellate defense counsel may decide it is necessary to include a

preemptive argument against costs in every case, only to find that the State does

not intend to request costs. And as Sinclair points out, raising the potential issue

of appellate costs in the brief of appellant puts appellate defense counsel in the

position of assuming the client may not prevail on substantive claims.

        A rule change requiring the State to include a request for costs in the brief

of respondent would eliminate these problems, but even under the current

system, it is feasible for the parties and the court to address costs in the course

of appellate review. In the somewhat analogous situation created by RAP

18.1(b), a party who wishes to recover attorney fees under applicable law must

"devote a section of its opening brief to the request for fees or expenses.3

Typically, a short paragraph or even a sentence is deemed compliant with the

rule. Sinclair's motion for reconsideration devotes only half a page to outlining

the reasons why this court should exercise its discretion not to impose costs, and



        2 Sinclair's motion for reconsideration does not ask us to decide, and we
do not decide, whether the appellate court has discretion to deny or substantially
reduce an award of costs when asked to do so by a motion to modify a
commissioner's award of costs under RAP 14.2.
       3We say "somewhat" analogous because the costs the State is entitled to
request are awardable under RAP Title 14, not under RAP 18.1. Under RAP
Title 14, the State is not required to request costs in its appellate brief. Blank.
131 Wn.2d at 251. The State may simply present a cost bill as provided in RAP
14.4.

                                          10
No. 72102-0-1/11


the State's response is similarly brief, so we are not concerned that this approach

will lead to overlength briefs. We also point out that where the State knows at

the time of receiving the notice of appeal that no cost bill will be filed, a letter so

advising defense counsel would be courteous.

       The State has the opportunity in the brief of respondent to make

counterarguments to preserve the opportunity to submit a cost bill. The State

complains that it lacks access to pertinent information at the stage of appellate

briefing. This is not a persuasive assertion. The State merely needs to articulate

the factors that influenced its own discretionary decision to request costs in the

first place. Both parties should be well aware during the course of appellate

review of circumstances relevant to an award of appellate costs. A great deal of

information about any offender is typically revealed and documented during the

trial and sentencing, including the defendant's age, family, education,

employment history, criminal history, and the length of the current sentence. To

the extent current ability to pay is deemed an important factor, appellate records

in the future may also include trial court findings under Blazina. And the

foregoing list of factors is not intended as an exhaustive or mandatory itemization

of information that may support a decision one way or another.

       As a general matter, the imposition of costs against indigent defendants

raises problems that are well documented in Blazina—e.g., "increased difficulty in

reentering society, the doubtful recoupment of money by the government, and

inequities in administration." Blazina, 182 Wn.2d at 835. It is entirely appropriate

for an appellate court to be mindful of these concerns. Carrying an obligation to



                                           11
No. 72102-0-1/12



pay a bill of $6,983.19 plus accumulated interest can be quite a millstone around

the neck of an indigent offender. Still, exercising discretion means making an

individualized inquiry. See Blazina, 182 Wn.2d at 838 ("the court must do more

than sign a judgment and sentence with boilerplate language stating that it

engaged in the required inquiry.") To decide that appellate costs should never be

imposed as a matter of policy no more comports with a responsible exercise of

discretion than to decide that they should always be imposed as a matter of

policy.

          When this court reviews a trial court's ruling on attorney fees in a civil

case, we generally require the trial court to explain its reasoning based on the

specific facts of the case, or the award will be remanded "to ensure that

discretion is exercised on articulable grounds." Mahler v. Szucs, 135 Wn.2d 398,

435, 957 P.2d 632, 966 P.2d 305 (1998). Similarly, when this court decides the

issue of appellate costs, it behooves us to explain the basis for the ruling. Both

parties can be helpful to the appellate court's exercise of its discretion by

developing fact-specific arguments from information that is available in the

existing record.

          In the present case, both parties focus on the factor of ability to pay.

Sinclair makes the following argument:

                 There are several reasons this court should exercise its
          discretion not to impose costs. Sinclair is currently 66 years old.
          CP 6. He was sentenced to a minimum term of incarceration of
          280 months in June 2014. CP 142, 146. His sentence is
          indeterminate. CP 146. The trial court made no determination that
          Sinclair was able to pay any amount in trial court LFOs [legal
          financial obligations] and in fact waived all nonmandatory LFOs in
          the judgment and sentence. CP 144. The trial court appointed

                                             12
No. 72102-0-1/13


      appellate counsel because Sinclair was "unable by reason of
      poverty to pay for any of the expenses of appellate review." See
      Appendix C (Indigency Order). Under the circumstances, there is
      no reason to believe Sinclair is or ever will be able to pay $6,983.19
      in appellate costs (let alone any interest that compounds at an
      annual rate of 12 percent). This court should accordingly exercise
      discretion and deny appellate costs in the decision terminating
         review.

Motion for Reconsideration at 3. Attached to the motion for reconsideration is the

trial court order authorizing Sinclair to appeal in forma pauperis and to have

appointment of appellate counsel and preparation of the record at State expense.

The order states that Sinclair "is unable by reason of poverty to pay for any of the

expenses of appellate review" and "the defendant cannot contribute anything

toward the costs of appellate review."

         The State counters with a citation to the record at sentencing, where

Sinclair's attorney stated that Sinclair was retired after 20 years of employment

with a substantial local manufacturing company. Thus, the State argues it is

"likely" that Sinclair is eligible for retirement income. The State also points out

that the indigency order was submitted and signed ex parte, so that there is no

independent check on the accuracy of the information on which the order was

based.

         The procedure for obtaining an order of indigency is set forth in RAP Title

15, and the determination is entrusted to the trial court judge, whose finding of

indigency we will respect unless we are shown good cause not to do so. Here,

the trial court made findings that support the order of indigency. Important to our

determination, the Rules of Appellate Procedure establish a presumption of

continued indigency throughout review:

                                          13
No. 72102-0-1/14



       A party and counsel for the party who has been granted an order of
       indigency must bring to the attention of the trial court any significant
       improvement during review in the financial condition of the party.
       The appellate court will give a party the benefits of an order of
       indigency throughout the review unless the trial court finds the
       party's financial condition has improved to the extent that the party
       is no longer indigent.

RAP 15.2(f).

       We have before us no trial court order finding that Sinclair's financial

condition has improved or is likely to improve. No evidence supports the State's

speculation that Sinclair has undisclosed retirement benefits. We therefore

presume Sinclair remains indigent. Sinclair is a 66-year-old man serving a

minimum term of more than 20 years. There is no realistic possibility that he will

be released from prison in a position to find gainful employment that will allow

him to pay appellate costs. Under these circumstances, we exercise our

discretion to rule that an award to the State of appellate costs is not appropriate.

       The motion for reconsideration is granted. The conviction is affirmed.

Appellate costs will not be awarded. The pending cost bill and objection are

stricken.




WE CONCUR:




  J^d^utA\x




                                          14
