                                                                       FILED 

                                                                   DECEMBER 1, 2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                        )
                                            )           No. 32017-1-111
                    Respondent,             )
                                            )
      v.                                    )
                                            )
FRANK UHYREK,                               )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      SIDDOWAY, C.J. -    Frank Uhyrek raises four challenges to the terms of the

judgment and sentences entered on multiple convictions resulting from his November

2011 robbery of a Spokane supermarket. In a pro se statement of additional grounds, he

makes numerous complaints about the conduct of trial.

      He correctly argues that his conviction for unlawfully displaying a weapon merged

into his convictions for robbery and attempted robbery and must be set aside. He also

demonstrates that the court imposed an impermissibly variable term of community

custody_ He demonstrates no other error or abuse of discretion. We affirm Mr. Uhyrek's

convictions but remand for resentencing.

                   FACTS AND PROCEDURAL BACKGROUND

      Around 5:00 p.m. on November 1,2011, Frank Uhyrek entered a Spokane

supermarket where he donned a ski mask, wielded a large knife, and approached four
No. 32017-I-III
State v. Uhyrek


employees working at check stands, one by one, demanding money from the cash

registers at which they were stationed. Two employees were unable to comply with his

demand--one because an intervening customer blocked her access; the other because she

was so frightened she "could not think straight." Report of Proceedings (RP) at 183.

Two others opened their registers and allowed Mr. Uhyrek to take what amounted to a

total of about $400.

       After collecting what he could, Mr. Uhyrek ran out of the supermarket, chased by

three customers for about a block and a half, where Mr. Uhyrek got into a waiting car

whose driver immediately drove off. Several witnesses were able to describe the getaway

car and provide the license plate number, which police officers determined was registered

to an individual named Charles Stanfield.

       The next morning, after Spokane police officers were briefed about the robbery,

Office Glen Bartlett located Mr. Stanfield's car at a Spokane motel which he knew to be

frequented by offenders. He watched the parking lot from his unmarked car for a time

and, on seeing a man get into the car and begin driving away, he and other officers with

whom he was in contact followed the Stanfield car, eventually blocking it when the

driver parked in the lot of a nearby business. Officer Bartlett informed the driver that the .

car had been reported as involved in a crime, handcuffed him, and obtained his agreement

to speak with police. The driver turned out to be Mr. Stanfield.




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No. 32017-1-II1
State v. Uhyrek


       Based on information provided by Mr. Stanfield, officers went back to the motel

and surveilled it, eventually locating and arresting Mr. Uhyrek. He was charged with two

counts of first degree robbery, two counts of attempted first degree robbery, and one

count of unlawfully displaying a weapon. Each robbery count included a deadly weapon

enhancement as provided by RCW 9.94A.825. The State also alleged as an aggravating

circumstance that the defendant "has committed multiple current offenses and the

defendant's high offender score results in some of the current offenses going unpunished"

as provided by RCW 9.94A.535(2)(c). Clerk's Papers (CP) at 109-10.

       Before trial, Mr. Uhyrek filed a motion to suppress evidence of the clothes he was

wearing and other items on his person at the time of his arrest, contending that law

enforcement had "burst into" a motel room in which he was a guest absent exigent

circumstances. CP at 5. The trial court denied the motion. It found, among other facts,

that when Mr. Stanfield was stopped, he told officers he had been involved in the

supermarket robbery and that the person who actually committed the robbery, identified

by him only as "Frank," had checked out of the motel but was still at the motel location;

that officers thereafter saw a man fitting Mr. Uhyrek's description enter room #138 of the

motel; that officers knocked at the door of room #138 and were admitted by Gregory

Finch, who said he was the sole renter of the room and gave the officers permission to

enter; that officers saw Mr. Uhyrek make "furtive movements with his hands" and begin

walking toward the rear of the room; and that officers were concerned that Mr. Uhyrek

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No. 32017-1-II1
State v. Uhyrek


would walk from their view to a location where he might obtain a knife or a weapon. CP

at 104-05.

       Based on those and other findings, the trial court concluded that "[t]here was an

objective reasonable belief, based on [Mr. Uhyrek's] furtive movements inside the motel

room in conjunction with the information gathered by officers, that the defendant may

have been involved in several armed robberies the day before, that he was potentially

armed and dangerous." CP at 108. It found that the arresting officers' actions were

warranted and denied the motion to suppress.

       At trial, the State's evidence included surveillance video from the supermarket, the

testimony of eyewitnesses, the testimony of a video forensic analyst who had compared

the clothing of the robber as captured by the supermarket's surveillance cameras with the

clothing worn by Mr. Uhyrek at the time of his arrest, and a ski mask and gloves found in

a search of Mr. Stanfield's car, which a State expert testified bore DNA' that was a match

with Mr. Uhyrek.

       Mr. Uhyrek testified in his own defense. He blamed Mr. Stanfield for the robbery,

telling the jury that while he had driven around with Mr. Stanfield on the day of the

robbery, Mr. Stanfield dropped him off sometime before the robbery took place. He

testified that in the evening after the robbery occurred, he met up with Mr. Stanfield and



       I   Deoxyribonucleic acid.

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No. 32017-1-111
State v. Uhyrek


borrowed Mr. Stanfield's clothing-hence the similarity between the clothes he was

wearing when arrested and those Mr. Stanfield wore in committing the robbery. His

theory at trial was that the witnesses of the robbery, having limited ability to identify the

robber given the ski mask, mistook him for Mr. Stanfield. A defense expert testified that

the DNA samples found on the ski mask and the gloves might have been contaminated

with the DNA taken from Mr. Uhyrek for comparison.

       The jury found Mr. Uhyrek guilty as charged and returned special verdicts finding

that he was armed with a deadly weapon at the time he committed the robberies and

attempted robberies.

       The trial court imposed an exceptional sentence, ordering that each of the robbery

convictions, which it found "involved separate and distinct courses of conduct," be

served consecutively based upon its finding that Mr. Uhyrek committed multiple current

offenses and that his high offender score of 16 would otherwise result in some of the

current offenses going unpunished. CP at 483. The court ordered that the sentences for

the four robbery counts run concurrent to the unlawful display of a weapon count.

       The court also sentenced Mr. Uhyrek to community custody. The judgment and

sentence states, with respect to community custody, that "[t]he defendant shall be on

community custody for the longer of: (I) the period of early release ... or (2) the period

imposed by the court." CP at 492. The court imposed a $100 DNA collection fee.

       Mr. Uhyrek appeals.

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No. 32017-I-III
State v. Uhyrek


                                        ANALYSIS

       Mr. Uhyrek assigns error on appeal to (1) the conviction for unlawfully displaying

a weapon, which he contends merges with the first degree robbery convictions, (2) the

treatment of the four first degree robbery convictions as constituting separate and distinct

courses of conduct, which he argues improperly increased his offender score and

provided a basis for the exceptional consecutive sentences, (3) the indeterminate nature

of the sentence to community custody, and (4) the imposition ofa DNA fee where the

Washington State Patrol Crime Laboratory already had a DNA sample from Mr. Uhyrek

taken in connection with prior felony convictions.

       We address the assignments of error in tum.

                            Application ofthe merger doctrine

       Mr. Uhyrek contends his conviction for unlawfully displaying a weapon merges

with his first degree robbery convictions. The merger doctrine is a rule of statutory

construction that applies where the legislature "has clearly indicated that in order to prove

a particular degree of crime, 'the State must prove not only that the defendant committed

that crime but that the crime was accompanied by an act which is defined as a crime

elsewhere in the criminal statutes. '" State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d

1029 (2001) (quoting State v. Frohs, 83 Wn. App. 803,806,924 P.2d 384 (1996». In

other words, where a defendant has been found guilty of more than one crime, the

convictions may merge if the court determines the legislature intended only one

                                             6

No. 32017-1-II1
State v. Uhyrek


punishment for a single act. In that event, the conviction of the lesser offense must be set

aside, as it is merged or included in the conviction of the greater. State v. Zumwalt, 119

Wn. App. 126, 133, 82 P.3d 672 (2003).

       Mr. Uhyrek was charged with first degree robbery and attempted first degree

robbery on the basis that he was armed with a deadly weapon. The State concedes that

case law supports Mr. Uhyrek's position that the crime of unlawfully displaying a

weapon merges into the robberies and attempted robberies under these circumstances.

Cf State v. Workman, 90 Wn.2d 443,448,584 P.2d 382 (1978) ("It is clear that the

element of carrying a weapon under RCW 9.41.270, the gross misdemeanor, is a

necessary element of the greater crime of first-degree robbery."). The State nonetheless

argues that because merging the gross misdemeanor into the felony will not change Mr.

Uhyrek's offender score and the trial court ordered that the sentence for the unlawful

display charge would run concurrently, the error is harmless.

       A conviction for a lesser offense that should merge "does not evaporate simply

because of the concurrence of the sentence. The separate conviction, apart from the

concurrent sentence, has potential adverse collateral consequences that may not be

ignored. . .. [T]he second conviction, even if it results in no greater sentence, is an

impermissible punishment." Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct.

1668,84 L. Ed. 2d 740 (1985); Frohs, 83 Wn. App. at 811, n.2. Given Mr. Uhyrek's

lengthy history of felony convictions and high offender score, we recognize that one

                                              7

No. 32017-1-II1
State v. Uhyrek


more conviction (and for a gross misdemeanor) is unlikely to have material

consequences. It is an impermissible punishment, however, requiring that we remand

with directions to vacate it.

                                  Same criminal conduct

       Mr. Uhyrek next contends that the trial court erred in treating his four robbery

convictions separately for purposes of determining his offender score because they

constituted the same criminal conduct. A trial court's finding that the offenses constitute

the same criminal conduct is reviewed for abuse of discretion. In re Pers. Restraint of

Toledo-Sotelo, 176 Wn.2d 759, 764,297 P.3d 51 (2013).

       A defendant's current offenses must be counted separately in determining the

offender score unless the trial court finds that some or all of them "encompass the same

criminal conduct." RCW 9.94A.589(1)(a); State v. Anderson, 92 Wn. App. 54,61,960

P.2d 975 (1998). "Same criminal conduct" is defined as "two or more crimes that require

the same criminal intent, are committed at the same time and place, and involve the same

victim." RCW 9.94A.589(1)(a) (internal quotation marks omitted).

       Mr. Uhyrek argues that contrary to the charging document, which identified the

"victims" of the robberies as the four employees whom Mr. Uhyrek demanded open their

cash registers, the true victim of all four robberies was the corporate owner of the

supermarket: the money in the cash registers was the corporation's, and it was the

corporation's money, not the individuals' money, that Mr. Uhyrek was after. For that

                                             8

No. 32017-1-111
State v. Uhyrek


reason, and because the time, place and intent associated with all four robberies was the

same, he contends that the robberies should have been counted as one offense. Br. of

Appellant at 10-11.

       A similar argument was rejected in the context of a double jeopardy challenge in

State v. Rupe, 101 Wn.2d 664,693,683 P.2d 571 (1984). The defendant in Rupe was

convicted of two counts of aggravated first degree murder and two counts of first degree

robbery after he shot and killed two bank tellers during the course of a robbery. Jd. at

667-69.

       Our Supreme Court held that the defendant's multiple convictions for robbery

were valid under RCW 9A.56.l90, the statute which defines robbery. Jd. at 693. Under

RCW 9A.56.190, a person commits robbery when he "unlawfully takes personal property

from the person of another or in his or her presence against his or her will by the use or

threatened use of immediate force, violence, or fear of injury to that person or his or her

property or the person or property of anyone." As the court explained:

       Robbery has several distinct elements: the taking of the personal property
       and the use or threat to use force on an individual. The statute does not
       require that the person from whom the property is taken own that property.
       Possession or custody will suffice. Here, each teller was individually
       responsible for money in her till. Each had control and possession of that
       money and each had the money taken by the use of force. These facts
       constitute two separate robberies and the double convictions do not place
       defendant in double jeopardy.

101 Wn.2d at 693 (emphasis added).


                                             9

No. 32017-I-II1
State v. Uhyrek


       Similarly, in an appeal in which the proper unit of prosecution for robbery was

contested, the court in State v. Tvedt, 153 Wn.2d 705, 720, 107 P.3d 728 (2005)

explained that the "unit of prosecution" for robbery encompasses "both a taking of

property and a forcible taking against the will of the person from whom or from whose

presence the property is taken." Therefore, "a conviction on one count of robbery may

result from each separate taking o/property from each person," although multiple counts

may not be based on "multiple items of property taken from the same person at the same

time," nor on "a single taking of property from or from the presence of multiple persons

even if each has an interest in the property." Id. (emphasis added). The court further

explained that while "a robber's use or thr~atened use of force against an individual must

be coupled with the taking of that individual's property," this includes "property over

which he has an ownership, representative, or possessory interest." Id. at 724, n.4.

       Both cases compel the conclusion that each supermarket employee, although not

the owner of the currency in his or her assigned cash register, was a possessor or

custodian of that currency and thereby a victim of robbery or attempted robbery. The

robberies and attempted robberies do not constitute the same criminal conduct under

RCW 9.94A.589(1)(a). The trial court did not err.

                           Variable term   0/ community custody
       Mr. Uhyrek next contends that the sentencing court erred in imposing a variable

term of community custody contingent on the amount of earned early release.

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No. 32017-1-III
State v. Uhyrek


       A trial court's sentencing authority is limited to that authorized by statute. State v.

Albright, 144 Wn. App. 566, 568, 183 P.3d 1094 (2008) (citing In re Postsentence

Review ofLeach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007)). Former RCW 9.94A.715

allowed courts to impose variable terms of community custody. Under the former

statute, it was possible for sentencing courts to make what came to be called a Brooks

notation in a judgment and sentence, indicating that the combined terms of confinement

and community custody, while variable, "shall not exceed the statutory maximum." In re

Pers. Restraint ofBrooks, 166 Wn.2d 664, 675, 211 P.3d 1023 (2009).

       The legislature repealed that statute in 2008 in favor of fixed terms of community

custody. LAWS OF 2008, ch. 231, § 57; LAWS OF 2009, ch. 28, § 42. Mr. Uhyrek is

correct that, under the amended statute applicable to him, "a court may no longer

sentence an offender to a variable term of community custody contingent on the amount

of earned release but instead, it must determine the precise length of community custody

at the time of sentencing." State v. Franklin, 172 Wn.2d 831, 836, 263 P .3d 585 (2011);

State v. Boyd, 174 Wn.2d 470,472,275 P.3d 321 (2012). RCW 9.94A.701, applicable to

Mr. Uhyrek's felonies, provides in relevant part:

      A court shall, in addition to the other terms of the sentence, sentence an
      ofIender to community custody for eighteen months when the court
      sentences the person to the custody of the department for a violent offense
      that is not considered a serious violent offense.

RCW 9.94A.701(2).


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No. 320l7-l-II1
State v. Uhyrek


       There are ways under the current statute that a sentencing court can impose a fixed

term of community custody and at the same time recognize the Department of

Corrections' authority to transfer the earned early release of certain offenders into

community custody. See State v. Bruch, 182 Wn.2d 854, 346 P.3d 724 (2015). But the

"longer of early release or term imposed by the court" approach reflected in Mr.

Uhyrek's judgment and sentence is impermissibly variable.

       The State essentially concedes that there is a problem with the community custody

sentence but makes the completely untenable suggestion that we should ignore the words

"for the longer of" and treat the community custody provision as simply identifying two

alternatives, one of which will happen. We cannot simply ignore the plain language of an

erroneous judgment and sentence. On remand, the court is directed to impose a fixed

term of community custody.

                                    DNA collection fee

       Finally, Mr. Uhyrek contends that the sentencing court erred in imposing a $100

DNA collection fee as part of his mandatory legal financial obligations because, he

represents, the Washington State Patrol Crime Laboratory already has a DNA sample

from him by virtue of earlier felonies in which a sample would have been required.

While RCW 43.43.754(l)(a) states that "[a] biological sample must be collected for

purposes of DNA identification analysis from ... [e]very adult or juvenile individual

convicted of a felony," the statute provides in subsection (2) that "[i]fthe Washington

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No. 32017-1-111
State v. Uhyrek


state patrol crime laboratory 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).

         In State v. Thornton, 188 Wn. App. 371, 642 P.3d 642 (2015), this court pointed

out that the DNA collection fee is imposed by a different statute, RCW 43.43.7541,

which plainly and unambiguously provides that "[e]very sentence imposed for a crime

specified in RCW 43.43.754 must include a fee of one hundred dollars," making the fee

"mandatory for all such sentences." Id. at 374-75. "The statute furthers the purpose of

funding for the state DNA database and agencies that collect samples." Id. at 375. The

fact that a subsequent DNA sample may not be required to be submitted to the state patrol

is irrelevant to the mandatory imposition of the fee.

                       STATEMENT OF ADDITIONAL GROUNDS

         In a pro se statement of additional grounds for review (SAG), Mr. Uhyrek raises

eight.

         Motion to suppress. Mr. Uhyrek challenges the trial court's denial of his motion

to suppress. He attacks the court's decision but without any reference to the basis on

which we consider such c~allenges: on review of an order denying a motion to suppress,

we will determine only whether substantial evidence supports the trial court's findings of

fact and whether its findings of fact support its conclusions of law. State v. Mendez, 137

Wn.2d 208, 214, 970 P .2d 722 (1999), abrogated in part on other grounds by Brendlin v.

                                             13 

No. 32017-1-II1
State v. Uhyrek


Cal., 551 U.S. 249,127 S. Ct. 2400,168 L. Ed. 2d 132 (2007). Substantial evidence

exists when there is a sufficient quantity of evidence to persuade a fair-minded, rational

person that a finding is true. State v. Hill, 123 Wn.2d 641, 644, 870 P .2d 313 (1994).

We review only those findings to which an appellant assigns error. ld. Unchallenged

findings are verities on appeaL ld.

       Mr. Uhyrek does not identify any finding of fact to which he assigns error. Nor

does he explain the insufficiency of evidence at the suppression hearing (as distinguished

from the evidence at his trials) that make the findings erroneous.

       Beyond requirements that are specific to challenging denial of a motion to

suppress, we will not consider a defendant's statement of additional grounds if it does not

inform us of the nature and occurrence of alleged errors. RAP 10.10(c). We are not

obligated to search the record in support of claims made in a defendant's statement of

additional grounds for review. ld. For both reasons, Mr. Uhyrek's first ground is

insufficient to permit review.

       Perjury ofstate's witness. Mr. Uhyrek argues that police officer Michelle Madsen

made false statements during her trial testimony. Specifically, he contends she falsely

testified as to how she handled evidence, inconsistent with the proof presented at Mr.

Uhyrek's first trial, which ended in a mistrial. This issue involves factual allegations

outside the record of this appeal. If Mr. Uhyrek wishes to seek relief, it must be by




                                             14 

No. 32017-1-II1
State v. Uhyrek


personal restrain petition. State v. Norman, 61 Wn. App. 16,27-28,808 P.2d 1159

(1991); State v. Alvarado, 164 Wn.2d 556,569, 192 PJd 345 (2008).

         Mug shot. Mr. Uhyrek argues that he was prejudiced by the fact that his mug shot

was presented to the jury. He also takes issue with the fact that the video forensic analyst

used Adobe Photoshop software in working with the supermarket's surveillance footage,

that the footage was blurry, and that the lead detective asserted that Mr. Uhyrek had lost

weight since the time of his arrest without substantiating that assertion. Although Mr.

Uhyrek is not required to cite to the record in a SAG, he must inform the court of the

"nature and occurrence of alleged errors." RAP 10.1O(c). Because he has failed to do

this, we decline to consider this argument.

         Richard Foxley 's perjury and misidentificationljury ofpeers. Mr. Uhyrek argues

that he was prejudiced when one of the State's witnesses, Richard Foxley, testified that

the robber was African-American, but later admitted he originally told police he thought

the robber was Caucasian. Further, when asked who he thought most resembled the

robber out of a photo lineup, Mr. Foxley pointed to a white male-someone other than

Mr. Uhyrek. Mr. Uhyrek claims he was prejudiced by Mr. Foxley's "racially

inflammatory lies." SAG at 12. He also states that even without Mr. Foxley's

statements, the cards were stacked against him because he was not provided ajury of his

peers.




                                              15
No. 32017-I-III
State v. Uhyrek


       The record reflects inconsistency in Mr. Foxley's description of the robber. But

defense counsel was able to call the jury's attention to the discrepancy, and did so during

closing argument.

       With respect to the jury issue, Mr. Uhyrek presents no evidence that any juror was

struck on an impermissible basis, nor does he otherwise explain the nature of the alleged

error. We will not consider a SAG   ~~ifit   does not inform the court of the nature and

occurrence of alleged errors." RAP 10.1 O(c).

       Insufficient evidence ofMs. Lorentzen's cut. Mr. Uhyrek next challenges

testimony provided by Kathy Lorentzen, one of the employee-victims of attempted

robbery, as to a cut she allegedly sustained during the robbery. Ms. Lorentzen testified

that she was not sure where the cut came from, but that it could only have come from the

robber's knife.

       Mr. Uhyrek was not prevented from cross-examining or arguing the uncertain

basis for her belief. There was no error.

       Reference to key chain knife. Mr. Uhyrek argues that the State did not enter into

evidence a small pocket key chain knife found on his person at the time of his arrest. He

notes that the blade on the knife was less than three inches long and would not have been

considered a deadly weapon. According to Mr. Uhyrek, the prosecutor asked a testifYing

officer to identifY the knife, even though it was not admitted as an exhibit before the

identification or after.

                                                16
No. 32017-1-II1
State v. Uhyrek


       Mr. Uhyrek does not provide a citation to the record for the improper

identification of the knife. Officer Jason Uberuaga did testify that he found a "small

knife" hanging from Mr. Uhyrek's belt loop after he took him into custody. RP at 371.

Mr. Uhyrek was not prevented from cross-examining the officer or arguing that the State

had not demonstrated any connection between the small knife and the robbery.

       Moreover, the trial court instructed the jury that it could only consider the

testimony of the witnesses and the exhibits admitted into evidence. We presume that the

jury followed the court's instructions. State v. Pastrana, 94 Wn. App. 463,480, 972 P.2d

557 (1999), abrogated in part on other grounds by State v. Gamble, 154 Wn.2d 457, 114

P.3d 646 (2005).

       Mr. Uhyrek's Letter to Co-Defendant. Mr. Uhyrek claims the trial court erred in

allowing the State to offer in evidence and read to the jury portions of a letter he wrote

and initially intended to mail to Mr. Stanfield, but ultimately decided not to mail.

Defense counsel argued that the letter must have been taken by someone from Mr.

Uhyrek's belongings and moved to exclude it on violation of privacy grounds.

       The court denied Mr. Uhyrek's motion to exclude the letter but ruled that the State

could only use it for impeachment. Mr. Uhyrek demonstrates no error in the court's

ruling that in the context of the jail setting, Mr. Uhyrek did not enjoy a right of privacy in

non-legal mail. Because Mr. Uhyrek agrees that he wrote the letter, the trial court




                                              17 

No. 32017-1-III
State v. Uhyrek


properly concluded that the letter was admissible as an admission by a party opponent,

and therefore was non-hearsay. ER 801(2).

       Certificate ofcompliance. Finally, Mr. Uhyrek argues that his attorney did not

always comply with an order setting forth standards for indigent defense and

certifications of compliance, which requires the submission of quarterly notices. This

issue involves factual allegations outside the record of this appeal. If there is some relief

this court can order that Mr. Uhyrek believes is warranted, he must pursue it by personal

restraint petition. Norman, 61 Wn. App. at 27-28.

       We affirm the convictions and remand for resentencing consistent with this

OpInIOn.


       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: 




Korsmo, J.    {I


Fel1'(110 

                                             18 

