                                                                   FILED
                                                                June 28, 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

ROBERT E. LARSON; TYLER W.                    )         No. 33179-2-III
GASSMAN; and PAULE. STATLER,                  )
                                              )
                     Appellants,              )
                                              )
              V.                              )         PUBLISHED OPINION
                                              )
STATE OF WASHINGTON,                          )
                                              )
                     Respondent.              )

       LAWRENCE-BERREY, A.CJ. - The wrongly convicted persons act (WCPA),

chapter 4.100 RCW, provides statutory compensation for wrongly convicted persons who

prove they were actually innocent To receive compensation, a claimant must prove six

elements by clear and convincing evidence.

       Robert Larson, Tyler Gassman, and Paul Statler (the claimants) appeal the trial

court's decision that they failed to establish the fourth and fifth elements of their WCPA

claims. We interpret the fourth WCPA element (significant new exculpatory information)

liberally, to reflect the remedial purpose of the legislation, so a wrongly convicted person

may more readily receive statutory compensation. We interpretRCW 4.100.060(3) as
No. 33179-2-III
Larson v. State


authorizing a trial court to admit evidence that would otherwise be excluded under the

rules of evidence. Finally, we interpret the burden of proof for the fifth WCPA element

(actually innocent) to be clear and convincing evidence.

       As a result, we (1) reverse the trial court's interpretation of "significant new

exculpatory information," (2) hold that the trial court did not abuse its discretion by

excluding hearsay evidence, and (3) reverse the trial court's imposition of an improperly

high burden of proof on the "actually innocent" element. We remand to the trial court for

it to decide whether the claimants have proved by clear and convincing evidence they are

actually innocent.

                                          FACTS

       The parties tried this case to the bench. The trial court heard testimony from 15

witnesses over a period of four days, and admitted and reviewed numerous exhibits. The

trial court prepared and issued an extensive written decision, consisting of 44 findings of

fact. The claimants assign error to only two of these findings. We therefore set forth the

pertinent findings of the trial court, and separately analyze the two disputed findings:

              After reviewing the evidence and being mindful of the arguments of
       the parties, the Court finds by clear and convincing evidence the following
       facts:

       1.     Sometime in April, 2008, Anthony Kongchunji, Matthew Dunham,
              and three other males assaulted and robbed Eric Weskamp and

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No. 33179-2-III
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             Clifford Berger. After committing the robberies, one of the fleeing
             robbery suspects fired a gun from Mr. Dunham's vehicle towards
             Kyle Williams and Mr. Weskamp.

      2.     During the time period of April, 2008, Robert Larson was residing in
             a trailer behind his parent's home. This residence was approximately
             three blocks from the Quarry Tile Company where Mr. Larson was
             employed.

      3.     On the days he was scheduled to work, Mr. Larson consistently
             clocked into work between 9:46 p.m. and 9:55 p.m. Mr. Larson
             testified that he habitually arrived at work between 9: 10 p.m. and
             9:20 p.m.

      4.     During the time period of April, 2008, Robert Hibdon was Mr.
             Larson's supervisor at the Quarry Tile Company. Mr. Hibdon
             testified that it was necessary for Mr. Larson to arrive at work a few
             minutes before the beginning of his shift.

      5.     During the time period of April, 2008, Tyler Gassman was
             unemployed and residing with his girlfriend, Elizabeth Holder, in
             northern Idaho. Mr. Gassman resided with Ms. Holder for
             approximately one year.

      6.     Mr. Gassman testified that in the one year he resided with Ms.
             Holder, he never left the residence without her.

      7.     During the time period of April, 2008, Paul Statler was residing with
             his mother on Dick Road. Also residing with Mr. Statler and his
             mother was Mr. Statler's girlfriend, Ashley Shafer, and Shane
             Neilson.




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No. 33179-2-III
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      8.     During the period of April, 2008, Mr. Statler was being monitored by
             a [violent incident criminal apprehension program (VI CAP)] through
             the Department of Corrections. Mr. Statler was required to provide
             breath samples in the VICAP every day at 6:00 a.m., 6:00 p.m., and
             10:00 p.m. Mr. Statler would have to be available for a short period
             of time both before and after each breath sample time.

      9.     Between late March, 2008 through April, 2008, Mr. Weskamp and
             Mr. Berger were attempting to purchase OxyContin from Mr.
             Kungchunji. The sale price of the OxyContin was $4000.

      10.   At some point between late March, 2008 through April, 2008,
            Anthony Kongchunji was riding as a passenger in a vehicle driven by
            Matthew Dunham. There were three additional males in the back
            seat of the vehicle. During this trip, Mr. Kongchunji placed a call to
            Mr. Weskamp as these five individuals were on their way to sell
            OxyContin to Mr. Weskamp and Clifford Berger.

      11.   Once Mr. Kongchunji and Mr. Dunham arrived at Mr. Weskamp's
            house, the three males in the back seat of the vehicle got out and,
            with their faces covered by bandanas, hid and waited for Mr.
            Weskamp and Mr. Berger. At least one of the three men was armed
            with a shotgun or rifle.

      12.   Once Mr. Weskamp and Mr. Berger emerged from the house, the
            three males with bandanas covering their faces assaulted and robbed
            Mr. Weskamp and Mr. Berger. One of the males used either or
            shotgun or rifle during the assault.

      13.   Subsequent to the robbery, the five males returned to Mr. Dunham's
            truck and fled the scene. Kyle Williams and Mr. Weskamp gave
            chase in Mr. Williams's vehicle until shots began being fired from
            Mr. Dunham's vehicle.


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No. 33179-2-III
Larson v. State


      14.    Later, on April 23, 2008, Mr. Kongchunji and Mr. Dunham were
             arrested for a similar type of robbery. Shortly thereafter, law
             enforcement received information that the firearm used by Mr.
             Kongchunji and Mr. Dunham in the most recent robbery was at Mr.
             Statler's residence.

      15.   In the early morning hours of April 24, 2008, Det. McCrillis went to
            Mr. Statler's house and recovered a shotgun which was hidden under
            Mr. Statler's mother's mattress. The shotgun recovered was similar
            to the shotgun used in the April 23, 2008, robbery as well as the
            firearm used in the robbery of Mr. Weskamp and Mr. Berger.

      16.   After being arrested on April 23, 2008, Mr. Kongchunji chose not to
            speak with law enforcement. Mr. Dunham, on the other hand,
            continually provided false statements to law enforcement concerning
            his involvement in the robberies.

      17.   Once booked into jail, Mr. Kongchunji and Mr. Dunham spent
            approximately one month housed in the same unit of the Spokane
            County Jail. During this time, Mr. Kongchunji and Mr. Dunham had
            numerous opportunities to communicate with one another.

      18.   Prior to resolving his charges, Mr. Kongchunji chose to engage in a
            free-talk with the State. In consideration of providing information to
            law enforcement, Mr. Kongchunji was seeking a non-prison
            sentence. During the free-talk, Mr. Kongchunji identified the three
            males involved in the robberies against Mr. Weskamp and Mr.
            Berger as Mr. Larson, Mr. Gassman, and Mr. Statler.

      19.   Subsequent to the free-talk, the State failed to offer Mr. Kongchunji
            a non-prison sentence. Mr. Kongchunji responded by alleging that
            Mr. Larson, Mr. Gassman, and Mr. Statler were not involved in the
            robberies. Det. Marske informed Mr. Kongchunji that ifhe lied at


                                           5
No. 33179-2-III
Larson v. State


             trial he would be charged with perjury. Neitlier the State nor the
             plaintiffs called Mr. Kongchunji as a witness at the criminal trial.
             Mr. Kongchunji never asserted his Fifth Amendment protections
             against self-incrimination, he simply was never called as a witness.

      20.    Similarly, Mr. Dunham, who was 17 years old at the time of his
             arrest, engaged in a free-talk with the State. Like Mr. Kongchunji,
             Mr. Dunham was facing a substantial prison sentence. Also, like Mr.
             Kongchunji, Mr. Dunham identified the three males involved in the
             robberies against Mr. Weskamp and Mr. Berger as Mr. Larson, Mr.
             Gassman, and Mr. Statler.

      21.    Unlike Mr. Kongchunji, Mr. Dunham testified at the plaintiffs'
             criminal trial that Mr. Larson, Mr. Gassman, and Mr. Statler were
             involved in the robberies of Mr. Weskamp and Mr. Berger. In
             consideration of his cooperation, Mr. Dunham was given a sentence
             of 17 months confinement in a juvenile detention facility.

      22.    On July 28, 2008, Plaintiff Robert Larson, was charged by
             information in the Spokane Superior Court under case number 08-1-
             02445-9 with Count I-First Degree Robbery, Count II-Attempted
             First Degree Murder (or in the alternative First Degree Assault),
             Count III-Attempted First Degree Murder (or in the alternative
             First Degree Assault), Count IV-Drive by Shooting, and Count V-
             Drive by Shooting. The information alleged these crimes occurred
             on or about April 15, 2008.

      23.    On July 28, 2008, Plaintiff Tyler Gassman, was charged by
             information in the Spokane Superior Court under case number 08-1-
             02444-1 with Count I-First Degree Robbery, Count II-Attempted
             First Degree Murder (or in the alternative First Degree Assault),
             Count III-Attempted First Degree Murder (or in the alternative
             First Degree Assault), Count IV-Drive by Shooting, and Count V-


                                            6
No. 33179-2-111
Larson v. State


             Drive by Shooting. The information alleged these crimes occurred
             on or about April 15, 2008.

      24.   On July 28, 2008, Plaintiff Paul Statler, was charged by information
            in the Spokane Superior Court under case number 08-1-02442-4 with
            Count I-First Degree Robbery, Count II-Attempted First Degree
            Murder (or in the alternative First Degree Assault), Count III-
            Attempted First Degree Murder (or in the alternative First Degree
            Assault), Count IV-Drive by Shooting, and Count V-Drive by
            Shooting. The information alleged these crimes occurred on or
            about April 15, 2008.

      25.   On January 12, 2008, the State moved to amend each plaintiffs
            information. The Court granted the motions and each plaintiffs
            information was amended, alleging the crimes occurred on or about
            April 17, 2008.




      27.   The criminal trial was held in February, 2009. At trial, all three
            plaintiffs presented alibi defenses.

      28.   At the conclusion of the trial, Mr. Larson, Mr. Gassman, and Mr.
            Statler were each found guilty of First Degree Robbery, two counts
            of First Degree Assault, and two counts of Drive by Shooting.




      35.   Subsequent to being convicted, all three plaintiffs moved for a new
            trial under CrR 7.5(a)(3), claiming newly discovered evidence. The
            Honorable Michael Price denied the motions.




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No. 33179-2-III
Larson v. State


      36.    The plaintiffs appealed Judge Price's denial of their motions for new
             trials. The Court of Appeals affirmed Judge Price, concluding that
             the motions for new trials were properly denied, the plaintiffs were
             not provided ineffective assistance of counsel, the plaintiffs were not
             prejudiced by the amended informations, and the plaintiffs were not
             placed in double jeopardy. 1

      37.    The plaintiffs then filed motions for relief fromjudgment under
             CrR 7.8. In granting the plaintiffs' motions, Judge Price found trial
             counsel for each plaintiff was ineffective in a number of regards.
             Specifically, Judge Price found trial counsel for each plaintiff failed
             to obtain victim Eric Weskamp' s work records, 2 failed to obtain
             Matthew Dunham's phone records, 3 failed to interview the
             detectives, and failed to interview Shane Neilson. 4

             1
                State v. Larson, 160 Wn. App. 577, 249 P.3d 669 (2011); State v.
      Gassman, 160 Wn. App. 600, 248 P.3d 155 (2011); State v. Statler, 160
      Wn. App. 622, 248 P.3d 165 (2011).
              2
                Victim Eric Weskamp' s work records would have showed he left
      work early on April 16, 2008, the only day of the week he did so. This
      evidence would have allowed trial counsel to argue the crime occurred on
      April 15, 2008 and not April 17, 2008. Plaintiffs' Exhibit P-16, P-17 & P-
      18 (Judge Price's Findings of Fact, Conclusions of Law & Order, pg. 4).
              3
                Matthew Dunham was the State's star witness. He testified he did
      not know the victims. The phone records contained post-conviction showed
      he had been in communication with the victims. This information would
      have assisted trial counsel in impeaching his credibility. Plaintiffs' Exhibit
      P-16, P-17 & P-18 (Judge Price's Findings of Fact, Conclusions ofLaw &
      Order, pgs. 4-5).
              4
                Shane Neilson would have testified that he received the gun used in
      a robbery on April 23, 2008, without the knowledge of Mr. Statler. Without
      this information, the jury was left with the impression Mr. Statler was "in
      the know" about the April 23, 2008, robbery. Plaintiffs' Exhibit P-16, P-17
      & P-18 (Judge Price's Findings ofFact, Conclusions of Law & Order, pg.
      5).

                                            8
No. 33179-2-III
Larson v. State


      38.    Judge Price ultimately concluded that the plaintiffs were denied their
             Constitutional right to effective counsel. He found that the plaintiffs
             established that trial counsels' representation was deficient; falling
             below the objective standard of reasonableness and that the plaintiffs
             were prejudiced by this deficient performance.

      39.    Judge Price further found that trial counsels' failure to investigate
             was especially egregious based upon their failure to discover
             potentially exculpatory evidence.

      40.    Judge Price concluded that but for trial counsels' unprofessional
             errors, the result of the proceedings would have been different.

      41.   On December 14, 2012, Judge Price entered orders vacating the
            judgments of conviction against Mr. Larson, Mr. Gassman, and Mr.
            Statler.

      42.    On May 31, 2013, the Honorable James Triplet entered an order
             dismissing the charges against Mr. Larson. The certification forming
             the basis for the motion to dismiss the charges asserted the motion
             was founded upon insufficient evidence to proceed with trial.

      43.    On July 23, 2013, Judge Triplet entered orders dismissing the
             charges against both Mr. Gassman and Mr. Statler. The certification
             forming the basis for the motions to dismiss the charges asserted the
             motions were founded upon insufficient evidence to proceed with
             trial.




                                             9
No. 33179-2-III
Larson v. State


       44.    At trial, limited evidence was presented that was not put before the
              jury in the criminal trial; specifically, the testimony of Mr.
              Kongchunji, Mr. Weskamp's time card, Kyle Williams phone
              records, and the testimony of Professor Alexandra Natapoff. 5

Clerk's Papers (CP) at 407-14.

                                       ANALYSIS

       Overview of the WCPA

       The WCPA was passed in 2013, and came into effect on July 28 of that year.

LAWS OF 2013, ch. 175, §§ 1-9. The first section of the WCPA indicates the legislature's

intent and provides:

      The legislature recognizes that persons convicted and imprisoned for crimes
      they did not commit have been uniquely victimized. Having suffered
      tremendous injustice by being stripped of their lives and liberty, they are
      forced to endure imprisonment and are later stigmatized as felons. A
      majority of those wrongly convicted in Washington state have no remedy
      available under the law for the destruction of their personal lives resulting
      from errors in our criminal justice system. The legislature intends to
      provide an avenue for those who have been wrongly convicted in
      Washington state to redress the lost years of their lives, and help to address
      the unique challenges faced by the wrongly convicted after exoneration.

RCW 4.100.010.

      To prevail on a claim under the WCPA claimants must show, by clear and



             5
              Prof. Natapoff testified as an expert witness primarily on issues
      surrounding the lack of credibility of criminal informants.

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No. 33179-2-III
Larson v. State


convincing evidence, 6 that: ( 1) they were convicted of one or more felonies in superior

court and subsequently sentenced to a term of imprisonment, and have served all or any

part of the sentence, 7 (2) they are not currently incarcerated for any offense, 8 (3) during

the period of confinement for which the claimant is seeking compensation, the claimant

was not serving a term of imprisonment or a concurrent sentence for any conviction other

than those that are the basis for the claim, 9 ( 4) the judgment of conviction was reversed or

vacated and the charging document dismissed on the basis of significant new exculpatory

information or, if a new trial was ordered pursuant to the presentation of significant new

exculpatory information, either the claimants were found not guilty at the new trial or the

claimants were not retried and the charging document dismissed, 10 (5) they did not engage

in any illegal conduct alleged in the charging documents, 11 and (6) they did not commit or

suborn perjury, or fabricate evidence to cause or bring about their convictions. 12 The

dispute in this case focuses on the fourth and fifth elements.

A.     Convictions vacated and charges dismissed on the basis ofsignificant new

       6
        RCW 4.100.060(1).
       7
        RCW 4.100.060(l)(a).
     8
        RCW 4.100.060(l)(b)(i).
     9
       RCW 4.100.060(l)(b)(ii).
     10
        RCW 4.100.060(1 )( c)(ii) (there is an alternative fourth element under
RCW 4.100.060(1 )( c)(i), that relates to pardons, but is not applicable in this case).
     11
        RCW 4.100.060(l)(d).
     12
        RCW 4.100.060(l)(e).

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No. 33179-2-III
Larson v. State


       exculpatory information

       The claimants argue the trial court erred in defining "significant new exculpatory

information" as evidence that was unavailable at trial. The claimants also argue the trial

court erred in finding their convictions were not vacated and their charges not dismissed

on the basis of the new information. These two arguments are discussed in tum below.

       1. Significant new exculpatory information

       The parties dispute the meaning of "significant new exculpatory information."

That phrase is not defined in the definitional section of the statute. See RCW 4.100.020.

"The meaning of a statute is a question of law reviewed de novo." Dep 't ofEcology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 PJd 4 (2002). Statutory interpretation is

used '" to determine and give effect to the intent of the legislature."' State v. Reeves, 184

Wn. App. 154, 158, 336 P.3d 105 (2014) (internal quotation marks omitted) (quoting

State v. Evans, 177 Wn.2d 186, 192,298 PJd 724 (2013)). If statutory language is plain

and unambiguous, this court does not engage in statutory interpretation. Berger v.

Sonne/and, 144 Wn.2d 91, 105, 26 PJd 257 (2001). We determine the phrase is

ambiguous because "new" might narrowly refer to information that was unavailable at

trial, or "new" might broadly refer to information that was not presented to the jury. 13


       13   In Newton v. State, 192 Wn. App. 931, 932-33, 369 PJd 511 (2016), Isaiah

                                             12
No. 33179-2-III
Larson v. State


       The trial court noted that RCW 10. 73 .170 contains language similar to the

language at issue here, and considered prior judicial interpretation of that similar

language important in its analysis. We agree. RCW 10. 73.170 authorizes a person

convicted of a felony to submit a motion requesting postconviction DNA 14 testing.

Before the motion can be granted, the moving party must demonstrate the DNA testing

would provide "significant new information." RCW 10.73. l 70(2)(a)(iii). The trial court

relied on State v. Riofla, 134 Wn. App. 669, 142 P.3d 193 (2006), aff'd, 166 Wn.2d 358,

209 P.3d 467 (2009). Because that case was reviewed by our Supreme Court, we start our

analysis with State v. Riofla, 166 Wn.2d 358.

       In Riofla, a man approached the victim, asked him for a cigarette, and then pulled a

revolver from his coat and shot three times toward the victim, missing him each time. Id

at 362. The assailant fled, and in the process, left behind his white hat. Id. The victim

knew the assailant, identified him as "Alex," and provided a physical description to the


Newton filed a lawsuit under the WCPA after we reversed his first degree burglary
conviction. Our reversal of his criminal conviction was based on insufficiency of the
evidence. Id The trial court granted the State's motion for summary judgment on
Newton's WCPA claim. Id In affirming the trial court we stated, "significant new
exculpatory information necessarily refers to something other than the appellate reversal
itself. The appellate reversal must be based on some new information." Id. at 938. In
Newton, we held "significant new exculpatory information" required "new information."
Here, we more specifically address the nature of this "new information."
       14
            Deoxyribonucleic acid.

                                             13
No. 33179-2-III
Larson v. State


investigating officer. Id. at 362-63. The victim looked at a photograph database and

identified his assailant as Alexander Riofta. Id. at 363. The State charged Mr. Riofta

with first degree assault with a firearm. Neither the prosecution nor the defense sought

DNA testing of the white hat. Id. The jury convicted Mr. Riofta. Id. After his

conviction, Mr. Riofta requested DNA testing of the white hat pursuant to

RCW 10.73.170. Id. The trial court denied his request. Id. at 364. The appellate court

also denied his request, holding that "[Mr.] Riofta failed to establish the DNA testing

could yield 'significant new information' because the white hat was available for testing

at trial." Id.

        The Supreme Court reached the same result as the lower courts, but used a

different basis. Id. at 367-73. Prior to discussing the different basis, the Supreme Court

defined "significant new information" broadly-not narrowly-as did the appellate court.

The Supreme Court held, "[RCW 10.73.170] provides a means for a convicted person to

produce DNA evidence that the original fact finder did not consider, whether because of

an adverse court ruling, inferior technology, or the decision of the prosecutor and defense

counsel not to seek DNA testing prior to trial." Id. at 366. Accordingly, the Supreme

Court held Mr. Riofta's request for DNA testing of the white hat was not precluded

simply because such testing could have been, but was not, conducted prior to trial. Id.


                                            14
No. 33179-2-111
Larson v. State


       Application of a similarly broad interpretation of "significant new exculpatory

information" would be consistent with the legislature's intent in enacting the WCPA. The

statute is remedial in nature, and "' remedial statutes are liberally construed to suppress

the evil and advance the remedy."' Go2net, Inc. v. FreeYellow.com, Inc., 158 Wn.2d

247, 253, 143 P.3d 590 (2006) (internal quotation marks omitted) (quoting Kitti/son v.

Ford, 23 Wn. App. 402,407, 595 P.2d 944 (1979)). The remedy the WCPA seeks to

advance is "to provide an avenue for those who have been wrongly convicted in

Washington state to redress the lost years of their lives, and help to address the unique

challenges faced by the wrongly convicted after exoneration." RCW 4.100.010.

       If, instead, we defined "significant new exculpatory information" narrowly to

include only information unavailable at trial, the number of wrongly convicted persons

eligible for relief under the WCPA would be greatly restricted. The only eligible wrongly

convicted persons would be those fortunate enough to discover significant new

exculpatory information that was unavailable at trial. All other wrongly convicted

persons would never be able to pursue a claim under the WCPA. We hold that "new" in

the context of "significant new exculpatory information" must be construed broadly to

include information that was available at the criminal trial but was not presented to the

fact finder.


                                             15
No. 33179-2-III
Larson v. State


       2. Convictions vacated and charges dismissed on the basis of the new information

       The trial court found that the claimants failed to prove by clear and convincing

evidence their convictions were vacated and their charges were dismissed based on the

new information. The trial court found the sole basis for vacation of their convictions and

dismissal of their charges was deficient performance of criminal counsel. The claimants

argue the trial court erred because the criminal court vacated their convictions because

deficient performance of criminal counsel caused significant exculpatory evidence not to

have been presented at trial.

       The criminal court's decision to vacate the claimants' convictions was based on

two documents and one witness not presented to the jury. The criminal court first

discussed the work records of Eric Weskamp, records that were not presented to the jury.

According to the criminal court, the work records provided "[ s]trong, credible alibi

evidence" that would have allowed trial counsel to argue the date of the crime was

April 15, 2008 and not April 17, 2008. Ex. P-16, at 4; Ex. P-17, at 4; Ex. P-18, at 4. But

the evidence went undiscovered due to the deficiencies of trial counsel.

       The criminal court next discussed the telephone records of the State's main

witness, Matthew Dunham. These records also were not presented to the jury. The

telephone records show Mr. Dunham spoke with the victims of the Weskamp robbery



                                            16
No. 33179-2-III
Larson v. State


before the crime occurred. However, at trial, Mr. Dunham stated he did not know any of

the victims of the Weskamp robbery. The telephone records contained "critical

information" and raised "significant questions" about the State's account of the crime and

Mr. Dunham's version of events. Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5. If trial

counsel had obtained the telephone records, they would have been able to "effectively

challenge the State's case and raise doubt." Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5.

       The criminal court next discussed the information that could have been elicited

through Shane Nielson, a witness who did not testify in the criminal trial. After the

April 23 robbery, Anthony Kongchunji took the shotgun used in that robbery to Mr.

Statler's home and left it there with Mr. Nielson. Mr. Nielson did not tell Mr. Statler

about the shotgun until the police arrived to search the home later in the evening.

Without Mr. Nielson's testimony, "the jury was left with the impression that Mr. Statler

was 'in the know' about the April 23 robbery," making it more plausible he was an

accomplice in the other robberies. Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5.

       Based on all the above information that was not presented to the jury, the criminal

court concluded the claimants were denied their right to effective assistance of counsel.

The criminal court's finding that criminal counsel was ineffective was based on their

multiple failures to discover "[s]trong, credible alibi evidence," "critical information,"



                                             17
No. 33179-2-III
Larson v. State


and other "potentially exculpatory evidence." Ex. P-16, at 4-5, 7; Ex. P-17, at 4-5, 7; Ex.

P-18 at 4-5, 7. The criminal court vacated the convictions because the effect of criminal

counsels' deficiencies undermined confidence in the verdicts. The State soon after

dismissed all criminal charges because it determined it had insufficient evidence to

proceed to trial. The only difference between initially proceeding to trial and later not

proceeding to trial was the new information.

       The State argues that the information that the criminal court found to be

exculpatory was not actually exculpatory. In general, the State argues the information

was not so critical or contradictory to have undermined the confidence in the jury's

verdict. The State's argument misses the point. The statutory language does not ask

whether the criminal court correctly vacated the convictions. Rather, the statutory

language asks whether the convictions were vacated and the charges were dismissed

based on the new information. The answer is an emphatic yes.

       In summary, the existence of significant new exculpatory information was the sole

basis for the criminal court's decision to vacate the convictions, which soon after resulted

in the dismissal of all criminal charges. We hold the trial court erred when it found the




                                             18
No. 33179-2-III
Larson v. State


claimants failed to satisfy the fourth WCP A element by clear and convincing evidence. 15

B.    Nonadmittance of hearsay evidence despite statutory directive to give due
      consideration to difficulties ofproof

      Despite substantial efforts, the claimants were unable to locate and subpoena Mr.

Weskamp to testify at their January 2015 WCPA trial. They, therefore, sought to admit

an April 2013 recorded interview between Mr. Weskamp and an investigator for the

Innocence Project.

      In the interview, Mr. Weskamp implicated Mr. Dunham's brother as a third person

involved in the robbery, and said he was unable to identify the other person or two

persons involved. By implication, Mr. Dunham lied when he did not identify his brother

as an assailant. By further implication, the one or two unknown persons were not the

three claimants. Mr. Weskamp further stated he was sure the robbery occurred early in

the week, perhaps April 15. He said he was pressured by the State to accept the State's

date, which he thought was April 18.

      The State filed a motion to exclude the recorded interview. In response,

the claimants argued the recorded interview should be considered pursuant to


      15
         Claimants assign error to finding 44, "limited evidence was presented that was
not put before the jury in the criminal trial." This assignment relates to the claimants'
argument that they met their burden of proof on the fourth WCPA element. We agree the
claimants met their burden of proof on this element and do not address this assignment.

                                            19
No. 33179-2-III
Larson v. State


RCW 4.100.060(3). The State argued the recorded interview was hearsay, they were not

invited to participate in the interview, and admitting the recorded interview would prevent

it from cross-examining Mr. Westkamp about his statements. The trial court granted the

State's motion and excluded the recorded interview.

       The standard of review for a trial court's decision to admit evidence under

RCW 4.100.060(3) has not been articulated. RCW 4.100.060(3) provides:

       In exercising its discretion regarding the weight and admissibility of
       evidence, the court must give due consideration to difficulties of proof
       caused by the passage of time or by release of evidence pursuant to a plea,
       the death or unavailability of witnesses, the destruction of evidence, or
       other factors not caused by the parties.

       Because the statute recognizes the trial court's discretionary authority to weigh and

admit evidence, we hold that a trial court's decision to admit or not admit evidence under

RCW 4.100.060(3) is reviewed for an abuse of discretion. See State v. Baldwin, 63 Wn.

App. 303, 312, 818 P .2d 1116 ( 1991 ). A trial court abuses its discretion when its decision

is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971).

       Here, the claimants argue the trial court's rigid application of evidentiary

rules was an abuse of discretion because if the legislature intended hearsay rules to apply,

RCW 4.100.060(3) would be superfluous. The claimants also argue policy considerations


                                             20
No. 33179-2-III
Larson v. State


favor the legislature's decision to loosen the evidentiary rules.

       We agree with the claimants that the legislature loosened the rules of evidence to

assist wrongly convicted persons establish their proof. We hold RCW 4.100.060(3)

authorizes a trial court to admit otherwise inadmissible evidence.

       But we disagree with the claimants that a trial court abuses its discretion when it

enforces the rules of evidence. Evidentiary rules have a purpose-to keep out unreliable

evidence.

       RCW 4 .100. 060(3) requires the court, in its discretion, to give due consideration to

difficulties of proof. If the court decides the difficulties of proof do not warrant admitting

certain evidence, the court has discretion to not admit it. That is what happened here.

The trial court listened to and considered the parties' arguments for and against admitting

the recording. The trial court then decided against admitting the recording because

(1) it was hearsay, (2) the statements in the recording were not made under oath, and

(3) admission would deprive the State of its ability to cross-examine Mr. Weskamp. The

trial court's decision was not manifestly unreasonable, and thus was not an abuse of

discretion.

C.     Did not engage in any illegal conduct

       RCW 4.100.060( 1)( d) requires a claimant to prove by clear and convincing



                                             21
No. 33179-2-III
Larson v. State


evidence he or she "did not engage in any illegal conduct alleged in the charging

documents." RCW 4.100.020(2)(a) makes the preceding quoted phrase synonymous with

"actually innocent." The claimants did not assign error to the trial court's legal ruling that

"charging documents" include the probable cause affidavits. Here, the probable cause

affidavits included a temporal component of "on or about April 15, 2008." Ex. D-115;

Ex. D-118; Ex. D-121.

       The claimants argue the trial court erred when it found they did not sufficiently

prove they were actually innocent. Specifically, they argue the trial court erred (1) by

using a heightened burden of proof applicable to personal restraint petitions and writs of

habeas corpus, (2) by requiring them to prove they could not have committed the robbery

anytime in April, when the evidence established the robbery occurred on either April 4 or

April 15, and (3) by not finding them actually innocent. We examine the first argument

separately, but because the second and third arguments are related, we examine them

together.

       1. Burden ofproof

       Statutory interpretation is a question of law that this court reviews de novo.

Berger, 144 Wn.2d at 104-05. If the statute is plain and unambiguous, this court does not

engage in statutory interpretation. Id. at 105.


                                             22
No. 33179-2-111
Larson v. State


       RCW 4.100.060 explicitly requires a claimant to prove the six statutory elements

by clear and convincing evidence. "Actually innocent," being synonymous with the fifth

WCPA element, is one of the statutory elements. We hold that RCW 4.100.060(1)(d)

requires a claimant to prove he or she was actually innocent by clear and convincing

evidence.

       In its conclusions of law, the trial court resorted to the interpretations of "actually

innocent" in the context of personal restraint petitions and writs of habeas corpus. The

trial court noted, "The standard for establishing a freestanding claim of actual innocence

is 'extraordinary high' and ... the showing [for a successful claim] would have to be

'truly persuasive."' CP at425 (quotingHerrerav. Collins, 506 U.S. 390,417,113 S. Ct.

853, 122 L. Ed. 2d 203 (1993)). In concluding its analysis of whether the claimants

proved their actual innocence, the trial court stated, "While the [claimants'] evidence

certainly casts doubt on the State's case, they have not met their extraordinarily high and

truly persuasive standard required for a claim of actual innocence." CP at 430 (emphasis

added). Intermixed between these pages in the trial court's decision, the trial court

sometimes refers to the clear and convincing burden of proof. Nevertheless, we are

convinced the trial court required the claimants to meet the heightened burden of proof

requirement for personal restraint petitions and writs of habeas corpus. In doing so, the


                                              23
No. 33179-2-III
Larson v. State


trial court erred.

       2. Application of correct standard ofproof to facts

       The claimants argue the trial court erred in requiring them to prove actual

innocence by proving they could not have committed the robbery anytime in April 2008.

They argue the facts establish the robbery had to have occurred on either April 4 or

April 15. 16 They then contend the facts establish they could not have committed the

robbery on either of those two dates. 17 Thus, they argue, this court should direct a verdict

in their favor on the fifth WCP A element.

       First, although we agree the evidence shows the robbery probably occurred on

April 15, this question is for the trier of fact. Second, the testimony is unclear if the

robbery occurred when it was getting dark or when it was completely dark. Third, Mr.

Dunham's recollection of a 30-minute delay between the robbery and when they divided


       16
           Specifically, Mr. Weskamp testified in the criminal trial he worked the day of
the evening when he was beaten, and missed work the following day. Examination of
Mr. Weskamp's time cards establish four days he missed work, but only two in which he
worked the prior day-April 4 or April 15.
        17
           Specifically, records establish it was not completely dark until 9: 14 p.m. on
April 4. Mr. Dunham testified they drove for 30 minutes after the robbery and before
returning to a house to split the stolen money. Assuming it would take five minutes to
divide the money and another five minutes for Mr. Larson to travel 2.5 miles from the
house to his work, the earliest Mr. Larson could have been to work was 9:54 p.m. But
Mr. Larson's time card shows he clocked in three minutes earlier, at 9:51 p.m. According
to the claimants, this three minute overlap establishes by clear and convincing evidence

                                              24
No. 33179-2-III
Larson v. State


the money at the house was possibly only a rough estimate.

       If the time line was as certain as the claimants contend, we might be persuaded to

direct a verdict. But the facts are uncertain. We deem it proper for the trier of fact-the

trial court here-to determine whether the claimants have proved by clear and convincing

evidence they are actually innocent. We remand for this purpose.

                                       CONCLUSION

       We affirm the trial court's evidentiary ruling excluding the recorded statement.

We reverse the trial court's legal conclusion that "significant new exculpatory

information" must be evidence that was unavailable at trial. We also reverse the trial

court's legal conclusion that the claimants' evidentiary burden to prove actual innocence

is greater than clear and convincing. We remand this case to the trial court for it to make

a factual determination whether the claimants have proved by clear and convincing

evidence they are actually innocent.


                                                 Lawrence-Berrey, A.CJ.
                                                                                     j
WE CONCUR:



 ~,~·
Siddoway, J.                                     Pennell, J.


they did not commit the robbery.

                                            25
