                                                                                 FILED
                                                                         COURT OF APPEALS
                                                                               DIVISION II

                                                                        2014 DEC 30   AM 9 :143

                                                                        STATE OF WASHINGTON
                                                                         BY_
                                                                                  E UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

 STATE OF WASHINGTON,                                                    No. 44744 -4 -II


                                       Respondent,


           v.



 GEOFFREY ROBERT LAWSON,                                          PART PUBLISHED OPINION


                                       Appellant.


       JOHANSON, C. J. —            A jury found Geoffrey Lawson guilty of one count of first degree

burglary, two counts of second degree burglary, two counts of attempted voyeurism, and one count

of voyeurism.       Lawson appeals, alleging that there was insufficient evidence to support the

burglary    and   the   voyeurism       convictions.   Lawson contends alternatively that his burglary

convictions must be reversed because voyeurism does not constitute " a crime against a person or


property" that the burglary statute requires. In the published portion of the opinion, we hold that

voyeurism is a crime against a person and that sufficient evidence supports the burglary and

voyeurism convictions. We address Lawson' s remaining claims in the unpublished portion of this

opinion.    We    affirm   his   convictions.
No. 44744 -4 -II



                                                         FACTS


                                                 I. BACKGROUND


        In May 2012, Harrison Medical Center employee Ron Burrows entered one of the women' s

restrooms and began to sanitize the stall areas. As he opened the stall door, Lawson emerged and


ran off despite Burrows' s efforts to catch him. Harrison security manager Leon Smith identified

Lawson from a security video that showed Lawson entering the hospital through the loading dock

area.   The video also showed Lawson entering and exiting the women' s restroom over

approximately four hours.

        In June 2012, security officer J. K. was in the same women' s restroom at Harrison when

someone attempted    to   open   the   stall   door. Startled, J. K. observed men' s dress shoes underneath


the door. J. K. viewed security video and determined by the man' s pants and shoes that he was the

same person who tried to enter the stall while she used the restroom. Meanwhile,, other security

officers confirmed that the suspicious man was Lawson, who had returned to Harrison a second


time.   Security Supervisor Charles Nace and Officer Dakota Muir contacted Lawson, but he

resisted, causing Nace to fall to the floor with an injury.

        Also in June 2012, A.S.        used    the   women' s restroom         in   a   Barnes   and   Noble   store.   After


washing her hands, A.S. saw a man peering into the main bathroom area over the stall door adjacent

to the one she had used. According to A.S., the man, who she later identified as Lawson, quickly

ducked, but A. S.   could see    him through         a   gap in the   stall   doors.     A.S. reported the incident to


Barnes and Noble employees. Assistant store manager Amy King reviewed a store security video.

The video showed Lawson surreptitiously entering the clearly marked women' s restroom.




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No. 44744 -4 -II



                                                II. PROCEDURE


        The State charged Lawson by second amended information with one count of first degree

burglary, two counts of second degree burglary, one count of second degree assault, one count of

voyeurism, and       two   counts of attempted voyeurism.      The jury returned guilty verdicts on each

charge except for second degree assault.


                                                 ANALYSIS


                           INSUFFICIENT EVIDENCE OF BURGLARY AND VOYEURISM


        Lawson asserts that the State failed to introduce sufficient evidence to prove the Barnes


and Noble voyeurism charge and each of the burglary charges. We hold that there was sufficient

evidence to prove that Lawson viewed another person in a place where she had a reasonable


expectation of privacy and that a rational jury could have found that he committed assault while

in or in immediate flight from a building in which he was not lawfully entitled to remain. Thus,

we conclude that sufficient evidence supports Lawson' s voyeurism and burglary convictions.

                                           A. STANDARD OF REVIEW


        To determine whether evidence is sufficient to sustain a conviction, we review the evidence

in the light most favorable to the State. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182 ( 2014)


 citing State   v.   Engel, 166 Wn.2d 572, 576, 210 P. 3d 1007 ( 2009)).         The relevant question is


  whether any rational fact finder could have found the essential elements of the crime beyond a

reasonable   doubt. "' State    v.   Drum, 168 Wn.2d 23, 34 -35, 225 P. 3d 237 ( 2010) (   quoting State v.

Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)).          In claiming insufficient evidence, the defendant

necessarily admits the truth of the State' s evidence and all reasonable inferences that can be drawn

from it.   Drum, 168 Wn.2d at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068



                                                       3
No. 44744 -4 -II


 1992)).    We interpret the        evidence "' most      strongly     against   the defendant. "'   Homan, 181. Wn.2d


at   106 ( quoting Salinas, 119 Wn.2d        at   201).    We consider both circumstantial and direct evidence


as equally reliable and defer to the trier of fact on issues of conflicting testimony, witness

credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83

P. 3d 970 ( 2004).


             B. VOYEURISM: REASONABLE EXPECTATION OF PRIVACY IN THE RESTROOM


         Lawson contends that the State presented insufficient evidence that at Barnes and Noble


he viewed another person in a place where she would have a reasonable expectation of privacy

because he     viewed      A. S.   when she stood   by    the   sink   in the   restroom.   Lawson attempts to draw a


distinction between the private toilet stall and the other areas of the restroom where there would


be no expectation of privacy. We hold that a person has a reasonable expectation of privacy inside

a restroom.



         Under RCW 9A.44. 115( 2)(          a),   a person commits the crime of voyeurism if he knowingly

views another person in a place where that person would have a reasonable expectation of privacy.

For purposes of the crime of voyeurism, RCW 9A.44. 115( 1) states,

                    c) "   Place where he or she would have a reasonable expectation of privacy"
           means:

                    i) A place where a reasonable person would believe that he or she could
           disrobe in privacy, without being concerned that his or her undressing was being
           photographed or filmed by another; or
                   ii) A place where one may reasonably expect to be safe from casual or
           hostile intrusion or surveillance;
                    d) " Surveillance" means secret observation of the activities of another
           person for the purpose of spying upon and invading the privacy of the person.

Lawson' s argument is inconsistent with this statutory definition as our courts have construed it.




                                                                4
No. 44744 =
          4 -II



        In State     v.   Glas, 147 Wn.2d 410, 415, 54 P. 3d 147 ( 2002), our Supreme Court considered


which places a person would "`            reasonably expect to be safe from casual or hostile intrusion or

surveillance. "' (        Quoting RCW 9A.44. 115( 1)( b)( ii).)               The Glas court provided examples of


locations    where    subsection      RCW 9A.44. 115( 1)(    c)(   ii)   would    apply.   147 Wn.2d   at   416.   These


locations include places where a person may not normally disrobe, but if he or she did, he or she

would expect a certain level of privacy as they would in a person' s bedroom, bathroom, or a locker

room where someone may undress in front of others. Glas, 147 Wn.2d at 416. It would also apply

to places where someone may not normally disrobe, but would nonetheless expect another not to

intrude,   either   casually   or   hostilely.   Glas, 147 Wn.2d         at   416. Our Supreme Court distinguished


these kinds of places from purely public locations, such as the shopping mall or the Seattle Center.

Glas, 147 Wn.2d at 414.


           Here, it is undisputed that A.S. viewed Lawson by peeking over the restroom stall door in

a place that was clearly delineated for use by women only. Although the women' s restroom was

inside an otherwise public building and while a person might not usually disrobe inside the

common area, one expects privacy in a restroom. Glas, 147 Wn.2d at 416. Specifically, a woman

using a women' s restroom expects a certain degree of privacy from surveillance or from intrusions,

either casual or      hostile,   by   members of    the   opposite sex.          Accordingly, we hold that the State

presented evidence sufficient for a rational trier of fact to have found that Lawson committed


voyeurism by viewing A.S. in a place where she reasonably expected to be safe from casual or




                                                            5
No. 44744 -4 -II


                                                                                                                          1
hostile intrusion     or surveillance and,      therefore,   where she    had   a reasonable expectation of privacy.



Therefore, we affirm Lawson' s voyeurism conviction.


                          C. BURGLARY: A CRIME AGAINST PERSONS OR PROPERTY


         Lawson next argues that the evidence is insufficient to support the second degree burglary

convictions     because      voyeurism     is   not " a   crime       against   a   person    or   property,"   which is a


prerequisite to a burglary conviction.2 This argument fails. Lawson relies on State v. Devitt, 152

Wn.    App.    907, 912 -13, 218 P. 3d 647 ( 2009), where Division Three of this court held that


obstructing the police was not a crime against persons or property for the purpose of a conviction

for   second   degree     burglary. There, the court reached its conclusion in part because the crime at

issue was not listed among several others as a crime against a person under RCW 9. 94A.411, a

provision      of   the   Sentencing   Reform Act            of   1981 ( SRA),       ch.   9. 94A RCW, that governs


prosecutorial standards.        But our Supreme Court' s decision in State v. Snedden, 149 Wn.2d 914,

73 P. 3d 995 ( 2003),      offers a more apt comparison.



         In Snedden, our Supreme Court held that indecent exposure was a crime against a person


and   therefore     could serve as   the   predicate crime        for second degree        burglary. '   14.9 Wn.2d at 919.


There, the court considered the salve argument Lawson advances now, that the subject crime was




1 Lawson also argues that the evidence was insufficient to support the voyeurism conviction
because there is no evidence that Lawson viewed A.S.' s intimate areas during the Barnes and
Noble incident. But viewing a person' s intimate areas is merely one of two alternative means of
committing      voyeurism.      The State did not need to prove that its evidence supported the intimate
areas alternative because it only argued the reasonable expectation of privacy means.

2 A person is guilty of second degree burglary if, with intent to commit a crime against a person
or property therein, he or she enters or remains unlawfully in a building other than a vehicle or
dwelling. RCW 9A.52. 030( 1).



                                                                  6
No. 44744 -4 -II



not one " against a person" because it did not appear among the list of such crimes within RCW

9. 94A. 411.   Snedden, 149 Wn.2d              at   922. The Snedden court found this unpersuasive. The court


found that RCW 9. 94A.411 lists crimes for the purpose of establishing a list of prosecuting

standards and, as such, serves a wholly different purpose than the second degree burglary statute.

Snedden, 149 Wn.2d at 922. Additionally, the court concluded that this list was not applicable in

context because it was enacted several years after the second degree burglary statute and, therefore,

the list could not have been considered by the legislature when adopting the burglary statute.

Snedden, 149 Wn.2d             at   922.    And furthermore, the SRA list and second degree burglary statutes

are contained in separate chapters of the criminal code, which supports the notion that the


legislature did not intend the SRA list to be used as an interpretive device in other chapters of the


code. Snedden, 149 Wn.2d at 922.


           Additionally, the language of the voyeurism statute itself lends credence to the position

that   voyeurism   is   a " crime against a person."           A person commits voyeurism when he or she either


views another person without that person' s knowledge in a place where he or she has a reasonable

expectation of     privacy          or when    that   person views   the intimate   areas of another person.   RCW


9A. 44. 115 (2)( a)   -( b).




           Accordingly, we hold that voyeurism is a crime against a person and, therefore, can serve

as   the   predicate crime          for    second   degree   burglary.   We hold further that the State presented


sufficient evidence for a rational trier of fact to conclude that Lawson is guilty of the second degree

burglaries because he entered the women' s restroom with the intent to commit a crime against a


person or property. Therefore, we affirm Lawson' s second degree burglary conviction.




                                                                 7
No. 44744 -4 -II



                                  D. BURGLARY: IMMEDIATE FLIGHT


          Finally, Lawson argues that the evidence was insufficient to support his first degree

burglary conviction because it requires proof that the accused " in entering or while in the building

or   in immediate flight therefrom, the   actor or another participant      in the   crime ... (   b) assaults any

person.    RCW 9A. 52. 020( 1).   Lawson maintains that he was not in " immediate flight" from the


restroom at Harrison because he was stopped by security officer Nace elsewhere in the building

and because there was no testimony that Lawson appeared to be fleeing from the scene.

          Lawson ignores the statute' s language that provides that he can be guilty of first degree

burglary if he   assaults someone " while    in the   building."   Nace first encountered Lawson outside


the restroom that Lawson had entered previously. Nace and another officer took Lawson by each

arm to escort him towards the lobby when Lawson began to struggle to try to get away. Lawson

was    shoving, pushing, pulling,   and   trying   to free his   arms.   At some point during the struggle,

Lawson either kneed Nace or kicked Nace in the knee, causing Nace to fall in pain. Viewed in a

light most favorable to the State, this is sufficient evidence for a rational trier of fact to conclude


that the State proved that Lawson assaulted Nace " while in the building or in immediate flight

therefrom."    RCW 9A.52. 020( 1).    We hold that Lawson' s claim fails for this reason.


          In conclusion, we hold that sufficient evidence supports Lawson' s voyeurism, second


degree burglary, and first degree burglary convictions. We address Lawson' s remaining claims in

the unpublished portion of this opinion. We affirm his convictions.

          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.




                                                        8
No. 44744 -4 -1I


        Lawson also argues that ( 1) his constitutional right to notice of the charges against him was


violated, (   2) the trial court abused its discretion by denying Lawson' s motion for a bill of

particulars, (   3) he   was   denied his   right   to a unanimous      jury   verdict, (
                                                                                            4) the trial court erred by

admitting improper propensity          evidence      under       ER 404( b), ( 5)   the sentencing court failed to

properly determine his offender score and standard range, and ( 6) the trial court erred by ordering

repayment of expenses incurred by the State in prosecuting the alleged crimes as a legal financial

obligation (LFO).        Lawson also filed a statement of additional grounds ( SAG) in which he alleges


several additional errors. We hold that the first five arguments lack merit, that Lawson' s argument


regarding his LFOs is not properly preserved for review, and that Lawson' s SAG issues either lack

merit or are not properly before this court. Accordingly, we affirm Lawson' s convictions.

                                             ADDITIONAL FACTS


                                  I. INFORMATION AND BILL OF PARTICULARS


        The charging document included the relevant dates and county of the alleged crimes, along

with details identifying victims of the voyeurism charges, but otherwise the State relied on the

statutory language to describe each offense. Lawson did not challenge the information' s adequacy

before or during his trial.

        But Lawson filed a bill of particulars motion before trial, requesting several additional

pieces of information, including whether the State was relying on an unlawful entry or an unlawful

remaining theory, whether there was a victim associated with the May 17 incident at Harrison, and

where A.S. was located during the Barnes and Noble incident that would give rise to a reasonable

expectation of privacy among others. The State clarified which location was associated with each




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No. 44744 -4 -II



date   and   each     charge.      The trial court then denied Lawson' s motion, ruling that all other

information necessary to notify Lawson had been provided through the discovery process.

                                        II. ADMISSION OF ER 404(B) EVIDENCE


           Also before trial, the State moved to admit several instances of Lawson' s prior misconduct


involving either convictions or allegations of voyeurism or attempted voyeurism. Over Lawson' s

objection, the trial court ruled that several incidents of prior misconduct were admissible under ER


404( b).    The following evidence was admitted at trial.

           In 2008, R. A. -B.     entered   the   women' s restroom     inside     a   Seattle   church.   When R.A. -B.


turned to    flush the toilet,    she noticed a mirror underneath        the   stall   divider. She saw that it was a


man, whom she         identified   as   Lawson, in the   adjacent stall with     his   pants     down, " kind   of touching

 himself]."     2 Report     of   Proceedings ( RP)      at   165.   After Lawson was apprehended, witnesses


showed police officers several items they had removed from Lawson, including the mirror,

women' s     shoes,    and women' s pantyhose.           Eventually, Lawson pleaded guilty to one count of

voyeurism.



           In 2010, C. H. used the women' s restroom at a Bremerton church. As she left the restroom,


C. H.' s sister told C. H. that she saw a man inside one of the stalls. Both women went back into the


restroom where        they   saw   Lawson, through       a    gap, standing   on   the toilet.     Lawson left the stall,


claiming that he had mistakenly used the women' s restroom. Lawson later pleaded guilty to one

count of attempted voyeurism.




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No. 44744 -4 -II


                                                                                      3
          In 2011,     Q. H.   and   P. H.   were with   their   mother,   Shannon,       at   her   office.   Q.H. and P. H.

went to use the women' s restroom. P. H. looked behind her to make sure no one was looking at

her when she saw a man' s face through the crack in the stalls. Q. H. recalled seeing black women' s

high heeled shoes and black leggings in the stall next to her. When her daughters explained that


they had seen a man in the women' s restroom, Shannon and her coworker confronted the man,

whom they identified as Lawson, outside the restroom, but Lawson was able to exit through a

stairwell.   Shannon positively identified Lawson through a photomontage and he later pleaded

guilty to one count of voyeurism for the incident.

          The trial court ruled that these instances of prior misconduct were admissible under the


exception for common scheme or plan because the prior acts were markedly similar and shared a

concurrence of common            features     with   the charged crimes.     The trial court concluded further that


the misconduct was relevant and admissible under the exception for motive because it directly

showed a motive to enter or remain unlawfully for the purpose of sexual gratification.

Additionally, the trial court ruled that the prior misconduct was also relevant to show a lack of

accident or mistake.




          Following trial and finding Lawson guilty of all charges except the second degree assault

charge,   the   jury   also answered " yes"          on special verdict forms when asked whether the crimes

involved sexual motivation, whether a victim was present during the commission of some of the

crimes and, if so, whether the crimes involved an invasion of the victim' s privacy.




3 We refer to Shannon by her first name for the sake of confidentiality.


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No. 44744 -4 -II



          Before the sentencing hearing, the State filed two copies of prior judgment and sentence

documents as proof of Lawson' s previous voyeurism convictions. The sentencing court used these

exhibits in conjunction with the State' s sentencing memorandum to calculate Lawson' s offender

score    and   standard range.        Lawson objected to the presentence report, but not to the State' s


calculation of       his   offender' score.    The   court   then   sentenced       Lawson to 176          months.      Lawson


appeals.



                                                      ANALYSIS


                                    I. ADEQUACY OF CHARGING INFORMATION


          Lawson contends that the State violated his right to notice under the state and federal

constitutions because the charging document was factually inadequate. We hold that the charging

document was constitutionally adequate because the State is entitled to charge a defendant using

the language of the statute when the crime is a statutory offense.

                                  A. STANDARD OF REVIEW AND RULES OF LAW


          The Sixth Amendment to the United States Constitution                       provides    in    part, "   In all criminal


prosecutions,       the   accused shall ...   be informed    of   the   nature and cause of       the   accusation."     Article


I,   section   22   of   the Washington State Constitution         provides    in   part, "   In criminal prosecutions the


accused shall       have the   right ...   to demand the nature and cause of the accusation against him."


          We review a challenge to the sufficiency of a charging document de novo. State v. Zillyette,

178 Wn.2d 153, 158, 307 P. 3d 712 ( 2013) (            citing State v. Siers, 174 Wn.2d 269, 273 -74, 274 P. 3d

358 ( 2012)). A charging document             must allege "" [ a]   11   essential elements of a crime, "'           statutory or


otherwise to provide a defendant with sufficient notice of the nature and cause of the accusation


against him. Zillyette, 178 Wn.2d at 158 ( quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P. 2d



                                                              12
No. 44744 -4 -I1



86 ( 1991); U. S. CONST.     amend.            VI; WASH. CONST.          art.   I, § 22.   To satisfy this requirement, the

information     must   allege (   1) "    every     element   of   the    charged     offense"   and (   2) " particular facts


supporting them." State      v.   Nonog, 169 Wn.2d 220, 226, 237 P .3d 250 ( 2010) ( citing State v. Leach,

113 Wn.2d 679, 688, 782 P. 2d 552 ( 1989)); see also State v. Simms, 171 Wn.2d 244, 250, 250


P. 3d 107 ( 2011).     The primary purpose of the rule is to give the defendant sufficient notice of his

charges so he can prepare an adequate defense. State v. Tandecki, 153 Wn.2d 842, 846, 109 P. 3d


398 ( 2005).     Where the information' s sufficiency is challenged for the first time on appeal, we

construe the document liberally in favor of validity. Zillyette, 178 Wn.2d at 161 ( citing Kjorsvik,

117 Wn.2d at 105).


          We also distinguish between charging documents that are constitutionally deficient and

those that are merely " vague."               Leach, 113 Wn.2d at 686. A constitutionally deficient information

is subject to dismissal for failure to state an offense on the face of the charging document by

omitting allegations of the essential elements constituting the offense charged.4 Leach, 113 Wn.2d
at   686 -87.   An information that states each statutory element of a crime, but is vague as to some

other significant matter, may be corrected under a bill of particulars. Leach, 113 Wn.2d at 687.

                          B. INFORMATION NOT CONSTITUTIONALLY DEFICIENT


          The State charged Lawson with first and second degree burglary and voyeurism under

RCW 9A. 52. 020( 1), . 030( 1),          and RCW 9A.44. 115( 2).


          The information alleged in relevant part,


                   On or about May 17, 2012, in the County of Kitsap, State of Washington,
          the above -named Defendant, with intent to commit a crime against a person or

4
    Accord   Nonog,    169 Wn.2d         at   226 ( " Failure to allege each element means that the information is
insufficient to charge a crime, and so must be dismissed. ").




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No. 44744 -4 -II



        property therein, entered or remained unlawfully in a building; contrary to the
        Revised Code             of   Washington 9A. 52. 030( 1) [   Count I].


                On or about June 2, 2012, in the County of Kitsap, State of Washington, the
        above -named Defendant, for the purpose of arousing or gratifying the sexual desire
        of any person, did knowingly view, photograph, or film (a) another person, to wit:
        AKS, 06/ 10/ 1986, without that person' s knowledge and consent while the person
        was in a place where he or she would have a reasonable expectation of privacy;
        and /or ( b) the intimate areas of another person, to wit: AKS, 06/ 10/ 1986, without
        that person' s knowledge and consent under circumstances where the person has a
        reasonable expectation of privacy, whether in a public or private place; contrary to
        the Revised Code of Washington 9A.44. 115( 2) and Laws of 2003, Chapter 213.
         Count IV].


Clerk' s Papers ( CP) at 1 - 5.


        Frequently, charging information is challenged as deficient for its failure to allege essential

legal   elements       of    a    charged     crime.    But here,    Lawson asserts that the information was


constitutionally inadequate because it failed to sufficiently allege the facts underlying each element

of the offenses and because the charging document merely "parroted" the language of each statute.

He does not claim that he was unaware of the nature of the charges against him. Instead, Lawson


relies on the following language from Leach, where the court said that

         the "   essential        elements"     rule requires that a charging document allege facts
         supporting every element of the offense, in addition to adequately identifying the
         crime charged. This is not quite the same as a requirement to " state every statutory
         element of" the crime charged.

113 Wn.2d        at   689.       But Lawson' s argument is not convincing because the Leach court also

reaffirmed a longstanding rule that an information may rely on the language of a statute if the

statute defines the offense with certainty:

                      In   an   information ...    for a statutory offense, it is sufficient to charge in the
         language of the statute if the statute defines the crime sufficiently to apprise an
         accused person with reasonable certainty of the nature of the accusation.

 113 Wn.2d at 686 ( citing State v. Grant, 89 Wn.2d 678, 686, 575 P. 2d 210 ( 1978)).


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No. 44744 -4 -II



        And Leach " does not impose any additional requirement that the State allege facts beyond

those that sufficiently support the elements of the crime charged or that the State describe the facts

with great   specificity." State   v.   Winings, 126 Wn. App. 75, 85, 107 P. 3d 141 ( 2005) ( citing           Leach,

113 Wn.2d     at   688).   Moreover, even if a charging document does fail to allege specific facts, this

failure may render the charging document vague, but it does not render it constitutionally deficient.

State v. Laramie, 141 Wn. App. 332, 340, 169 P. 3d 859 ( 2007).

        Here, construed liberally, the information provided Lawson with sufficient notice of the

charges against     him.    Specifically, the information alleged that on May 17, June 2, and June 19,

2012, Lawson ( 1)      entered or remained     in   a   building, ( 2) unlawfully, and ( 3) with intent to commit

a crime against a person or property. It further alleged that on June 2, 2012, Lawson (1) knowingly

viewed,   filmed,    or photographed, ( 2) another person, ( 3)        without   that   person' s   knowledge, ( 4) in


a place where the other person had a reasonable expectation of privacy, or (5) viewed the intimate

areas of another person. Accordingly, we hold that the information adequately apprised Lawson

about the nature of the charges and that it was therefore constitutionally sufficient. But because

Lawson requested a bill of particulars, we next address whether the information was vague to the


extent that the trial court abused its discretion by denying Lawson' s motion for the same.

                                            II. BILL OF PARTICULARS


        Lawson argues that the trial court abused its discretion when it denied his motion for a bill


of particulars because the trial court' s denial infringed upon his right to demand the nature and


cause of the accusations against him. We disagree because no bill of particulars is required where


the information called for has been provided either in the charging document or in some other

satisfactory form.



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No. 44744 -4 -II



                                                A. STANDARD OF REVIEW


              Whether or not to grant a request for a bill of particulars is a matter left to the discretion of

the trial     court.   State   v.   Noltie, 116 Wn.2d 831, 845, 809 P. 2d 190 ( 1991);      CrR 2. 1( c). 5 Discretion

is abused when it is exercised on untenable grounds or for untenable reasons. State v. Dobbs, 180


Wn.2d 1,         10, 320 P. 3d 705 ( 2014) (      citing State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615

    1995)).


              A criminal defendant has " a constitutional right to be informed of the nature and cause of


the accusation against him" to enable him to prepare a defense. State v. Bergeron, 105 Wn.2d 1,

18, 711 P. 2d 1000 ( 1985) ( citing U.S. CONST.             amend.    VI; CONST.   art.   I, § 22 ( amend. 10)).   The


purpose of a bill of particulars is to " amplify or clarify particular matters essential to the defense."

State    v.   Holt, 104 Wn.2d 315, 321, 704 P. 2d 1189 ( 1985). But no bill of particulars is required if


the particulars are already in the charging document or if the information called for has been

provided by the government in some other satisfactory form. Noltie, 116 Wn.2d at 845.

                                            B. DENIAL OF LAWSON' S MOTION


              Before trial began, Lawson filed a motion for a bill of particulars alleging that he needed

several specific pieces of             information to   mount   his defense. Lawson argued that he was entitled


to additional information from the State including whether the State was relying on unlawful entry

or unlawful remaining, and whether it was relying on an intended crime against a person or against

property for purposes of the burglary charge. Lawson also suggested that he needed to know what



5
    CrR 2. 1(           Bill of Particulars. The court may direct the filing of a bill of particulars.
                 c) provides, "

A motion for a bill of particulars may be made before arraignment or within 10 days after
arraignment or at such later time as the court may permit."



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No. 44744 -4 -I1



alleged acts constituted his " common scheme or plan" for purposes of the ER 404( b) evidence the


State intended to use against him. CP at 322. At the hearing on his motion, Lawson argued that

he     was    entitled     to the " specific date and time of the offense, its location, the name of the


complainant and            the   victim, and   the   means     by   which [ he]   allegedly     committed   the   offense."   RP


 Jan. 4, 2013) at 84.


             But Lawson was not entitled to a bill of particulars because the vast majority of this

information had been.made readily available to Lawson in the charging document and through the

discovery process. Lawson did not dispute the State' s contention that Lawson had been provided

full   discovery      and   did   not present   any    argument       to the contrary.   6 The charging document already

contained         the date, location ( by county),            and the name and birthdate of any victim involved.

Additionally, the trial court required the State to supplement the charging document by describing

which building was associated with the charge on each of the dates in question. Subsequently, the

trial court ruled that the rest of the information to which Lawson was entitled had already been

provided through the discovery process. Lawson did not object to the court' s ruling.

             And finally, the State was not required to disclose which alternative means of burglary it

sought       to   pursue   to   prove   Lawson' s    guilt.   Rather, "[   w]hen a statute provides that a crime may be

committed in alternative ways or by alternative means, the information may charge one or all of



6 The statements of probable cause and investigation reports were attached to the first amended
information (        amended       to   add   the Barnes       and    Noble incident).         These attachments contained
narratives relating to each incident that described the facts and the parties involved in detail.
Although the State proceeded to trial on the second amended information, the only purpose of the
final amendment was to correct a clerical error related to the date of one of the incidents.
Additionally, the State asserted that it had essentially provided Lawson with the testimony of every
witness      because "[ i] t' s in the     reports" and "     their   testimony   will   be   consistent with   that." RP ( Dec.
3, 2012) at 9.




                                                                      17
No. 44744 -4 -II



the   alternatives, provided   the   alternatives are not repugnant   to   one another."
                                                                                           State v. Bray, 52 Wn.

App.   30, 34, 756 P. 2d 1332 ( 1988). Here, the State opted to include each of the alternative means


in the information. Accordingly, we hold that the trial court properly denied Lawson' s motion for

a bill of particulars because any particular information to which Lawson was entitled appeared in

the information or was made available in another satisfactory form, namely, the discovery process.

Noltie, 116 Wn.2d at 844. Lawson' s claim fails.

                                        III. UNANIMOUS JURY VERDICT


         Lawson contends that his right to a unanimous jury verdict was infringed both by the trial

court'.s failure to provide a unanimity instruction when the State relied on multiple acts to prove

one offense and also when the court instructed the jury on alternative means that were not each

supported    by   the   evidence.     We hold that no unanimity instruction was required because the

multiple acts that gave rise to the first degree burglary charge constituted a continuing course of

conduct, because the State elected and pursued only one means of committing burglary, and

because the State elected and pursued only one of two alternative means of committing voyeurism.

                                               A. MULTIPLE ACTS


          Here, Lawson contends that the second degree burglary conviction violated his right to a

unanimous jury verdict because the State introduced evidence both of Lawson' s entrance to

Harrison through the loading dock as well as Lawson' s entrance into the women' s restroom.

Lawson argues that a Petrich instruction should have been given because it was unclear upon




7 Lawson did request a State v. Petrich instruction, but his argument was related to alternative
means not " multiple acts."         101 Wn.2d 566, 683 P. 2d 173 ( 1984). But this issue asserts a manifest
constitutional error and may be raised for the first time on appeal. State v. Bobenhouse, 166 Wn.2d
881, 893, 214 P. 3d 907 ( 2009).




                                                        18
No. 44744 -4 -II



which    act   the   jury    voted    to convict.    We construe Lawson' s entrance into Harrison and his


subsequent entrance into the women' s restrooms as a continuing course of conduct.

         We review the adequacy ofjury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656,

904 P. 2d 245 ( 1995),        cert.   denied, 518 U. S.. 1026 ( 1996). Our state constitution requires that in a


criminal prosecution, an         impartial     jury render   a unanimous verdict.   CONST.   art.   I, §§ 21, 22; State


v.   Ortega -Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994); State v. Stephens, 93 Wn.2d 186,


190, 607 P. 2d 304 ( 1980).           Washington jurisprudence has produced two distinct lines of analysis


regarding the jury unanimity requirement. The review standard for whether the failure to provide

a unanimity instruction was error hinges on whether we are dealing with an alternative means case

or a multiple acts case.         State   v.   Bobenhouse, 166 Wn.2d 881, 892, 214 P. 3d 907 ( 2009).            When


the State presents evidence of multiple acts that could each form the basis for one charged crime,

the State must choose which of the acts it relied on or the court must give a Petrich instruction to


the jury, requiring them to agree on a specific criminal act.8 State v. Coleman, 159 Wn.2d 509,
511, 150 P. 3d 1126 ( 2007).


          But the necessity for a unanimity instruction does not arise where the evidence indicates a

 continuing      course of conduct."           State v. Locke, 175 Wn. App. 779, 803, 307 P. 3d 771 ( 2013),

review    denied, 179 Wn.2d 1021 ( 2014).               To determine whether there is a continuing course of

conduct, we evaluate the facts in a commonsense manner considering the time separating the

criminal acts and whether the criminal acts involved the same parties, location, and ultimate

purpose.       State   v.   Brown, 159 Wn.       App.   1, 14, 248 P. 3d 518 ( 2010), review denied, 171 Wn.2d




8 Petrich, 101 Wn.2d at 572 -73.




                                                               19
No. 44744 -4 -II



1015 ( 2011).   Evidence that a defendant engaged in a series of actions intended to secure the same


objective supports the characterization of those actions as a continuing course of conduct rather

than as several distinct acts. State v. Fiallo- Lopez, 78 Wn. App. 717, 724, 899 P. 2d 1294 ( 1995).

          Considering the facts in a commonsense manner compels the conclusion that Lawson

entered Harrison and the women' s restroom therein as part of a continuing course of conduct for

the purpose of committing voyeurism. The separate acts were close in time and were committed

at the same location. Assuming, without deciding, that entry through the private loading dock area

was a criminal act, Lawson' s entry into Harrison was accomplished to further his ultimate purpose

of   gaining   access   to the   women' s   restrooms.    Lawson could not have reached his intended


destination without first entering the main building itself. We hold that no unanimity instruction

was required because Lawson' s multiple acts were intended to secure the same objective, to enter


the women' s restroom with the intent to commit voyeurism.


                                            B. ALTERNATIVE MEANS


          Lawson also argues that his right to a unanimous jury verdict was violated because the

State failed to produce substantial evidence supporting each of the alternative means of the alleged

crimes.    Whether substantial evidence exists to support each alternative means of the crimes


charged is a matter we need not address because the State argued and presented evidence to the


jury only as to one means for both the burglary and voyeurism charges.

          Our analysis regarding a challenge to the unanimity requirement in an alternative means

case differs slightly from a challenge involving multiple acts. When a jury is instructed as to more

than one means of committing a criminal offense, our courts safeguard a defendant' s constitutional

right to a unanimous verdict by affirming a conviction only when ( 1) substantial evidence supports



                                                         20
No. 44744 -4 -I1



each   alternative   means   on    which   evidence     or   argument    was   presented,   or (   2)   evidence   and




argument is presented on only one means. State v. Witherspoon, 171 Wn. App. 271, 285, 286 P. 3d

996 ( 2012) ( quoting State   v.   Lobe, 140 Wn. App. 897, 905, 167 P. 3d 627 ( 2007)),            aff'd, 180 Wn.2d

875, 329 P. 3d 888 ( 2014).


         1.   BURGLARY CHARGES


         Second degree     burglary      can   be   committed   by   alternative   means:   either by unlawfully

entering a building or unlawfully remaining in a building. RCW 9A.52. 030. Lawson asserts that

the State did not introduce substantial evidence to support the " unlawful entry" means. We hold

that Lawson' s claim fails because, notwithstanding whether there exists enough evidence to

support the unlawful entry means, the State only presented evidence and argument on the unlawful

remaining means. 9

        For purposes of the burglary charges, the trial court' s " to- convict" instruction provides,

                 A person commits the crime of burglary in the second degree when he or
         she enters or remains unlawfully in a building with intent to commit a crime against
         a person or property therein.
                   A person enters or remains unlawfully in a building when he or she is not
        then licensed, invited, or otherwise privileged to so enter or remain.
                   A license or privilege to enter or remain in a building which is only partly
         open to the public is not a license or privilege to enter or remain in that part of the
         building which is not open to the public[.]
                 Unlawful remaining" occurs when ( 1) a person has lawfully entered a
         building pursuant to license, invitation or privilege; ( 2) the invitation, license or
         privilege   is expressly   impliedly limited; ( 3) the person' s conduct violates such
                                    or

         limits; and ( 4) the person' s conduct is accompanied by intent to commit a crime in
         the building.




9 At one point, the State claimed that it was proceeding under both an unlawful entry and an
unlawful remaining theory. But the State did so during a colloquy with the trial court, outside the
presence of the jury. Before the jury, the State only argued the unlawful remaining theory.



                                                         21
No. 44744 -4 -II



CPat517.


        While the instruction obviously refers to unlawful entry, the record establishes that the

State only     argued      the    unlawful     remaining theory before the             jury.   In closing argument, the

prosecutor     discussed the          elements of   the " to- convict" instructions       on   the   burglary   charges.   He


said,



        Let'   s   start   with    the first   part,   entered    or    remained     unlawfully.     The unlawful

        remaining, the State' s burden to prove if a person lawfully enters a building
        pursuant to license, privilege, or invitation. Start with that. It' s Harrison Hospital.
        It' s not in dispute. Most people, general public, can come into Harrison Hospital.
                Number 2, the invitation, license, or privilege is expressly or impliedly
        limited. There' s a sign on the door that says women' s restroom. It expressly states
        who can go into that area. Much like an employee only sign, this tells you who is
        permitted to go in that area. Impliedly, culturally, our society knows, from a young
        age, women. This sign means women. The bathrooms are divided for a sense of
        privacy.       The       person' s   conduct violates      such    limits.    You saw him go into the
        women' s restroom. You heard from Mr. Burrows, who found him in the women' s
        restroom in the handicapped stall. And his conduct is accompanied by an intent to
        commit a crime in the building.

4 RP at 559 -60.


        The State' s theory throughout the duration of trial was that Lawson exceeded the scope of

any license or privilege he may have had inside Harrison when he went into the women' s restroom

and remained        there for      extended periods        of   time.    The State never argued or implied that the


restroom     itself   should     be   considered a separate       building. And it is clear from closing argument

that the legality of Lawson' s entry into Harrison itself was not in dispute. Moreover, the prosecutor

went element by element through the definition for unlawful remaining, arguing to the jury that

the State' s evidence       established each.          Accordingly, "` [t]here [ wa] s no danger that the jury based

its guilty   verdict on    the    unsupported alternative means.'             Witherspoon, 171 Wn. App. at 287 (first




                                                                 22
No. 44744 -4 -II



alteration   in   original) ( quoting    Lobe, 140 Wn.        App.    at   909 ( Hunt, J.,   dissenting)).   We hold that no


unanimity instruction was required for this reason.

        2. VOYEURISM CHARGE


        There are two means by which Lawson could have committed voyeurism: viewing another

person in a place where that person had a reasonable expectation of privacy, or viewing the

intimate    areas   of another person without            that   person' s     knowledge.       RCW 9A.44. 115( 2)(    a) -( b).




Lawson argues that the trial court should have given a unanimity instruction because the State

failed to    present    substantial      evidence   to support the " intimate                areas"   means of committing


voyeurism. We disagree.


        Although viewing intimate areas may be an alternative means of committing voyeurism,

there is no mention of "intimate areas" anywhere in the trial court' s instructions to the jury. The

court' s " to- convict" instruction read,


                    A person commits the crime of voyeurism when, for the purposes of
        arousing or gratifying the sexual desire of any person, the person knowingly views
        a second person without the second person' s knowledge and consent, and while the
        second person is being viewed, the second person is in a place where he or she
        would have a reasonable expectation of privacy.

CP at 527. This instruction contains only the expectation of privacy means. The instruction then

provides     definitions for "[     v]   iew"   and "[   a]     place where a person would have a reasonable


expectation of      privacy."    CP at 527.


        The State also did not attempt to introduce any evidence which purported to establish that

Lawson      viewed     any   victim' s   intimate   areas.       And in closing, the prosecutor argued only that

Lawson      viewed    A. S. ( the victim of the Barnes and Noble incident) while she was in the restroom,


a   place    where     she   reasonably     expected       privacy, free         from casual or hostile intrusion or




                                                                 23
No. 44744 -4 -II


surveillance.     Accordingly, like         the   burglary   convictions, "`[    t]here [ wa] s no danger that the jury

based its guilty    verdict on       the   unsupported alternative means.'"             Witherspoon, 171 Wn. App. at

287 ( first   alteration   in    original) ( quoting   Lobe, 140 Wn.        App.   at   909 ( Hunt, J.,   dissenting)).   We


so hold.


                                                  IV. ER 404( B) EVIDENCE


         We turn next to Lawson' s argument that the trial court misinterpreted ER 404( b) and


violated Lawson' s Fourteenth Amendment right to due process by admitting improper propensity

evidence.      We hold that the trial court correctly interpreted ER 404(b) and did not abuse its

discretion by admitting the evidence of Lawson' s prior misconduct under recognized exceptions

to the general rule.


                                                  A. STANDARD OF REVIEW


         We review the trial court' s interpretation of ER 404( b) de novo as a matter of law. State


v.   Foxhoven, 161 Wn.2d 168, 174, 163 P. 3d 786 ( 2007).                    If the trial court interprets ER 404( b)


correctly, we review the trial court' s ruling to admit or exclude evidence of misconduct for an

abuse of discretion. Foxhoven, 161 Wn.2d at 174. A trial court abuses its discretion where it fails


to abide by the rule' s requirements. Foxhoven, 161 Wn.2d at 174.

         Generally, evidence of a defendant' s prior misconduct is inadmissible to demonstrate the

accused' s propensity to commit the crime charged. ER 404(b) 10; State v. Fisher, 165 Wn.2d 727,



10 ER 404( b) provides,
           Evidence of other crimes, wrongs, or acts is not admissible to prove the character
           of a person in order to show action in conformity therewith. It may, however, be
           admissible      for    other    purposes,   such    as   proof   of   motive,     opportunity, intent,
           preparation, plan, knowledge, identity, or absence of mistake or accident.



                                                               24
No. 44744 -4 -II


744, 202 P. 3d 937 ( 2009).         But ER 404( b) allows the introduction of prior misconduct for other


purposes like demonstrating motive or intent, common scheme or plan, or lack of mistake or

accident. Fisher, 165 Wn.2d at 744 n.2. And we read ER 404( b) in conjunction with ER 403. ER


403 requires the trial court to exercise its discretion in excluding relevant evidence that would be

unfairly prejudicial.


           Prior to the admission of misconduct evidence, the court must ( 1) find by a preponderance

of   the   evidence      the   misconduct   actually   occurred, (   2)   identify the purpose of admitting the

evidence, (     3) determine the relevance of the evidence to prove an element of the crime, and ( 4)


weigh the probative value against the prejudicial effect of the evidence. Fisher, 165 Wn.2d at 745


 citing State     v.   Lough, 125 Wn.2d 847, 853, 889 P. 2d 487 ( 1995); Foxhoven, 161 Wn.2d at 175).


Doubtful cases must be resolved in favor of exclusion. State v. Thang, 145 Wn.2d 630, 642, 41

P. 3d 1159 ( 2002).


                          B. EVIDENCE OF PRIOR MISCONDUCT PROPERLY ADMITTED


           In support of his assertion that the trial court misinterpreted ER 404( b) and abused its


discretion by admitting the prior misconduct, Lawson cites the procedure employed by the court

in Fisher. There, the State charged Timothy Fisher with crimes stemming from the sexual abuse

of his former step- daughter. Fisher, 165 Wn.2d at 733. Before trial, the State sought to introduce

evidence that Fisher physically abused his former step -children in order to explain the children' s

fear of Fisher as the cause of the step- daughter' s lengthy delay in reporting the abuse. Fisher, 165

Wn.2d      at   734.    The trial court determined that the physical abuse evidence would be admissible




                                                           25
No. 44744 -4 -II



under   ER 404( b),     albeit   conditionally."      165 Wn. 2d     at   734.   The court recognized the highly

prejudicial nature of the physical abuse evidence and accordingly conditioned admissibility on the

defense' s opening of the door. Fisher, 165 Wn.2d at 734. Only if the defense raised the delay in

reporting as an issue could the State introduce the evidence. Fisher, 165 Wn.2d at 734, 746.

          Our Supreme Court held that the trial court' s ruling was proper and concluded that the

ruling made sense given the fact that Fisher was not on trial for or charged with physical abuse

and the physical abuse only became relevant if the defense inquired into the delayed reporting.

Fisher, 165 Wn.2d        at   746.    Here, Lawson urges us to hold that the trial court erred by failing to

similarly condition the admissibility of Lawson' s prior misconduct on whether he raised certain

issues. Specifically, Lawson argues that because he never asserted that his entry into the women' s

restroom was an accident and because he never challenged the sexual gratification aspect of the

charge,   that the trial      court should not     have   admitted   any   evidence of   those issues.   But unlike


Fisher, Lawson was on trial for voyeurism and therefore it was proper for the trial court to admit


evidence regarding prior instances of voyeurism or attempted voyeurism as long as ER 404( b)

exceptions applied and the trial court properly weighed the potential prejudice of the evidence

against its probative value. Contrary to Lawson' s view, the Fisher court did not rule that a court

must condition ER 404(b) evidence on the defense' s broaching certain topics, only that such an

approach made sense on the facts of that case.


          Here, during the ER 404( b) hearing, the trial court properly applied the rule and carefully

considered whether exceptions applied based on the facts before it. The trial court found that each




11 These rulings were separate and distinct from rulings concerning Fisher' s abuse of his current
step -children   at   the time   of   trial.   The Fisher court concluded that the trial court had abused its
discretion by admitting evidence regarding the current step -children. Fisher, 165 Wn.2d at 750.


                                                            26
No. 44744 -4 -II



instance of prior misconduct that it ruled admissible had occurred by a preponderance of the

evidence. The trial court then found that each of the prior instances showed motive and Lawson' s

common scheme.



          As to each admissible instance of prior misconduct, the trial court also found that the


evidence was relevant and that the probative value of the evidence outweighed its prejudicial


effect. The trial court also memorialized its rulings in detailed findings of fact and conclusions of


law. The fact that the trial court refused to admit some of the prior misconduct because the alleged

instances were either too remote in time, too dissimilar, or too prejudicial bolsters the position that


the trial court did not haphazardly admit the evidence before properly considering the applicable

factors   set   forth   by   our    courts.     Furthermore, the trial court consistently provided limiting

instructions each time an ER 404( b) witness testified, imploring the jury only to consider the

evidence for the limited purposes for which it ruled the prior misconduct admissible. Accordingly,

we hold that the trial court did not abuse its discretion by admitting evidence of prior misconduct

under ER 404( b).


                                   V. OFFENDER SCORE AND SENTENCING RANGE


          We turn to Lawson' s argument that his sentence must be vacated when the sentencing court

failed to properly determine his offender score and sentencing range. We hold that the sentencing

court properly determined Lawson' s offender score and standard range because the State proved

Lawson' s criminal history by a preponderance of the evidence.

          A trial court must conduct a sentencing hearing before imposing a sentence on a convicted

defendant. RCW 9. 94A. 500( 1).               A defendant' s offender score affects the sentencing range and is

generally calculated by adding together the defendant' s current offenses and the prior convictions.



                                                            27
No. 44744 -4 -II



RCW 9. 94A.589( 1)(         a).   It is well established that the State has the burden to prove prior


convictions at     sentencing     by   a preponderance of              the   evidence.    State v. Hunley, 175 Wn.2d 901,

909 -10, 287 P. 3d 584 ( 2012) ( citing        State v. Ford, 137 Wn.2d 472, 479 -80, 973 P. 2d 452 ( 1999)).

 The best      evidence of a prior conviction           is   a certified     copy   of the   judgment." Ford, 137 Wn.2d at


480.


             Lawson' s argument that the State provided evidence of only one prior conviction for

voyeurism is unpersuasive. Attached to its sentencing memorandum, the State provided copies of

judgment and sentence documents that established that Lawson had two prior convictions for

voyeurism.       The State and the trial court relied on no more than these two previous convictions


and    the   convictions   Lawson      now appeals           in calculating his        offender score.   Therefore, the trial


court relied on no more information than that which was admitted by the plea agreement, or

admitted, acknowledged, or proved             in   a   trial   or at   the time   of   sentencing. RCW 9. 94A.530( 2). We


hold that Lawson' s claim fails.


                                          VI. LEGAL FINANCIAL OBLIGATIONS


             Finally, Lawson argues for the first time on appeal that the sentencing court lacked the

statutory authority to order him to pay the cost of court- appointed attorney fees when he

represented      himself throughout the trial.                 Lawson argues further that the trial court erred by

ordering him to pay costs and fees without first inquiring as to his present or future ability to satisfy

those    obligations.      We decline to exercise our discretion to review this issue raised for the first

time on appeal.         RAP 2. 5(   a);   State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review




                                                                   28
No. 44744 -4 -II



granted,    178 Wn.2d 1010 ( 2013).           We hold that Lawson failed to properly preserve the issue for

review.12

                                    VII. STATEMENT OF ADDITIONAL GROUNDS


         Lawson filed         a   SAG in    which      he    alleges   several additional errors.   We hold that these


claims likewise fail. 13

                                              A. ACCESS TO THE COURTS


         Lawson         asserts   that he   was    subjected     to " overwhelmingly     oppressive   interference"   and




denied   access     to the courts.      SAG       at   15.    Lawson claims that the trial court did not give him


adequate time to prepare, restricted his ability to interview witnesses, and did not provide him with

adequate resources. We hold that Lawson was not denied access to the court.


         Article I, section 22 affords a pretrial detainee, who has exercised his constitutional right


to represent himself, a right of reasonable access to State -provided resources that will enable him

to prepare a meaningful pro se defense. What measures are necessary or appropriate to constitute

reasonable access lies within the sound discretion of the trial court. State v. Silva, 107 Wn. App.

605, 622 -23, 27 P. 3d 663 ( 2001).




12
  Regarding Lawson' s claim that he should not be required to pay court- appointed attorney fees
because he proceeded pro se, we note that he did have a court- appointed attorney representing him
from June 2012 until November 2012.


13 We already addressed Lawson' s argument that his sentence was unconstitutional because his
offender        score   was   improperly     calculated.         This claim was raised and addressed as part of
Lawson'     s    opening brief.       Likewise, we decline to address Lawson' s argument regarding the
cumulative error doctrine because the cumulative error doctrine does not warrant reversal where
this   court    finds that there has been         no error.      Lawson also appears to make an equal protection
argument        based   on   membership in        a suspect class as "     black   and male."   SAG at 30. But he fails
to inform this court as to the nature and occurrence of the alleged error. RAP 10. 10( c).



                                                                  29
No. 44744 -4 -II



        In Silva, Silva did not have physical access to a law library; rather, he was given copies of

cases and      legal   publications     he   requested      by    citation.    107 Wn.   App.   at   623.    The trial court did


not assign Silva an investigator, nor was he always given advance notice to prepare for interviews.

Silva, 107 Wn.          App.    at   624.    Contrary to Silva' s assertion that the State provided insufficient

recourses, Division One of this court found that Silva' s access to legal material, pencils and paper,


copying services, inmate' s telephone, ability to serve subpoenas through the sheriff' s office,

witness interviews, and postage, among other things, constituted reasonable tools necessary to

prepare a meaningful pro se defense. Silva, 107 Wn. App. at 625 -26.

          Here, Lawson opted to represent himself notwithstanding the trial court' s suggestion to the

contrary.      Lawson was then appointed an investigator to arrange and conduct interviews, which


the prosecutor expressly stated would be accommodated and made available at the State' s office.

The trial      court granted continuances             to    allow   Lawson to      prepare.     Lawson was provided with


copies of the State' s exhibits, with pencils, paper, access to the jail law library, the inmate' s

telephone, the         use of   the sheriff' s     office   to   serve subpoenas, and     to   postage.      Accordingly, as in

Silva, Lawson was provided with the tools that our State constitution requires as necessary to

prepare a meaningful pro se             defense.      107 Wn. App. at 625 -26. Lawson' s claim fails.
                                                    B. BURGLARY STATUTE


          1.   OVERBREADTH


          Lawson         argues       that   the     burglary       statutes    under    which       he     was   convicted   are




unconstitutionally overbroad and are also void for vagueness. Regarding his claim that ch. 9A.52

RCW is overbroad, Lawson asserts that the statute effectively criminalized his lawful protest

against   the    City    of   Bremerton for its " deprivation            of    his property    right   to   water."   SAG at 25.




                                                                    30
No. 44744 -4 -II



Lawson argues further that the statute is overbroad because it is not unlawful for a member of the

public to use restroom facilities designated for the opposite sex.


        We review de novo a trial court' s interpretation of constitutional provisions and legislative

enactments.      State     v.   Immelt, 173 Wn.2d 1,           6, 267 P. 3d 305 ( 2011).              Generally, legislative

enactments are presumed            to be   constitutional.    Immelt, 173 Wn.2d            at   6. "` A law is overbroad if it


sweeps within     its   prohibitions     constitutionally    protected      free   speech activities. '    State v. Bradford,


175 Wn.      App. 912,    922, 308 P. 3d 736 ( 2013) ( quoting            City ofSeattle v. Huff, 111 Wn.2d 923, 925,

767 P. 2d 572 ( 1989)), review denied, 179 Wn.2d 1010 ( 2014).


        But the statute, by its own language, is not unconstitutionally overbroad because it

necessarily exempts lawful conduct and the First Amendment does not purport to protect criminal

activity. To be guilty of burglary in any degree, a person must ( 1) unlawfully enter or remain, (2)

with   the   intent to    commit     a    crime, (   3)   against    a   person    or   property.    Lawson' s argument is


unavailing because if his version of the events were believed, the State could not have proved the

elements of a burglary beyond a reasonable doubt. Regardless of the legality of using a restroom

meant for members of the opposite sex, Lawson would not have been guilty of burglary had he

entered the women' s restroom for the purpose of a constitutionally protected, lawful demonstration

of some kind. Instead, the State' s evidence showed that Lawson entered the women' s restrooms


with the intent to commit voyeurism, which is not constitutionally protected free speech or

conduct. Lawson' s claim fails.


         2. VAGUENESS


         Lawson         contends   that the    burglary      statute     was   unconstitutionally      vague.    But Lawson


makes no argument related            to    principles of vagueness.            Instead, he argues that proof of intent to




                                                                31
No. 44744 -4 -II



commit a crime does not establish unlawful entry and vice versa. Lawson fails to inform this court

as to the nature and occurrence of his vagueness challenge. RAP 10. 10( c).


                                       C. " VINDICTIVE PROSECUTION"


          Lawson     contends   that the State     engaged      in "   vindictive"   prosecution because the State


applied   different " charging      standards"    to him   as    it did to    other "   similarly   situated"   criminal




defendants in   Kitsap County.       SAG   at    9. Lawson suggests that the State' s decision to prosecute


him in this manner, because he is African American and because he is a male, signifies the " re-

emergence of unconstitutional ` Jim        Crow' laws."         SAG at 9.


          But Lawson cites no authority to support the proposition that the State must consider

 similarly   situated"   criminal   defendants     when    it determines      which crimes     it   will charge.   Most


importantly, there is no evidence nor are there facts existing in the record to support this contention

or any contention that the State engaged in racial or gender discrimination by charging him as it

did. And if a defendant wishes to raise issues on appeal that require evidence or facts not in the


existing trial record, the appropriate means of doing so is through a personal restraint petition

 PRP). State    v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). We hold Lawson' s claim


fails for this reason.


                                 D. INEFFECTIVE ASSISTANCE OF COUNSEL


          Lawson argues that he received ineffective assistance of counsel during the portion of the

proceedings where he was represented because his appointed counsel failed to sufficiently

investigate Lawson' s case, resulting in lost access to exculpatory evidence, and because counsel

failed to request the presence of witnesses at the ER 404( b) hearing.




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           Lawson offers no authority to support his claim that witnesses must be present during a

pretrial
           hearing   regarding the admissibility              of   ER 404( b)     evidence.   Furthermore, whether


Lawson' s appointed counsel sufficiently investigated his case again relies on evidence and facts

outside    the   record   before this      court.    Accordingly, this issue is properly raised in a PRP.

McFarland, 127 Wn.2d at 335.


                                         E. PROSECUTORIAL MISCONDUCT


           Lawson appears to contend that the State committed prosecutorial misconduct because the


State presented false and misleading evidence of sexual impropriety and because the prosecutor

committed misconduct in closing argument by suggesting to the jury that Lawson was witnessed

 touching himself in front         of
                                         an 11 - year   old   girl."   SAG   at   32.   We hold that no misconduct


occurred because the " false evidence" was witness testimony and the State merely mentioned the

same testimony in closing argument.

           To establish prosecutorial misconduct, Lawson has the burden of establishing that the

challenged conduct was           both improper      and prejudicial.     State v. Cheatam, 150 Wn.2d 626, 652,


81 P. 3d 830 ( 2003).      If a defendant fails to object to misconduct at trial, he fails to preserve the

issue unless he establishes that the misconduct was so flagrant and ill-intentioned that it caused an


enduring     prejudice    that   could    not   have been      cured   with an    instruction to the   jury.   State v.


Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).                        The focus of this inquiry is more on

whether the resulting prejudice could have been cured, rather than the flagrant or ill-intentioned

nature of the remark. State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).

           Here, the " false and misleading" evidence to which Lawson refers appears to be testimony

from R.A. -B., the victim of the Seattle church incident. R.A. -B. testified that she saw Lawson in




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the adjacent stall        with   his   pants   down, " kind of touching [ himself]." 2 RP at 165. Lawson contests.


the veracity of this testimony because R.A. -B. stated that she only saw Lawson pulling his pants

up   during a      defense interview           related   to that   case.     But the fact that R.A. -B.' s testimony during

Lawson' s trial was not identical to statements she made years earlier does not mean that her


statements were untrue. Even were that the case, Lawson fails to show how perjury by a witness

would support a prosecutorial misconduct claim. R.A. B
                                                     - . testified under oath. There is nothing

in the record to suggest the State presented " false evidence."

           Lawson also claims for the first time on appeal that the State committed prosecutorial


misconduct         in closing     argument when          the   prosecutor said, "    And in the prior cases, he' s viewing

little   girls   in the   women' s restroom ...           and   he'   s   touching himself." 4 RP at 586. Lawson argues

that these       are " material misstatements."                But Lawson failed to object below and his claim fails


because      the   prosecutor      did   not make        any improper        argument.   The evidence demonstrated that.


Lawson did          view    two young          girls   while   in the      women' s restroom on one    occasion.   And, as


mentioned, there was testimony that he had been seen touching himself. Lawson' s prosecutorial

misconduct claim fails.


           Affirmed.




 We concur:




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