                                                                                                   20111 Nov /   3
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                                                                                                   sTE
                                                                                                  B.    N.
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT ?

                                             DIVISION II



STATE OF WASHINGTON,                                                          No. 45016 -0 -II


                                  Respondent,


        v.

                                                                       UNPUBLISHED OPINION
TROY ARNOLD MUONIO,


                                  Appellant.


       MAXA, J. —      Troy Muonio appeals his convictions for third degree child molestation,

communication with a minor for immoral purposes, and two counts of violating a pre -

arraignment sexual assault protection order ( SAPO).           He also challenges the entry of two post -

conviction SAPOs. Muonio' s convictions arise from his interaction with two teenage girls –


MSE   and   DNR – in a hotel hot tub.


       We hold that ( 1) defense counsel was not ineffective for failing to assert the corpus

delicti rule to preclude his conviction for third degree child molestation because that rule is

inapplicable to                Muonio                 his         before                the   crime, ( 2)
                  statements            made about          age            committing

sufficient evidence supports Muonio' s conviction for communication with a minor for immoral

purposes, (   3) defense counsel was ineffective for not challenging the applicability of the pre -

arraignment    SAPO because it had      expired at   Muonio'   s arraignment, (   4) the trial court did not


have authority to issue   a post- conviction   SAPO protecting MSE because              she was not    the   victim
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of a sex offense, and ( 5) the expiration date on the SAPO protecting DNR does not exceed the

statutory period.


        Accordingly, we ( 1) affirm Muonio' s convictions for third degree child molestation and

communication with a minor         for immoral   purposes, (   2) reverse and vacate Muonio' s two


convictions    for violating the   pre -arraignment   SAPO protecting MSE, ( 3) vacate the post -


conviction     SAPO protecting MSE, ( 4)     affirm the post -conviction SAPO protecting DNR, and ( 5)

remand for resentencing in light of our reversal of two of Muonio' s convictions.

                                                      FACTS


Hot Tub Incident


        In January 2011, Muonio encountered MSE and DNR in the pool area of a hotel in Battle

Ground. At the time, MSE was 16 and DNR was 15.


        Muonio struck up a conversation with MSE in the hot tub, and DNR soon joined.

Muonio told the girls he was 23 years old. In the course of the conversation, Muonio

commented on the girls' bodies, asked them whether they had ever been raped, suggested that

they should show him their breasts, and asked them whether they would take naked pictures of

each other     for $ 100.   He also dared MSE to touch DNR' s breast. Muonio at one point grabbed

MSE' s hand and placed it on DNR' s breast. MSE and DNR soon left the hot tub and later

reported the incident to the police.


         The State charged Muonio with indecent liberties with forcible compulsion against DNR,

third degree child molestation of DNR, communication with a minor for immoral purposes

concerning DNR, and fourth degree assault with sexual motivation of MSE. The, State later

dismissed the fourth degree assault charge involving MSE.


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Pre Arraignment SAPO Violations


        At Muonio' s probable cause hearing, the court issued a pre -arraignment SAPO

prohibiting Muonio from having contact with MSE, including coming within 1, 000 feet of

MSE' s place of employment. The trial court provided an expiration date of 10 years from the

date of the order. No such order was issued protecting DNR at that time. At Muonio' s

arraignment, the trial court issued a pre -trial SAPO protecting DNR, but took no action regarding

the pre -arraignment SAPO protecting MSE.

        In May and again in June of 2012, Muonio had contact with MSE when he went through

the drive -through window at a fast food restaurant where MSE worked. The State subsequently

charged Muonio with two counts of violating the pre -arraignment SAPO based on these contacts.

Trial and Post -Conviction SAPOs


        The case proceeded to a bench trial. One of the elements of third degree child

molestation is that the defendant be more than 48 months older than the victim. RCW

9A.44. 089( 1).   The only evidence the State presented regarding Muonio' s age was his statements
to MSE and DNR. Defense counsel did not object to these statements as inadmissible or argue

that the evidence was insufficient under the corpus delicti rule.


        After trial, the court dismissed the indecent liberties charge but found Muonio guilty of

third degree child molestation, communication with a minor for immoral purposes, and violating

the pre -arraignment SAPO on two separate occasions. The court then issued post- conviction

SAPOs protecting both MSE and DNR. Muonio objected to the SAPO protecting MSE because

she was not    a victim of a sex offense.   Muonio   appeals   his   convictions and challenges   the
45016 -0 -II




validity of the post- conviction SAPO protecting MSE and the duration of the post- conviction

SAPO protecting DNR.

                                               ANALYSIS


A.     INEFFECTIVE ASSISTANCE        OF   COUNSEL - CORPUS DELICTI


        Muonio argues that under the corpus delicti rule, his statements to MSE and DNR that he

was 23 years old could not be used to establish his age without independent corroborating

evidence, and his counsel was ineffective for not raising the corpus delicti issue. Because his age

was an essential element of third degree child molestation, Muonio requests that we reverse that


conviction. Assuming without deciding that the corpus delicti rule applied here, we hold that

Muonio' s counsel was not ineffective for failing to raise the corpus delicti issue.

        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).


Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness.      Grier, 171 Wn.2d    at   33. Prejudice exists if there is a reasonable


probability that, but for counsel' s deficient performance, the result of the proceedings would

have differed. Grier, 171 Wn.2d at 34. Reasonable probability in this context means a

probability sufficient to undermine confidence in the outcome. Grier, 171 Wn.2d at 34.

        When reviewing an ineffective assistance of counsel claim, we begin with the

presumption    that   counsel' s assistance was effective.    Grier, 171 Wn.2d   at   33. This presumption


continues until the defendant shows in the record the absence of legitimate strategic or tactical


reasons supporting his counsel' s conduct. Grier, 171 Wn.2d at 33 -34.


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          1.        Corpus Delicti Rule


          Under the corpus delicti doctrine, the State may not rely on the defendant' s statement to

establish an element of a crime without also presenting independent evidence that corroborates

that   statement.    State   v.   Brockob, 159 Wn.2d 311, 328, 150 P. 3d 59 ( 2006).   In determining the

sufficiency of independent evidence under the corpus delicti rule, we assume the truth of the
State' s evidence and view all reasonable inferences therefrom in the light most favorable to the

State. State   v.   Aten, 130 Wn.2d 640, 658, 927 P. 2d 210 ( 1996). The independent evidence need


not be sufficient to establish the element beyond a reasonable doubt or even by a preponderance

of the evidence. Aten, 130 Wn.2d at 656. The evidence only must provide " prima facie

corroboration" of the defendant' s statement. Brockob, 159 Wn.2d at 328.


          However, the corpus delicti corroboration requirement does not apply to statements a

defendant makes before or during the commission of a crime. State v. Witherspoon, 171 Wn.

App.    271, 296 -97, 286 P. 3d 996 ( 2012). The rationale for this rule is that such statements do not


contain the inherent weaknesses of confessions or admissions made after the fact. State v.

Pietrzak, 110 Wn.       App.      670, 681, 41 P. 3d 1240 ( 2002). The question here is whether Muonio' s


statement that he was 23 was made before the act that constituted third degree child molestation


  placing MSE' s hand on DNR' s breast.

          2.   Tuning of Statements

          The only evidence the State presented that Muonio was at least 48 months older than

DNR was MSE' s and DNR' s testimony that Muonio told them he was 23, and the State

presented no independent corroborating evidence. Arguably, defense counsel should have




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objected to that evidence or raised the corpus delicti issue in a motion to dismiss based on

sufficiency of the evidence. But even assuming that the failure to do so was deficient, we hold
that the failure to raise the issue caused no prejudice because there is sufficient evidence that

Muonio' s statement about his age was made before the child molestation. Therefore, the trial

court would have denied the motion to dismiss.

          MSE testified that at first she was alone in the hot tub with Muonio. The State then asked

if Muonio told her how        old   he   was, and   MSE testified that Muonio told her that he          was   23.   MSE


then testified that DNR joined them in the hot tub. The chronology of the testimony suggests

that Muonio made the statement about his age when he first talked to MSE.

          DNR testified that she joined MSE and Muonio in the hot tub, and that he started asking

if they   wanted   to play   games and "    it just   got   really creepy."   Report   of   Proceedings ( RP) ( Dec.


17, 2012) at 118. The State then asked DNR if Muonio told her his age, and she testified that

Muonio told her he      was   23.    Again, the chronology of the testimony suggests that Muonio made

the statement about his age before the breast touching incident.

          The State never specifically asked either MSE or DNR when Muonio told either girl his

age. But neither MSE nor DNR gave any indication that the statement was made after the breast

touching incident. And the testimony about the chronology of events suggests that Muonio told

the girls his age during the preliminary stages of their conversation rather than after the touching.

Similarly, the general chronology of events shows that the girls left the hot tub fairly soon after

the touching. It would have been reasonable for the trial court to infer from these circumstances

that Muonio made the statement about his age before the breast touching incident.




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        Based on this evidence, we hold that there is a reasonable probability that the trial court

would have found that the statement was made before the incident and ruled that the corpus

delicti rule was inapplicable. Muonio has the burden of showing prejudice in order to prevail on

his ineffective   assistance of counsel claim.     See Grier, 171 Wn.2d   at   32 -33. Here, there was


sufficient evidence to support a finding that the statement was made before the incident. There is

no way for Muonio to prove that the trial court would have ignored this evidence and applied the

corpus delicti rule.


         We hold that Muonio' s ineffective assistance of counsel claim regarding his conviction

for third degree child molestation fails. Accordingly, we affirm that conviction.

B.      SUFFICIENCY OF EVIDENCE - IMMORAL PURPOSE


         Muonio argues that there is insufficient evidence to support his conviction for

communication with a minor for immoral purposes because the State did not prove that his

communications with DNR involved unlawful sexual conduct. We disagree.


         The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond   a reasonable   doubt. State    v.   Homan, 181 Wn.2d 102, 105, 330 P. 3d 182, 185 ( 2014). In


evaluating a sufficiency of the evidence claim, we assume the truth of the State' s evidence and

all reasonable inferences drawn from that evidence. Homan, 181 Wn.2d at 106. We defer to the

trier of fact' s resolution of conflicting testimony and evaluation of the persuasiveness of the

evidence.      Homan, 181 Wn.2d    at   106.
45016 -0 -II



         Former RCW 9. 68A.090( 1) (         2006) 1 makes it a crime to communicate with a minor for

    immoral   purposes."   The   statute   does   not   define " immoral    purposes,"   but the case law


establishes that the phrase refers to unlawful sexual conduct. State v. Hosier, 157 Wn.2d 1, 9,

133 P. 3d 936 ( 2006); State      v.   Luther, 65 Wn.        App.   424, 425, 830 P. 2d 674 ( 1992). The issue


here is whether the State presented sufficient evidence that Muonio' s communications with DNR

referred to unlawful sexual conduct.


         The State asserts two different grounds for the conviction. First, the State asserts that

Muonio suggested that MSE touch DNR in a sexual manner, which constituted third degree child

molestation in violation of RCW 9A.44.089. Muonio argues that telling MSE to touch DNR did

not concern unlawful sexual conduct because the State' s evidence was insufficient to establish

his age due to the corpus delicti rule.2 But as discussed above, the corpus delicti rule did not bar

the evidence of Muonio' s age. Therefore, there was sufficient evidence of an immoral purpose

on this basis.


         Second, the State asserts that Muonio asked the girls to take naked pictures in exchange


for money, which would involve possession of a depiction of a minor engaged in sexually

explicit conduct in violation of RCW 9. 68A.070. Muonio argues that MSE' s vague testimony

about naked pictures did not establish that he actually asked them to take naked pictures. But the

evidence shows      that DNR —the        victim    identified in the information —expressly       testified that



1
    RCW 9. 68A.090     was amended         in 2013. However this amendment does not affect the
subsection cited.     LAWS OF 2013,        ch.   302, § 1.


2 Because his trial counsel did not raise corpus delicti, Muonio once again presents this issue in
the form of an ineffective assistance of counsel claim.



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Muonio "      asked us     if we   would   take   pictures   for money."    RP ( Dec. 17, 2012) at 119. Based on


the testimony of MSE and DNR, there was sufficient evidence of an immoral purpose on this

basis as we11. 3

           We hold that there was sufficient evidence to support Muonio' s conviction, for

communicating with DNR for immoral purposes. Accordingly, we affirm that conviction.

C.         PRE -ARRAIGNMENT SAPO VIOLATION CONVICTIONS


           Muonio argues that the pre -arraignment SAPO protecting MSE was inapplicable to his

violations because it expired at arraignment by operation of statute. As a result, Muonio claims

that his counsel was ineffective for not objecting to admission of the SAPO into evidence. We

agree. 4

           After Muonio was arrested, the trial court issued a SAPO prohibiting him from having

contact with MSE for 10 years. RCW 7. 90. 150( 1)( a) provides that a court may issue a SAPO

prohibiting any person charged with or arrested for a sex offense and released from custody from

having contact with the victim. But RCW 7. 90. 150( 4) provides that if the court issues a SAPO

prior   to charging, it expires at         arraignment ( or within   72 hours if      charges are not    filed). As a




3 Muonio also argues that there Was insufficient evidence that the naked pictures discussed were
in fact sexual in nature, pointing out that " naked pictures" could be a non -sexual photograph of a
bare    arm.   But DNR testified that " when           we asked what       kind   of pictures ... [   Muonio] implied
that   they   were   bad   pictures."   RP ( Dec. 17, 2012) at 119. And from DNR' s testimony and the
overall context of the conversation, the court reasonably could have inferred that Muonio was
asking for sexually explicit pictures.

4 Muonio also argues that the pre -arraignment SAPO protecting MSE was void from its inception
because MSE was not a victim of the charged crime and the SAPO' s 10 -year duration violated
the authorizing statute. Because we hold that the SAPO had expired before Muonio had contact
with MSE, we do not address these issues.

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result, the pre -arraignment SAPO expired when Muonio was arraigned, and it was inapplicable

when he subsequently had contact with MSE.

         At trial, defense counsel should have objected to admission of the inapplicable SAPO.

Therefore, counsel' s performance was deficient. The failure to object prejudiced Muonio

because under RCW 7. 90. 150( 4) the trial court would have ruled that the SAPO was

inadmissible and dismissed the two SAPO violation charges.


         The State argues that Muonio could not have challenged the pre -arraignment SAPO

under   the "   collateral   bar   rule,"   which generally prevents a party from challenging the validity of

a court order in a proceeding for violation of that order. City ofSeattle v. May, 171 Wn.2d 847,

852, 256 P. 3d 1161 ( 2011).           However, the collateral bar rule does not preclude challenges to the


applicability of an order. May, 171 Wn.2d at 855. The trial court' s gate- keeping role includes

excluding orders that are inapplicable to the defendant. May, 171 Wn.2d at 854. Here, the

SAPO was inapplicable              after arraignment   by   operation of   RCW 7. 90. 150( 4). As a result,


Muonio' s counsel could have challenged the order at trial.


         We hold that under RCW 7. 90. 150( 4) the pre -arraignment SAPO expired when Muonio

was arraigned, and therefore his counsel' s failure to challenge the applicability of the SAPO was

deficient and prejudiced him. Accordingly, we reverse and vacate Muonio' s two convictions for

violating that SAPO and remand for resentencing.




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D.      CHALLENGES TO THE POST -CONVICTION SAPOs

        Muonio argues that ( 1) the trial court had no power to issue the post -conviction SAPO


protecting MSE because she was not the " victim" of a sex offense for which a SAPO could be

issued, and ( 2) the post -conviction SAPOs had expiration dates beyond the period required by

statute. We agree with the former argument but reject the latter.


        Under RCW 7. 90. 150( 6)( a), the trial court at sentencing may prohibit a defendant

convicted of a sex offense from having contact with "the victim" of that offense, in which case a

SAPO    will   be issued   subject   to the duration   requirements of   RCW 7. 90. 150( 6)(   c).   Whether the


court is authorized to issue a post- conviction SAPO protecting a particular person and the

duration of any such SAPO both depend on statutory interpretation. Statutory interpretation

involves a question of law that we review de novo. State v. Ervin, 169 Wn.2d 815, 820, 239 P. 3d

354 ( 2010).


         1.     Victim Status


        Muonio challenges the post- conviction SAPO protecting MSE on the grounds that MSE

was not a victim of any crime for which the court could issue a SAPO. RCW 7. 90. 150( 6)( a)

authorizes issuance of SAPOs protecting " the victim" of various offenses, including third degree

child molestation and communication with a minor for immoral purposes. Notably, ch. 7. 90

RCW does       not   define " victim."   See RCW 7. 90. 010. However, a common sense understanding

of that term in the context of a sex offense is the person who the defendant is charged with and

convicted of offending against.




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        Muonio was charged with and convicted of two crimes that can support a SAPO under


RCW 7. 90. 150( 6)(   a).   He was charged with and convicted of communication with DNR for

immoral purposes. MSE was not referenced in this count of the information. As a result, we

hold that MSE cannot be a " victim" with regard to this crime.


        Muonio was also charged with third degree child molestation ofDNR. Again, MSE was

not the victim of this crime. In fact, Muonio could not have been charged with third degree child

molestation of MSE because she was 16, and this crime requires that the sexual contact be with a

person under the age of 16. RCW 9A.44. 089. However, the information for the third degree


child molestation charge did mention MSE, alleging that Muonio caused MSE to have sexual

contact with DNR.


        The State acknowledges that MSE was not the direct victim of child molestation,


characterizing her as the " conduit" through which Muonio completed the crime. Br. of

Respondent at 19. But the State argues for a more expansive definition of "victim" that takes

into account the harmful effects on a minor used as such a conduit. Br. of Respondent at 19.

The State argues that the SAPO was valid because MSE " was victimized" as a result of the

crime. Br. of Respondent at 20.


        We reject the State' s argument for three reasons. First, it is inconsistent with the plain


statutory language. RCW 7. 90. 150( 6)( a) allows issuance of a SAPO to protect " the victim" of a

sex offense, not anyone " victimized" by a crime. We construe unambiguous criminal statutes

strictly and will not add words to a statute under the guise of construction. State v. Delgado, 148

Wn.2d 723, 727, 63 P. 3d 792 ( 2003).      Read plainly, the term " victim" refers to the direct victim

of the crime charged. Construing " victim" more broadly changes its meaning.


                                                    12.
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        Second, even if we were to assume that the statutory language is ambiguous and move

beyond its plain meaning, there is no evidence that the legislature intended a broad reading of

 victim" for post- conviction SAPOs. Neither the legislative history nor the statute' s declared

purpose show any intent to protect those indirectly harmed by sex crimes. See FINAL B. REP. on

H.B. 2576, 59th   Leg., Reg.    Sess. ( Wash. 2006); RCW 7. 90. 005. In fact, the State points to no


authority and develops no argument on the question of legislative intent at all. Under the rule of

lenity, we must construe ambiguous criminal .statutes in favor of the defendant in the absence of

evidence indicating contrary legislative intent. State v. Rice, 180 Wn. App. 308, 313, 320 P. 3d

723 ( 2014).   Had the legislature intended to allow courts to issue SAPOs protecting third parties

who are used as conduits for the commission of the crime, it could have so provided.

        Third, expanding the concept of "victim" to include others " victimized" by the crime

would require courts to engage in an analysis not contemplated by the statutory language. Sex

crimes have many indirect victims, including family members and other people close to both the

direct victims and the defendant. See, e. g., RP ( May 24, 2013) at 93 ( judge noting at sentencing

 there are victims   all over   the   place ...   on   both   sides of   this   process ").   The State appears only to

be asking the court to define " victim" to include proximately close indirect victims, such as other

people used as conduits to complete a sex crime. Yet even this narrow conceptual expansion of


the word " victim" would create a vague, fact -dependent distinction. We are wary of such an

expansion without clearer statutory direction or precedent.




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        Accordingly, we hold that the " victim" of a sex crime is the direct victim only. Here, that

means construing " victim" as meaning the specific person described by the statute the defendant

was convicted of violating. Because the trial court was not authorized to issue the SAPO

protecting MSE, we vacate that order.

        2.     Duration


        Muonio challenges both post- conviction SAPOs on the grounds that their durations

exceed the effective period authorized by RCW 7. 90. 150. We disagree.

        According   to RCW 7. 90. 150( 6)(   c),   post- conviction SAPOs " shall remain in effect for a


period of two years following the expiration of any sentence of imprisonment and subsequent

period of    community    supervision, conditional release, probation, or parole."    On May 24, 2013,

the trial court sentenced Muonio to eight months confinement (with credit for time served) and


12 months community custody for felony third degree child molestation. Muonio was released

from confinement for his felony conviction on July 1, 2013, and therefore his subsequent period

of community custody ended on July 1, 2014. According to Muonio, this means that the correct

expiration date for the SAPOs is July 1, 2016, two years from the end of his sentence. Muonio

argues that the trial court erred because it inserted January 19, 2017 as the expiration date of the

SAPOs.


         However, Muonio' s conviction for child molestation was not his only conviction. The

trial court also imposed a 24 -month suspended sentence for the gross misdemeanor of

communication with a minor for immoral purposes. That sentence will not expire until May 24,

2015.   The State argues that the misdemeanor sentence should have extended the SAPOs'


expiration date to May 24, 2017.


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        Muonio argues that both SAPOs were based solely on his third degree child molestation

conviction. As Muonio points out, the orders on their face state " Criminal /Felony" and

communication with a minor for immoral purposes is a gross misdemeanor, not a felony. Clerks

Papers at 68. Further, the ordered expiration date, January 19, 2017, is 20 months ( the length of

his sentence) plus two years from the date of sentencing. This indicates that the court did not

base the expiration date on the communication with a minor for immoral purposes conviction

and sentence.




            But RCW 7. 90. 150( 6)(   a) requires   that "[   w] hen a   defendant is found guilty   of ...   any


violation of      RCW 9. 68A.090 [    communication with a minor            for immoral    purposes] ...   and a




condition of the sentence restricts the defendant' s ability to have contact with the victim, the

condition shall     be   recorded as a sexual assault protection order."            Muonio' s sentence for his


gross misdemeanors, including communication with a minor for immoral purposes, includes a

condition that he not have contact with DNR. Therefore, under RCW 7. 90. 150( 6)( a), the SAPO


protecting DNR must also relate to this offense.

            Because Muonio' s 24 -month suspended sentence expires on May 24, 2015, the expiration

date   on   the   SAPO   should   have been   May   24, 2017,      not   January   19, 2017. However, the State


did not cross appeal seeking an extended expiration date. Because we reject Muonio' s argument

that the expiration date listed on the face of the SAPO protecting DNR exceeds the statutory

period, we affirm entry of that SAPO.

            We affirm Muonio' s convictions for third degree child molestation and communication


with a minor for immoral purposes, reverse and vacate Muonio' s two convictions for violating

the pre -arraignment SAPO, vacate the post- conviction SAPO protecting MSE, affirm the post-


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conviction SAPO protecting DNR, and remand for resentencing in light of the reversal of two of

Muonio' s convictions.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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