                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      September 7, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47506-5-II

                               Respondent,

        v.

 DAVID MICHAEL KALAC,                                        UNPUBLISHED OPINION

                               Appellant.

       LEE, J. — David Michael Kalac broke out of his jail cell, walked up the stairs, and entered

the cell of another inmate, Wayne Carlson. Kalac pulled Carlson off of his bunk, kicked him, and

put him in a headlock until jail guards arrived approximately two minutes later. Kalac was

convicted of first degree burglary, unlawful imprisonment, and attempted fourth degree assault as

a lesser included offense to the charged crime of attempted first degree murder.

       On appeal, Kalac argues that (1) insufficient evidence was presented to convict him of

burglary because the State did not prove (a) Carlson’s cell constituted a “building,” nor that (b)

Kalac’s entry or remainder in Carlson’s cell was “unlawful”; (2) insufficient evidence was

presented to convict him of unlawful imprisonment; (3) the trial court’s dismissal without

prejudice of his attempted murder charge violates double jeopardy; (4) he received ineffective

assistance of counsel when his attorney failed to object to, and signed, the order dismissing the
No. 47506-5-II



attempted murder charged without prejudice; and (5) appellate costs should not be awarded against

him.

       We hold that sufficient evidence exists to persuade a rational trier of fact beyond a

reasonable doubt that Kalac was guilty of first degree burglary and unlawful imprisonment. We

also hold that the trial court’s dismissal without prejudice of his attempted murder charge violates

double jeopardy, and accordingly, we do not address his ineffective assistance of counsel claim.

Finally, we do not award appellate costs against Kalac. We affirm, but remand for the trial court

to dismiss the attempted first degree murder charge with prejudice.

                                              FACTS

       In December 2014, Kalac and Carlson were incarcerated in Unit B of the Kitsap County

Jail. Unit B has two floors with jail cells on each floor and a dayroom on the lower floor. Each

cell is equipped with a speaker and button to activate the speaker, which allows for two-way

communication between the cell and the guards. The door to each cell locks automatically when

it is closed. The door to each cell has a window, allowing people to speak through the doors. The

dayroom is a common area that is used by the inmates of Unit B at different times depending on

which floor of Unit B they are housed; the inmates housed on the lower floor are not in the dayroom

at the same time as inmates from the upper floor. One wall of the dayroom is a one-way mirror,

allowing guards to observe the activity in the dayroom without being in the dayroom. The one-

way mirror also enabled the inmates housed on the lower floor to see the majority of the cells on

the second floor. Inmates housed in the lower floor are not allowed on the upper floor, and no

inmate is allowed in another inmate’s cell.




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No. 47506-5-II



       Kalac was housed in the lower floor of Unit B and Carlson was housed in the upper floor.

Sometime in early December 2014, while Carlson was in the dayroom and Kalac was locked in

his cell, Carlson flipped Kalac off. The two subsequently engaged in a heated verbal exchange at

Kalac’s cell door, with Carlson in the dayroom and Kalac locked in his cell. Kalac decided to fight

Carlson.

       On December 9, 2014, Kalac returned to his cell from the dayroom and placed a playing

card in the locking mechanism of his cell door. He then closed his cell door, making it appear to

the guards as though he were locked in, while the playing card kept the door from locking. Kalac

watched the reflection in the one-way mirror as Carlson returned to his cell but did not close his

cell door. Kalac then pushed his cell door open and proceeded upstairs to Carlson’s cell. The

video recordings of the dayroom show it was 4:58 p.m.

       Kalac entered Carlson’s cell, closed the door behind him, and pulled Carlson off of the top

bunk. Kalac’s and Carlson’s accounts of the following assault differ, but both agree that Kalac

kicked and tried to punch Carlson before putting Carlson in a headlock. During the scuffle, Carlson

was able to push the emergency button in his cell repeatedly and Carlson’s head hit the sink in the

cell. Three officers responded, ordering Kalac to stop and get on the ground with his hands behind

his back. Kalac complied and the officers entered. The video recordings of the dayroom show the

officers entering Carlson’s cell at 5:00 p.m.

       Kalac was charged with first degree burglary, unlawful imprisonment, and first degree

attempted murder. A jury found him guilty of first degree burglary, unlawful imprisonment, and

attempted fourth degree assault as a lesser included offense to the attempted first degree murder




                                                3
No. 47506-5-II



charge.1 The jury also found by special verdict that Kalac restrained Carlson without consent and

by physical force, intimidation, or deception. The trial court entered an order dismissing the

attempted first degree murder charge without prejudice. Kalac was sentenced to a total of 41

months and, finding that Kalac did not have the ability to pay legal financial obligations (LFOs),

the sentencing court imposed only mandatory LFOs. Kalac appeals.

                                           ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       A challenge to the sufficiency of the evidence to convict is a constitutional question we

review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Our Supreme Court in

Rich explained this court’s review on a sufficiency of the evidence challenge as follows:

               The State bears the burden of proving all the elements of an offense beyond
       a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
       368 (1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. To determine if
       sufficient evidence supports a conviction, we consider “‘whether, after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable doubt.’”
       State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (some emphasis omitted)
       (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
       (1979)). “[I]nferences based on circumstantial evidence must be reasonable and
       cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318
       (2013). A “‘modicum’” of evidence does not meet this standard. Jackson, 443
       U.S. at 320.

Rich, 184 Wn.2d at 903.




1
  Because the jury found Kalac guilty of fourth degree assault as the lesser included offense to the
attempted first degree murder charge, no mistrial was declared on the attempted first degree murder
charge.


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No. 47506-5-II



       1.      Burglary Conviction

       Kalac argues insufficient evidence was presented at trial to convict him of burglary.

Specifically, Kalac argues insufficient evidence was presented to establish that Carlson’s cell was

a “building,” and that his entry into or remaining within Carlson’s cell was “unlawful,” as each

term is used in the burglary statute. Br. of Appellant at 9-17. We hold that sufficient evidence

was presented to show Carlson’s cell was a “building” and Kalac’s entry and remainder in

Carlson’s cell was “unlawful” as those terms are defined in Washington’s statutory proscription

of burglary.

       Kalac was convicted of first degree burglary. First degree burglary is statutorily proscribed

in Washington as follows:

       A person is guilty of burglary in the first degree if, with intent to commit a crime
       against a person or property therein, he or she enters or remains unlawfully in a
       building and if, in entering or while in the building or in immediate flight therefrom,
       the actor or another participant in the crime (a) is armed with a deadly weapon, or
       (b) assaults any person.

RCW 9A.52.020(1). Thus, first degree burglary requires, as elements to the offense, that the

defendant enter or remain “unlawfully” in a “building.” RCW 9A.52.020(1).2

       We review issues of statutory construction de novo. State v. Wentz, 149 Wn.2d 342, 346,

68 P.3d 282 (2003). We look to the statute’s plain language in order to give effect to legislative

intent, giving statutory terms their plain and ordinary meaning. Id. at 346. Whenever possible,

statutes are read in harmony and in such manner as to give each effect. State v. Bays, 90 Wn. App.




2
  The to-convict jury instruction mirrored this language. Kalac does not assign error to any of the
jury instructions.


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No. 47506-5-II



731, 735, 954 P.2d 301 (1998). Statutes are interpreted to give effect to all language in them and

to render no portion meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318

(2003).

                  a.      “Building”

          Kalac argues that jail cells are not “buildings” within the meaning of the statute, but at the

very least, the rule of lenity requires the adoption of a narrower definition of “building.” Br. of

Appellant at 15. In support, he uses the definitions of “building” from State v. Thomson, 71 Wn.

App. 634, 861 P.2d 492 (1993); State v. Deitchler, 75 Wn. App. 134, 876 P.2d 970 (1994), review

denied, 125 Wn.2d 1015 (1995); and State v. Miller, 91 Wn. App. 869, 960 P.2d 464 (1998), review

denied, 137 Wn.2d 1012 (1999), to argue that in order for a place to be considered a building, there

must be “a separate ‘privacy interest’ from other tenants in their space.” Br. of Appellant at 12

(quoting Thomson, 71 Wn. App. at 645). We hold that jail cells are “buildings” for purposes of

the burglary statute.

          RCW 9A.04.110(5) provides the statutory definition for “building” as follows:

                 (5) “Building,” in addition to its ordinary meaning, includes any dwelling,
          fenced area, vehicle, railway car, cargo container, or any other structure used for
          lodging of persons or for carrying on business therein, or for the use, sale, or deposit
          of goods; each unit of a building consisting of two or more units separately secured
          or occupied is a separate building.

“Dwelling” is “any building or structure . . . or a portion thereof, which is used or ordinarily used

by a person for lodging.” RCW 9A.04.110(7).

          In Thomson, a woman invited Thomson back to her house one night, whereupon she

rebuffed his sexual advances and told him he could sleep in the guest bedroom. 71 Wn. App. at




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No. 47506-5-II



636. The woman returned to her room and locked her bedroom door behind her. Id. During the

night, Thomson broke through the woman’s bedroom door and raped her. Id. On appeal, the court

held that the woman’s entire home constituted a “building” under RCW 9A.04.110(5), rather than

her individual room. Id. at 646.

       The Thomson court held that the phrase of RCW 9A.04.110(5) that follows the

semicolon—“each unit of a building consisting of two or more units separately secured or occupied

is a separate building”—was intended by the legislature to define each unit within a multi-unit

structure as an individual “building” where each unit is occupied by different tenants. Id. at 645.

The court reasoned that, in a multi-unit structure, “each tenant has a privacy interest in his or her

room or apartment, and that interest is separate from the interests of other tenants.” Id. The court

further held that applying “the rule of lenity would lead us to the same construction of the statute,”

specifically, that “RCW 9A.04.110(5) should be construed as applying to multi-unit buildings in

which two or more rooms are occupied or intended to be occupied by different tenants separately,

but not to dwellings wholly occupied by a single tenant.”3 Id. at 645-46.

       A year later, the issue of what constituted a “building” under RCW 9A.04.110(5) was again

considered in Deitchler, 75 Wn. App. at 136. The Deitchler court held that an evidence locker in

a police station that was ten inches high, by ten inches wide, and about two feet deep, was not a

“building” under RCW 9A.04.110(5), and therefore, a burglary conviction could not be affirmed.

Id. at 135, 137.




3
  The court defined the rule of lenity, “The rule of lenity provides that ambiguity in a criminal
statute should be resolved in favor of the defendant.” Thomson, 71 Wn. App. at 645.


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No. 47506-5-II



       The court explained:

               RCW 9A.04.110(5) has two parts, one preceding and one following the
       semicolon. The first deals with “buildings” not within a larger “building.” The
       second deals with “buildings” within a larger building. According to the second, a
       structure or space within a larger building will be a “separate building” if the larger
       building has “two or more units separately secured or occupied”, and the structure
       or space being considered is one of those “units”. By negative implication, a
       structure or space within a larger building will not be a “separate building” unless
       the larger building has “two or more units separately secured or occupied”, and the
       structure or space being considered is one of those “units”.

Id. at 137. Because the police station was occupied by a single tenant, the Deitchler court held

there was no separate privacy interest between the police station and the evidence locker such that

the evidence locker could be considered a separate building. Id.

       Finally, the definition of “building” under RCW 9A.04.110(5) was again considered in

Miller. 91 Wn. App. 869. In Miller, an apartment manager discovered Miller in or around the

basement storage locker of one of the apartment’s tenants and called the police. Id. at 870-71. The

police tracked Miller’s car and called the manager to identify Miller and the items in Miller’s

possession. Id. at 871. The manager was able to unlock a padlock found in Miller’s jacket with

his manager’s keys and identify luggage in Miller’s back seat that came from a storage locker of

one of the apartment’s tenants. Id.

       The Milller court held that the storage locker was considered a separate “building,” apart

from the larger apartment building within which the storage locker was located. Id. at 870. The

court reasoned that “the storage locker Miller broke into was large enough to accommodate a

human being, that is, to allow entry or occupation.” Id. at 873. “Moreover, the padlocked, door-




                                                 8
No. 47506-5-II



accessed unit was secured from other tenants, the manager or building owners of the apartment

complex, indicat[ed] a separate privacy interest.” Id.

       Here, the language of the statute defining “building” unambiguously includes a jail cell,

and the reasoning expressed in Thomson, Deitchler, and Miller support the definition of “building”

to include a jail cell. First, jail cells are “used for lodging of persons,” and therefore fit the plain

language of the statutory definitions of “building” and “dwelling” as defined in the burglary

statute. RCW 9A.04.110(5) (“‘Building,’ . . . includes any dwelling . . . or any other structure used

for lodging of persons”); RCW 9A.04.110(7) (“‘Dwelling’ means any building or structure . . . or

a portion thereof, which is used or ordinarily used by a person for lodging”). Second, Thomson,

Deitchler, and Miller each held that the portion of the definition of “building” that follows the

semicolon was intended by the legislature “to define ‘building’ to include each unit of a multi-unit

building where each unit is occupied by a different individual.” Miller, 91 Wn. App. at 872. A

jail is a multi-unit building where each unit is occupied by a different individual or, in this case, a

different pair of individuals.

       Kalac’s argument that there must be “a separate ‘privacy interest’ from other tenants” in

order for it to be a considered a building fails because the reasoning from Thomson, Deitchler, and

Miller support the opposite conclusion. Br. of Appellant at 12 (quoting Thomson, 71 Wn. App. at

645). Here, the inmates have an interest in their respective jail cells that are “separate from the

interests of [the] other tenants,” where those “other tenants” are the other inmates. Thomson, 71

Wn. App. at 645 (reasoning that units within a multi-unit structure are separate buildings for

purposes of the burglary statute when the tenants of each unit have an interest in their unit that “is




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No. 47506-5-II



separate from the interests of other tenants.”). Additionally, within Unit B, there are 13 cells on

each floor and each cell has its own locking mechanism; thus, the jail is “the larger building [and]

has ‘two or more units separately secured or occupied,’” making each “unit,” or jail cell, a

“separate building.” Deitchler, 75 Wn. App. at 137 (reasoning that a space is considered a

“‘separate building’ if the larger building has ‘two or more units separately secured or occupied.’”).

Finally, each cell is “large enough to accommodate a human being” and is designed to be secured

from other inmates, and, therefore, each cell is considered a “building” for the purposes of the

burglary statute. Miller, 91 Wn. App. at 873 (reasoning that a space was considered a building

when it “was large enough to accommodate a human being, that is, to allow entry or occupation,”

and was secured from other tenants but not the manager of the larger structure).

        In conclusion, we hold that jail cells are separate buildings within the meaning of RCW

9A.52.020(1) and RCW 9A.04.110(5), and that sufficient evidence was presented to establish that

Carlson’s cell was a “building.” The rule of lenity does not apply to give Kalac’s interpretation

effect because there is no ambiguity in the statutes as they relate to the inclusion of a jail cell within

the definition of a “building” that can be burglarized under RCW 9A.52.020(1) and RCW

9A.04.110(5).

                b.      “Unlawfully”

        Kalac argues that even if the cell qualified as a building, the State failed to prove that he

“unlawfully” entered or remained in Carlson’s cell. Br. of Appellant at 16. Specifically, Kalac

argues that the State did not present any evidence of jail regulations that forbade inmates from

entering another inmate’s cell. We disagree.




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No. 47506-5-II



       Former RCW 9A.52.010(3) (2011) provides the statutory definition for “[e]nters or

remains unlawfully.”

       A person “enters or remains unlawfully” in or upon premises when he or she is not
       then licensed, invited, or otherwise privileged to so enter or remain.

“‘Premises’ includes any building [or] dwelling.” Former RCW 9A.52.010(1). “The law of

burglary was designed to protect the dweller, and hence, the controlling question here is occupancy

rather than ownership.” State v. Schneider, 36 Wn. App. 237, 241, 673 P.2d 200 (1983).

       Here, Carlson testified that there is a rule book and inmates are provided those rules when

they are booked into the jail. He testified the rules do not allow inmates from the lower floor to

go to the second upper floor and that inmates are not allowed to go into other inmates’ cells. Kalac

testified that he knew he was not supposed to go into another inmate’s cell, that he should not have

been in Carlson’s cell, and that he intentionally went into Carlson’s cell without invitation. He

further testified that he knew he would be seen and caught in Carlson’s cell. Finally, the cell

Carlson occupied was a “premises” for the purposes of the burglary statute because it was a

“building.” See subsection a, supra. Accordingly, the testimony presented at trial established

Kalac was not “licensed, invited, or otherwise privileged to so enter or remain” in the cell Carlson

occupied, and therefore, we hold Kalac’s entry and remainder in the cell Carlson occupied was

“unlawful.” Former RCW 9A.52.010(3).

       Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact

could have found beyond a reasonable doubt the elements of burglary Kalac challenges. Therefore,

we affirm his conviction for first degree burglary.




                                                11
No. 47506-5-II



       2.      Unlawful Imprisonment Conviction

       Kalac argues that the evidence presented was insufficient to convict him of unlawful

imprisonment. Specifically, Kalac argues that he did not restrain Carlson’s movements in a

“substantial” or “considerable” manner. Br. of Appellant at 19, 20, 21. We hold that sufficient

evidence was presented to convict Kalac of unlawful imprisonment.

       “A person is guilty of unlawful imprisonment if he or she knowingly restrains another

person.” RCW 9A.40.040(1). “‘Restrain’ means to restrict a person’s movements without consent

and without legal authority in a manner which interferes substantially with his or her liberty.

Restraint is ‘without consent’ if it is accomplished by (a) physical force, intimidation, or

deception.” RCW 9A.40.010(6). For restraint to be substantial, there must be a “‘real’ or

‘material’ interference with the liberty of another as contrasted with a petty annoyance, a slight

inconvenience, or an imaginary conflict.” State v. Robinson, 20 Wn. App. 882, 884, 582 P.2d 580

(1978), aff’d, 92 Wn.2d 357, 597 P.2d 892 (1979).

       Here, Kalac entered Carlson’s cell and closed the door, knowing that when the door closed

it would lock and remain so until unlocked by the guards who would come break up the fight.

Kalac testified that when he heard the guards enter the dayroom downstairs and yell “lockdown”

he put Carlson in a headlock and “wanted to hold on to Mr. Carlson long enough for the guards to

get there” to the door of Carlson’s cell. 6 VRP at 909. Kalac held Carlson in a headlock inside

the locked cell until ordered to release him by the guards. The guards then unlocked the cell and

opened the door. Under these facts, viewed in the light most favorable to the prosecution, a rational

trier of fact could find that Kalac knowingly restricted Carlson’s movements without Carlson’s




                                                 12
No. 47506-5-II



consent or legal authority by physical force. Therefore, we hold that sufficient evidence was

presented to convict Kalac of unlawful imprisonment.

       Kalac argues that our Supreme Court changed the standard for “substantial” from the

“‘real’ or ‘material’ interference with the liberty of another as contrasted with a petty annoyance,

a slight inconvenience, or an imaginary conflict,” as stated in Robinson, 20 Wn. App. at 884, to

“considerable,” and cites to State v. McKague, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011), and

Rich, 184 Wn.2d at 904-05. We disagree.

       In McKague, our Supreme Court considered a challenge to the sufficiency of the evidence

to convict on a second degree assault charge. 172 Wn.2d at 805. Specifically, the court considered

the definition of “substantial” for the element of “substantial bodily harm” under second degree

assault, RCW 9A.36.021(1)(a).4 McKague, 172 Wn.2d at 805. Our Supreme Court held that the

dictionary definition of “substantial” as “‘something having good substance or actual existence,’

would make practically any demonstrable impairment or disfigurement a ‘substantial’ injury

regardless of how minor.” McKague, 172 Wn.2d at 806 (quoting State v. McKague, 159 Wn. App.

489, 503 n.7, 246 P.3d 558 (2011)). The court held “instead that the term ‘substantial,’ as used in

RCW 9A.36.021(1)(a) [second degree assault], signifies a degree of harm that is considerable and

necessarily requires a showing greater than an injury merely having some existence.” McKague,

172 Wn.2d at 806.




4
  “A person is guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly
inflicts substantial bodily harm.” RCW 9A.36.021(1).


                                                13
No. 47506-5-II



       In Rich, our Supreme Court considered a challenge to the sufficiency of the evidence to

convict on a reckless endangerment charge. 184 Wn.2d at 900-01. To convict on the reckless

endangerment charge, the State had to prove there was a “‘substantial risk of death or serious

physical injury.’” Rich, 184 Wn.2d at 904 (quoting RCW 9A.36.050(1)). Our Supreme Court

recognized there was no statutory definition for “substantial” as it is used in RCW 9A.36.050(1),

and looked to the definition it used in McKague, “as ‘considerable in amount, value, or worth’ and

more than just ‘having some existence.’” Rich, 184 Wn.2d at 905 (quoting McKague, 172 Wn.2d

at 806).

       Here, we decline to hold that the Robinson definition of “substantial” has been replaced

with the McKague and Rich definition for “substantial.” Robinson specifically addressed the term

“substantial” as it is used in the unlawful imprisonment statute. 20 Wn. App. at 883-85. Unlawful

imprisonment is proscribed in chapter 9A.40 RCW. McKague and Rich addressed the term

“substantial” as it is used in the second degree assault and reckless endangerment statutes, both of

which are proscribed in chapter 9A.36 RCW. The definition from Robinson remains good law, at

least in the context of sufficiency challenges to unlawful imprisonment convictions. See e.g. State

v. Washington, 135 Wn. App. 42, 49-50, 143 P.3d 606 (2006) (stating, in the context of a

sufficiency of the evidence challenge to an unlawful imprisonment conviction, “A substantial

interference is ‘a real or material interference with the liberty of another as contrasted with a petty

annoyance, a slight inconvenience, or an imaginary conflict,” (quoting Robinson, 20 Wn. App. at

884), review denied, 160 Wn.2d 1017 (2007)).




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No. 47506-5-II



       But, even applying the definition of “substantial” that our Supreme Court has used for

second degree assault and reckless endangerment, we still hold that sufficient evidence was

presented at trial to convince a rational trier of fact of Kalac’s guilt beyond a reasonable doubt. As

recited above, Kalac entered Carlson’s cell and closed the door knowing it could not be opened

from the inside, and he subsequently placed Carlson in a headlock so that he could not move until

the guards arrived. Testimony at trial showed the headlock resulted in Carlson feeling like his

circulation and ability to breathe were cut off, and resulted in red marks on the side of Carlson’s

throat. Viewed in the light most favorable to the State, this evidence was sufficient to persuade a

rational trier of fact that Kalac’s restraint of Carlson was “‘considerable in amount, value, or worth’

and more than just ‘having some existence,’” as our Supreme Court has defined the term

“substantial” in other chapters of the RCW. Rich, 184 Wn.2d at 905 (quoting McKague, 172

Wn.2d at 806). Therefore, we hold that Kalac’s challenge to the sufficiency of the evidence to

convict him of unlawful imprisonment fails.

B.     DOUBLE JEOPARDY

       Kalac argues that the trial court erred in signing an order of dismissal without prejudice on

the charge of attempted first degree murder. We agree and remand to the trial court to dismiss the

attempted first degree murder charge with prejudice.

       The federal and Washington constitutions prohibit placing defendants in double jeopardy.

WASH. CONST. art. I, § 9; U.S. CONST. amend. V. The prohibitions on double jeopardy provide

that “a conviction on a lesser-included offense bars a subsequent trial on the greater offense.”

Illinois v. Vitale, 447 U.S. 410, 421, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).




                                                  15
No. 47506-5-II



        Here, the State “concedes that on this record it may not retry Kalac on that charge” of

attempted first degree murder of Carlson. Br. of Resp’t at 23. Because the jury found Kalac guilty

of fourth degree assault as the lesser included offense for the attempted first degree murder charge,

we accept the State’s concession and remand for dismissal of the attempted first degree murder

charge with prejudice.

C.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Kalac argues that he received ineffective assistance of counsel when his attorney failed to

object to, and instead signed, the order dismissing the attempted murder charge without prejudice.

We do not reach this issue because the relief Kalac requests in asserting his ineffective assistance

of counsel claim—that the charge be dismissed with prejudice—has been granted on double

jeopardy grounds. See Section B, supra.

D.      Appellate Costs

        Kalac argues that any requests for appellate costs to be imposed on him be denied because

the trial court determined that he did not have the present or future ability to pay legal financial

obligations. The State asserts that it “has no intention of seeking appellate costs in this case.” Br.

of Resp’t at 24.

        RAP 15.2(f) provides that “[t]he appellate court will give a party the benefits of an order

of indigency throughout the review unless the trial court finds the party’s financial condition has

improved to the extent that the party is no longer indigent.” Here, an order of indigency was filed

with the trial court and the record does not reflect a finding by the trial court that Kalac’s financial




                                                  16
No. 47506-5-II



condition has improved beyond indigency. Therefore, we do not impose any appellate costs on

Kalac in this case.

       We affirm but remand for the trial court to dismiss the attempted first degree murder

charge with prejudice.

       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.



                                                                      Lee, P.J.
 We concur:



                      Melnick, J.




                      Sutton, J.




                                               17
