      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                            )         No. 80643-2-I
                                                )
                     Respondent,                )         DIVISION ONE
                                                )
             v.                                 )         UNPUBLISHED OPINION
                                                )
DAVID MICHAEL KALAC,                            )
                                                )
                     Appellant.                 )
                                                )


       ANDRUS, A.C.J. — David Michael Kalac appeals his convictions for first

degree murder, theft of a motor vehicle, and possession of stolen property. He

argues the homicide detectives—who entered his apartment immediately after a

responding sheriff’s deputy found the victim’s body—conducted an unlawful

warrantless search. He also contends the trial court erred by continuing the trial

beyond the initial 60-day time-to-trial deadline. He challenges the sufficiency of

the evidence to prove premeditated intent and the trial court’s refusal to give his

requested manslaughter jury instructions. Finally, he maintains the trial court’s

exceptional 82-year sentence is unsupported by sufficient evidence and

erroneously based on the amount of good time credit he might be entitled to

receive.




  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80643-2-I/2


          Given the Supreme Court’s ruling in State v. Schierman, 192 Wn.2d 577,

438 P.3d 1063 (2018), we conclude any possible error in refusing to instruct the

jury on the lesser charge of manslaughter was harmless. The trial court committed

no other errors, and we affirm Kalac’s convictions and sentence. In light of this

ruling, we decline to address the State’s cross appeal. We remand solely for the

trial court to strike the imposition of fees and nonrestitution interest from the

judgment and sentence. 1

                                               FACTS

          On the afternoon of November 4, 2014, police received a 911 call reporting

that Amber Coplin had been found dead in her Port Orchard apartment bedroom.

Amber 2 lived there with her 13-year-old son, B.C., 3 and Kalac. When responding

officers arrived, they found Amber’s husband, Paul Coplin, 4 standing outside the

apartment with B.C. When the responding sheriff’s deputy entered the apartment,

he found Amber’s body on the bed under a blanket. She was cold to the touch

and obviously dead.

          As the investigation unfolded, police learned that on the evening of

November 3, 2014, Amber and Kalac had argued, and Amber asked Kalac to

leave. Amber came into B.C.’s bedroom to ask for a sleeping bag, which B.C.

assumed Kalac would use to sleep on the couch. B.C. overheard the arguing



1
    The State concedes a narrow remand is necessary for this purpose.
2
  We use first names where necessary to differentiate persons with the same surname. No
disrespect is intended.
3
    We use B.C.’s initials to maintain his anonymity.
4
  Amber and Paul were still married but had been amicably separated for several years. They had
three other sons, other than B.C., all of whom lived with Paul.

                                                 -2-
No. 80643-2-I/3


escalate and came out of his bedroom to check it out. He saw Amber and Kalac

in the living room with the sleeping bag on the couch.

      The next morning, November 4, 2014, B.C. got up around 6:00 a.m. to get

ready for school. Generally, Kalac would be up and getting ready for work at the

same time, but B.C. noticed that neither Kalac nor his belongings were there. The

door to Amber’s bedroom, which she shared with Kalac, was closed, as was

normal for a weekday morning; Amber typically got up for work after B.C. left for

school.

      While at school, B.C. became ill—he “had a weird feeling in [his]

stomach . . . [l]ike something was wrong”—so he texted Amber. When she did not

respond, he texted Paul and asked him to pick him up from school. Although B.C.’s

school was minutes from the apartment, the school would not permit him to leave

without a parent. Paul picked B.C. up from school around 11:30 a.m., took him to

get some juice, and then dropped him at home without coming into the apartment.

Amber’s bedroom door was still closed.

      After a nap, a shower, and a snack, B.C. went by Amber’s room and noticed

an odd “stench.” When he opened the door, he saw what appeared to be his

mother’s body covered by blankets, and her face covered by a pillow. He tried to

turn on the light, but it was not working. B.C. saw her “stuff” strewn around the

room—coins, her emptied purse, and her dentures on the floor. He then saw

Amber’s ID on the pillow covering her face, with the word “dead” written on it.

Thinking Amber might be passed out from alcohol consumption, he climbed onto

the bed to rouse her. He touched Amber—who was a light sleeper—and when



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No. 80643-2-I/4


she did not stir, he “freak[ed] out.” He texted Paul, telling him something was

wrong with Amber. He was not sure if Amber was alive or dead.

      Paul arrived within 10 minutes with his son, A.C., and went into the

bedroom. He initially saw what looked like a pile of blankets on the bed. He then

saw Amber’s driver’s license with the word “dead” written on it on a pillow over her

face. Paul lifted the pillow and found Amber underneath—dead. Paul fled the

bedroom, hurried the boys out of the apartment, and called 911.

      Kitsap County Sheriff Deputy Rice responded to the call. He spoke briefly

to Paul, entered the apartment, and found Amber’s body lying on the bed with the

blanket pulled up to her chin and blood coming from her nose. She was cold to

the touch and obviously dead. Medics entered with him and confirmed Amber was

dead. After they left, Deputy Rice did a sweep of the bedroom and the rest of the

apartment looking for additional victims and making sure the scene was secure.

      Deputy Rice heard over his radio that Detectives Birkenfeld and Gundrum

had arrived so he left the apartment to brief them on what he had seen. The

detectives then entered to assess the scene, following Deputy Rice’s footsteps.

Detective Birkenfeld saw a framed print on Amber’s bedroom wall, on which

someone had written the phrase “she killed me first.” The window blinds were

down, and the words “bad news” had been written on them. The writing on

Amber’s license, the framed print, and the blinds all appeared to have been done

with the same black permanent marker.

      The detectives observed Amber’s face was bruised and bloody. They saw

what appeared to be blood stains on the wall at the head of the bed. And they



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No. 80643-2-I/5


found a half-set of dentures on the floor. Near the window, they saw a purse on

the floor with its contents dumped out. The detectives concluded the death was

likely a homicide so they left the apartment to obtain a search warrant.

       After the search warrant was granted, they began processing the scene.

They removed the bedding covering Amber’s body and saw other injuries,

including ligature marks around her neck and bite marks on her breasts. Profane

comments were written over her body in handwriting that appeared similar to the

writing on the walls. On the nightstand, they found paperwork, from the Kitsap

Public Health District, indicating Amber had recently undergone an abortion.

       Upon learning that Kalac could not be found and that Amber’s gold Ford

Focus was missing, Detective Birkenfeld and his colleagues focused their

investigation on Kalac’s actions on November 4 and 5, 2014.

       Law enforcement subsequently recovered several photographs of Amber—

nude and dead, lying on her bed—on Kalac’s cell phone. The photographs were

date and time stamped 1:07 a.m. and 1:09 a.m. on November 4. A “Good to Go”

invoice showed that Kalac, driving Amber’s car, crossed the Tacoma Narrows

Bridge at 5:33 a.m. that same morning. At 6:20 a.m., Kalac texted his employer

informing him he had done something bad that would make the news. He texted

a friend shortly after noon telling her that he had “f***** up really really bad last

night” and would be in prison or dead by the end of the day. Kalac told his friend

he was turning off his phone so he could not be tracked.

       Around 1:00 that afternoon, security camera footage showed Kalac entering

a Cash America and pawning a laptop computer for $125. He then went to a



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No. 80643-2-I/6


nearby Albertson’s store to purchase a 1.75 liter of vodka and orange juice. Kalac

then drove to Chehalis, stopping at a Walmart at approximately 2:30 p.m., where

security camera footage showed him purchasing a BB pistol and ammunition. The

BB gun was a realistic replica of a Beretta-style semi-automatic firearm.

      After purchasing the gun, footage showed Kalac sitting in the Walmart

parking lot for about 30 minutes. During that time, Kalac uploaded the pictures he

had taken of Amber’s body to 4chan, an image-based Internet bulletin board. In

the commentary accompanying the pictures, Kalac wrote, “Turns out its way harder

to strangle someone to death than it looks on the movies.” He wrote, “She fought

so Damn hard.” He then told anyone following the thread to

      Check the news for port orchard, Washington in a few hours. Her
      son will be home from school soon. He’ll find her, then call the cops.
      I just wanted to share the pics before they find me. I bought a bb
      gun that looks realistic enough. When they come, I’ll pull it and it will
      be suicide by cop.

      Kalac apparently made his way to Portland, Oregon, where he spent several

hours on the evening of November 4 at a local bar. Then, at approximately 1:00

a.m. on November 5, police in Portland, Oregon, spotted the missing gold Ford

Focus and, with several U.S. Marshals participating, conducted a high speed car

chase until Kalac eluded them. They discontinued the chase on Barbur Boulevard

near the Barbur transit center. Police later recovered a transit ticket with Kalac’s

belongings, indicating he purchased the ticket at 10:40 a.m. on the morning of

November 5, 2014. Between 4:00 p.m. and 5:00 p.m. that afternoon, police found

Amber’s car abandoned in a parking lot near where the police chase had ended.




                                        -6-
No. 80643-2-I/7


          At approximately 8:45 p.m. that evening, Kalac emerged from a wooded

area near a transit center in Wilsonville, Oregon, and turned himself in to a

Clackamas County Sheriff’s deputy who was on patrol in the area. Deputies

discovered an abandoned transient camp in the woods, and found a box spring on

which Kalac had written “Dave’s last stand,” with a black permanent marker. They

found the BB gun Kalac purchased in Chehalis resting on the box spring, and a

note, also written with a black permanent marker, which read “I killed Amber

Coplin. I strangled her with my hands then a shoelace. I had no reason other than

I was drunk and she pissed me off. Running from the cops was so fun.”

          The State charged 5 Kalac with first degree murder, theft of a motor vehicle,

and second degree possession of stolen property. After the trial court granted the

State’s motion to continue the trial beyond the initial 60-day time-to-trial deadline

to facilitate processing evidence and to confirm experts to testify at trial, Kalac

moved to suppress evidence the detectives gathered inside the apartment he

shared with Amber. The trial court denied the motion to suppress.

          At trial, Kalac’s counsel conceded Kalac committed the homicide. Kalac did

not dispute that he and Amber fought that night. He recalled being on top of Amber

in the bedroom and having his hands around her throat that night. Kalac also had

a vague memory of pulling a blanket up over Amber’s head. He admitted that the

handwriting on the framed print, the blinds, and Amber’s body looked like his

handwriting. And he conceded he would have been angry had Amber told him she

had aborted his baby, although he had no recollection of her doing so. Kalac


5
    Other charges were dismissed before trial and after the State rested its case.

                                                 -7-
No. 80643-2-I/8


testified that he could not deny killing Amber, stating that “based on what I’ve seen

so far, it looks like I did it.” He also stated he had no memory of whether Amber

was dressed or undressed when he killed her. Kalac admitted that by 6:20 a.m.

on November 4, 2014, when he texted his boss and said “You’ll see me in the

news,” he remembered what he had done approximately six hours before.

        Kalac also recalled driving Amber’s car in the rain, and he admitted he went

to Cash America in Olympia and to the Chehalis Walmart because he recognized

himself in the surveillance videos but, again, claimed he had no recollection of it.

But he admitted, despite his faulty memory, he must have been able to formulate

a plan to pawn the computer to get money and to purchase a BB gun.

        Kalac similarly recalled driving in Portland, and he had a vague recollection

of an “exhilarating experience” during the police chase. He also recalled being on

the MAX, the Portland light rail, and someone waking him up to tell him they were

at the end of the line. The Wilsonville transit center, where Kalac turned himself

in, is a light rail station. Kalac did not recall entering the nearby woods but told

examining psychologists he recalled sitting on a box spring, drinking vodka, and

taking 20 to 25 pills of trazodone. He remembered waking up in the cold and being

surprised because he thought he had taken a bottle of sleeping pills.

        Kalac’s defense to the murder was diminished capacity.                         His expert,

Dr. David Dixon, testified that Kalac suffered from an organic brain syndrome

caused by Kalac’s extensive and severe alcohol use disorder, thereby diminishing

his capacity to premeditate. 6


6
 Kalac offered Dr. Dixon’s testimony to establish that Kalac could not premeditate, making him not
guilty of murder in the first degree, and that Kalac lacked the capacity to form the intent to murder,

                                                -8-
No. 80643-2-I/9


        The jury convicted him of all charges and found two aggravating

circumstances—first, the murder involved a destructive and foreseeable impact on

persons other than the victim, and second, Kalac displayed an egregious lack of

remorse. The jury also determined each of the three crimes were committed

against a member of Kalac’s household, making them domestic violence

convictions.

        Kalac’s standard range, based on an offender score of 8, was 370 to 493

months. The trial court imposed an exceptional sentence of 984 months (82 years)

on the murder conviction, with standard range sentences on the remaining

offenses to run concurrently. The court concluded that the jury’s findings on the

two aggravating circumstances were substantial and compelling reasons to

impose an exceptional sentence.

        Kalac appeals his convictions and the exceptional sentence for his murder

conviction.

                                           ANALYSIS

A. CrR 3.6 Motion to Suppress

        Kalac challenges the constitutionality of the homicide detectives’ entry into

the apartment he shared with Amber. He contends Detective Birkenfeld’s and

Detective Gundrum’s warrantless entry after Deputy Rice had completed his safety




making him not guilty of murder in the second degree. After an evidentiary hearing, the trial court
ruled that Dr. Dixon could testify that Kalac’s alcoholism and resultant brain disorder impacted his
ability to premeditate but concluded that Dr. Dixon’s testimony was insufficient to establish that
Kalac lacked the capacity to form the general intent required for second degree murder. The court
modified the diminished capacity instruction to limit it to premeditation. Kalac has not assigned
error to the court’s evidentiary ruling relating to the scope of Dr. Dixon’s testimony or to the
diminished capacity instruction.

                                               -9-
No. 80643-2-I/10


sweep was unlawful and the evidence obtained pursuant to the search warrant

should have been suppressed. We disagree.

      Kalac concedes that Deputy Rice lawfully entered the apartment under the

community caretaking exception—he was responding to a 911 call reporting that

someone in the apartment appeared to have been beaten and may be dead.

Under State v. Bell, 108 Wn.2d 193, 737 P.2d 254 (1987), and State v. Stevenson,

55 Wn. App. 725, 780 P.2d 873 (1989), the detectives’ subsequent entry to

observe evidence Deputy Rice had seen in plain view did not exceed the scope of

Deputy Rice’s lawful entry and was therefore lawful. Because Deputy Rice had

the authority to seize any evidence of the crime in plain view without a warrant, so

too could the homicide detectives. We conclude the search warrant was lawfully

obtained and the trial court did not err in denying Kalac’s motion to suppress the

evidence seized from the apartment.

      1. Relevant Facts

      The trial court found that Paul called 911 at 3:26 p.m. on November 4, 2014,

reporting finding Amber’s bloody and beaten body in her bedroom in the apartment

she and Kalac shared. Deputy Rice arrived five minutes later, and Paul told him

what he had seen in the apartment and where to find Amber’s body. Deputy Rice

entered the apartment, passed through the living room, and entered the bedroom

where Amber lay dead.

      Several minutes later, medics arrived to see if Amber needed medical

assistance; they did not touch her body. Deputy Rice touched Amber to check for

signs of life, and when he found none, the medics left.         Then Deputy Rice



                                       - 10 -
No. 80643-2-I/11


performed a quick security sweep of the rest of the apartment to search for other

possible victims or suspects.     He did not touch anything except the doors.

Specifically, his path within the apartment consisted of “entering into and through

the living room, crossing the bedroom threshold, down both sides of the bedroom

bed, and back out into the living room to the son’s bedroom, back out to the living

room again, and then into the kitchen and bath.”

       “Deputy Rice started to leave the apartment once he heard Detectives

Birkenfeld and Gundrum outside because he wanted to brief them on the scene as

patrol deputies do not process scenes, but instead yield to the detectives when

they arrive.” Deputy Rice met the detectives at the front door threshold and told

them the path he took through the apartment, Amber’s condition, and other

evidence he observed in plain view. Deputy Rice told Detective Birkenfeld he did

not move anything in the apartment. The detectives retraced Deputy Rice’s path

into the apartment and to the bedroom to observe the evidence Deputy Rice had

seen in plain view. No items were seized during either entry.

       As lead detective, Detective Birkenfeld gathered information from other law

enforcement agents at the scene to support a search warrant application for the

apartment. Detective Birkenfeld based the search warrant application on his

personal observations inside the apartment and on information gathered from the

other authorities on the scene, including Deputy Rice. He did not describe Deputy

Rice’s initial entry into the home in his search warrant affidavit. Kalac does not

challenge any of these findings of fact.




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No. 80643-2-I/12


       The trial court concluded the warrant exception applicable to “emergency

situations, which includes discovery of a crime scene,” applied to Deputy Rice’s

initial entry, making that entry lawful because Deputy Rice “arrived on the scene

of a reported homicide and went inside to make a prompt search of the area to see

if there were other victims or suspects on the premises.” It further concluded that

because Detective Birkenfeld’s movements matched those of Deputy Rice,

Detective Birkenfeld did not expand the scope of Deputy Rice’s initial search.

Because Detective Birkenfeld’s entry did not exceed the scope of Deputy Rice’s

initial lawful entry, the court concluded it was a continuation of Deputy Rice’s entry.

Finally, the trial court concluded that omitting from the search warrant application

the fact of Deputy Rice’s initial entry did not affect the warrant’s validity, and the

“four corners of the warrant . . . suppl[ied] the requisite probable cause necessary

for the search that did in fact occur.”

       2. Standard of Review

       The Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington State Constitution prohibit an unreasonable search

and seizure without a warrant, unless one of the few exceptions to the warrant

requirement applies. State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004).

The State bears the burden to show that a warrantless search falls within one of

these exceptions. State v. Boisselle, 194 Wn.2d 1, 12, 448 P.3d 19 (2019).

Because Kalac did not assign error to any of the trial court’s findings of fact, our

review focuses on a de novo determination of whether the trial court derived proper




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No. 80643-2-I/13


conclusions of law from those findings. State v. Armenta, 134 Wn.2d 1, 9, 948

P.2d 1280 (1997).

          “‘A plain view search’ occurs when law enforcement officers ‘(1) have a valid

justification to be in an otherwise protected area and (2) are immediately able to

realize the evidence they see is associated with criminal activity.’” 7 State v. Ruem,

179 Wn.2d 195, 200, 313 P.3d 1156 (2013) (quoting State v. Hatchie, 161 Wn.2d

390, 395, 166 P.3d 698 (2007)). “[T]he plain view doctrine is formulated identically

under the state and federal constitutions.”                Bell, 108 Wn.2d at 199.         Kalac

suggested at oral argument that Bell did not analyze article I, section 7 separately

from the Fourth Amendment but conceded in a subsequent correction that Bell did

in fact do so. Accordingly, we apply the plain view analysis that applies under the

federal constitution. State v. O’Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003);

see also Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 538, 936 P.2d

1123 (1997) (failure to conduct a Gunwall 8 analysis or show why the state

constitutional provision should be interpreted differently than the federal results in

court interpreting the state constitutional clause coextensively with its parallel

federal counterpart); Justice Charles W. Johnson & Justice Debra L. Stephens,

Survey of Washington Search and Seizure Law: 2019 Update, 42 SEATTLE U.L.

REV. 1277, 1409-11 (2019) (discussing plain view exception).




7
  Traditionally, inadvertent discovery was a third requirement. State v. Bell, 108 Wn.2d 193, 196,
737 P.2d 254 (1987). That element is no longer required under either the Fourth Amendment or
our state constitution. Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112
(1990); State v. Goodin, 67 Wn. App. 623, 627-28, 838 P.2d 135 (1992); see also State v. Hudson,
124 Wn.2d 107, 114 n.1, 874 P.2d 160 (1994).
8
    State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

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No. 80643-2-I/14


        3. Analysis

        Kalac concedes that Deputy Rice’s initial entry into the apartment was lawful

and that he would have been justified to seize items in his plain view. Mincey v.

Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (“[T]he police

may seize any evidence that is in plain view during the course of their legitimate

emergency activities.”); Stevenson, 55 Wn. App. at 729-30.

        Deputy Rice’s testimony at the CrR 3.6 hearing supports the conclusion that

his entry was authorized under the community caretaking warrant exception. 9 He

entered the apartment and Amber’s bedroom to “check the status of the female,

see if she needed aid, see if she was still alive or not.” After confirming Amber’s

death, Deputy Rice did a quick security sweep of the rest of the apartment for

“[c]ommunity caretaking, safety sweep, making sure nobody else was in the

residence, nobody else was harmed, no suspects were in there, officer safety.”

        Kalac contends, however, that the subsequent entry by two homicide

detectives, Detectives Birkenfeld and Gundrum, was unlawful because the

emergency Deputy Rice had entered the apartment to address was over. But the

plain view doctrine does not require that the officer who initially sees the evidence

of a crime conduct the actual seizure. Stevenson, 55 Wn. App. at 730; see also

Michigan v. Tyler, 436 U.S. 499, 511, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Nor



9
   The community caretaking exception to the warrant requirement encompasses situations
requiring emergency aid. State v. Harris, 9 Wn. App. 2d 625, 630, 444 P.3d 1252 (2019). Under
this exception, “police may enter a dwelling . . . if they have a reasonable belief that there is an
immediate need for their assistance for the protection of life or property, the search is not primarily
motivated by an intent to arrest and seize evidence, and there is probable cause to associate the
emergency with the place to be searched.” 12 ROYCE A. FERGUSON, JR., WASHINGTON
PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 2734, at 649 (3d ed. 2004).

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No. 80643-2-I/15


does it preclude an officer who initially sees evidence of a crime from enlisting

others to help in collecting evidence in plain view. Stevenson, 55 Wn. App. at 730.

       In State v. Bell, sheriff’s officers seized material from an illegal marijuana

grow after fire fighters discovered it while checking an attic to ensure that a

reported fire was completely extinguished. 108 Wn.2d at 194-95. Bell argued the

sheriffs’ seizure violated his constitutional rights in two ways—one, “fire fighters

needed a warrant to seize the evidence because exigent circumstances no longer

existed once the fire was extinguished,” and two, “the sheriff’s officers needed a

warrant to enter Bell’s house and take charge of the seizure.” Id. at 195.

       Our Supreme Court rejected both arguments, concluding the State

established both requirements of a plain view seizure. Id. at 196. First, the fire

fighters’ entry into the attic was justified; they were there to extinguish a fire and

then to ensure that it did not rekindle, that there were no additional fires, and to

ventilate the building. Id. at 197. And second, the fire fighters were immediately

aware they had evidence before them. Id. They did not use the plain view doctrine

to conduct a general exploratory search for incriminating evidence. Id.

       Bell argued because there was plenty of time to obtain a search warrant,

the seizure was unconstitutional. Id. at 198. He argued warrantless seizures

should be held unconstitutional unless exigent circumstances exist throughout the

duration of the search and seizure. Id. The Court disagreed, stating that because

plain view alone satisfies constitutional privacy safeguards, a “search can be

upheld under the plain view doctrine in the absence of exigent circumstances,” as

long as there is a lawful justification for the original intrusion. Id. at 198-99. A valid



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No. 80643-2-I/16


exception to the warrant requirement can satisfy the requirement that the initial

police intrusion be lawful. Id. at 199 (quoting State v. Johnson, 17 Wn. App. 153,

158, 561 P.2d 701 (1977)).

       The Court also held that because the fire fighters had lawfully discovered

evidence of criminal activity under the plain view doctrine, it was unnecessary for

the sheriff’s office to obtain a search warrant to complete the search and seizure

simply because it was a separate state agency. Id. at 201. The Court reasoned,

“Once the privacy of the residence has been lawfully invaded, it is senseless to

require a warrant for others to enter and complete what those already on the scene

would be justified in doing.” Id. It clarified that when continuing the initial entry,

the subsequent entry cannot exceed the scope of the earlier intrusion, absent a

warrant or another warrant exception authorizing a more thorough or wide ranging

search. Id. & n.6; see also Stevenson, 55 Wn. App. at 732.

       Bell is analogous. Here, Kalac conceded Deputy Rice’s initial entry was

lawful. During Deputy Rice’s lawful presence in the apartment, he saw evidence

in plain view, indicating that Amber’s death was likely a homicide. He described

this evidence to the detectives, who then entered the apartment to verify what he

saw. They followed in his footsteps and did not look into any rooms other than the

rooms in which Deputy Rice had searched. They did not open any closet doors,

dresser drawers, or closed containers. They merely used their observations of the

evidence they and Deputy Rice saw in plain view to obtain a search warrant. The

scope of their search was no different or broader than the one conducted by

Deputy Rice. Their actions were arguably less intrusive than the sheriffs’ actions



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No. 80643-2-I/17


in Bell because they did not seize any evidence until after they had obtained a

search warrant.

       Kalac cites no authority for the proposition that reentry by another law

enforcement officer to confirm what was in plain view and to use those

observations to obtain a warrant is per se unlawful. When officers’ later entries

are no more than a continuation of the first and do not exceed the scope of the

earlier entry, the lack of a warrant does not invalidate the resulting seizure of

evidence. Tyler, 436 U.S. at 511; see also Stevenson, 55 Wn. App. at 731 (“As

the Bell court observed, once the privacy of the residence lawfully has been

invaded, it is senseless to require a warrant for others to enter and complete what

those already on the scene would be justified in doing.”). Thus, it logically follows

that the detectives’ subsequent entry in this case to make observations to obtain

a warrant for the full search was permissible.

       The federal cases on which Kalac relies are distinguishable. In Mincey v.

Arizona, the United States Supreme Court held a “murder scene exception”

unconstitutional in the absence of exigent circumstances. 437 U.S. at 395; see

also Flippo v. West Virginia, 528 U.S. 11, 12, 120 S. Ct. 7, 145 L. Ed. 2d 16 (1999)

(unauthorized murder scene search where no observable evidence in plain view

of responding officers); Thompson v. Louisiana, 469 U.S. 17, 18, 105 S. Ct. 409,

83 L. Ed. 2d 246 (1984) (same). But the State here did not rely on a generic murder

scene exception to justify the detectives’ search of the apartment. It relied on the

community caretaking exception to justify Deputy Rice’s initial entry and the plain

view doctrine to justify the homicide detectives’ subsequent entry. See Stevenson,



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No. 80643-2-I/18


55 Wn. App. at 732 n.5 (distinguishing Mincey as involving the unlawful seizure of

incriminating evidence from concealed places rather than the lawful seizure of

evidence in plain view).

        State v. Schroeder, 109 Wn. App. 30, 32 P.3d 1022 (2001), is also

distinguishable.     In that case, officers responding to a suicide exceeded the

community caretaking function “when they conducted a warrantless search for the

deceased’s identification, after his cohabitant had identified him, beyond what they

could see in plain view in the room where the deceased’s remains lay.” Id. at 34.

Unlike Schroeder, the officers here did not exceed the boundaries of the

community caretaking exception because they obtained a warrant before seizing

any evidence from the apartment or searching for evidence not otherwise in plain

view.

        Nor is Kalac’s reliance on State v. Boisselle helpful. In Boisselle, our

Supreme Court clarified the emergency aid function of the community caretaking

exception and concluded that the officers’ warrantless search was a pretext 10 for

a criminal investigation because “the officers had significant suspicions of criminal

activity, the officers’ entry was motivated by the desire to conduct an evidentiary

search, and there was no present emergency.” 194 Wn.2d at 9. Specifically, the

officers responded to 911 calls reporting a crime at a duplex; they sought to confirm

whether a crime had been committed when they smelled something that could be

a decomposing body; when they saw inside the apartment, the signs of a struggle


10
   “A pretextual search occurs when officers rely on some legal authorization as a mere pretense
‘to dispense with [a] warrant when the true reason for the seizure is not exempt from the warrant
requirement.’” Boisselle, 194 Wn.2d at 15 (alteration in original) (quoting State v. Ladson, 138
Wn.2d 343, 358, 979 P.2d 833 (1999)).

                                             - 18 -
No. 80643-2-I/19


and missing carpet could have been due to a crime; the officers connected a

missing person and the suspect in the missing person case to the duplex after

consulting with a detective assigned to the missing person case; and lastly, almost

two hours later, they finally entered the duplex. Id. at 15. “Because the officers

had significant suspicions of criminal activity, the officers were conducting a

criminal investigation, and there was no present emergency, it was objectively

unreasonable for the officers to conduct a warrantless search of [the] home,” and

therefore, the warrantless search was pretextual and did not fall under the

emergency aid function of the community caretaking exception. Id. at 16-17.

      Because Kalac concedes the lawfulness of Deputy Rice’s initial entry,

Boisselle is inapplicable to this case. There is no basis for contending—and Kalac

does not argue—that Deputy Rice’s entry was a pretext for a criminal investigation.

Moreover, Boisselle did not address the plain view exception. Thus, the case does

not inform our analysis of whether Detectives Birkenfeld and Gundrum were

authorized to enter on the heels of Deputy Rice for the purpose of looking at the

evidence in plain view and using their observations to obtain a search warrant.

      The unchallenged findings of fact support the trial court’s conclusion that

the detectives’ entry did not exceed the scope of Deputy Rice’s initial emergency

aid search. It was a lawful continuation of Deputy Rice’s entry and the warrant—

based on Detective Birkenfeld’s observations and reports from other authorities on

scene—was valid and supported by probable cause. We conclude the trial court

did not err by denying Kalac’s motion to suppress.




                                      - 19 -
No. 80643-2-I/20


B. Time-to-Trial Deadline

       Kalac next argues that good cause did not exist to continue his trial date

beyond the original 60-day time-to-trial deadline of January 13, 2015 and, as a

result, the court violated his speedy trial rights. He maintains the trial court abused

its discretion in continuing the trial because neither the State’s failure to commit

sufficient resources to the Washington State Patrol (WSP) crime lab nor the timing

of the crime in November and vacation schedules over December holidays was

“good cause” or an “unforeseen circumstance” justifying a continuance.             We

conclude the trial court did not abuse its discretion in continuing the trial.

       1. Relevant Facts

       Kalac was arraigned on November 14, 2014. The court set his trial date for

January 5, 2015, within his 60-day time-to-trial expiration of January 13, 2015. On

December 5, 2014, the State indicated a possible delay in receiving evidence from

Kalac’s cell phone. It notified the court that it had sent Kalac’s phone to the FBI

crime lab when WSP encountered difficulties accessing information on the phone,

and the FBI also experienced difficulties and told the State it could take “up to four

months because this is an issue of first impression and because of the inability to

get into that type of phone.”

       On December 19, 2014, the State asked for a continuance beyond the

January 13, 2015 time-to-trial deadline for multiple reasons. First, it represented

to the court that it had not obtained all the necessary evidence from Kalac—

including his DNA, fingerprints, and handwriting samples—until December 12,

2014. After sending those samples to the DNA crime lab in Seattle, a supervisor



                                         - 20 -
No. 80643-2-I/21


informed prosecutors that holiday schedules left the office short staffed, meaning

it likely could not assign a technician to the case until January. And even once it

assigned a technician to perform the analysis, it would take an additional couple

of weeks to get the results. Second, it informed the court that the FBI was still

processing Kalac’s phone. Third, it notified the court that the toxicology report

could also be delayed another several weeks and the coroner did not know when

it would be ready. Finally, the State noted that its potential strangulation expert

had not confirmed his availability, but once he did, the State wanted to allow

Kalac’s counsel time to interview him.     Because it also needed lead time to

subpoena witnesses and start arranging for times to ensure witness availability, it

proposed a new trial date for the end of March.

      The court continued the hearing on the State’s motion to December 29,

2014 to give Kalac’s counsel an opportunity to respond. At that hearing, the State

identified additional reasons for delaying trial. It informed the court it had not

confirmed a strangulation expert and it needed to assess the full extent of the

extensive crime scene analysis that WSP had provided.         Second, the doctor

performing a forensic dental analysis had not begun his analysis, and he was

unavailable for testimony for large blocks of time in January and February,

including January 5 through January 18. The State argued all of this evidence—

bite-mark and handwriting analyses, expert testimony on strangulation, and

Kalac’s behavior before and after Amber’s death—was material to proving

premeditation.   In addition, the cell phone evidence was material because it

connected Kalac to the crime.



                                      - 21 -
No. 80643-2-I/22


       Kalac argued there was no case law allowing a continuance “based on a

presumption that [the yet-to-be-tested evidence] might be helpful to one side down

the road.”

       Recognizing the parties’ competing desires—the State’s need to prepare its

evidence to try Kalac for murder and Kalac’s right to a speedy trial under the

rules—the court concluded the State had exhibited due diligence in its efforts to

obtain and analyze the relevant evidence. It agreed the evidence was material

and found good cause to continue the trial. It scheduled the trial for March 2, 2015,

with a speedy-trial deadline of March 31, 2015.

       On January 12, 2015, the State informed the court and defense counsel

that because test results would be available earlier than originally anticipated, it

could be ready for trial as early as January 26, 2015. But Kalac preferred to keep

the March 2nd trial date to give him sufficient time to review all the incoming test

results.

       In confirming the March 2, 2015 trial date, the court stated:

              I am also mindful that it’s extremely unusual for a defendant
       to object to a continuance of the initial trial date in cases of this type
       where there is a large amount of forensic evidence to be evaluated
       and expert witnesses to be consulted.

              Here it occurs to me that the Defense likely objected because
       of the inability of the State to be able to present its case which, on
       January 5th, if the case was going to go forward, would have, in
       essence, gutted the State’s case because of the unavailability of
       forensic evidence and expert testimony.

               So while that would have given the defendant what is, in the
       [c]ourt’s opinion, a tremendous strategical [sic] advantage, it would
       have been woefully unfair to the prosecution to force the prosecution
       into a position of needing to bring a trial before all of the forensic



                                         - 22 -
No. 80643-2-I/23


       affidavit evidence is evaluated or before expert witnesses are able to
       render their opinions.

       2. Standard of Review

       A defendant who is detained in custody must be brought to trial within 60

days of arraignment. CrR 3.3(b)(1), (c)(1). Generally, a charge not brought to trial

within the time limits of CrR 3.3 must be dismissed with prejudice. CrR 3.3(h). CrR

3.3(e), however, identifies time periods the trial court may exclude from the 60-day

time-to-trial computation, including under CrR 3.3(e)(8) for “[u]navoidable or

unforeseen circumstances affecting the time for trial beyond the control of the court

or of the parties.” Another exclusion is any “[d]elay granted by the court pursuant

to section (f).” CrR 3.3(e)(3). CrR 3.3(f)(2) gives the trial court the discretion to

grant a continuance on motion of the court or a party “when such continuance is

required in the administration of justice and the defendant will not be prejudiced in

the presentation of his or her defense.” If a period of time is excluded from the

time-to-trial computation, then “the allowable time for trial shall not expire earlier

than 30 days after the end of that excluded period.” CrR 3.3(b)(5).

       We review an alleged violation of the speedy trial rule de novo. State v.

Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). The trial court’s decision to

grant a continuance, however, is reviewed for an abuse of discretion. Id. (quoting

State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004)). Once a continuance

is properly granted, the trial court has discretion in selecting the new trial date.

State v. Flinn, 154 Wn.2d 193, 200-01, 110 P.3d 748 (2005). A court abuses its

discretion if its decision is manifestly unreasonable, based on untenable grounds,

or based on untenable reasons. Kenyon, 167 Wn.2d at 135.

                                        - 23 -
No. 80643-2-I/24


       3. Analysis

       First, Kalac challenges the trial court’s finding 11 that Amber’s homicide and

“the resulting amount of forensic material sent to the crime lab for analysis could

not have been foreseen when lab employees had scheduled their leave for the

Thanksgiving and Christmas Holidays.” He argues the state’s failure to allocate

enough funding to crucial criminal justice resources is an insufficient reason to

grant a trial continuance. But the cases on which Kalac relies are distinguishable

because the records in those cases supported findings of administrative shortfalls

or inadequate funding that caused staffing shortages. State v. Mack, 89 Wn.2d

788, 794, 576 P.2d 44 (1978) (docket congestion and jury selection not “good

cause” for trial continuance beyond the 60-day time-to-trial deadline); State v.

Wake, 56 Wn. App. 472, 475-76, 783 P.2d 1131 (1989) (insufficient staff to process

drug cases not unavoidable circumstances beyond the State’s control); State v.

Kokot, 42 Wn. App. 733, 737, 713 P.2d 1121 (1986) (without a record of

courtrooms in use or availability of visiting judges to hear criminal cases in

unoccupied courtrooms, a continuance granted for court congestion is an abuse

of discretion).

       Unlike these cases, the record here supports the trial court’s conclusion that

staffing shortages were unavoidable because of holiday vacations, not inadequate

state funding. As the State persuasively argues, the crime lab is not a retailer who,

anticipating a holiday rush, can hire extra employees to mitigate the extra work



11
   Kalac presented no argument in his opening brief on the other findings he challenged.
Accordingly, we consider those assignments of error waived. See Cowiche Canyon Conservancy
v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

                                          - 24 -
No. 80643-2-I/25


during the holiday season. There is no indication the State delayed in seeking the

continuance. It made its motion on December 19, 2014, as soon as it recognized

the problem and over two weeks before the January 5, 2015 trial date. See State

v. Howell, 119 Wn. App. 644, 648-49, 79 P.3d 451 (2003) (discussing Wake and

State’s requested continuance one day before trial when it was aware of

unavailability two weeks before).

       The record supports other unforeseeable reasons for the needed trial delay.

The State cited the FBI’s problems processing Kalac’s phone and the State’s

difficulty securing a strangulation expert on such a short timeframe. The record

supports a finding that neither were within the State’s control. It also sought time

for the prosecutors to prepare for trial, a legally valid basis for a continuance. Flinn,

154 Wn.2d at 200 (granting continuance based on good cause for State to prepare

for Flinn’s diminished capacity defense); see also State v. Cauthron, 120 Wn.2d

879, 910, 846 P.2d 502 (1993) (no prejudice to defendant where continuances

were necessary to obtain the required evidence), overruled in part on other

grounds by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997). And the State

raised the unavailability of material state witnesses, another valid reason for

delaying trial when there is a valid reason for the unavailability. State v. Day, 51

Wn. App. 544, 549, 754 P.2d 1021 (1988). The record supports the trial court’s

findings that there were justifiable reasons for continuing Kalac’s trial past his

speedy trial date.

       Second, Kalac contends his trial date itself was within the State’s control

because it had discretion to charge him when it did. He cites RCW 9.94A.411(2),



                                         - 25 -
No. 80643-2-I/26


which provides, “Crimes against persons will be filed if sufficient admissible

evidence exists, which, when considered with the most plausible, reasonably

foreseeable defense that could be raised under the evidence, would justify

conviction by a reasonable and objective fact finder.” He argues the State had

sufficient evidence—based on the written confession found in the forested area in

Oregon and the online confessions and communications—and did not need the

additional evidence.    This argument is not well taken.       At the time of the

continuance, Kalac had not yet admitted that he wrote the confession note or that

he had killed Amber. These concessions occurred much later in the case.

       And as the State indicated to the trial court in January 2015, it needed the

evidence to prove premeditation, not just the identity of the perpetrator. The State

initially charged Amber’s murder as second degree. After apprehending Kalac and

furthering its investigation, the State amended the charges to first degree

premeditated murder. The strangulation expert, as discussed below, was the

State’s key evidence of Kalac’s premeditation.

       We conclude the trial court did not abuse its discretion in granting the

State’s request to continue the trial date.      The decision was not manifestly

unreasonable, based on untenable grounds, or based on untenable reasons.

C. Sufficiency of the Evidence of Premeditation

       Next, Kalac contends the State failed to present sufficient evidence to prove

he premeditated Amber’s death. Because the State presented circumstantial

evidence that Kalac deliberated and reflected before and during the act of




                                       - 26 -
No. 80643-2-I/27


strangling Amber, the State presented sufficient evidence to prove premeditation

beyond a reasonable doubt.

       To satisfy the Fourteenth Amendment’s due process guarantee, the State

“bears the burden of proving every element of every crime beyond a reasonable

doubt.” U.S. CONST. amend. XIV; State v Chacon, 192 Wn.2d 545, 549, 431 P.3d

477 (2018). In considering a sufficiency of the evidence challenge, we determine

whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015)

(quotations omitted). Evidence sufficiency challenges admit the truth of the State’s

evidence and all reasonable inferences that can be drawn from it. Id.; see also

State v. Stewart, __ Wn. App. 2d __, 457 P.3d 1213, 1215 (2020). We defer to the

trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. Stewart, 457 P.3d at 1215-16.

       The challenged element here is premeditation, the only element separating

first degree murder from second degree murder. See State v. Brooks, 97 Wn.2d

873, 876, 651 P.2d 217 (1982). Premeditation “encompasses the mental process

of thinking beforehand, deliberation, reflection, weighing or reasoning for a period

of time, however short.” Id. But statutorily, premeditation “must involve more than

a moment in point of time.” RCW 9A.32.020(1). For the act to constitute first

degree murder, “the objective or purpose to take human life . . . must have been

formed after some period of deliberation, reflection or weighing in the mind.”

Brooks, 97 Wn.2d at 876.       Premeditation may be proved by circumstantial



                                       - 27 -
No. 80643-2-I/28


evidence where the inferences drawn by the jury are reasonable and the evidence

supporting the jury’s finding is substantial. State v. Pirtle, 127 Wn.2d 628, 643,

904 P.2d 245 (1995).

       The evidence supports the jury’s conclusion that Kalac premeditated

Amber’s murder. Dr. John Lacy with the Pierce County Medical Examiner’s Office,

testified that, in his opinion, Amber died of a combination of manual and ligature

strangulation. He identified ligature furrows around Amber’s neck made by a very

thin cord and concluded, based on the pattern of the ligature’s markings, that the

ligature had been looped at least twice around her neck. He further testified the

absence of a ligature furrow on the back of Amber’s neck indicated that she was

strangled from behind.

       In addition to this evidence of ligature strangulation, Dr. Lacy testified that

Amber’s internal injuries to the neck and jaw evidenced she was also strangled

manually from the front. According to Dr. Lacy, Amber sustained significant injury

on the inside of her neck, including a broken hyoid bone on top of her voice box,

with significant bleeding in the muscles of her neck in different areas than the

ligature markings, suggesting the perpetrator had at some point used his hands to

compress her neck.       A broken hyoid bone is common in victims of manual

strangulation. In addition, Dr. Lacy found the bruising was not localized to the

ligature furrow. “The entirety of her neck, from the bottom to the top, right from

underneath the chin, all the way to the bottom of the knot of your tie, is where she

was bruised inside[.]”




                                        - 28 -
No. 80643-2-I/29


       Dr. Lacy also identified wounds suggesting a physical struggle before death.

He opined that she had additional bruising around her chin and on her tongue,

injuries consistent with someone struggling and trying to protect themselves from

being strangled. And Dr. Lacy pointed out bruising around the left side of Amber’s

face indicating she had been struck multiple times. Dr. Emmanual Lacsina, the

forensic pathologist who performed the autopsy, similarly testified that Amber had

sustained significant blunt force injuries to her head.

       The experts’ testimony was supported by other evidence in the record.

Kalac testified at trial that he recalled placing his hands around Amber’s neck. And

his confession note explicitly stated that he had strangled Amber “with my hands

then a shoelace.”     Police found a shoelace in Kalac’s backpack in Amber’s

abandoned car. The WSP crime lab identified both Kalac’s and Amber’s DNA on

the shoelace.

       The evidence supports the conclusion that Kalac first attempted to strangle

Amber manually from the front, and when that did not work, he stopped what he

was doing long enough to locate a shoelace, wrapped it around her neck not once,

but twice, and repositioned himself behind her, pulling hard enough and long

enough to cause her death.

       Kalac relies on State v. Bingham, 105 Wn.2d 820, 719 P.2d 109 (1986), to

argue that strangulation alone is insufficient to prove premeditation. In Bingham,

the medical examiner testified the victim had died by “asphyxiation through manual

strangulation,” accomplished by applying continuous pressure to the victim’s

windpipe for three to five minutes. Id. at 822. After being convicted of aggravated



                                        - 29 -
No. 80643-2-I/30


first degree murder, Bingham challenged the sufficiency of evidence of

premeditation. Id. at 822-23. Although there was evidence the victim had engaged

in sex before she was murdered, there were no other physical injuries that could

be identified as having been inflicted before her death. Id. at 822.

       The Supreme Court determined the evidence of manual strangulation alone

was insufficient to establish premeditation.      Id. at 825-26, 828.      The court

concluded that “a finding of premeditation only because the act takes an

appreciable amount of time obliterates the distinction between first and second

degree murder . . . [because] [h]aving the opportunity to deliberate is not evidence

the defendant did deliberate.” Id. at 826. The court reasoned that if opportunity to

deliberate was considered synonymous with premeditation then “any form of killing

which took more than a moment could result in a finding of premeditation, without

some additional evidence showing reflection.” Id.

       In reaching this conclusion, the court distinguished two cases which

involved evidence of both strangulation and the infliction of additional injuries over

a period of time. Id. at 825. In State v. Harris, 62 Wn.2d 858, 385 P.2d 18 (1963),

after striking the victim on the head with enough force to fracture her skull and jaw,

the defendant then strangled her with a vacuum cleaner cord, the ultimate cause

of death. Bingham, 105 Wn.2d at 825 (quoting Harris, 62 Wn.2d at 868). And in

State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), the defendant choked the

victim until she was unconscious, and then went to a nearby garbage dump, got a

rock, and returned to beat the unconscious victim to death. Bingham, 105 Wn.2d

at 825 (quoting Gaines, 144 Wash. at 467). These cases, the Supreme Court said,



                                        - 30 -
No. 80643-2-I/31


involved evidence of deliberation or reflection before or during the act that led to

the victims’ deaths. Id. at 826-27.

       Amber’s death—by both manual and ligature strangulation—is similar to

Harris and Gaines and distinguishable from Bingham. Unlike in Bingham, there

was evidence Kalac deliberated and reflected on how to strangle Amber. Amber

suffered significant blows to her head and torso, was strangled manually from the

front, and strangled with a ligature from behind. The State had no evidence in

Bingham that the defendant stopped mid-assault to locate an alternative weapon

to finish the murder, but the evidence here supports that Kalac did just that. A

reasonable juror could conclude that Kalac found the manual strangulation too

difficult, stopped to search for a ligature, then deliberated on how to best use the

shoelace to finish the job. See also State v. Gibson, 47 Wn. App. 309, 312, 734

P.2d 32 (1987) (evidence sufficient to establish premeditation where victim

suffered three separate blunt force skull injuries before being strangled to death by

rope or cord).

       Although Dr. Lacsina testified he could not conclude, as did Dr. Lacy, that

the extensive bruising on Amber’s body evidenced manual strangulation, we must

view all evidence in the light most favorable to the State, State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992), and defer to the jury on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence, State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (jury

makes credibility determinations that are not subject to review on appeal). Even if

we relied on Dr. Lacsina’s testimony alone, the evidence was sufficient to permit a



                                       - 31 -
No. 80643-2-I/32


jury to find the element of premeditation beyond a reasonable doubt. Dr. Lacsina

testified that Amber sustained significant blunt force trauma to her head and upper

torso. In his opinion, there was probably more than one blow to her head. And he

believed the severe head injuries would have incapacitated Amber on the basis of

a concussion. The bite marks on Amber’s breasts, which tested positive for

Kalac’s DNA, were made while she was still alive. And the ultimate cause of death

was asphyxia caused by the ligature strangulation. This evidence suggests Kalac

bit and beat Amber before picking up a ligature, wrapping it around her neck twice

and asphyxiating her.

       As the Court recognized in State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d

984 (1987), Bingham was based on the fact that the evidence of death by manual

strangulation involved one continuous act. But in Ollens, unlike Bingham, the

defendant inflicted stab wounds before slashing the victim’s throat during the

course of a robbery. Id. at 849. The fact that the defendant committed two distinct

injurious acts, rather than a single continuous one, the fact the defendant chose to

use a knife as a weapon, and the fact that the defendant had a motive all supported

the existence of premeditation. Id. at 853.

       Here, the State presented circumstantial evidence of Kalac’s possible

motive. Kalac’s long-time best friend, Malinda Cool, testified that he called her one

day very excited to tell her that he and Amber were expecting their first child

together. But Detective Gundrum testified she found paperwork in the bedroom

indicating Amber had had an abortion. And Amber’s best friend, Wendy Nelson,

confirmed Amber was not pregnant when she was killed because she had taken



                                       - 32 -
No. 80643-2-I/33


an abortion pill. Kalac conceded on the stand that he would have been very angry

at Amber had she told him of the abortion. A reasonable juror could infer that

Amber’s decision to terminate her pregnancy provided a motive for Kalac’s actions.

      Kalac argues that not all characteristics “particularly relevant to

establish[ing] premeditation”—motive, procurement of a weapon, stealth, and the

method of killing—are present here. Pirtle, 127 Wn.2d at 644. He asserts the

State failed to show that he procured a weapon or committed the murder in a

stealthy manner. While these factors are relevant in evaluating premeditation; they

are not required elements of the crime. Obtaining a weapon and acting through

stealth can evidence planning, Pirtle, 127 Wn.2d at 644, but premeditation does

not require planning; it requires “‘deliberate formation of and reflection upon the

intent to take a human life,’” Bingham, 105 Wn.2d at 823 (quoting State v. Robtoy,

98 Wn.2d 30, 43, 653 P.2d 284 (1982), abrogation recognized by State v.

Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008)).

      Looking at the evidence in the light most favorable to the State, the State

presented sufficient circumstantial evidence from which a jury could draw

reasonable inferences, and the jury’s verdict is supported by substantial evidence.

We conclude the State met its burden to prove the premeditation element of first

degree murder.

D. Refusal to Instruct Jury on Manslaughter

      Kalac also argues the trial court erred when it refused to instruct the jury on

the elements of first degree manslaughter. We conclude that given the facts of




                                       - 33 -
No. 80643-2-I/34


this case, under State v. Schierman, any possible error in not instructing the jury

on the lesser crime of first degree manslaughter was harmless.

       Kalac testified he was in an alcoholic blackout when he killed Amber. And

his expert, Dr. Dixon, testified that Kalac’s late stage alcohol use disorder had so

adversely affected his neurocognitive functioning that Kalac could not premeditate

Amber’s murder. The trial court ruled this evidence was sufficient to instruct the

jury on diminished capacity for first degree murder but not for second degree

murder. It ruled that Dr. Dixon could not testify that Kalac’s mental disorder

adversely affected his ability to form the general intent required for second degree

murder. Kalac’s counsel asked the court if he was precluded from arguing to the

jury that Kalac’s mental disorder precluded him from forming the intent to murder.

The trial court stated:

       [W]hatever evidence is in the record, it’s not up to me to control how
       you want to argue the evidence and the instructions. I’m just not
       allowing the doctor to render the opinion, and that’s the [ER] 702
       analysis . . . based upon the evidence that’s already in the record.

       ....

       Evidence is evidence. I can’t restrict you from arguing the evidence
       as it relates to the instructions.

       Based on Kalac’s testimony and the opinions of Dr. Dixon, Kalac requested

a first degree manslaughter instruction. He argued that if the jury found he lacked

the capacity to premeditate or to form the intent to murder Amber, the jury should

be given the option of finding his conduct was reckless. The trial court refused to

give a manslaughter instruction, concluding that even if the jury could find that

Kalac’s intoxication eliminated his ability to form the intent to kill, Kalac was not



                                       - 34 -
No. 80643-2-I/35


entitled to a manslaughter instruction without evidence that his actions were

reckless rather than intentional.

        A party is entitled to have the jury instructed on a lesser included offense if

that offense satisfies the two-pronged test established in State v. Workman, 90

Wn.2d 443, 447-48, 584 P.2d 382 (1978). Schierman, 192 Wn.2d at 657. Under

the first (legal) prong, the offense must consist solely of elements necessary for

the conviction of a greater offense charged. Id. Under the second (factual) prong,

the evidence must support an inference that only the lesser offense was

committed, to the exclusion of the greater offense charged. Id. “It is error to give

an instruction not supported by the evidence.” State v. Warden, 133 Wn.2d 559,

563, 947 P.2d 708 (1997).

        In this case, we review the trial court’s refusal to give the manslaughter

instruction for abuse of discretion because it is based on the factual 12

determination that the evidence did not support an inference that Kalac committed

first degree manslaughter (a reckless homicide) to the exclusion of either

intentional (second degree) or premediated (first degree) murder. Schierman, 192

Wn.2d at 657. To satisfy Workman’s factual prong, “‘[i]t is not enough that the jury

might simply disbelieve the State’s evidence. Instead, some evidence must be

presented which affirmatively establishes the defendant’s theory on the lesser

included offense before an instruction will be given.’” State v. Berlin, 133 Wn.2d




12
  The State concedes that Workman’s legal prong was met, since first and second degree
manslaughter consist solely of elements necessary for a conviction of first degree (premeditated)
murder. See Schierman, 192 Wn.2d at 657.

                                             - 35 -
No. 80643-2-I/36


541, 546, 947 P.2d 700 (1997) (quoting State v. Fowler, 114 Wn.2d 59, 67, 785

P.2d 808 (1990)).

       Kalac relies on State v. Warden to argue the evidence was sufficient to raise

an inference that he committed manslaughter rather than murder in the second

degree. In Warden, the defendant admitted she killed a woman by breaking a

Mason jar over the victim’s head and stabbing her with a kitchen knife. 133 Wn.2d

at 561. Warden’s expert testified that because she suffered from posttraumatic

stress disorder, she lacked the mental capacity to form the intent to kill. Id. at 564.

The trial court instructed the jury on first and second degree murder and diminished

capacity but refused Warden’s requested manslaughter instructions. Id. at 561.

       The Supreme Court reversed the conviction because the “evidence

presented in this case supports an inference that the lesser crime was committed.”

Id. at 564. It pointed to the fact that “during deliberations, [the jury] asked the court:

‘May we consider finding the defendant guilty of accidental manslaughter, assault

resulting in death, or some other “lesser crime.”’” Id. It concluded that refusing to

give the manslaughter instructions deprived Warden of her right to argue her

theory of the case. Id.

       And in Schierman, the Supreme Court similarly held that the defendant

accused of stabbing four people to death was entitled to a manslaughter instruction

in a case in which the evidence of his voluntary intoxication raised an inference

that he could not form the intent to commit murder. 192 Wn.2d at 658-59.

       One could reasonably argue that Warden and Schierman are factually

distinguishable from this case. In State v. Wade, 186 Wn. App. 749, 346 P.3d 838



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No. 80643-2-I/37


(2015), this court concluded that a defendant, convicted of murdering his victim by

strangulation, was not entitled to an instruction on the lesser-included crime of

manslaughter:

       There was no evidence that the strangulation was either reckless or
       the result of criminal negligence. [The State’s expert] testified that
       [the victim] died of asphyxia due to strangulation, and that death
       would take one to two minutes of continuous pressure. The
       undisputed testimony established that whether [the victim] was
       intentionally strangled manually or with a ligature, Wade had to
       continue to apply pressure, even after she lost consciousness, for
       one to two minutes.

Id. at 772-73. We held that this evidence would not support an inference that the

defendant committed manslaughter, rather than murder. Id.

       As in Wade, Kalac points to no evidence that his strangulation of Amber

was reckless. Dr. Lacy testified that once oxygen stopped flowing to Amber’s

brain, it would have taken at least one minute of continuous pressure to cause her

death. Kalac testified he had no recollection of strangling Amber with a ligature

that night, although he recalled having his hands around her neck. In addition to

testifying that Kalac lacked the capacity to premeditate Amber’s murder, Dr. Dixon

testified that Kalac’s extreme alcohol use disorder also affected his ability to

remember his actions. As the trial court indicated, this latter evidence supported

only one of two inferences—either Kalac intended to kill Amber, in which case the

jury would convict him of murder, or Kalac lacked the capacity to form intent, in

which case it would acquit him of murder. Kalac cites no case in which a court has

held that a jury could reasonably find that strangulation by ligature was reckless,

rather than intentional.




                                       - 37 -
No. 80643-2-I/38


       Although Warden and Schierman may not mandate a manslaughter

instruction in a ligature strangulation case, we need not resolve this issue. Even if

the trial court abused its discretion in denying Kalac’s requested manslaughter

instruction, the error was harmless. The jury rejected Kalac’s diminished capacity

defense and convicted him of first degree premeditated murder. As the Supreme

Court held in Schierman, the only possible explanation for the verdict is that the

“jury did not credit the theory that an alcoholic blackout diminished [Kalac’s]

capacity to premeditate,” and a manslaughter instruction could not have led the

jury to a different conclusion. 192 Wn.2d at 661. Thus, any possible error caused

by not instructing the jury on first degree manslaughter was harmless.

E. Exceptional Sentence

       Lastly, Kalac argues the trial court abused its discretion in imposing an

exceptional sentence because there was insufficient evidence to support two of

the aggravating factors. He also argues the trial court erred in considering the

possibility that he might earn “good time” early release credits when imposing the

exceptional sentence. We reject both arguments.

       1. Aggravating Factors

       Exceptional sentences are subject only to a statutory standard of review.

RCW 9.94A.535; see also State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143

(2010). Specifically,

              To reverse a sentence which is outside the standard sentence
       range, the reviewing court must find: (a) Either that the reasons
       supplied by the sentencing court are not supported by the record
       which was before the judge or that those reasons do not justify a
       sentence outside the standard sentence range for that offense; or



                                       - 38 -
No. 80643-2-I/39


       (b) that the sentence imposed was clearly excessive or clearly too
       lenient.

RCW 9.94A.585(4). Under subsection (a), a jury must find any facts supporting

aggravating circumstances beyond a reasonable doubt and by special

interrogatory, and the special interrogatory is reviewed under the sufficiency of the

evidence standard. Stubbs, 170 Wn.2d at 123. In this case, the jury found that

Kalac demonstrated an egregious lack of remorse, RCW 9.94A.535(3)(q), and that

his actions involved a destructive and foreseeable impact on persons other than

the victim, RCW 9.94A.535(3)(r).

          a. Egregious Lack of Remorse—RCW 9.94A.535(3)(q)

       Kalac contends there was insufficient evidence to prove he demonstrated

an egregious, unusual lack of remorse. He points to his testimony during which

he expressed remorse and to his sentencing allocution where he said he was truly

sorry and would never forgive himself. The jury finding occurred before Kalac’s

sentencing hearing occurred, so any statement he made there is immaterial. We

must determine if Kalac’s testimony at trial is somehow sufficient to negate the

evidence the State presented.

       “‘Whether a sufficient quantity or quality of remorse is present in any case

depends on the facts.’” State v. Zigan, 166 Wn. App. 597, 602, 270 P.3d 625

(2012) (quoting State v. Ross, 71 Wn. App. 556, 563, 861 P.2d 473 (1993)). In

Zigan, Division Three concluded that evidence that Zigan laughed and joked with

officers at the crime scene, and smiled and waved to the inmates telling them to

not get caught if they hit someone with a motorcycle was sufficient to demonstrate

Zigan did not exhibit remorse for committing vehicular homicide. Id. at 602-03.

                                       - 39 -
No. 80643-2-I/40


       Here, the jury was free to reject Kalac’s testimony that he was sorry for

Amber’s death. The jury heard testimony that Kalac beat and strangled Amber,

then posed Amber’s nude body to take photos, wrote profane comments on her

body with a permanent marker, spent time gathering his personal belongings

before stealing Amber’s credit card and car, drove for hours before stopping to

pawn a laptop and purchase a BB gun, and then posted the photos he had taken

online, joking that “she fought so [d]amn hard,” and “Turns out its way harder to

strangle someone to death than it looks [i]n the movies.” He texted his boss and

a friend and told the 4chan community to watch the news. He then bragged in his

confession note that he had killed Amber for “no reason other than I was drunk

and she pissed me off.” He described “running from the cops” as being “so fun.”

       Taken in the light most favorable to the State, a rational trier of fact could

have found Kalac exhibited an egregious, unusual lack of remorse. See, e.g.,

State v. Erickson, 108 Wn. App. 732, 739-40, 33 P.3d 85 (2001) (evidence of

defendant smiling, laughing, bragging, and joking about the murder demonstrated

a lack of remorse); Ross, 71 Wn. App. at 563-64 (defendant’s testimony that he

was sorry for the victim’s death not sufficient to show remorse where trial court did

not find defendant credible and defendant blamed the justice system for his

crimes). We conclude sufficient evidence supports the egregious lack of remorse

aggravating factor.

          b. Destructive and Foreseeable Impact on Persons Other than the
             Victim—RCW 9.94A.535(3)(r)

       Next, Kalac contends the evidence does not support a finding that Amber’s

murder had a “destructive impact” on either B.C. or Paul. We again review the

                                       - 40 -
No. 80643-2-I/41


evidence in the light most favorable to the State to determine whether any rational

trier of fact could have found the presence of this aggravating circumstances

beyond a reasonable doubt. State v. Chanthabouly, 164 Wn. App. 104, 143, 262

P.3d 144 (2011).

       The statute does not define the phrase “destructive impact.” This court has

previously said that for RCW 9.94A.535(3)(r) to apply, a defendant’s actions must

be of a destructive nature that is not normally associated with the commission of

the offense. State v. Webb, 162 Wn. App. 195, 206, 252 P.3d 424 (2011). We

have noted that cases examining this aggravating factor have often involved

children who witnessed the crimes or learned of a violent crime involving a family

member or close friend after the fact. Id. But as the trial court noted below, we

have not defined the phrase so that courts understand the criteria to apply to it.

       When interpreting criminal statutes, we look to the statute’s plain language.

State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).               The plain

meaning of a statute is discerned “from the ordinary meaning of the language at

issue, the context of the statute in which that provision is found, related provisions,

and the statutory scheme as a whole.” State v. Engel, 166 Wn.2d 572, 578, 210

P.3d 1007 (2009). To discern the plain meaning of an undefined statutory term,

we give words their usual and ordinary meaning and interpret them in the context

of the statute in which they appear. Newton v. State, 192 Wn. App. 931, 936-37,

369 P.3d 511 (2016). We may use a dictionary to define the plain meaning of an

undefined statutory term. Id. at 937.




                                        - 41 -
No. 80643-2-I/42


       Webster’s defines “destructive” as “tending to impair, damage, or wreck.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 615 (2002).           And it defines

“impact” in this context as meaning a “force producing change.” Id. at 1131. It

cites as a synonym the word “shock.” Id. From these definitions, the aggravating

factor of a “destructive impact” on persons other than the victim clearly involves

some type of shock so forceful in nature that it causes a damaging impact on the

life or lives of those individuals.

       The evidence here established that B.C., the teenage son of Kalac’s victim,

although not in the same room with his mother when she was killed, was present

in the apartment when Kalac murdered her and, according to the State’s 3D

mapping of the crime scene, was probably no more than 10 feet away when it

happened. B.C. found Amber after smelling an odd “stench” coming from her

bedroom. The forensic pathologists testified Amber was in an advanced stage of

decomposition when she was found some 15 hours after her death. And B.C. and

his brothers had the misfortune of seeing the obscene pictures Kalac posted to

4chan on the Internet. Although B.C. did not see Amber’s brutalized body when

he discovered her, we see very little difference between having to undergo that

type of traumatic event and having to see photographs of his dead mother—naked

and clearly posed to make her ligature marks so visible—on the Internet.

       Paul testified that finding Amber “most definitely” had a negative impact on

B.C., above and beyond the typical impact a child experiences on losing their

mother. Paul noticed significant impacts on how B.C. copes with day-to-day life

following his mother’s murder. Paul testified that B.C.’s discovery of his murdered



                                      - 42 -
No. 80643-2-I/43


mother in her bedroom had affected his schoolwork, his relationship with him, his

grandparents, and his siblings, and, in general, he just “doesn’t like people”

anymore. Paul reported that B.C. and his brothers were experiencing night terrors

because of the photos they had seen of their mother.

       Looking at the facts in the light most favorable to the State, any rational trier

of fact could find beyond a reasonable doubt that B.C. has experienced a shock

so forceful in nature that it has caused a damaging impact on his life. We conclude

sufficient evidence supports the second aggravating factor, substantial and

compelling reasons justifying Kalac’s exceptional sentence.

       2. Trial Court’s Reference to Potential Good Time Credit

       Finally, Kalac argues the trial court erred in considering the possibility that

he might earn good time early release credits. We conclude resentencing is

unnecessary based on the record before us.

       At the sentencing hearing, the State asked the trial court to consider

doubling or trebling the standard range of 31 to 41 years. It contended that the

formula the court ultimately chose did not matter but the “right range is a range

that puts this person in custody for his life.” It cited to the heinous nature of the

crime and the fact that the pictures of Amber, naked and dead, will reside on the

Internet for the duration of her children’s lives. Kalac asked the court to impose a

45-year sentence, reflecting the top of the standard range plus 2 years for each of

the two aggravators.

       In rendering the sentence, the court noted that the standard range in the

case is 31 to 41 years and that Kalac has the opportunity to earn some of that time



                                        - 43 -
No. 80643-2-I/44


as a good time credit. Based on Kalac’s age of 35, the court calculated a standard

range sentence would result in a likely period of incarceration of 38 years, putting

Kalac’s release at age 73. But the court then went on to discuss the specific facts

of this crime and the impact on Amber’s family. It stated:

       There are things about this crime that are different than any other
       homicide that I have been privy to, two things. One is the behavior
       of the defendant after having killed Amber with respect to how she
       was found, marking, writing on her body, biting, things like that.

       ...

       And then there was the posting of the photographs and the
       discussion on the internet, and that can’t be ignored. That is, as the
       prosecutor says, the defendant’s demonstration of the lack of
       remorse.

       The presence of the internet makes this very different than crimes I
       attended to when I was in my 30s, but we didn’t have the internet
       back then.     Homicides, murders, victim’s family members,
       communities were left to heal, because the gruesome nature of the
       crime became compartmentalized in memories, and it could be
       diminished by memory and by life itself and moving forward.

       This is not that case. This is not that case because the internet keeps
       the gruesome nature of this crime present and alive forever, despite
       the efforts of the owners of that particular site to erase the
       photographs. In the few hours that they were up on 4chan, they
       became widespread throughout the world.

       And just like the detective who downloaded the pages so that he
       could preserve them on his computer, we have no idea what other
       databanks exist. But they do, and you can find them. Like the
       prosecutor said, if you, [B.C.], want to Google yourself when you’re
       20 years old, your mother’s homicide will come up.

       So how do they heal? How do they survive this? How do they move
       forward? I can’t answer that question, but I do know who’s the one
       who caused all of that to happen and what punishment fits that crime.

The court then addressed Kalac’s addiction, noting that it recognized his condition

as a disease. But, because of the competing issues, it concluded the appropriate

                                       - 44 -
No. 80643-2-I/45


sentence was one that would ensure he stayed in prison for life. It imposed the

exceptional sentence of 82 years.

         When we read the trial court’s oral ruling in its entirety, it is clear it did not

believe a standard range sentence was appropriate, in part because, with good

time credits, such a sentence would allow Kalac to be released from prison in his

early 70s. Under the Sentencing Reform Act, 13 the trial court may not consider a

defendant’s potential good time credits when imposing an exceptional sentence.

State v. Wakefield, 130 Wn.2d 464, 477-78, 925 P.2d 183 (1996). Although the

trial court should not have referred to the good time credits here, we do not deem

it to be reversible error. As the Supreme Court noted in Wakefield:

         [A] trial court’s reliance on the availability of good time credits when
         imposing an exceptional sentence does not automatically result in a
         reversal of the sentence. If overwhelming aggravating factors exist
         to justify an exceptional sentence, the sentence will be upheld even
         if the trial court improperly relied on the possibility of good time
         credits.

Id. at 478. Even if the trial court initially considered the possibility for early release,

it was clear from the record that “in all probability” the court would impose the same

sentence on remand given the circumstances of the case, making resentencing

unnecessary. Id.

         Like Wakefield, the trial court initially referred to good time credits Kalac

might earn if serving a standard-range sentence. But based on the trial court’s

thoughtful analysis of how this crime differs from most other murders it has seen

and the long-lasting impact it will have on Amber’s family, and the overwhelming



13
     Chapter 9.94A RCW.

                                           - 45 -
No. 80643-2-I/46


evidence supporting the aggravating factors, we are convinced the court would

impose the same sentence were we to remand this case for resentencing.

      We affirm Kalac’s convictions and sentence and remand for the sole

purpose of striking the fees and nonrestitution interest from Kalac’s judgment and

sentence.




WE CONCUR:




                                      - 46 -
