                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           August 6, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 46140-4-II

                                Respondent,
                                                              UNPUBLISHED OPINION
        v.

 KEVIN RAY CASE,

                                Appellant.


       MAXA, C.J. — Kevin Case appeals his conviction of felony violation of a no-contact

order (NCO) and his sentence.

       Violation of an NCO is a felony if the defendant has at least two previous convictions for

violating a court order issued under one of several specific RCW chapters. Former RCW

26.50.110(5) (2013). In a previous opinion, we reversed Case’s conviction because although he

stipulated that he had two prior convictions for NCO violations, he presented no evidence to the

court that the prior convictions were for court orders issued under one of the specified RCW

chapters. State v. Case, 189 Wn. App. 422, 358 P.3d 432 (2015), rev’d, 187 Wn.2d 85, 384 P.3d

1140 (2016). The Supreme Court subsequently reversed our decision, holding that Case’s

stipulation was sufficient to establish that he had two prior qualifying convictions under RCW

26.50.110(5). 187 Wn.2d at 91-92.

       We now address Case’s additional arguments that we did not consider in our earlier

opinion. We hold that (1) the trial court did not violate Case’s public trial right by addressing the
No. 46140-4-II


State’s juror challenges for cause and other issues in sidebar conferences, (2) the trial court’s

sidebar conferences did not violate Case’s right to be present during critical stages in the trial, (3)

Case’s ineffective assistance of counsel claims fail because he fails to demonstrate prejudice, and

(4) the trial court erred in including Case’s prior convictions in his offender score without proof

of those convictions, although this issue may be moot. Accordingly, we affirm Case’s

conviction, but we remand for the trial court to determine whether the sentencing issue is moot

or for resentencing.

                                                 FACTS

          In December 2013, the State charged Case with felony violation of an NCO. The charge

was based on an incident in which Case was observed standing over and yelling at a woman

crouched in the doorway near a bus terminal.

          During jury selection, the trial court held two sidebar conferences. The conferences were

not recorded, but the trial court memorialized the discussions on the record. The first sidebar

occurred after the first voir dire period, and the court stated that “there really wasn’t any

discussion of substance there.” Report of Proceedings (RP) (March 17, 2013) at 7. The second

sidebar occurred before peremptory challenges, and the court stated,

          [T]here was a challenge for one juror for cause, and that was juror number 16. It
          was actually the State that made its challenge, although the defense certainly
          agreed. The basis for that challenge was her answers about how she would evaluate
          evidence and who she might be partial to.

RP (March 17, 2013) at 7. Defense counsel then reminded the court that it also had denied the

State’s for cause challenge to juror 19 based on that juror’s association with defense counsel’s

family.

          During trial, the trial court held separate sidebars on five issues: (1) Case’s objection to

the admission of a recording of a 911 call on hearsay grounds; (2) Case’s objection to the



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No. 46140-4-II


admission of the victim’s identification card also on hearsay grounds; (3) Case’s objection to the

admission of three items of clothing on chain of custody grounds; (4) formalizing a stipulation

regarding Case’s prior convictions for violating no-contact orders; and (5) correcting an error in

the jury instructions the court had just read to the jury. No transcription of any of the sidebar

conferences appears in the record, but the trial court later noted the subject matter of the sidebars

for the record.

       Officer Jeff Herbig testified about his investigation of the incident, including his contact

with Case. During his testimony, the following exchange took place:

       Q: Did [Case] make any statements with regard to his contact with [the
       victim]?

       A: He essentially stated that he denied having any contact with her, and when I
       pointed out the obvious presence of not only civilian witnesses but security guards
       and other disinterested parties that would have no basis for, in my opinion, lying or
       fabricating, he said that they were essentially lying, and at that point I terminated
       my questioning because I didn’t feel we were going to have any sort of meaningful
       interaction.

RP (March 17, 2013) at 46-47. Defense counsel did not object to this testimony.

       During voir dire and trial, Case was in custody and wearing a leg brace. The trial court

noted that the leg brace was concealed and did not show. Defense counsel did not object to Case

wearing a leg brace.

       The jury found Case guilty as charged. The trial court sentenced him to 55.5 months in

confinement and 4.5 months of community custody. Case appeals his conviction and sentence.

                                            ANALYSIS

A.     PUBLIC TRIAL RIGHT

       Case argues that the trial court violated his public trial right when, during sidebar

conferences, the court addressed (1) juror challenges for cause, (2) non-substantive issues during




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No. 46140-4-II


voir dire, (3) the admission of various pieces of evidence, (4) the specifics of the stipulation

regarding prior convictions, and (5) an error made in the trial court’s jury instructions. We

disagree.

       1.    Legal Background

       Article I, section 22 of the Washington Constitution guarantees a criminal defendant the

right to a public trial. State v. Love, 183 Wn.2d 598, 604, 354 P.3d 841 (2015). And article I,

section 10 guarantees the public that “[j]ustice in all cases shall be administered openly, and

without unnecessary delay.” These constitutional provisions provide a “public trial right.” Love,

183 Wn.2d at 605. We review public trial right claims de novo. Id. at 604.

       We apply a three-step analysis in assessing a claimed violation of public trial rights: (1)

whether the public trial right attaches to the proceeding at issue; (2) if the right attaches, whether

the courtroom was closed; and (3) whether such closure was justified. Id. at 605. “The appellant

carries the burden on the first two steps; the proponent of the closure carries the third.” Id.

       2.    Juror Challenges for Cause

       The trial court held a sidebar conference to address the State’s challenge for cause of

jurors 16 and 19. The public trial right attaches to juror challenges. State v. Schierman, 192

Wn.2d 577, 609, 438 P.3d 1063 (2018); Love, 183 Wn.2d at 605-606. Therefore, the issue here

is whether this sidebar conference constituted a “closure” for purposes of the public trial right.

See Love, 183 Wn.2d at 606.

       The Supreme Court held in Love that when the actual questioning of jurors occurred in

public, discussing juror challenges at a sidebar conference did not constitute a courtroom closure.

Id. at 607. The court stated,

       [T]he public had ample opportunity to oversee the selection of Love’s jury because
       no portion of the process was concealed from the public; no juror was questioned



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No. 46140-4-II


       in chambers. To the contrary, observers could watch the trial judge and counsel
       ask questions of potential jurors, listen to the answers to those questions, see
       counsel exercise challenges at the bench and on paper, and ultimately evaluate the
       empaneled jury. The transcript of the discussion about for cause challenges and the
       struck juror sheet showing the peremptory challenges are both publicly available.
       The public was present for and could scrutinize the selection of Love’s jury from
       start to finish, affording him the safeguards of the public trial right missing in cases
       where we found closures of jury section.

Id.

       In Love, the trial court’s discussion of juror challenges at sidebar was transcribed by a

court reporter. Id. at 602. However, this court in State v. Anderson held that a transcription of

the sidebar was not required to satisfy the public trial right for juror challenges discussed at

sidebar as long as the trial court summarized in open court what had occurred in the sidebar. 194

Wn. App. 547, 551-53, 377 P.3d 278 (2016). The court noted that the key factors for the court’s

determination in Love that no closure had occurred was that “the public could (1) hear the voir

dire questioning that provided the basis for the challenges for cause and (2) observe the sidebar

conference while it was occurring.” Anderson, 194 Wn. App. at 552. Because those factors

were present in Anderson, the court held that no closure had occurred when juror challenges

were made in a sidebar conference. Id. at 552-53.

       Love and Anderson control here. All juror questioning occurred in public. Juror

challenges were discussed at sidebar, but the public could watch the sidebar conference as it

occurred. And the trial court memorialized in open court what had been discussed at sidebar.

Under these facts, we hold that discussing juror challenges in a sidebar conference did not

constitute a courtroom closure and therefore did not violate Case’s public trial right.

       3.    Non-Substantive Voir Dire Discussions

       The trial court held a sidebar conference after the first voir dire questioning period, but

the record does not reveal what specifically was addressed. The trial court stated only that “there



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No. 46140-4-II


really wasn’t any discussion of substance there.” RP (March 17, 2013) at 7.

        The Supreme Court’s plurality opinion in State v. Slert held that the defendant has the

burden of providing an adequate record to establish a violation of the public trial right, and in the

absence of an adequate record, a court will not infer that the trial court violated the constitution.

181 Wn.2d 598, 608, 334 P.3d 1088 (2014); see also State v. Koss, 181 Wn.2d 493, 501-03, 334

P.3d 1042 (2014) (holding that the defendant bears the responsibility to provide a record

showing that a court closure has occurred).

        Here, Case fails to provide us with a sufficient record to determine what happened at this

sidebar conference. And there is no indication that the sidebar involved any discussion that

would implicate the public trial right. Accordingly, we hold that Case has not established a

public trial right violation.

        4.   Evidentiary Issues

         Three of the trial court’s sidebar conferences addressed the admissibility of evidence.

 The Supreme Court in State v. Smith held that sidebars addressing evidentiary matters do not

 implicate a defendant’s public trial right. 181 Wn.2d 508, 519, 334 P.3d 1049 (2014).

 Accordingly, we hold that these sidebars did not violate Case’s public trial right.

        5.   Stipulation Regarding Prior Convictions

        The trial court conducted a sidebar conference to address the formalization of the form of

a stipulation regarding Case’s prior convictions for violating a court order. The court stated, “I’ll

indicate first that at the last sidebar just a moment ago the issue was the State wanted to

formalize the form of the stipulation, get everybody to sign off on that. So I said I’d give them

time to do that.” RP (March 17, 2013) at 59.




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No. 46140-4-II


        The stipulation the trial court discussed at sidebar involved evidence that was presented

to the jury. As a result, this discussion regarding evidentiary matters did not implicate the public

trial right under Smith, 181 Wn.2d at 519. And even if the stipulation did not involve evidentiary

matters, the sidebar appears to have been limited to a traditional sidebar subject: seeking the trial

court’s input on the form of a factual stipulation. The court in Smith suggested that sidebars

addressing “traditional subject areas” do not implicate the public trial right. 181 Wn.2d at 516

n.10; see also State v. Whitlock, 188 Wn.2d 511, 522, 396 P.3d 310 (2017). Accordingly, we

hold that this sidebar did not violate Case’s public trial right.

        6.   Jury Instruction Error

        The trial court held a sidebar conference to address an error that had been made in the

trial court’s jury instructions. Our Supreme Court in Koss examined whether a defendant’s

public trial right attached to an in-chambers conference about jury instructions that occurred

before jury deliberations. 181 Wn.2d at 499-501. The court stated,

        “We are aware that, quite often, counsel discuss the instructions with the court
        during an informal proceeding. But before instructing the jury, counsel is to be
        given the opportunity to object in the absence of the jury. CrR 6.15(c). Any
        objections to the instructions, as well as the grounds for the objections, must be put
        in the record to preserve review. . . . We have found no challenges to . . . the rule
        or, prior to the rule’s enactment, any case requiring the discussion of jury
        instructions to be held in open court.”

Id. at 500 (quoting State v. Sublett, 176 Wn.2d 58, 75-76, 292 P.3d 715 (2012). The court then

applied this reasoning and held that the judge and counsel’s informal in-chambers discussion of

jury instructions did not violate the defendant’s right to a public trial. Koss, 181 Wn.2d at 501.

        Although this case involves a sidebar conference instead of an in-chambers discussion,

we follow Koss and hold that this sidebar did not violate Case’s public trial right.




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No. 46140-4-II


B.       RIGHT TO BE PRESENT

         Case argues that the trial court’s sidebar conferences violated his right to be present

during every critical stage in the trial. We disagree.

         1.   Legal Principles

         Under the Sixth and Fourteenth Amendments to the United States Constitution and article

I, section 22 of the Washington Constitution, a criminal defendant has a fundamental right to be

present at all “critical stages” of trial. Love, 183 Wn.2d at 608. However, a defendant’s right to

be present is not absolute. State v. Irby, 170 Wn.2d 874, 881, 246 P.3d 796 (2011). A defendant

has the right to be present at a proceeding only when there is a reasonably substantial

relationship between his or her presence and the opportunity to defend against a charge. Id. And

a defendant does not have the right to be present if his/her presence would be useless or not

beneficial. Id. We review whether a defendant’s constitutional right to be present has been

violated de novo. Id. at 880.

         2.   State’s For Cause Juror Challenges

         During voir dire, the trial court held a sidebar conference that addressed the State’s

challenge for cause of two jurors. Jury selection is a critical stage of trial to which the right to be

present attaches. Love, 183 Wn.2d at 608. We assume without deciding that discussion

regarding juror challenges, which is a part of jury selection, may constitute a critical stage of

trial.

         However, this fact does not mean that Case’s right to be present was violated under the

circumstances here. Case was present in the courtroom during the entire jury selection process,

and therefore had the opportunity to hear all questioning that formed the basis for any future

juror challenges. And there is no evidence that he did not have the opportunity to exercise his




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No. 46140-4-II


right to consult with his counsel or otherwise be involved in counsel’s response to the State’s for

cause challenges. The sidebar conference did not deprive Case of the “ ‘power . . . to give advice

or suggestion or even to supersede’ ” his counsel. Irby, 170 Wn.2d at 883 (quoting Snyder v.

Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934)).

       The Supreme Court in Love rejected a similar right to be present claim when the

defendant was not present at sidebar conferences involving juror challenges. 183 Wn.2d at 608.

The court stated, “Love was present in the courtroom during all of voir dire, including potential

jurors’ answers to questions that form the basis for challenges. Nothing suggests that Love could

not consult with his attorney about which jurors to challenge or meaningfully participate in the

process.” Id.; see also State v. Effinger, 194 Wn. App. 554, 565, 375 P.3d 701 (2016) (rejecting

similar right to be present claim).

       We hold that under the facts here, the sidebar conference regarding for cause juror

challenges did not violate Case’s right to be present during jury selection proceedings.

       3.    Other Sidebar Conferences

       The trial court’s other sidebar conferences involved a non-substantive discussion during

voir dire, evidentiary objections, a factual stipulation, and correcting an error in the jury

instructions. In Irby, the Supreme Court held that a defendant has no right to be present at

proceedings involving “ ‘legal’ ” or “ ‘ministerial’ ” matters. 170 Wn.2d at 881-82 (quoting In

re Pers. Restraint of Pirtle, 136 Wn.2d 467, 484, 965 P.2d 593 (1998)). All of the sidebars here

fall into one of those categories. Non-substantive discussions during voir dire and discussions

regarding the form of a factual stipulation involve ministerial matters. Argument on the

admission of evidence and discussions regarding jury instructions involve legal matters.

Accordingly, we hold that the right to be present did not attach to these sidebar conferences.




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No. 46140-4-II


C.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Case argues that his defense counsel provided ineffective assistance by failing to object

to Case’s restraint in a leg brace during trial and failing to object to the police officer’s testimony

that allegedly commented on the credibility of Case and other witnesses. We disagree.

       1.    Legal Principles

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a criminal defendant’s right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review claims of

ineffective assistance of counsel de novo. Id.

       To prevail on an ineffective assistance claim, the defendant must show that (1) defense

counsel’s representation was deficient, and (2) the deficient representation prejudiced the

defendant. Id. at 457-58. Representation is deficient if, after considering all the circumstances,

it falls below an objective standard of reasonableness. Id. at 458. Prejudice exists if there is a

reasonable probability that except for counsel’s errors, the result of the proceeding would have

differed. Id. Reasonable probability in this context means a probability sufficient to undermine

confidence of the outcome of the trial. Id.

       2.    Failure to Object to Leg Brace

       Case argues that his counsel was ineffective in failing to object to his restraint at trial

with a leg brace. We reject this claim.

       A defendant in a criminal case is entitled to appear at trial free from all bonds or shackles

except in extraordinary circumstances. State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967

(1999). Shackling or handcuffing infringes on a defendant’s right to a fair trial for several

reasons, including that it violates a defendant’s presumption of innocence. Id. at 844. Generally,




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No. 46140-4-II


a trial judge may allow restraints on a defendant only when necessary to prevent injury,

disorderly conduct, or escape and based on specific facts set forth in the record. State v. Jaime,

168 Wn.2d 857, 865, 233 P.3d 554 (2010). Here, the trial court did not state a basis for allowing

the leg brace to be placed on Case.

        In In re Pers. Restraint of Davis, the Supreme Court stated that defense counsel may have

an obligation to object or request a curative instruction regarding shackling. 152 Wn.2d 647,

699, 101 P.3d 1 (2004). However, even assuming without deciding that defense counsel was

deficient in not objecting to Case’s leg brace, there is no indication that Case’s leg brace affected

the outcome of the trial. Before trial, the trial court specifically stated: “I’ll just go on to say on

the record it’s my understanding that the leg brace is concealed, that it doesn’t show.” RP

(March 17, 2013) at 5. The record does not show, and Case does not argue, that the concealment

of his leg brace changed throughout the trial. Therefore, there is no evidence that the jury saw

Case’s leg brace. If the jury does not see a defendant’s restraints, he cannot establish prejudice.

See State v. Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061 (1998).

        Case cannot show that the outcome of his case would have been different if his defense

counsel had objected to his leg brace. Therefore, we reject Case’s ineffective assistance of

counsel claim on this basis.

        3.   Failure to Object to Officer Testimony

        Case argues that officer Herbig improperly gave an opinion regarding Case’s guilt and

that his defense counsel provided ineffective assistance by failing to object to that testimony.

We reject this claim.




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No. 46140-4-II


       The general rule is that no witness can testify to an opinion that the defendant is guilty,

either by direct statement or inference. State v. Quaale, 182 Wn.2d 191, 197, 340 P.3d 213

(2014). Here, Herbig testified as follows:

       Q: Did [Case] make any statements with regard to his contact with [the victim]?

       A: He essentially stated that he denied having any contact with her, and when I
       pointed out the obvious presence of not only civilian witnesses but security guards
       and other disinterested parties that would have no basis for, in my opinion, lying or
       fabricating, he said that they were essentially lying, and at that point I terminated
       my questioning because I didn’t feel we were going to have any sort of meaningful
       interaction.

RP (March 17, 2013) at 46-47 (emphasis added). Case argues that the italicized portion of

Herbig’s statement was an opinion that his denial was a lie and that the testimony of the other

witnesses was the truth.

       This testimony presented Herbig’s opinion that the disinterested parties had no basis for

lying, but Herbig did not comment on Case’s guilt. Instead, he reported that Case thought the

other witnesses were lying and that there was no point in continuing the interview. This

testimony merely reported on Herbig’s interaction with Case and did not imply that Case was

guilty. As a result, even if defense counsel was deficient in failing to object, there is no

indication that the trial court would have sustained the objection. Therefore, Case cannot show

that that the outcome of his case would have been different if his defense counsel had objected.

Therefore, we reject Case’s ineffective assistance of counsel claim on this basis.

D.     SENTENCING ERROR

       Case argues that the trial court erred by considering his prior criminal history at

sentencing when the State produced no evidence to support that history following his objection.

He argues that once he disputed his criminal history, the trial court should have refused to

consider the disputed convictions or ordered an evidentiary hearing. We agree.



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          The trial court generally calculates an offender score by adding together the defendant’s

current offenses and prior convictions. RCW 9.94A.589(1)(a); State v. Hunley, 175 Wn.2d 901,

908-09, 287 P.3d 584 (2012). In determining the proper offender score, the trial court “may rely

on no more information than is admitted by the plea agreement, or admitted, acknowledged, or

proved in a trial or at the time of sentencing.” RCW 9.94A.530(2); Hunley, 175 Wn.2d at 909.

We review a sentencing court’s calculation of an offender score de novo. State v. Bergstrom,

162 Wn.2d 87, 92, 169 P.3d 816 (2007).

          In order to establish a defendant’s criminal history for sentencing purposes, the State

must prove a defendant’s prior convictions by a preponderance of the evidence. RCW

9.94A.500(1); Hunley, 175 Wn.2d at 909-10. A certified copy of the judgment is the best

evidence of a prior conviction, but the State also may produce other comparable documents or

transcripts from prior hearings to prove prior convictions. Hunley, 175 Wn.2d at 910.

          However, “[b]are assertions, unsupported by evidence, do not satisfy the State’s burden

to prove the existence of a prior conviction.” Id. As a result, a prosecutor’s criminal history

summary that is not supported by evidence is not the type of comparable document that can

establish the existence of a prior conviction. Id. at 915, 917. Any sentence imposed using an

offender score based only on a prosecutor’s criminal history summary violates due process. Id.

at 917.

          Here, the only information the State provided to the trial court at sentencing was a

criminal history summary. The State produced no evidence supporting any of Case’s prior

convictions. And Case did not affirmatively acknowledge his criminal history – he objected to

the lack of evidence. As a result, the State did not satisfy its burden of proving Case’s prior

convictions by a preponderance of the evidence.




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No. 46140-4-II


       The State argues that this court should affirm the trial court’s sentence because the trial

court sua sponte confirmed for itself that Case’s prior convictions listed on the criminal history

summary were valid by consulting the court’s electronic database. The trial court relied on the

judgment and sentence in Case’s most recent prior conviction. The State claims that the court’s

database was a reliable source of information and that it should not matter whether that

information came from the State or from the court.

       However, RCW 9.94A.530(2) clearly provides that once a defendant objects to the

State’s proof of his prior convictions, the trial court must either (1) not consider the facts offered

by the State or (2) grant an evidentiary hearing on the point. State v. Grayson, 154 Wn.2d 333,

339, 111 P.3d 1183 (2005).

       The purpose of RCW 9.94A.530(2) is to prevent ex parte contact with the judge,
       sua sponte investigation and research by a judge, and sentencing based on
       speculative facts. Underlying this statutory procedure is the principle of due
       process. The court should consider only adjudicative evidence that the parties in
       an adversarial context have “the opportunity to scrutinize, test, contradict, discredit,
       and correct.

Id. at 340 (citation omitted). Therefore, the trial court violated RCW 9.94A.530(2) by

conducting its own investigation into Case’s criminal history.

       The State also argues that we should hold that the trial court’s error was harmless. But

the State fails to cite to authority, and none was found by independent research, holding that this

type of sentencing error may be harmless.

       Because the State did not produce any evidence supporting Case’s convictions, we hold

that the trial court erred in including Case’s prior convictions at sentencing. The remedy is to

remand for resentencing at which both parties will have the opportunity to present evidence of

Case’s prior convictions. Hunley, 175 Wn.2d at 915-16.




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No. 46140-4-II


        However, we note that Case was given a 55.5 month sentence and a 4.5 month term of

community custody, and more than 60 months have passed since he was sentenced. Therefore,

on remand the trial court first should determine whether Case has served his sentence. If so, this

issue would be moot. See In re Postsentence Review of Cage, 181 Wn. App. 588, 591, 326 P.3d

805 (2014) (stating that the expiration of a sentence generally renders a sentencing issue moot).

                                          CONCLUSION

        We affirm Case’s conviction, but we remand for the trial court to determine whether the

sentencing issue is moot or for resentencing.

        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.



                                                      MAXA, C.J.


 We concur:



 WORSWICK, J.




 LEE, J.




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