                                                                        FILED
                                                                     AUGUST 15, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35751-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
PETER JOHN ARENDAS,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. — Peter Arendas was belligerent and defiant when ordered to leave

a train depot in Wishram, a small town in Klickitat County, which led to charges and

convictions for first degree criminal trespass and third degree assault. We affirm his

convictions but remand with directions to correct his judgment and sentence to provide

that a prohibition on contact with the Burlington Northern Santa Fe (BNSF) Railroad and

its properties is a condition to his suspended sentence, not a condition of community

custody.

                    FACTS AND PROCEDURAL BACKGROUND

       Following a one-day jury trial, Peter Arendas was found guilty by a Klickitat

County jury of first degree trespass and third degree assault. The evidence at trial

included the testimony of Eric Young, a locomotive engineer for BNSF, that he
No. 35751-1-III
State v. Arendas


encountered Mr. Arendas sleeping on the floor of a small waiting room at the BNSF

depot in Wishram late on an August night and told him twice, loudly, that he needed to

leave. When Mr. Arendas did not respond to his first demand to leave, Mr. Young

contacted BNSF’s railroad police, who in turn contacted the Klickitat County sheriff. A

sheriff’s sergeant and deputy responded, allegedly with the intention to do no more than

tell Mr. Arendas he had to leave and escort him from the property.

       According to Mr. Young and Sergeant Fred Kilian, one of the responding officers,

Mr. Arendas was alert, hostile, and belligerent immediately upon the arrival of the

officers. Rather than heed their directives that he comply with Mr. Young’s request that

he leave, Mr. Arendas hurled profanities. After what Mr. Young estimated was five

minutes of arguing with the officers, Mr. Arendas was arrested and placed in the back of

a patrol car, where he continued to rant. At one point, when Sergeant Kilian reached into

the driver’s side of the front seat of the patrol car, Mr. Arendas spat in the sergeant’s face,

leading to the charge of third degree assault.

       Mr. Arendas chose to represent himself at trial, with standby counsel. He

defended against the trespass charge on the basis that he was a ticketed passenger for an

Amtrak train scheduled to leave the following morning and was therefore not a

trespasser. He denied that Mr. Young ever told him to leave the waiting room before two

police officers and two others came “busting in through the door” to tell him he was



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State v. Arendas


under arrest for trespassing. Report of Proceedings (RP) at 439. He denied ever spitting

in Sergeant Kilian’s face.

       Before the trial, Mr. Arendas made several discovery-related motions. According

to Mr. Arendas, he had traveled to Skamania County to see the “Great American Eclipse”

on August 21, 2017, after which he planned to take a train to Salt Lake City but was

delayed in leaving the area by medical problems. Because of difficulty accessing funds,

he had arrived in Wishram on August 26 without money to pay for housing and had slept

outside. He claimed that during his short time in Klickitat County, he was harassed by

the sheriff’s department and specifically by Sergeant Kilian. He moved the court to

require the State to produce police records of his prior contacts with officers from the

county sheriff’s office, claiming they would help him establish a pattern of harassment

and bias. The trial court denied the requests, finding that Mr. Arendas had not

demonstrated the relevance of information about prior contacts.

       Mr. Arendas also moved for the opportunity to view Sergeant Kilian’s patrol car

after he learned that one of the State’s witnesses—a BNSF conductor who had been

standing behind Sergeant Kilian’s patrol car after Mr. Arendas was placed inside—

claimed to have seen Mr. Arendas spit in Sergeant Kilian’s face. Mr. Arendas said he

wanted to view the patrol car’s tinted windows, because he doubted the conductor could

have seen into the interior of the patrol car late at night. The trial court denied the



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State v. Arendas


motion, telling Mr. Arendas that he could cross-examine the conductor about his ability

to see.

          During the State’s case, its witnesses included Mr. Young and the BNSF

conductor. Mr. Arendas had served his own subpoenas on the BNSF witnesses. At the

conclusion of the witnesses’ testimony in the State’s case, the prosecutor asked the trial

court to quash Mr. Arendas’s subpoenas so that the two witnesses could leave. When

questioning by the trial court led it to conclude that Mr. Arendas had no further areas of

questioning for the two witnesses, it quashed the subpoenas, citing its authority to control

the mode of presenting evidence and to exclude cumulative evidence.

          During a jury instruction conference following the conclusion of testimony, the

State informed the court that it was no longer offering its originally-proposed instruction

13, which was based on a Washington pattern jury instruction that identifies statutory

defenses to first degree criminal trespass, including a public premises defense. The trial

court asked Mr. Arendas if he was asking the court to offer that instruction, and Mr.

Arendas responded, twice, that he did not care if the instruction was given. The court

excluded it. Mr. Arendas took no exception to the final jury instructions.

          The jury returned its verdicts finding Mr. Arendas guilty as charged on the

afternoon of the one-day trial.

          At the time of his sentencing hearing, Mr. Arendas had been in custody for 84

days. Given an offender score of 0, he faced a standard range of 1 to 3 months for the

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State v. Arendas


third degree assault, a class C felony, and 0 to 364 days for the criminal trespass, a gross

misdemeanor. The trial court imposed 3 months for the assault and ordered 12 months’

community custody. On the trespass charge, the court stated it would “post” 364 days

but suspend 274 of the days “upon the condition that you do not have any contact with

the Train Depot Station—Burlington Northern Santa Fe Depot Station down there.” RP

at 530. The court later clarified that the condition would extend to BNSF and all of its

properties. In completing the judgment and sentence, the court included a handwritten

notation of the prohibition of contact with BNSF in the section dealing with community

custody.

       The trial court imposed $800 in legal financial obligations that included the $200

criminal filing fee.

       Mr. Arendas appeals.

                                        ANALYSIS

       Represented by counsel on appeal, Mr. Arendas raises seven assignments of error.

We address them in the order presented, combining two challenges that are based on Mr.

Arendas’s right to present a defense and two challenges to the prohibition of contact with

BNSF and its properties.

I.     THE EVIDENCE OF CRIMINAL TRESPASS WAS SUFFICIENT

       A person is guilty of criminal trespass in the first degree if he or she knowingly

enters or remains unlawfully in a building. RCW 9A.52.070(1). “A person ‘enters or


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No. 35751-1-III
State v. Arendas


remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or

otherwise privileged to so enter or remain.” RCW 9A.52.010(2). A person remains

unlawfully in a building by remaining after a license previously extended is specifically

revoked, by someone with authority over the premises. State v. Davis, 90 Wn. App. 776,

781, 954 P.2d 325 (1998).

       Mr. Arendas challenges the sufficiency of the State’s evidence on the trespass

count, relying on the fact that it is a statutory defense to trespass that “[t]he premises

were at the time open to members of the public and the actor complied with all lawful

conditions imposed on access to or remaining in the premises.” RCW 9A.52.090(2). Mr.

Arendas contends that because he had a train ticket for the next departing train and the

waiting room is open 24 hours a day, this “public premises” defense applied.

       “A claim of insufficiency admits the truth of the State’s evidence and all

inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). We defer to the trier of fact on matters of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). A conviction will be reversed only

when no rational trier of fact could have found that the State proved all of the elements of

the crime beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559

(2005).



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No. 35751-1-III
State v. Arendas


       Mr. Arendas’s argument depends on his position that a “no loitering” sign posted

on the door to the waiting room identified BNSF’s only lawful condition to presence on

its premises. But conditions to entering and remaining on premises can also be imposed

by authorized agents of the proprietor, as this court recognized in State v. Finley, in

which a bartender ordered a patron to leave a bar. 97 Wn. App. 129, 138, 982 P.2d 681

(1999). As this court also held in Finley, what an individual “understood” or “believed”

about the lawfulness of his presence is not relevant to the public premises defense; the

pertinent viewpoint is that of a rational trier of fact. Id. A reasonable trier of fact can

conclude beyond a reasonable doubt that an individual knowingly remains unlawfully on

premises when he has been told by someone in authority that he needs to leave and

refuses. Id. at 139.

       Mr. Arendas argues that to commit first degree criminal trespass one must

“knowingly” enter or remain unlawfully in a building, and there was no evidence that he

heard Mr. Young’s two orders. But Mr. Young, a former gunnery sergeant, testified that

he spoke loudly to Mr. Arendas, using his “command” voice, and he and the responding

officers testified that Mr. Arendas was immediately alert once the officers appeared. The

jury was not required to believe Mr. Arendas’s claim that he never heard Mr. Young tell

him to leave. Additionally, the testimony of Mr. Young and the officers was that Mr.

Arendas was given additional opportunities to comply with Mr. Young’s demand that he

leave before the decision was made to arrest him. There was sufficient evidence from

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No. 35751-1-III
State v. Arendas


which the jury could find that Mr. Arendas knowingly remained unlawfully in the waiting

room.

II.     GIVEN THE THEORY OF THE STATE’S CASE, WASHINGTON PATTERN JURY
        INSTRUCTIONS: CRIMINAL (WPIC) 19.06 DID NOT APPLY

        Mr. Arendas makes a related argument that it was error for the trial court to fail to

give a Washington pattern jury instruction originally proposed by the State as its

instruction 13, which it later withdrew. The pattern instruction identifies statutory

defenses to first degree criminal trespass and the State’s burden to disprove a statutory

defense that arguably applies. Mr. Arendas argues for the first time on appeal that the

public premises defense applied and required giving the pattern instruction in the

following form:

                It is a defense to a charge of criminal trespass in the first degree that
        the premises were at the time open to members of the public and the
        defendant complied with all lawful conditions imposed on access to or
        remaining in the premises.
                The State has the burden of proving beyond a reasonable doubt that
        the trespass was not lawful. If you find that the State has not proved the
        absence of this defense beyond a reasonable doubt, it will be your duty to
        return a verdict of not guilty as to this charge.

See 11 WPIC § 19.06, at 337 (4th ed. 2016). He argues that the failure to give the

instruction was manifest constitutional error “in that it concerns the burden of proof, an

issue of due process,” and had practical and identifiable consequences in the trial. Br. of

Appellant at 16-17.




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No. 35751-1-III
State v. Arendas


       As the instruction makes clear, if evidence is offered that might support the public

premises defense, then the State bears the burden to prove the absence of the defense.

This is because the defense negates the unlawful presence element. City of Bremerton v.

Widell, 146 Wn.2d 561, 570, 51 P.3d 733 (2002); State v. Olson, 182 Wn. App. 362, 375-

76, 329 P.3d 121 (2014).

       At no point in proceedings below did the State base its general charge of first

degree criminal trespass on a contention that Mr. Arendas committed the trespass when

he entered the waiting room. Its consistent position was that he committed trespass when

he remained after being told by Mr. Young to leave, and after having his obligation to

leave affirmed by Sergeant Kilian and the deputy. Sergeant Kilian’s declaration in

support of probable cause stated that he and the deputy responded to the Wishram depot

after being told “that a BNSF employee (Eric Young) told the subject to leave twice but

got no response.” Clerk’s Papers (CP) at 5. The declaration in support of probable cause

described the events following the officers’ arrival that led to the arrest:

       I told Arendas he was trespassed from the property and had to go. He
       began tying one of his shoes, but then continued to yell at all of us. I told
       him to get his stuff and leave now. He did not comply. I told him at least
       four, if not five times he had to go now. He continued to yell and would
       not comply. . . .

Id.




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No. 35751-1-III
State v. Arendas


       At trial, Mr. Arendas cross-examined the deputy sheriff who accompanied

Sergeant Kilian about what constituted his trespass, and he received the following

response:

       BY MR. ARENDAS:
              Q     How did I trespass?
              A     You were unwanted on the property of someone else.
              Q     What was the basis of your reasonable investigation to
       determine that?
              A     An employee from the railroad said that you had—or said that
       he had asked you to leave several times and you didn’t respond to him.

RP at 350.

       In finalizing the jury instructions, the trial court was aware that the only trespass

alleged by the State was that Mr. Arendas defied Mr. Young’s orders, even after Sergeant

Kilian and the deputy affirmed that he was required to leave. That theory of trespass

inherently negated the possibility that Mr. Arendas complied with lawful conditions

imposed by BNSF. Because the public premises defense could not apply given the

State’s theory, the trial court did not commit error by accepting Mr. Arendas’s position

that WPIC 19.06 need not be given.

III.   THE TRIAL COURT DID NOT DEPRIVE MR. ARENDAS OF HIS RIGHTS TO PRESENT A
       DEFENSE OR TO COMPULSORY PROCESS

       A.     Discovery

       CrR 4.7 governs criminal discovery, including a prosecutor’s affirmative

disclosure obligations and certain additional disclosures that a defendant is entitled to


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No. 35751-1-III
State v. Arendas


obtain from the prosecutor upon request and specification. CrR 4.7(a), (c). Otherwise,

“[u]pon a showing of materiality to the preparation of the defense, and if the request is

reasonable, the court in its discretion may require disclosure to the defendant of [other]

relevant material and information.” CrR 4.7(e)(1). Both threshold requirements—

materiality and reasonableness—must be met before the court may exercise discretion in

granting the request. State v. Norby, 122 Wn.2d 258, 266, 858 P.2d 210 (1993). A

decision as to the scope of criminal discovery is within the trial court’s discretion and

will not be disturbed absent a manifest abuse of that discretion. State v. Blackwell, 120

Wn.2d 822, 826, 845 P.2d 1017 (1993) (citing State v. Yates, 111 Wn.2d 793, 797, 765

P.2d 291 (1988)).

       A criminal defendant’s constitutional right to disclosure of evidence is limited to

evidence favorable to the defendant and material to guilt or punishment. Id. at 828

(citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). If

a defendant requests a disclosure beyond what the State is obligated to disclose, the

defendant “must show that the requested information is material to the preparation of his

or her defense.” Id. “The mere possibility that an item of undisclosed evidence might

have helped the defense or might have affected the outcome of the trial . . . does not

establish ‘materiality’ in the constitutional sense.” State v. Mak, 105 Wn.2d 692, 704-05,

718 P.2d 407 (1986) (alterations in original).



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No. 35751-1-III
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       Mr. Arendas’s briefing reveals his inability even now, and represented by counsel,

to demonstrate that evidence of his prior contacts with sheriff’s personnel were material

to preparing his defense. His brief states that even “[t]he relevance of the reports could

not be determined without a review of the reports,” and that he requested the reports “to

investigate whether the sheriff’s office . . . engaged in a pattern of harassment and bias

against him.” Br. of Appellant at 21 (emphasis added). Mr. Arendas was a party to the

prior contacts and was able to testify to his version of what occurred. He fails to

demonstrate that the trial court manifestly abused its discretion by refusing to order

disclosure of the State’s records of those contacts.

       As for Mr. Arendas’s request to view Sergeant Kilian’s patrol car, the State had

already provided Mr. Arendas with photographs of the interior of the patrol car, and, in

response to his motion, the trial court ordered the State to provide Mr. Arendas with a

photo of the vehicle from the outside. As the court explained, the conductor’s ability to

see through tinted windows could be explored through cross-examination.

       Mr. Arendas did challenge the conductor’s alleged observations through cross-

examination. The conductor repeatedly agreed that the rear window of the patrol car was

tinted. Asked by Mr. Arendas how he could see through the tinted window in the dark

and whether he had “flashlight eyes,” the conductor responded, “There’s lights in the

parking lot.” RP at 329. Mr. Arendas fails to demonstrate any respect in which his

defense was hampered by denial of his motion to view the patrol car.

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No. 35751-1-III
State v. Arendas


       B.       Compulsory process

       Mr. Arendas contends that the trial court improperly quashed his subpoenas and

released the BNSF witnesses after they testified and had been cross-examined in the

State’s case.

       Both the federal and Washington State Constitutions guarantee criminal

defendants a right of compulsory process. U.S. CONST. amend. VI; WASH. CONST. art. I,

§ 22. But a “defendant’s right to present witnesses has limits.” State v. Cayetano-

Jaimes, 190 Wn. App. 286, 296, 359 P.3d 919 (2015). In exercising the right to present

witnesses, a defendant “must comply with established rules of procedure and evidence

designed to assure both fairness and reliability in the ascertainment of guilt and

innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d

297 (1973).

       We review the trial court’s evidentiary rulings for abuse of discretion and defer to

those rulings unless no reasonable person would take the view adopted by the trial court.

State v. Clark, 187 Wn.2d 641, 648, 389 P.3d 462 (2017). If the court excludes relevant

defense evidence, we determine as a matter of law whether the exclusion violated the

constitutional right to present a defense. Id. at 648-49 (citing State v. Jones, 168 Wn.2d

713, 719, 230 P.3d 576 (2010)).




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State v. Arendas


       The trial court quashed the subpoenas and released the BNSF witnesses only after

asking Mr. Arendas repeatedly whether he had areas of questioning beyond those already

covered in his cross-examination. Mr. Arendas could identify none, but protested that he

could not be sure without reviewing his notes. The trial court stated it would have the

BNSF witnesses remain through the lunch recess, directing Mr. Arendas to review his

notes and report back at 12:55 p.m. on any additional areas of questioning that remained.

       When trial resumed following the recess, Mr. Arendas told the court he could not

identify additional information needed “at this time,” but stated, “I don’t want to excuse

the witnesses, that’s just what I want to do. I don’t want to excuse them.” RP at 339-40.

At that point, the trial court relied on its authority under ER 611 and ER 403 to quash the

subpoenas.

       Under ER 611(a), Washington courts have broad authority to “exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence,”

including to protect witnesses from harassment. Under ER 403, the court may exclude

relevant evidence based on considerations of the needless presentation of cumulative

evidence. The trial court did not abuse its discretion in applying the two rules. Because

Mr. Arendas can identify no relevant evidence that was excluded, no Sixth Amendment

issue is presented.




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State v. Arendas


IV.    THE LIMITATION ON CONTACT WITH BNSF OR ITS PROPERTIES IS PROPER AS A
       CONDITION TO MR. ARENDAS’S SUSPENDED SENTENCE ON THE TRESPASS CHARGE,
       BUT NOT AS A CONDITION OF COMMUNITY CUSTODY

       Mr. Arendas argues that the condition that he have no contact with BNSF or its

properties is unconstitutionally vague and is not crime related. He proceeds on the

premise that the condition was intended as a discretionary crime-related prohibition under

RCW 9.94A.703(3)(f). Under that provision, a court sentencing a person to a term of

community custody shall impose conditions, which can include discretionary crime-

related prohibitions. We review the “imposition of crime-related prohibitions for abuse

of discretion.” State v. Cordero, 170 Wn. App. 351, 373, 284 P.3d 773 (2012).

       The trial court was authorized by the Sentencing Reform Act of 1981, chapter

9.94A RCW (SRA), to order community custody in connection with Mr. Arendas’s

sentence on the assault count, since third degree assault is a crime against a person under

RCW 9.94A.411. RCW 9.94A.702(1)(c). But the trial court was not authorized to order

community custody in connection with the criminal trespass count because criminal

trespass is a gross misdemeanor. RCW 9A.52.070(2). The SRA applies only to felony

sentencing. State v. Besio, 80 Wn. App. 426, 431, 907 P.2d 1220 (1995). Because a

prohibition on contact with BNSF or its properties is not reasonably related to Mr.

Arendas’s commission of assault, which was the sole basis for imposing community

custody, it was error to identify it as a condition of community custody in section 4.2 of




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No. 35751-1-III
State v. Arendas


the judgment and sentence. We remand the case with directions to strike the order that

Mr. Arendas have no contact with BNSF or its properties from section 4.2.

       A sentencing court has the authority to suspend all or any portion of the sentence

for a gross misdemeanor and may do so on conditions that tend to prevent the future

commission of crimes. RCW 9.95.200; RCW 9.92.060; State v. Morgan, 8 Wn. App.

189, 190, 504 P.2d 1195 (1973) (citing Spokane County v. Farmer, 5 Wn. App. 25, 486

P.2d 296 (1971)); State v. Summers, 60 Wn.2d 702, 707, 375 P.2d 143 (1962). In

announcing its sentence, the trial court stated that it was suspending 274 days of Mr.

Arendas’s sentence for the trespass charge “upon the condition that you not have any

contact with the Train Depot Station—Burlington Northern Santa Fe Depot Station down

there.” RP at 530.

       The prohibition of contact with BNSF or its properties is valid as a condition of

his suspended sentence on the trespass charge. The crime-relatedness required by the

SRA does not apply to conditions imposed on misdemeanant offenders. State v.

Williams, 97 Wn. App. 257, 263, 983 P.2d 687 (1999). Determining which conditions

are appropriate is within the court’s discretion. State v. LaRoque, 16 Wn. App. 808, 810,

560 P.2d 1149 (1977).

       Turning to Mr. Arendas’s vagueness challenge, we assume the vagueness doctrine

would apply if the condition to the suspended sentence did not sufficiently define the

proscribed conduct so that an ordinary person could understand the prohibition or did not

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No. 35751-1-III
State v. Arendas


provide sufficiently ascertainable standards to protect against arbitrary enforcement.

State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).1 Mr. Arendas argues on

appeal that BNSF’s extensive property holdings make compliance with the condition

burdensome, but burdensomeness is not the test. A condition requiring that Mr. Arendas

“have no contact with . . . Burlington Northern Santa Fe Railroad or its properties” is

understandable and presents a standard that is ascertainable. It is not unconstitutionally

vague.

         On remand, the judgment and sentence may be corrected to provide that the

prohibition on contact with BNSF or its properties is a condition to the suspended

sentence.

V.       MR. ARENDAS HAS NOT DEMONSTRATED A RIGHT TO RELIEF FROM THE CRIMINAL
         FILING FEE

         In a supplemental brief, Mr. Arendas asks that we order the trial court to strike the

$200 criminal filing fee imposed at sentencing, citing State v. Ramirez, 191 Wn.2d 732,

745-49, 426 P.3d 714 (2018). Ramirez held that a legislative overhaul of Washington’s

legal financial obligations provisions that became effective in June 2018 applies to

cases then on direct review. Id. at 747. The 2018 changes provide in part that the

criminal filing fee cannot be imposed against a defendant who is indigent as defined in

RCW 10.101.010(3)(a)-(c) at the time of sentencing. RCW 10.01.160(3).


         1
             We note, however, that the issue has not been briefed by the parties.

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No. 35751-1-III
State v. Arendas


      The record reveals that Mr. Arendas was found indigent for purposes of

appointment of counsel at trial and on appeal, but it does not disclose whether he was

indigent as defined by RCW 10.101.010(3)(a)-(c). If Mr. Arendas was found indigent

based on the definition provided by RCW 10.101.010(d), then the criminal filing fee was

properly imposed. RCW 36.18.020(2)(h). Mr. Arendas has not established that the fee

should be struck.

                       STATEMENT OF ADDITIONAL GROUNDS

      Mr. Arendas filed a pro se statement of additional grounds (SAG). A defendant

may file an SAG to identify and discuss matters related to the decision under review that

the defendant believes have not been adequately addressed by the brief filed by the

defendant’s appellate lawyer.

      Prior reports. Mr. Arendas argues that he was wrongfully denied reports of his

prior contact with the Klickitat County Sheriff’s Office and Sergeant Kilian.

This issue was adequately addressed by counsel and will not be reviewed further. See

RAP 10.10(a); State v. Thompson, 169 Wn. App. 436, 492-93, 290 P.3d 996 (2012)

(allegations of error that have been adequately addressed by counsel are not proper

matters for an SAG).

      Improper amendment of charges. Mr. Arendas contends that the State filed an

amended information adding the criminal trespassing charge two days before trial

because he refused to accept a plea offer. An information may “be amended at any time

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No. 35751-1-III
State v. Arendas


before verdict or finding if substantial rights of the defendant are not prejudiced.”

CrR 2.1(d). Generally, the State is liberally allowed to amend the information provided

that the defendant is aware of the charges. State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d

854 (1987); State v. Ziegler, 138 Wn. App. 804, 808, 158 P.3d 647 (2007). Mr. Arendas

knew he was originally arrested for trespassing. The filing of additional charges after

plea negotiations fail does not give rise to a presumption of improper prosecutorial

vindictiveness. State v. Korum, 157 Wn.2d 614, 631, 141 P.3d 13 (2006).

       Perjury. Mr. Arendas contends that Sergeant Kilian committed perjury. While

Mr. Arendas suspects the sergeant of committing perjury, he does not point to anything in

the record on appeal that proves it. If Mr. Arendas has evidence outside the record that

would establish that the sergeant committed perjury and, if so, that the jury’s verdict of

guilt was likely to be influenced, his remedy is to file a personal restraint petition (PRP)

with the supporting evidence. State v. Turner, 167 Wn. App. 871, 881, 275 P.3d 356

(2012).

       No prior trespass warning. Mr. Arendas appears to argue that the State did not

prove that he had been trespassed from the Wishram depot before the time of the charged

offense. The State was not required to prove that he had been trespassed earlier. A

verbal order of the sort testified to by Mr. Young can revoke a license or privilege to

remain in a building. See State v. Kutch, 90 Wn. App. 244, 247, 951 P.2d 1139 (1998).



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       No authority over the waiting room. Mr. Arendas contends that BNSF employees

did not have authority over an Amtrak waiting room. Mr. Young testified that the

Wishram railroad yard and depot is owned by BNSF, that the waiting room is “labeled”

for Amtrak, and that his job responsibilities include reporting any trespass situation to

BNSF’s railroad police, who then coordinate with local law enforcement. The evidence

was sufficient to establish BNSF’s authority over the waiting room.

       False photographs and DNA.2 Mr. Arendas contends the State presented falsified

photographs of Sergeant Kilian’s patrol car. As with the alleged perjury, if Mr. Arendas

has proof that the photographs were falsified and the jury’s finding of guilt was likely

influenced thereby, his remedy is to file a PRP with the supporting evidence. He also

contends that the State failed to conduct DNA tests on the spit in the back of the patrol

car. It was not required to. The State presented eyewitness testimony that Mr. Arendas

spat in the sergeant’s face.

       Photograph not provided. Mr. Arendas contends he was never provided with the

photograph from outside Sergeant Kilian’s patrol car that the trial court ordered be

provided. The time to have objected to that failure was at trial, when the court could

have done something about it. We will not consider the argument for the first time on

appeal. RAP 2.5(a).



       2
           Deoxyribonucleic acid.

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State v. Arendas


       Objections. Mr. Arendas asserts that the trial court erred by allowing the

prosecutor to object over 71 times during the one-day trial. Mr. Arendas identifies no

authority suggesting that a party is limited in the number of objections it may make.

       Utah conviction. Mr. Arendas was cross-examined about whether he had spit on

people before, and, specifically, whether he had been convicted in Utah of spitting on

someone. Mr. Arendas argues on appeal that the State’s questions about the Utah

conviction and a related exhibit misled the jury. Mr. Arendas did not object in the trial

court, however. Objections to evidence need to be raised in the trial court; they will not

be entertained for the first time on appeal. RAP 2.5(a).

       Unlawful arrest. Mr. Arendas argues that he was unlawfully arrested. He does

not inform the court of the nature of the problem with his arrest or why it would be a

basis for relief from his judgment and sentence. We will not consider it. RAP 10.10(c).

       We affirm the convictions but remand with directions to correct the judgment and

sentence so that the prohibition of contact with BNSF and its properties is identified as a

condition of the suspended sentence rather than as a condition of community custody.

The court may also entertain any evidence that the criminal filing fee should be struck

based on Mr. Arendas’s indigence.




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State v. Arendas


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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                             Siddoway, J.

WE CONCUR:




Lawrence-Berrey, C.J.




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