                                                                                  FILED
                                                                         COURT OF APPEALS
                                                                            I I51011I
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     2015 FEB - 3 AM 8: 53
                                                  DIVISION II
                                                                         STATE OF WASHINGTON
 STATE OF WASHINGTON,                                                           No. 44801 -
                                                                          BY-
                                                                                   DEMI-
                                      Respondent,




 SEAN ALLEN FORSMAN,                                                    UNPUBLISHED OPINION


                                        Appellant.


        MELNICK; J. -      Sean Forsman challenges his jury convictions on three counts of unlawful

delivery of a controlled substance, with two school zone enhancements. Forsman argues that the

trial court abused its discretion when it declined to order disclosure of the identity of the State' s

confidential informant ( CI) or to hold an in camera interview of the CI to determine whether


ordering disclosure      would   be     proper.   In his   statement of additional    grounds (   SAG), Forsman


further asserts that the trial court erroneously quashed his subpoena for Officer Jeffrey Martin' s

arrest or incident reports; the trial court improperly admitted evidence from a measurement device

without a showing of authentication or reliability; the State improperly bolstered the CI' s

credibility; the trial court erroneously instructed the jury that it had to vote unanimously to reject

the aggravating circumstance; the trial court erroneously instructed the jury on the definition of

 delivery "; the prosecutor committed misconduct by shifting the burden of proof to Forsman; and,

the trial court improperly denied Forsman' s motion to dismiss. We reject all of Forsman' s claims

and affirm the trial court.


                                                       FACTS


        This case concerns a CI who has worked for the police since 2006 and has participated in

       24                       buys.    The State                      intended to           the CI   as   a witness.
over        controlled   drug                        never called or                   call
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Forsman believed the CI to be his friend Marie.' However, the State has never confirmed the CI' s


true identity.

         The CI approached Officer Jeffrey Martin and offered to buy controlled substances from

Forsman. On three occasions, the CI bought crack cocaine from Forsman. All three transactions


followed the same procedure. Prior to meeting Forsman, the police searched the CI to insure she

did not possess any drugs or contraband. Each time, the CI wore sweatpants, a T -shirt, no bra, and

flip -flops   or   flat   shoes.    This attire facilitated the search and made it clear she was taking no

contraband with her into the meeting with Forsman.

         Each time, the        police gave     the CI money.            The CI would then meet with Forsman inside


her   car.     The police monitored the transactions, but could not actually see anything being

exchanged. After each of the three transactions with Forsman, the CI returned with crack cocaine


and without the money.

         Martin used a school district map of bus stops and a laser measurement device to determine

that the second and third drug buys took place less than 1, 000 feet away from a school bus stop.

A Tacoma school district official testified and corroborated Martin' s findings. .




         Q. I will ask you did you know this individual —
         A. Yes.
         Q. —      that you met with?
         A. Yes, I did. I          am   familiar   with   the CI, familiar who   she   is ...   Marie, is her name.


Report   of    Proceedings ( RP) ( Apr. 1, 2013)            at   457.
44801 -7 -II



                                              PROCEDURAL HISTORY


           The State charged Forsman with three counts of unlawful delivery of a controlled

substance, 2 two of which carried school zone enhancements.3 Forsman moved to compel the State

to disclose the CI'     s   identity   and contact   information. In support of his motion, Forsman argued


that the CI was a material witness because she was the only eyewitness to the actual transaction

and, other than the police, only she could testify to the extent of the pre -buy searches the police

conducted of her person. In a pretrial hearing, the trial court granted the motion only as to the CI' s

gender.      The State also disclosed that the CI had previously been convicted of a crime of

dishonesty. .

           Forsman orally re- raised the CI issue at a confession hearing held pursuant to CrR 3. 5.

Relying on the same arguments he had raised previously, Forsman requested an in camera

proceeding to determine whether the CI had any exculpatory information. The trial court denied
the motion.



           Shortly before trial, Forsman once again requested disclosure of the CI' s identity, as well
as   any   potential   impeachment          evidence.   Forsman   argued   that   his defense theory   required " all




evidence which would permit a reasonable                 inference ...   that the drugs in question in this case

were not     delivered to the CI       by   Forsman."   Clerk' s Papers ( CP) at 104. The trial court denied the


motion because the CI was not being called as a witness and was not subject to impeachment.

           At trial, Forsman theorized that the CI         was    his friend Marie. He testified that he had not


sold her drugs and that Marie met with him to borrow money. The CI did not testify at trial. None




2
    RCW 69. 50. 401( 1)( 2)( a)    -( d).



3
    RCW 69. 50. 435; RCW 9. 94A.533( 6).
44801 -7 -II



of    her   statements     to Forsman     or   the   police were   offered   or used.   The State did not want to


jeopardize the CI or her cases.


            The jury returned verdicts of guilty on all three counts and found the State proved the

school      zone      enhancements.      Forsman unsuccessfully moved to have the jury verdict, set aside

because he was unable to confront the CI. He timely appealed.

                                                        ANALYSIS


I.          STANDARD OF REVIEW


            The trial court' s decision whether to disclose an informer' s identity is reviewed for abuse

of    discretion. State     v.   Harris, 91 Wn.2d 145, 152, 588 P. 2d 720 ( 1978).       Similarly, the trial court' s

decision whether to hold an in camera hearing is reviewed for abuse of discretion. State v. Vazquez,

66 Wn.         App.   573, 582, 832 P. 2d 883 ( 1992).      A trial court abuses its discretion if the decision is


manifestly unreasonable, based on untenable grounds, or based on untenable reasons. State v. Dye,

178 Wn.2d 541, 548, 309 P. 3d 1192 ( 2013) (               quoting In re Marriage ofLittlefield, 133 Wn.2d 39,

46 -47, 940 P. 2d 136 ( 1997)).


II.         DISCLOSURE MOTION


            Forsman argues that the trial court abused its discretion by refusing to order the disclosure

of    the CI'    s   identity. The State argues that the trial court did not abuse its discretion because

Forsman failed to show that the CI' s testimony was either relevant and helpful to Forsman' s

defense, or essential to a fair determination. We agree with the State and affirm the trial court.

            In general, the government is privileged to refuse to disclose the identity of informants who

provide information of criminal violations. State v. Petrina, 73 Wn. App. 779, 783, 871 P. 2d 637

     1994) (   citing Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 ( 1957)).




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44801 -7 -II




 Disclosure of an informant' s identity shall not be required where the informant' s identity is a

prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the


defendant." CrR 4. 7( f)(2).           However, the informer' s privilege is limited by a defendant' s right to

due    process and a    fair trial. " When ` disclosure           of an   informer'       s   identity ... is relevant and helpful

to the defense of an accused, or is essential to a fair determination of a cause, the privilege must

give   way. "' Petrina, 73 Wn.             App.   at   783 -84 ( quoting Roviaro, 353 U. S.              at   60 -61).   Furthermore,


a defendant has a Sixth Amendment right to compel attendance of material witnesses, so long as

the defendant        can establish "' a colorable need            for the   person    to be        summoned.'"        Petrina, 73 Wn.


App. at 784 ( quoting State v. Smith, 101 Wn.2d 36, 41 -42, 677 P. 2d 100 ( 1984)).

          In deciding whether to allow disclosure, the court must " balance ` the public interest in

protecting the flow          of   information     against   the individual'       s right     to   prepare   his defense. "' State v.


Harris, 91 Wn.2d 145, 150, 588 P. 2d 720 ( 1978) ( quoting Roviaro, 353 U. S.                                    at   62).   In applying

this test, the court must consider the facts of the particular case, including the crime(s) charged,

the possible defenses, the possible significance of the informer' s testimony, and other relevant

factors. Harris, 91 Wn.2d             at   150 ( citing Roviaro, 353 U. S.           at   62). "[ I] f the court determines that


disclosure is relevant and helpful to the defense, or essential to a fair determination of the cause,

the    court   may   require      disclosure."    Harris, 91 Wn.2d at 150 ( citing Roviaro, 353 U.S. at 60 -61).

The defendant bears the burden of showing that the above standards require disclosure. Petrina,

73 Wn. App. at 784 ( citing State v. Massey, 68 Wn.2d 88, 92, 411 P. 2d 422, cert. denied, 385 U. S.
904 ( 1966)).


          In this    case,   the CI   participated       in the   delivery   of   drugs. She arranged the deliveries with


Forsman. Nobody else was present when they occurred. Therefore, she was the " only witness in
a position     to amplify or        contradict    the   testimony    of government witnesses."                 Roviaro, 353 U. S.     at
44801 -7 -II




64. But being a material witness " is not dispositive of the question whether the Roviaro standard

requires    disclosure."          Harris, 91 Wn.2d       at    151.      The trial   court must also    consider the


countervailing factors against disclosing the CI' s identity. Here, the CI was engaged in active and

ongoing investigations, which would be compromised if her identity were revealed. Furthermore,

she had been involved in at least 24 investigations in the past. Revealing the CI' s identity would

potentially be a risk to her personal safety, not only from Forsman, but from any of the others she

had previously helped the police investigate.

         Another factor in favor of nondisclosure is that Forsman knew the identity of the CI to a

reasonable degree of certainty. Although the State never confirmed the CI' s identity, Forsman had

an abiding belief that the CI was a friend of his:

         Q. I will ask you did you know this individual —
         A. Yes.

         Q. —     that you met with?

         A. Yes, I did. I am familiar with the CI, familiar who she is. So December around
         the 7th, 10th, whatever, the CI, Marie, is her name, Marie contacted me.


         Q. How long have you known her approximately?
         A. Marie?     Probably four years, five years, around there.
           Q. Is she someone that you were friends with or what?
         A. Yeah. She was someone that I was familiar with. I had a personal relationship
         with.




Report     of   Proceedings ( RP) ( Apr. 1, 2013)        at   457 -58.   Where, as here, the defendant reasonably

guessed the identity of the informant, knew her, and did not have any of her statements from the

transactions introduced into evidence, the trial court does not abuse its discretion by refusing to

disclose the informant' s identity. State v. Riggins, 11 Wn. App. 449, 451 -52, 523 P. 2d 452 ( 1974).

In   addition,   it   must   be   noted   that the defendant   never subpoenaed      his friend Marie to testify.
44801 -7 -II




          The trial    court     acted   reasonably, for tenable            reasons,    and   on   tenable   grounds.   The


particular facts of this case, along with the public policy for the informer' s privilege, leads us to

hold the court did not abuse its discretion. We affirm the trial court.


III.      IN CAMERA HEARING


          Forsman raises the alternative argument that the trial court should have at a minimum held


an in camera interview of the CI to determine whether she had any information that would be

relevant or helpful to the defense. The State argues that Forsman failed to carry his burden to show

the necessity of an in camera hearing, and accordingly the trial court did not abuse its discretion.

We agree with the State and affirm the trial court.

          CrR 4. 7( h)( 6)     provides: "   Upon request of any person, the court may permit any showing

of cause for denial or regulation of disclosure, or portion of such showing, to be made in camera."

Such   an   in   camera   hearing is     the "   preferred method" for determining whether disclosure of an

informer'   s    identity is   necessary.    Harris, 91 Wn.2d          at   150.    The court should hold an in camera


hearing if the defendant can make an initial showing that the informant would have evidence

relevant    to the defendant' s innocence.           State v. Potter, 25 Wn. App. 624, 628, 611 P. 2d 1282

 1980).     Doubts     should    be   resolved   in favor   of   holding     the    hearing. State v. Cleppe, 96 Wn.2d

373, 382, 635 P. 2d 435 ( 1981).              However, the trial court may refuse to hold the hearing if the

defendant' s reason for seeking the informant' s testimony is only speculative. Potter, 25 Wn. App.

at 628; Cleppe, 96 Wn.2d at 382.


          Here, Forsman' s theory was that the CI' s testimony might indicate that the pre -buy

searches were not thorough, lending credence to Forsman' s theory that the drugs had not come

from Forsman but had been brought                  by   the CI       herself.      This theory was entirely speculative.

Forsman made no showing that would indicate that an in camera hearing might reveal evidence of



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44801 -7 -II




the CI' s supposed plot to frame Forsman by planting drugs on herself. The trial court did not abuse

its discretion by declining to credit Forsman' s mere conjecture.

IV.       SAG ISSUES


          A.       Subpoena for Officer Arrest /Incident Reports


          Forsman argues that the trial court improperly granted the State' s motion to quash a

subpoena for the arrest and incident reports of Police Investigator Jeffrey Martin, a witness in

Forsman'    s   case.   Forsman argues that the denial of access to these reports violated his


confrontation clause rights. We reject his claim.

          We review a trial court' s evidentiary rulings for abuse of discretion. State v. McDonald,

138 Wn.2d 680, 693, 981 P. 2d 443 ( 1999).      Similarly, we review a trial court' s ruling on the scope

of cross -examination for abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P. 3d 1189

 2002).


          The confrontation clause of the Sixth Amendment guarantees a defendant the opportunity

to confront the witnesses against him through cross -examination. Delaware v. Van Arsdall, 475

U. S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 ( 1986).         This includes the right to question a


witness about potential    bias.   Van Arsdall, 475 U.S. at 678 -79. However, trial judges have " wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such

cross -examination based on concerns about, among other things, harassment, prejudice, confusion

of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."

Van Arsdall, 475 U. S. at 679.


          Here, Forsman requested a list of all of the defendants Martin had arrested throughout his

career for drug violations, and the race of each defendant. Forsman argued that this discovery was

necessary because Martin may have been biased against Forsman because of his race. But Forsman



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44801 -7 -II




offered no specific reasons why Martin might be biased, other than the general assertion that "racial

profiling is      pervasive   in society." RP ( Sept. 25, 2012)        at   5.   Furthermore, even without the arrest


records, Forsman was able to conduct a searching cross -examination of Martin at trial. In light of

the burdensome nature of Forsman' s request, and the lack of prejudice to Forsman' s cross -


examination, the trial court did not abuse its discretion by denying Forsman' s discovery request.

         B.          Measuring Device

             Forsman argues that the trial court abused its discretion by allowing the State to introduce

evidence of the results of a laser measuring device without a showing of authentication or

reliability. We reject his claim.

             Evidence   must    be   authenticated         before it is   admitted.      ER 901(   a).   However, the


authentication requirementis waived when the opponent fails to object on authentication grounds.

State   v.   Roberts, 73 Wn.     App.     141, 145, 867 P. 2d 697 ( 1994) (         citing Seattle v. Bryan, 53 Wn.2d

321, 324, 333 P. 2d 680 ( 1958);              State v. Trader, 54 Wn. App. 479, 484 -85, 774 P. 2d 522 ( 1989);

State   v.   Hancock, 44 Wn.      App.        297, 303, 721 P. 2d 1006 ( 1986); United States v. Rivera -Cintron,


29 M.J. 757, 759 ( A. C. M.R. 1989); Beckman v. Carson, 372 N.W.2d 203, 209 ( Iowa 1985)).


             Here, Forsman did not object at trial to the introduction of the measuring device results.

Accordingly, the requirement of authentication was waived and the trial court did not err by

admitting the distance          measurements.            Roberts, 73 Wn. App. at 146 ( citing 5 KARL TEGLAND,

EVIDENCE § 10( 1),       at   25 ( 3d   ed.    1989)).   Forsman' s claim fails.


             C.      Bolstering

             Forsman argues that the prosecutor improperly bolstered the credibility of the State' s

confidential informant. We reject his claim.




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44801 -7 -II




          Here, Forsman failed to timely object to the prosecutor' s alleged vouching. Accordingly,

he can raise prosecutorial misconduct on appeal only if the alleged misconduct was so flagrant and

ill- intentioned that no curative instruction could have mitigated the prejudice. State v. O' Donnell,

142 Wn.        App.    314, 328,       174 P. 3d 1205 ( 2007).            A prosecutor improperly vouches for the

credibility    of a government witness when               he   either (   1) "   place[ s] the prestige of the government


behind the      witness"     or (   2) "   indicate[ s] that information not presented to the jury supports the

witness' s     testimony."     State       v.   Coleman, 155 Wn.      App.       951, 957, 231 P. 3d 212 ( 2010) ( citing


United States v. Roberts, 618 F. 2d 530, 533 ( 9th Cir. 1980)).


          Neither occurred in this case. The prosecutor merely rebutted the defense' s theory that the

CI brought her        own    drugs to the         controlled   buys in     order   to frame Forsman.    In doing so, the

prosecutor relied on facts that his evidence had established, such as Martin' s search procedures,


the fact that the CI was working extensively with the police, and the fact that the CI got along well

with     Forsman.      The prosecutor also made the reasonable inference that if the CI was really

smuggling drugs into her meetings with Forsman, the CI would expose herself to significant legal

liability. The prosecutor' s comments were not flagrant or ill-intentioned, and Forsman' s claim

fails.


          D.          Unanimity

          Forsman argues that the court erroneously instructed the jury that it had to be unanimous

in order to reject the special finding that his drug sales occurred within 1, 000 feet of a school bus

stop.    SAG at 4. We reject his claim.

          Forsman' s argument is foreclosed by our Supreme Court' s decision in State v. Nunez, 174

Wn.2d 707, 715, 285 P. 3d 21 ( 2012).                 There, our Supreme Court held that the Sentencing Reform

act of 1981 requires unanimity for any verdict on aggravating circumstances, whether the jury



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44801 -7 -II




imposes   or rejects an aggravator.             Nunez, 174 Wn. 2d          at   715.   The court correctly instructed the

jury when it delivered the instruction that the jury must be unanimous to either accept or reject the
alleged aggravators. Forsman' s claim fails.


         E.       Definition of Delivery

         Forsman argues that the court improperly relieved the State of its burden to prove every

element of the crime charged when it provided an erroneous definition of "delivery" in the jury

instructions. SAG at 5. We reject his claim.


         WPIC 50. 07 defines " delivery"            as "   the [ actual]   [ or] [ constructive] [ or] [   attempted] transfer



of a [ controlled substance] [        legend   drug] from one person to           another."    11 WASHINGTON PRACTICE:


WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50. 07,                                 at   960 ( 3rd   ed.   2008).   Here, the


court instructed the jury that " delivery" means " the transfer of a controlled substance from one

person   to   another."     CP   at   156.    The court properly gave the delivery instruction as described in

the WPIC,      with   the   omission of        the optional terms.           But even if the delivery instruction was

erroneous, any error did not relieve the prosecution of its burden to prove each element beyond a

reasonable doubt. Rather, by specifying that transfer need not be actual, the omitted terms would

have been harmful to Forsman' s case. Because the court' s delivery instruction did not relieve the

prosecution of     its burden, any           error was   harmless. State v. Brown, 147 Wn.2d 330, 340 -41, 58


P. 3d 889 ( 2002). Forsman' s argument fails.


         F.        Prosecutorial Burden -Shifting

         Forsman argues that the prosecutor committed misconduct by shifting the burden of proof

to him. We reject his claim.


         Because Forsman failed to timely object to the prosecutor' s closing argument, he can raise

a claim of prosecutorial misconduct on appeal only if the alleged misconduct was so flagrant and



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44801 -7 -II




ill-intentioned that     no curative      instruction   could   have   mitigated     the   prejudice.   O' Donnell, 142


Wn. App. at 327 -28.

          Here, the prosecutor argued to the jury that

                If you think it' s a real possibility that this defendant is the victim of a frame
         job, acquit him. If you think it' s a real possibility that the police lied about his
         confession, acquit him. If you think it' s a real possibility that what he told you on
          the stand was the truth, acquit him.
                   But if you don' t think those things, if you look at the evidence and it points
          to one conclusion, then return a verdict that holds him accountable.


RP ( Apr. 2, 2013)       at    594.    It is misconduct for a prosecutor to argue that in order to acquit a


defendant, the jury must find that the State' s witnesses are lying. State v. Fleming, 83 Wn. App.
209, 213, 921 P. 2d 1076 ( 1996) (         citing State v. Casteneda -Perez, 61 Wn. App. 354, 362 -63, 810

P. 2d 74 ( 1991); State       v.   Wright, 76 Wn.   App.   811, 826, 888 P. 2d 1214 ( 1995); State v. Barrow, 60


Wn.    App. 869,   874 -75, 809 P. 2d 209 ( 1991)).         However, the prosecutor did not argue that the jury

was required      to believe that the       police were    lying in    order   to   acquit   Forsman.   The prosecutor


argued that the jury should acquit Forsman if they believed the police were lying, or if they

believed Forsman had been framed, or they found Forsman' s testimony credible. Any of the three

possibilities, in other words, would be sufficient to acquit Forsman.


          It is true that the prosecutor implied that the jury should find Forsman guilty if it did not

believe any of the three enumerated theories. But the prosecutor immediately thereafter reminded
                                        Forsman only if the                led to only " one    conclusion."   RP ( Apr.
the   jury that it should     convict                           evidence



2, 2013)    at   594.   Any prejudice could have been mitigated by a curative instruction once again

reminding the jury that it was required to acquit unless it had an abiding belief in Forsman' s guilt.
          Forsman never requested such a curative instruction. The prosecutor' s remarks, in context,

were not flagrant or ill -intentioned, but a misstatement that the prosecutor immediately corrected

by telling the jury that they should convict Forsman only ifthe evidence led to no other conclusion.

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44801 -7 -II




We hold that the prosecutor' s remarks do not warrant reversal given the heightened standard of

review. See State v. Emery, 174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012).

         G.           Sufficient Evidence


         Forsman argues that the trial court should have granted his motion to dismiss because the


evidence was insufficient to go to a jury. We reject his claim.

         Evidence is sufficient to support a conviction if, viewed in the light most favorable to the


prosecution, it permits any rational trier of fact to find the essential elements beyond a reasonable

doubt. State     v.   Aten, 130 Wn.2d 640, 667, 927 P. 2d 210 ( 1996).       Upon review of the sufficiency

of the evidence, we draw all reasonable inferences from the evidence in the State' s favor. State v.

Gregory,      158 Wn.2d 759, 817, 147 P. 3d 1201 ( 2006) ( quoting       State v. Clark, 143 Wn.2d 731, 769,

24 P. 3d 1006,        cert.   denied, 534 U. S. 1000 ( 2001)).   We will not review the jury' s determination

of the credibility of a witness or evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P. 2d 1102 ( 1997)
                       Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990)).        Rather, we treat all of the
 citing State    v.




State' s factual allegations and inferences as true. State v. Lubers, 81 Wn. App. 614, 618 -19, 915

P. 2d 1157 ( 1996) (      quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 ( 1992)).

         Taking the State' s factual allegations and inferences as true, a rational trier of fact could

find the elements of unlawful delivery of a controlled substance with school zone enhancements

beyond a reasonable doubt. The State' s evidence established that the CI met with Forsman three

times.   Each time, the CI brought only cash into the transaction, and returned with only cocaine.

Thus a rational trier of fact could determine that the CI had purchased cocaine from Forsman.

Furthermore, the State' s evidence established that two of the transactions took place within 1, 000

feet   of a   school     bus stop.     The evidence was sufficient for the jury to convict Forsman, and

Forsman' s argument fails. We affirm the trial court.




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44801 -7 -II




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

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

2. 06. 040, it is so ordered.




We concur:




               rgen,   A. C.
                        J.
                             A,cI




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