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                                                                                                                                                38
      IN THE COURT OF APPEALS OF THE STATE OF W.

                                                                                                               1
                                                         DIVISION II
                                                                                                                               UT
STATE OF WASHINGTON,                                                                   No. 43573 -0 -II


                                        Respondent,


         V.



ROBERT LUCAS WOODWARD,                                                        UNPUBLISHED OPINION


                                             ellant.



         PENOYAR, J. —            Robert Woodward appeals his convictions and sentence for first degree


child molestation and             first degree    child rape.     Woodward     argues (   1)   prosecutorial misconduct


denied him         a   fair trial,, (2) he received ineffective assistance of counsel when his trial counsel


failed to     object    to the   prosecutor' s   closing   statements, (   3) he    was convicted   by   a   biased   jury, (4)

the trial court violated his right to a jury trial by not requiring the jury to make a finding on same

criminal conduct, and ( 5) the trial court should have sentenced him under the sentencing scheme

in   effect    prior     to   September 1,       2001.     We affirm Woodward' s convictions, but vacate his


sentence and remand for the trial court to sentence him under the sentencing scheme in effect

prior to September 1, 2001.


                                                             FACTS


         A.G. and H.G. began living with their grandmother, Amanda Woodward, and step-

grandfather,        Woodward, in 1999.            A.G. was five years old and H.G. was three years old when


they moved in with their grandparents.

            In early 2011, A.G. reported to her friend and grandmother that Woodward had molested

her   and   H. G.      The State charged Woodward with first degree child molestation of H.G. between

              1,   1999          August 30, 2008 (               I); first degree   child molestation of      A. G. between
January                   and                            count
43573 -0 -II



January    1, 1999    and    January       31, 2006 ( count II); and first degree rape of a child of A.G. between


January    1, 1999    and    January       31, 2006 ( count III).            The jury was unable to reach a verdict in the

first trial and the trial court declared a mistrial.


          The State       retried   Woodward in April 2012.                  During jury selection for the retrial, the trial

court denied Woodward' s motions to excuse jurors 3, 26, and 27 for cause. Woodward used two


of his seven peremptory challenges to excuse jurors 3 and 26, and exhausted his challenges

without removing juror 27.

          During individual questioning, juror 3 said that when his wife was 12 years old, she and

her   younger sister were           forcibly     raped    by    their   mother' s    boyfriend. He said the boyfriend was


not convicted due to issues with evidence, but that his wife still had problems secondary to the

incident.      When he heard             what    the   charged crime was,            juror 3   said a "    shiver [ went] up [ his]

spine."    IV Report        of   Proceedings ( RP)         at   604.    He said that " this would be the more disgusting

                   So in                                                    doing              they do,    this is        this   is not
thing for   me.              all   the   possibilities of people                    whatever                         not —




really    good at all."      IV RP        at   602.    Despite his wife' s experience, juror 3 stated he believed he

could "    probably"      make      a    fair determination in the           case.    IV RP    at   602.   Juror 3 said he would


base his decision          on    the    evidence      and "[    f]rom   whatever you give—           whatever information you


give me ...     and   I   guess,    the Judge         would    tell   me what   the law is."    IV RP at 606 -07.


           During group questioning, juror 26 raised her hand when defense counsel asked if anyone
thought     they   were     too    sympathetic or empathetic.                 Juror 26 stated she is pretty sympathetic to

other people' s issues and that she was not sure if she could put her sympathy. aside during

deliberations. When questioned further by the State, juror 26 said she thought she could base her

decision on the evidence and the law, and not let sympathy overcome the evidence or the law.



                                                                        2
43573 -0 -II



           During individual questioning, juror 27, who had been a teacher for 40 years, said he had

A. G. in     class    one    year when     he   was    a substitute     teacher.    Juror 27 also stated that he knew


several of the children on the witness list, and that he was the IEP manager at high school for one

of   the   witnesses.       The State' s attorney also noted that he grew up with juror 27' s children. Other

than stating it may be. awkward being a juror because he knew some of the witnesses, juror 27

said that having had A.G. in class, knowing some of the witnesses, and his children growing up

with the State' s counsel would not affect his ability to be fair and impartial.

            At trial, both Woodward and his wife testified that Woodward suffered from several

medical conditions and had undergone treatment that resulted in Woodward not having any

sexual     interest   and    being    unable    to   engage   in   sexual   activity.   During the pretrial investigation,

however, Woodward' s wife told a detective that she and Woodward had a normal, healthy sex

life.


            During closing argument, the State commented on the lack of medical evidence to

support Woodward' s and his wife' s testimony that Woodward suffered from illnesses that made

him incapable of committing the charged crimes. The State said:

             S] omehow those treatments or illnesses starting in 1999 prevented him from
            having either the opportunity or the sexual interest to have committed the crimes
            that he' s alleged to have committed.


            And    yet     both   parties are   entitled   to the —you       know, your verdict is to be based
            upon     the   evidence and    lack      of evidence....        And your instructions tell you that
            both   sides     have —are entitled to the benefit of the evidence, regardless of who
            introduced       evidence.     I would submit to you that that extends implicitly, if not
            explicitly in the instructions, to the lack of evidence.

            And when the claim is made that the defendant has some sort of medical issue
            that prevents him from even being capable of committing the crime that he' s
            accused to have committed, and when any reasonable person with a medical claim
            that would have prevented them from some medical condition having the ability
            to commit the crimes with which he was committed would come forward with

                                                                    3
43573 -0 -II


        some sort of medical evidence              that here'    s—   here' s the evidence, here' s the doctor
                the nurse, here' s the medical records, something that documents that I have
        this    condition and    that it — has
                                          it         resulted    in these   effects....     Those things would
        be     presented   to  byyou       a   reasonable    person.        And —and       you don' t have any
        evidence along those lines in this case.

VI RP at 1133 -34. Woodward did not object to the State' s arguments in closing.

        The jury returned guilty verdicts on all three counts. The trial court sentenced Woodward

to indeterminate sentencing        pursuant        to RCW 9. 94A.507.         The trial court determined Woodward


had an offender score of 6 and sentenced him to life in prison, with a minimum term of 130

months on counts I and II and 216 months on count III. Woodward timely appeals.

                                                        ANALYSIS


I.        PROSECUTORIAL MISCONDUCT


          Woodward     argues     that   prosecutorial misconduct           denied him      a   fair trial.   Specifically, he

argues the State improperly shifted the burden of proof in closing argument by commenting on

the lack of medical evidence to support Woodward' s defense that he was incapable of

committing the      charged crimes         due to his    medical conditions.            Woodward also argues his trial


counsel    was    ineffective for        failing   to   object   to the     prosecutor' s       statements.      Because the


prosecutor' s statements were not improper, the prosecutor did not commit misconduct and

Woodward was not denied effective assistance of counsel.


          A.       STANDARD OF REVIEW


          A defendant who alleges prosecutorial misconduct bears the burden of proving that, in

the context of the record and circumstances of the trial, the prosecutor' s conduct was both

improper and prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673

 2012).        A defendant can establish prejudice by showing a substantial likelihood that the

misconduct affected        the   jury   verdict.    Glasmann, 175 Wn.2d            at   704.    Where the defendant fails


                                                                 M
43573 -0 -II



to object to the prosecutor' s improper statements at trial, such failure constitutes a waiver of

claims of prosecutorial misconduct unless the prosecutor' s statements are so flagrant and ill-

intentioned that      an   instruction   would not    have   cured   the prejudice.      Glasmann, 175 Wn.2d at


704. The focus of this inquiry is more on whether the resulting prejudice could have been cured,

rather than the flagrant or ill-intentioned nature of the remarks. State v. Emery, 174 Wn.2d 741,

762, 278 P. 3d 653 ( 2012).


         In determining whether the misconduct warrants reversal, we consider its prejudicial

nature and cumulative effect.            State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899 ( 2005).

We review a prosecutor' s remarks during closing argument in the context of the total argument,

the   issues in the   case,   the   evidence addressed    in the   argument, and   the   jury   instructions. State v.


Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). 1

          B.      IMPROPER STATEMENTS


          We first    consider whether       the   prosecutor' s   statements were    improper.      Glasmann, 175


Wn.2d     at   704.    Here, the State commented on the lack of medical evidence to support


Woodward' s defense and argued that a reasonable person would have presented such medical

evidence. Woodward did not object to these closing statements.




1
    Woodward improperly states that we should apply the constitutional harmless error standard.
Our Supreme Court declined to adopt the constitutional harmless error - standard in a
prosecutorial misconduct case where the appellants contended that it was the appropriate
standard because the prosecutor' s remarks violated their right to the presumption of innocence
and shifted the burden of proof. Emery, 174 Wn.2d at 756 -58.      Here, Woodward argues only
that the prosecutor' s closing arguments shifted the burden of proof.       Accordingly, as the
Supreme Court did in Emery, we decline to adopt the constitutional harmless error standard here.
                                                             5
43573 -0 -II



          A prosecutor has wide latitude to argue reasonable inferences from the evidence; but it is

improper for the            prosecutor        to   argue   that the burden     of proof rests with         the defendant.      State v.


Thorgerson, 172 Wn.2d 438, 453, 258 P. 3d 43 ( 2011).                            A prosecutor may commit misconduct if

he mentions in closing argument that the defense failed to present witnesses or if he states that

the jury should find the defendant guilty based simply on the defendant's failure to present

evidence    to       support    his defense theory.             State v. Sells, 166 Wn. App. 918, 930, 271 P. 3d 952

 2012) ( citing State          v.   Jackson, 150 Wn.            App.   877, 885, 209 P. 3d 553 ( 2009)), review denied,


176 Wn.2d 1001 ( 2013).                  However, "` [ t] he       mere mention that defense evidence is lacking does

not constitute prosecutorial misconduct or shift                       the burden      of proof    to the defense.'     A prosecutor


is   entitled   to   point out a     lack     of   evidentiary   support   for the defendant'        s   theory   of the case."   Sells,


166 Wn.     App.       at   930 ( alteration in       original) (   quoting Jackson, 150 Wn. App. at 885 -86).

          In Jackson, during closing argument, the prosecutor stated " there was not a single shred

of   testimony in this           case    to    corroborate [     the defendant'    s   girl   friend' s] story     and .. '.   the jury

should compare              Jackson' s   evidence with          the State' s   evidence."      Jackson, 150 Wn. App. at 885.

Because the mere mention that evidence is lacking does not constitute prosecutorial misconduct

and because the prosecutor in Jackson clearly explained to the jury that the State had the burden

of proof,       this   court   held the       prosecutor     did   not commit misconduct.                Jackson, 150 Wn. App. at

885 -86.        Similarly, in Sells, the defendant was charged with second degree identity theft, and

during closing argument the prosecutor commented on the lack of evidence to show that the

North Beach School District superintendant' s name was not on the visa card the defendant

                stole   from the        school      district.   Sells, 166 Wn.      App.      at   929 -30.   Division One of this
allegedly


court held the prosecutor' s statement was not improper and did not constitute misconduct. Sells,

 166 Wn. App. at 929 -30.

                                                                       C
43573 -0 -II



            The prosecutor in this case clearly explained to the jury that the State had the burden of

proof: " I represent     the   prosecution.       And the       prosecution carries       the ...    must meet the burden of

                                                          2
proof.      We have.      the burden [ of         proof.] ,      VI RP     at   1135.   The prosecutor did not imply that

Woodward was required to present evidence or that the jury should find Woodward guilty based

on    his decision to    present     only his      and   his    wife' s   testimony      on   his   medical   conditions.   The


prosecutor merely commented on the lack of medical evidence to support Woodward' s defense

theory that he was unable to commit the charged crimes due to his medical conditions and stated

that   a    reasonable   person    would     have        presented      evidence.        The mere mention that defense


evidence is lacking does not constitute prosecutorial misconduct or shift the burden of proof to

the defense. Jackson, 150 Wn. App. at 885 -86.

            Woodward     relies on   State   v.   Toth, 152 Wn.           App. 610,     217 P. 3d 377 ( 2009), to argue that


a prosecutor' s comment on the defendant' s failure to put forward evidence in support of his

defense      constitutes prosecutorial misconduct.                The defendant in Toth was convicted with felony

driving      under   the influence.     Toth, 152 Wn.             App.     at   612.     The prosecutor stated in closing

argument that the defendant failed to present any witness or evidence to corroborate his defense

that he was at his brother' s house before driving where he claimed he drank only two beers and a

sip    of   whiskey.     Toth,    152 Wn.         App.     at    615.      The court held the prosecutor committed


misconduct because he implied the defendant " had a duty to present evidence by stating that [ the

defendant] did not produce corroborating evidence by calling specific witnesses to testify" and




2 The jury instructions also clearly stated that the State had the burden of proof. VI RP at 1115
     The State is the plaintiff and has the burden of proving each element of each crime beyond a
reasonable    doubt. The defendant has no burden of proving that a reasonable doubt exists as to
these elements. ").
                                                                   7
43573 -0 -II



that the jury could then improperly infer that the defendant had the burden to prove he was not

intoxicated.         Toth, 152 Wn. App. at 615.

         In Toth, the prosecutor commented on the defendant' s failure to produce evidence


regarding    a   fact   question —     where the defendant was and how much he drank before driving —

and a specific element of            the   crime —intoxication.          Here, the prosecutor merely commented on

the lack of evidence to corroborate Woodward' s general defense that his medical conditions

prevented    him from committing the                 charged crimes.      Because the prosecutor' s comments during

closing argument did not address specific fact questions or elements of the charged crimes in
Woodward'        s    case,   Toth is not controlling and does not support Woodward' s prosecutorial

misconduct argument.



         Further,       under   the missing witness doctrine, " the          defendant' s theory of the case is subject
                                                     3
to the   same    scrutiny     as   the State' s. "       State v. Montgomery, 163 Wn.2d 577, 598, 183 P. 3d 267

 2008). "    The prosecutor may comment on the defendant' s failure to call a witness so long as it is

clear the defendant was able to produce the witness and the defendant' s testimony unequivocally

implies the      uncalled witness' s        ability to     corroborate    his theory   of   the   case."   State v. Contreras,


57 Wn.    App.       471, 476, 788 P. 2d 1114 ( 1990).            The defendant is able to produce a witness if "
                                                                                                                the

witness     is peculiarly       available    to the parry, i. e.,      peculiarly within the [ defendant' s] power to

produce."      State v. Cheatam, 150 Wn.2d 626, 652, 81 P. 3d 830 ( 2003).




3
    As argued by counsel at oral argument, the missing witness doctrine is not directly at issue here
because it       must     have been "       raised       early   enough    in the [ trial] proceedings to provide an
opportunity for rebuttal or explanation" of why the witness was not called. State v. Montgomery,
163 Wn.2d 577, 599, 183 P. 3d 267 ( 2008).                        But the doctrine provides a relevant and useful

analogy to the prosecutor' s comments here.
                                                                   8
43573 -0 -II



           At trial, Woodward' s wife testified that Woodward had seen a doctor regarding his

medical conditions that Woodward and his wife claimed prevented Woodward from being able

to commit the          charged      crimes.       Any doctor Woodward had seen would have been peculiarly

available to Woodward and within his power to produce and likely would have corroborated

Woodward' s defense. Accordingly, the prosecutor' s statements were not improper, especially as

a response to the defense Woodward raised, and the prosecutor did not commit misconduct.

Because the prosecutor' s statements were not improper, Woodward was not denied effective

assistance of counsel when his trial counsel failed to object to the prosecutor' s statements.

II.         IMPARTIAL JURY


            Woodward next argues the trial court violated his right to due process and his right to an


impartial jury when it improperly denied his challenges to excuse jurors 3, 26, and 27 for cause.

Woodward used two of his seven peremptory challenges to excuse jurors 3 and 26, but did not

excuse      juror 27,   who    ultimately         sat on   the   jury   that   convicted   him. Thus, Woodward contends


that   a    partial   jury   convicted          him.   Because juror 27 was not biased and Woodward used


peremptory challenges to excuse jurors 3 and 26, Woodward was not denied his right to an

impartial jury.

            A.        RIGHT TO A FAIR AND UNBIASED JURY


            The right to a jury trial includes the right to a fair and impartial jury. U. S. CONST. amend.

VI; WASH. CONST.             art.   I, §   22; City of Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P. 2d

1332 ( 1989).         The Washington Constitution provides no greater protection than the federal right

to    an   impartial   jury.    State      v.   Fire, 145 Wn. 2d 152, 163, 34 P. 3d 1218 ( 2001).          A prospective


juror must be excused for cause if the trial court determines the juror is actually or impliedly

biased.       RCW 4. 44. 170, . 1.80, . 190.               Here, Woodward alleges juror 27 was actually biased,

                                                                        0
43573 -0 -II



defined as " the existence of a state of mind on the part of the juror in reference to the action, or

to either party, which satisfies the court that the challenged person cannot try the issue

impartially       and   without    prejudice   to the   substantial   rights   of   the party challenging."   RCW


4. 44. 170( 2).


            We review the trial court's decision to dismiss a juror to determine if its decision is


manifestly     unreasonable or       based   on untenable grounds or reasons.          State v. Grenning, 142 Wn.

App.   518, 540, 174 P. 3d 706 ( 2008); State v. Rohrich, 149 Wn:2d 647, 654, 71 P. 3d 638 ( 2003).


Because the trial court is able to observe a juror, the trial court is in the best position to evaluate


a juror's candor and the juror' s ability to deliberate. State v. Elmore, 155 Wn.2d 758, 769 n.3,

123 P. 3d 72 ( 2005).           We must accept the trial court' s decision regarding the credibility of the

prospective juror and any other persons involved, as well as the trial court' s choice of reasonable

inferences.         Ottis v. Stevenson -Carson Sch. Dist. No. 303, 61 Wn. App. 747, 756, 812 P. 2d 133

 1991).


            Applying these principles to the present case, we hold that the trial court did not err by

denying      Woodward'      s   challenge    for   actual   bias —in other words, we defer to the trial court' s


factual determination that juror 27' s state of mind was such that he could fairly and impartially

try   the   case.    Juror 27' s acting as A.G.' s substitute teacher one year during his 40 year teaching

career, being acquainted with one of the State' s witnesses, and his children having grown up

with the prosecutor was sufficient to support a reasonable inference that his state of mind was

such that he could not try the case fairly and impartially. On the other hand, juror 27' s responses

to various questions, including his testimony that he could set aside his prior associations and

render a fair decision, supported a reasonable and competing inference that he could. deliberate

fairly   and   impartially.      See RCW 4. 44. 190.        Because the evidence supporting each inference was

                                                               10
43573 -0 -II



such that a reasonable person could adopt either one, the choice of inferences was for the trial

court, and it acted within its discretion by finding that juror 27' s state of mind did not constitute

actual   bias.    We do      not   disturb the trial     court' s    decision    on appeal.      Because juror 27 was not


biased, Woodward was not convicted by a partial jury.

         B.          WOODWARD' S FOR -CAUSE CHALLENGES


         Woodward argues that the trial court violated his due process rights by forcing him to

exhaust peremptory challenges to remove biased jurors who should have been excused for cause.

         The right to peremptory challenges, however, is a statutory right, not a constitutional

right.   Fire, 145 Wn.2d           at   167 -68 ( Alexander, J., concurring); see also Ross v. Oklahoma, 487


U.S. 81, 88, 108 S. Ct. 2273, 101 L. Ed. 2d 80 ( 1988) (                             Although the right to a jury trial is

constitutional,      peremptory         challenges     are   statutory in     nature.).      If a defendant corrects a trial


court' s error of not excusing a juror for cause by using a peremptory challenge, and he " exhausts

his peremptory challenges before the completion of jury selection, and is subsequently convicted

by a jury on which no biased juror sat, he has not demonstrated prejudice, and reversal of his
conviction       is not    warranted."           Fire, 145 Wn.2d         at   165.       Accordingly, the forced use of a

peremptory       challenge     is merely     an exercise of a challenge, not              its deprivation   or   loss. Fire, 145


Wn.2d     at   162 -63.    Thus, using a peremptory challenge to create an impartial jury does not violate

a   defendant'   s   due   process rights.        Fire, 145 Wn.2d at 162 ( quoting State v. Roberts, 142 Wn.2d

471, 518, 14 P. 3d 717 ( 2000)).


          The trial court denied Woodward' s challenges for cause to jurors 3 and 26, which

resulted in Woodward using two of his seven peremptory challenges to excuse jurors 3 and 26.

Even if Woodward could establish that the trial court erroneously denied his motions to excuse

the two        jurors, he    would       still   be   unable   to    establish       a   constitutional   violation.    Because


                                                                    11
43573 -0 -II



peremptory challenges are a statutory right and Woodward has failed to show he was prejudiced

where no biased juror sat on his panel, the trial court did not violate Woodward' s right to an


impartial jury.

III.     SENTENCING


         A.        SAME CRIMINAL CONDUCT


         Woodward argues the trial court violated his constitutional right to a jury trial by not
                                                                           4
submitting the issue       of same criminal conduct       to the      jury.    Because the sentencing court may

properly decide the issue of same criminal conduct, the trial court did not err by not submitting

the same criminal conduct issue to the jury.

          Crimes    constitute   the "[   s] ame   criminal     conduct"      for sentencing purposes when they

    require the same criminal intent, are committed at the same time and place, and involve the

same victim."      RCW 9. 94A.589( 1)(       a).   A defendant has the right to have any fact that increases

the penalty for a crime beyond the prescribed statutory maximum submitted to the jury and

proved beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531,

159 L. Ed. 2d 403 ( 2004) (        quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,

147 L. Ed. 2d 435 ( 2000)).          Because the " same criminal conduct" rule is an exception to the rule


that all convictions count separately for purposes of computing the offender score, a finding of

same criminal conduct can operate only to decrease the offender score and the otherwise

applicable     sentencing   range.    RCW 9. 94A. 525( 5)(      a);   In re Pers. Restraint ofMarkel, 154 Wn.2d



4
 Woodward further argues that the trial court erred when it failed to find that counts II and III
constituted the same criminal conduct. Woodward, however, did not raise this issue at the trial

court and      thus has   waived                  Jackson, 150 Wn. App. at 892 ( quoting In re
                                   the right to appeal    it.
Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158 P. 3d 588 ( 2007) ( " holdingthat issue waived
when the defendant ` failed to ask the court to make a discretionary call of any factual dispute
regarding the issue of same criminal conduct and he did not contest the issue at the trial level "')).
                                                          12
43573 -0 -II



262, 274,      111 . P. 3d 249 ( 2005).    Therefore, a trial court does not violate Blakely when it

addresses the same criminal conduct rule because that finding can only serve to decrease the

defendant' s   possible sentence.     See Markel, 154 Wn.2d         at   274.   Accordingly, the trial court did

not err by not submitting the issue of same criminal conduct to the jury.

         B.        SENTENCING SCHEME


         Woodward contends that the trial court should have sentenced him under RCW


9. 94A. 120, the sentencing      scheme   in   effect prior   to September 1, 2001.      The State concedes this


argument. We agree.


         The State    charged    Woodward       with crimes     occurring between       January   1,   1999 through


January   31, 2006    and   August 30, 2008.       The legislature amended the sentencing scheme under
                                                                         5
which    Woodward      was   sentenced on      September 1,      2001.       The State presented evidence that


Woodward committed the charged crimes throughout the charging period, including before the

sentencing     statute amendments     in 2001.    A jury convicted Woodward on all three counts without

specifying whether Woodward committed the acts before or after the effective date of the

sentencing statute amendments; nor was the jury required to specify when the charged crimes

occurred.




          When the sentence for a crime is increased during the period within which the crime was

allegedly committed, and the evidence presented at trial indicates the crime was committed




5 The legislature amended the sex offender sentencing scheme on September 1, 2001 to require
the trial court to impose the statutory maximum for a sex offense and set a minimum release date
within   the   standard range.   LAWS     of   2001, 2nd sp.    session, ch.    12, § 303.   Under the former sex

offender sentencing scheme, the trial court determined sentences within a standard range in
accordance with      the   general   sentencing   scheme.      Former RCW 9. 94A. 120( 1) (       2000).   The trial

court could also determine whether treatment and community custody were an appropriate option
for the defendant. Former RCW 9. 94A. 120( 8).
                                                          13
43573 -0 -II



before the increase    went     into   effect,   the lesser   sentence must   be imposed. State v. Parker, 132


Wn.2d 182, 191 -92, 937 P. 2d 575 ( 1997).


        We affirm Woodward' s convictions, but vacate his sentence and remand for resentencing

under the sentencing scheme in effect prior to September 1, 2001.

        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.




                                                                         Yenoyar,


We concur:




                         1
         Maxa, J.




         Lee, J.




                                                              14
