                                                               COURT OF APPEALS WV I
                                                                STATE OF WASHINGTON

IN THE COURT OF APPEALS OF THE STATE dPikikgi-Ilkdilkll

 STATE OF WASHINGTON,                             )
                                                  )         No. 76743-7-1
                        Respondent,               )
                                                  )         DIVISION ONE
                 v.                               )
                                                  )         UNPUBLISHED OPINION
 MIKHEAL D. BOSWELL,                              )
                                                  )
                        Appellant.                )         FILED: July 31, 2017
                                                  )
         APPELWICK, J. — Mikheal Boswell challenges his jury conviction for rape in
the second degree. His court-appointed attorney has filed a motion to withdraw

on the ground that there is no basis for a good faith argument on review. Pursuant

to State v. Theobald,78 Wn.2d 184,470 P.2d 188(1970), and Anders v. California,

386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the motion to withdraw

must:

          "[1] be accompanied by a brief referring to anything in the record that
          might arguably support the appeal. [2] A copy of counsel's brief
        • should be furnished the indigent and [3] time allowed him to raise
          any points that he chooses; [4] the court—not counsel—then
          proceeds, after a full examination of all the proceedings, to decide
          whether the case is wholly frivolous."

Theobald, 78 Wn.2d at 185 (alterations in original) (quoting Anders, 386 U.S. at

744).

         This procedure has been followed. Boswell's counsel on appeal filed a brief

with the motion to withdraw. Boswell was served with a copy of the brief and

informed of his right to file a statement of additional grounds for review. Boswell

did not file a supplemental brief.
No. 76743-7-1/2


       The material facts are accurately set forth in counsel's brief in support of the

motion to withdraw. The court has reviewed the briefs filed in this court and has

independently reviewed the entire record. The court specifically considered the

following potential issues raised by counsel:

1.     Is Boswell's second degree rape conviction supported by sufficient

evidence?

2.     Did the trial court err in excluding reference to preliminary breath test

readings?

3.     Did the trial court err in permitting opinion evidence from the State's expert

witness?

4.     Did the trial court err in refusing to give a jury instruction on the weight and

credibility of Boswell's out-of-court statements?

5.     Did the trial court err in instructing the jury that Boswell had to prove by a

preponderance of the evidence that he reasonably believed that L.E. was not

mentally incapacitated or physically helpless?

      These potential issues are wholly frivolous. Nor can we find any other

arguable issues of merit in this case.

       Counsel's motion to withdraw is granted and the appeal is dismissed.




WE CONCUR:



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