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State v. Dickson

The Court of Appeals of Washington, Division Three
Mar 6, 2008
143 Wn. App. 1027 (Wash. Ct. App. 2008)

Opinion

No. 24995-6-III.

March 6, 2008.

Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-03525-3, Robert D. Austin, J., entered February 6, 2006.


Affirmed in part, reversed in part, and remanded by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Brown, J.


The court has considered the appellant's and the respondent's motions for reconsideration and the answers thereto, and the court is of the opinion the motions should be granted. Therefore,

IT IS ORDERED the motions for reconsideration of this court's decision of November 15, 2007, are granted.

IT IS FURTHER ORDERED that the opinion filed November 15, 2007, is hereby withdrawn and a new opinion shall be filed this day.

Erik R. Dickson appeals his convictions for first degree robbery, first degree kidnapping, second degree assault, and second degree theft. He received a deadly weapon enhancement on both the robbery and the kidnapping charges.

We hold that under the recent decision in State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), Mr. Dickson's conviction for second degree theft must be vacated even though this conviction was not relied upon in calculating Mr. Dickson's sentence. We hold that Mr. Dickson's conviction for second degree assault must also be vacated Page 3 because this conviction merged into the robbery conviction. Mr. Dickson's remaining allegations of error are without merit.

Accordingly, we reverse Mr. Dickson's judgment for second degree theft and second degree assault with instructions to the trial court to vacate these convictions. We remand for resentencing. We affirm Mr. Dickson's remaining convictions for first degree robbery and first degree kidnapping, as well as the deadly weapon enhancements imposed at sentencing.

FACTS

In 2004, John Seickert, a real estate developer, came to Spokane, Washington, on business. Mr. Seickert stayed at the Hotel Lusso in downtown Spokane. After he closed a successful real estate deal, Mr. Seickert went to the restaurant in the hotel lobby, and then later visited several other bars.

At one bar, the Satellite Diner, Mr. Seickert struck up a conversation with Erik Dickson. Mr. Seickert bought drinks for Mr. Dickson and several other people in the bar. Mr. Dickson then accompanied Mr. Seickert to another bar where they had more to drink. Eventually, the two took a cab back to Mr. Seickert's hotel.

Later, two people who had been at the Satellite knocked on the door of Mr. Seickert's room. They joined Mr. Seickert and Mr. Dickson. After a while, Mr. Seickert asked everyone to leave. One of the visitors asked for $20 for a cab ride home. Mr. Seickert had only a $50 bill, so he went down to the lobby to get change. The two visitors left in a cab.

When Mr. Seickert returned to the hotel room, Mr. Dickson punched him in the face and then kicked him in the mouth. Mr. Dickson held a knife to Mr. Seickert's throat and threatened to kill him if he struggled. Mr. Dickson then tied up Mr. Seickert in the bathroom and stomped on his head. Mr. Seickert's injuries included several lacerations to his lip and a laceration to the back of the head.

While Mr. Seickert was lying on the floor in the bathroom, Mr. Dickson took Mr. Seickert's wallet. He rifled through the wallet, took Mr. Seickert's automatic teller machine (ATM) card, and demanded Mr. Seickert's personal identification number (PIN). Mr. Seickert gave Mr. Dickson his PIN. Then, Mr. Dickson began removing pictures from Mr. Seickert's wallet. Mr. Dickson folded up a picture of Mr. Seickert's daughter and shoved it into Mr. Seickert's mouth. Mr. Dickson did the same thing with pictures of Mr. Seickert's wife and son. Mr. Dickson stated that he would kill Mr. Seickert if he spit out any of the pictures.

Mr. Seickert blacked out. When he regained consciousness, Mr. Dickson had taken the pictures that were forced into Mr. Seickert's mouth and arranged them in a pool of Mr. Seickert's blood on the floor of the bathroom. Mr. Dickson told Mr. Seickert to say goodbye to his family. Mr. Seickert said goodbye to his family.

Mr. Dickson yanked Mr. Seickert up by his hair and moved him to the bedroom. Mr. Dickson strapped Mr. Seickert in a chair near the bed. He then began ripping out the phone lines in the room. Mr. Dickson placed a leather belt around Mr. Seickert's neck. He also placed a blanket over Mr. Seickert's head. Mr. Dickson then told Mr. Seickert that he was going to leave. Mr. Dickson also told Mr. Seickert that if he tried to move, he would be killed.

Mr. Dickson left the hotel room, taking Mr. Seickert's lap top computer, brief case, cell phone, and credit cards. After waiting to make sure that Mr. Dickson was gone, Mr. Seickert shook the blanket off his head and yelled for help.

The hotel clerk called the police. Police found Mr. Seickert bound at the wrists and neck, and tied to the chair in the bedroom. An officer cut Mr. Seickert free. After treatment at the hospital, Mr. Seickert returned to his home in Boise.

Shortly after returning home, Mr. Seickert was shown a photomontage of suspects. He immediately identified Mr. Dickson as the man who had attacked him.

Police matched Mr. Dickson's fingerprints to those lifted from a soda can found in Mr. Seickert's hotel room. Mr. Dickson was also identified from surveillance video from the Satellite Diner and from the convenience store ATM where Mr. Dickson used Mr. Seickert's credit card. In addition to the other property that was taken, Mr. Dickson withdrew $1,000 from Mr. Seickert's account using his ATM card.

Mr. Dickson was charged with first degree robbery, first degree kidnapping, first degree extortion, second degree assault, and second degree theft. After the State rested its case, the trial court found insufficient evidence to support the charge of extortion.

During closing arguments, the State emphasized that there were numerous instances of assault throughout the time Mr. Seickert was being held in his room by Mr. Dickson. The State also referenced the items that Mr. Dickson had taken from Mr. Seickert. The trial court did not give a unanimity instruction on either the charge of assault or theft.

The jury found Mr. Dickson guilty of first degree robbery, first degree kidnapping, second degree assault, and second degree theft. The jury also returned two special verdicts finding that Mr. Dickson was armed with a deadly weapon during the commission of the robbery and kidnapping.

At the sentencing hearing, Mr. Dickson asserted that his convictions for second degree assault and second degree theft merged into his conviction for robbery. Mr. Dickson conceded that the kidnapping charge did not merge into the robbery charge.

The trial court determined that the theft conviction constituted the same criminal conduct as the robbery charge and that this conviction merged with Mr. Dickson's conviction for first degree robbery. As a result, the trial court did not consider the theft conviction in its judgment and sentence. But the trial court did find that the amount of violence in this case was gratuitous and that the assault did not necessarily further the crime of robbery. The trial court concluded that the conviction for second degree assault did not merge into the first degree robbery conviction.

Mr. Dickson was sentenced to 173 months' confinement based on his convictions for first degree robbery, first degree kidnapping, and second degree assault, together with two deadly weapon sentencing enhancements.

ANALYSIS

I. Double Jeopardy

Mr. Dickson argues that the multiple convictions and multiple enhancements violate the double jeopardy provisions of the federal and state constitutions.

We review claims of a double jeopardy violation de novo. See State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).

The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution prohibit the State from placing an individual in jeopardy twice for the same offense. See, e.g., State v. Linton, 156 Wn.2d 777, 782, 132 P.3d 127 (2006). The double jeopardy doctrine protects an individual against multiple punishments for the same offense. Id. at 783. But this prohibition does not preclude the State from charging multiple offenses based on the same transaction. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).

When the intent of the legislature is clear, this court may conclude that the legislature intended to punish two offenses arising out of the same act separately. Freeman, 153 Wn.2d at 771-72. Otherwise, this court employs a two-tiered analysis when evaluating the claim of a double jeopardy violation. Id. at 772; see also Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

"First, the offenses must be factually the same." In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 47, 776 P.2d 114 (1989). This means that the proof of both offenses is the same. Id. If proof of one offense would not necessarily prove the other, then there is no double jeopardy violation. Id. (quoting Vladovic, 99 Wn.2d at 423). Second, the court must examine whether the offenses, as charged, contain the same elements. Fletcher, 113 Wn.2d at 49. If each offense contains elements not included in the other, then there is no double jeopardy violation. Id. The elements of the crime are not considered on an abstract level, but are viewed in light of the proof required for each offense. Freeman, 153 Wn.2d at 772. Both parts of the two-tiered analysis must be met: double jeopardy arises only when the offenses are the same in law and in fact. See Vladovic, 99 Wn.2d at 423.

To address Mr. Dickson's assertions of double jeopardy violations, we consider each set of offenses separately.

A. Robbery and Kidnapping. It is not apparent from the statutory language whether the legislature authorized multiple convictions where the charge of first degree robbery and first degree kidnapping arise out of the same conduct. State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005). As a result, we look to whether the two offenses, as charged in this case, were based on the same evidence and contained the same elements. Id.

The court in Fletcher analyzed whether convictions for first degree kidnapping and first degree robbery based on the same criminal conduct violated double jeopardy. Fletcher, 113 Wn.2d 42. Focusing on the same elements component of the test, the trial court in Fletcher found that both the robbery and the kidnapping charges contained elements that were not included in the other. Id. at 49-50.

Specifically, a first degree robbery charge contains the element of a taking of personal property, which is not an element of first degree kidnapping. See RCW 9A.56.200. And a charge of first degree kidnapping requires proof of the use or threatened use of deadly force. See RCW 9A.40.010, .020. Deadly force is not an element of robbery. RCW 9A.56.200.

Here, the State had to prove different elements in order to establish that Mr. Dickson was guilty of first degree robbery and first degree kidnapping. The State presented evidence that Mr. Dickson unlawfully took several items of Mr. Seickert's property to establish the elements of first degree robbery. And the State presented separate evidence of Mr. Dickson's use, and threatened use, of deadly force to establish that Mr. Dickson committed first degree kidnapping.

As in Fletcher, there is no double jeopardy violation stemming from Mr. Dickson's convictions for first degree robbery and first degree kidnapping.

B. Robbery and Assault. Again, here we look to whether the two offenses, as charged in this case, were based on the same evidence and contained the same elements. Louis, 155 Wn.2d at 569. If each offense contains elements not included in the other, then there is no double jeopardy violation. Fletcher, 113 Wn.2d at 49.

INSTRUCTION NO. 10

To convict the defendant of the crime of robbery in the first degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about between the 20th day of October, 2004, and the 21st day of October, 2004, the defendant unlawfully took personal property from the person or in the presence of another; (2) That the defendant intended to commit theft of the property;

(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person;

(4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

(5) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon or inflicted bodily injury; and

(6) That the acts occurred in the State of Washington.

CP at 19.

A person commits second degree assault when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a). The jury was instructed that to convict Mr. Dickson of second degree assault it needed to find that he "recklessly inflicted substantial bodily harm on JOHN W. SEICKERT." CP at 29.

Here, second degree assault and first degree robbery have different elements. First degree robbery required the taking of property. Second degree assault required proof that Mr. Dickson recklessly inflicted substantial bodily harm on Mr. Seickert.

We hold that separate convictions for these crimes did not violate double jeopardy under this analysis.

C. Theft and Robbery. Mr. Dickson contends that his convictions for second degree theft and first degree robbery violated double jeopardy. In response, the State points out that Mr. Dickson's conviction for second degree theft disappeared when the trial court merged the theft charge into Mr. Dickson's conviction for first degree robbery. The State further argues that there was no double jeopardy violation because no sentence was imposed for the second degree theft conviction and it was not used in the calculation of Mr. Dickson's offender score.

The Washington Supreme Court has recently clarified that remand for vacation of a conviction is required even when the defendant was not sentenced on the offense that violates double jeopardy. See State v. Womac, 160 Wn.2d 643, 656-60, 160 P.3d 40 (2007). In Womac, the trial court entered all of the defendant's convictions as part of the judgment and sentence, despite explicitly recognizing that separate punishment for all of the convictions would be a double jeopardy violation. Id. at 654. In an attempt to avoid a double jeopardy violation, however, the trial court did not impose any punishment on two of the defendant's three charges. Id.

The court in Womac rejected the State's argument that there was no double jeopardy violation. Id. at 656-64. In doing so, the court determined that the fact of Page 12 conviction itself was considered a punishment. Id. at 656-57. The court based its decision on two reasons. First, the court noted that if not vacated by the trial court, these convictions could enhance punishment if the defendant was convicted of any future crimes. Id. at 656. Second, the court found that there was inherent "stigma and impeachment value" that automatically attaches to multiple convictions. Id. at 657. In short, the court concluded that a conviction alone had a punitive effect that could create a double jeopardy violation, even if the conviction had no effect on the defendant's current sentence. Id. at 659-60.

Here, there is no dispute that Mr. Dickson's conviction for second degree theft merged into his conviction for first degree robbery based on double jeopardy principles. The remedy for such a violation, even where no separate punishment is imposed, is to vacate the offending conviction. See id. at 658-60. Accordingly, we remand and direct the trial court to vacate Mr. Dickson's conviction for second degree theft.

Because we direct the trial court to vacate Mr. Dickson's conviction for second degree theft, we need not address his contention that this theft conviction violated his right to a unanimous jury verdict.

D. Multiple Deadly Weapon Enhancements. Mr. Dickson asserts that the multiple deadly weapon enhancements violate double jeopardy. Courts have repeatedly held that the imposition of multiple weapon enhancements based on a single act of possession does not violate the prohibition against double jeopardy. See, e.g., State v. Ward, 125 Wn. App. 243, 251-52, 104 P.3d 670 (2004); State v. Huested, 118 Wn. App. 92, 95, 74 P.3d 672 (2003). The statute authorizing deadly weapon enhancements "unambiguously shows legislative intent to impose two enhancements based on a single act of possessing a weapon, where there are two offenses eligible for an enhancement." Huested, 118 Wn. App. at 95. Therefore, we conclude there was no double jeopardy violation based upon the imposition of multiple weapon enhancements.

E. First Degree Robbery and Deadly Weapon Enhancement. Mr. Dickson contends that he was subjected to double jeopardy based upon the imposition of a deadly weapon enhancement for his first degree robbery conviction. Specifically, Mr. Dickson asks this court to apply the reasoning in Blakely v. Washington to a double jeopardy analysis to conclude that the imposition of the deadly weapon sentencing enhancement operates to punish an individual twice for the same element of an offense.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

"It is well settled that sentence enhancements for offenses committed with weapons do not violate double jeopardy even where the use of a weapon is an element of the crime." State v. Nguyen, 134 Wn. App. 863, 866, 142 P.3d 1117 (2006). And the analysis in Blakely does not change this result. Blakely dealt with the Sixth Amendment right to a jury trial; it did not address double jeopardy grounds. Id. at 868 (citing Blakely, 542 U.S. at 301). A double jeopardy analysis hinges only on legislative intent, not on the required procedures for finding facts that support the imposition of a sentence. State v. Esparza, 135 Wn. App. 54, 67, 143 P.3d 612 (2006), review denied, 161 Wn.2d 1004 (2007). Consequently, Mr. Dickson's claim is without merit.

II. Merger

Mr. Dickson asserts that his multiple convictions merged into the single count of robbery in the first degree.

We review claims of a merger violation de novo. See Freeman, 153 Wn.2d at 770. Merger is a doctrine of statutory interpretation that examines whether the legislature intended to impose multiple punishments for a single act that violates more than one statutory provision. Fletcher, 113 Wn.2d at 50-51 (quoting Vladovic, 99 Wn.2d at 419 n. 2). This doctrine prevents the State from "`pyramiding the charges'" faced by the defendant. State v. Saunders, 120 Wn. App. 800, 820, 86 P.3d 232 (2004) ( quoting State v. Johnson, 92 Wn.2d 671, 676, 600 P.2d 1249 (1979)).

Merger applies when a crime is elevated to a higher degree by proof that the defendant committed an additional crime. Saunders, 120 Wn. App. at 820-21 (quoting State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001)). If the crimes charged had different purposes or effects, then they may be punished separately. Fletcher, 113 Wn.2d at 52. This court must also examine the elements of the crime to ascertain whether the legislature intended the crimes to be punished separately. Id.

A. Robbery and Kidnapping. Kidnapping does not merge into the charge of robbery based on an analysis of legislative intent. And Mr. Dickson conceded this at the sentencing hearing. See Louis, 155 Wn.2d at 570-71; Fletcher, 113 Wn.2d at 53. These two offenses do not merge because proof of one of the offenses will not necessarily be proof of the other. Louis, 155 Wn.2d at 571. Moreover, kidnapping is not an element or an aggravator that elevates the charge of robbery. Consequently, "kidnapping does not merge into first degree robbery." Vladovic, 99 Wn.2d at 421. The trial court did not err by failing to merge Mr. Dickson's convictions for robbery and kidnapping.

B. Robbery and Assault. Mr. Dickson also asserts that his conviction for second degree assault merged into his conviction for first degree robbery.

The State was required to establish the separate offense of second degree assault in order to prove Mr. Dickson committed the offense of first degree robbery. See RCW 9A.56.200; RCW 9A.36.021. Proof of second degree assault elevated the offense from second degree robbery to first degree robbery.

When an assault elevates the degree of robbery, courts have regularly concluded that the two offenses are the same for double jeopardy purposes. But the determination of whether an assault conviction merges into a robbery conviction must be made on a case-by-case basis. Freeman, 153 Wn.2d at 774.

The trial court found that the assault conviction could stand as a separate offense from the robbery conviction because Mr. Dickson applied greater violence to commit the assault than was needed.

Mr. Dickson's actions were violent. He began his assault by punching and kicking Mr. Seickert when Mr. Seickert returned to the hotel room. He continued the assault by taking Mr. Seickert into the bathroom, hitting and kicking him, and tying him up. Mr. Dickson then threatened Mr. Seickert's life at knifepoint. Mr. Dickson then continued to beat and stomp Mr. Seickert even while Mr. Seickert was restrained and incapable of resistance. After taking Mr. Seickert's ATM card and obtaining the PIN, Mr. Dickson then continued by mentally and physically tormenting Mr. Seickert by forcing him to look at, and hold, photographs of his family in his mouth. After Mr. Seickert blacked out then awoke, Mr. Dickson had arranged these family photographs in a pool of blood in front of Mr. Seickert. Mr. Dickson then told Mr. Seickert to say goodbye to his family.

A trial court may not find that an offense is incidental to the greater offense, and therefore distinct from that offense, simply because the defendant used more violence than was necessary to complete the crime. Id. at 778-79. An assault does not have an independent purpose or effect merely because the defendant used more violence than necessary to accomplish the crime. Id. at 779. The test is whether the unnecessary force had a purpose or effect independent of the crime. Id.

Here, the continuous assault was violent, but it had no independent purpose. We hold that the conviction for second degree assault merged into the conviction for first degree robbery.

Because we direct the trial court to vacate Mr. Dickson's conviction for second degree assault, we need not address his contention that his assault conviction violated his right to a unanimous jury verdict.

III. Same Criminal Conduct: Kidnapping and Robbery This court reviews a trial court's determination regarding same criminal conduct for an abuse of discretion. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990). In the case of multiple current convictions, all convictions are counted separately for purposes of computing the offender score unless they are determined to be part of the "same criminal conduct." RCW 9.94A.589(1)(a). Offenses that are part of the same criminal conduct are counted as a single offense. RCW 9.94A.589(1)(a). We construe statutes narrowly, and most crimes are not considered to be part of the same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).

Same criminal conduct is defined as two or more crimes that share the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a). If any of the three factors are missing, then the crimes are not part of the same criminal conduct. State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994).

Here, the State concedes that the crimes occurred at the same time, place, and involved the same victim. The question for this court is whether there were different criminal intents underlying the robbery and kidnapping.

This court looks to the statutes defining each offense to determine whether the intent is the same for each crime. State v. Wilson, 136 Wn. App. 596, 613, 150 P.3d 144 (2007). "Two crimes do not contain the same criminal intent when the defendant's intent objectively changes from one crime to the other." Id. Crimes may share the same objective intent where one crime furthered the other or where both crimes were part of the same recognizable scheme or plan. Id. But if the second crime occurs after the first is completed or furthers some other purpose, then the two crimes do not share the same objective intent. Id. at 613-14.

The kidnapping served a separate and independent purpose: to allow Mr. Dickson to escape after completing the robbery. Given that there is an independent purpose and intent to the kidnapping, the trial court did not err by determining that the kidnapping was not part of the same criminal conduct as the robbery.

IV. Sufficiency of the Evidence: Kidnapping

Mr. Dickson asserts that there was insufficient evidence to support the kidnapping conviction. To establish that a defendant committed the offense of first degree kidnapping, the State must prove that the defendant intentionally abducted another person. RCW 9A.40.020. However, the evidence may be insufficient to establish abduction where there is mere incidental restraint and movement of the victim during the course of another crime which has no independent purpose or injury. See State v. Green, 94 Wn.2d 216, 227, 616 P.2d 628 (1980). This court must determine whether Mr. Dickson's restraint of Mr. Seickert had significance independent from the robbery.

A kidnapping that occurs close in time but after the completion of a robbery is not incidental to the robbery. State v. Allen, 94 Wn.2d 860, 864, 621 P.2d 143 (1980). In addition, restraint may not be merely incidental to the commission of a crime where actual physical restraints are involved. See, e.g., Vladovic, 99 Wn.2d 413; Allen, 94 Wn.2d 860. "Neither the flight from the scene of the robbery nor the means of flight therefrom was statutorily or logically a part of the robbery." Allen, 94 Wn.2d at 864.

Here, Mr. Dickson bound Mr. Seickert to a chair and placed a blanket over his head to effectuate Mr. Dickson's getaway. Mr. Dickson instructed Mr. Seickert that he was leaving and that Mr. Seickert should not attempt to escape. This was after Mr. Dickson had obtained possession of Mr. Seickert's property by force. Hence, the kidnapping was not merely incidental to the robbery, and there was sufficient evidence supporting the jury's verdict.

V. Right to a Unanimous Jury Verdict: Assault

Mr. Dickson contends that his right to a unanimous jury verdict was violated because the State failed to elect which of the multiple acts violence formed the basis of the second degree assault charge. We need not address this argument as we have concluded that the assault conviction merged into the robbery conviction.

VI. Conclusion

We reverse Mr. Dickson's judgment and sentence and remand to the trial court with instructions to vacate the convictions for second degree theft and second degree assault. We remand for resentencing in light of our conclusion that the second degree assault conviction merged into the robbery conviction. We affirm his remaining convictions and sentence for first degree robbery and first degree kidnapping, and we affirm the deadly weapon sentencing enhancements for these convictions.

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.

We Concur:

Sweeney, C.J., Brown, J.


Summaries of

State v. Dickson

The Court of Appeals of Washington, Division Three
Mar 6, 2008
143 Wn. App. 1027 (Wash. Ct. App. 2008)
Case details for

State v. Dickson

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. ERIK R. DICKSON, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Mar 6, 2008

Citations

143 Wn. App. 1027 (Wash. Ct. App. 2008)
143 Wash. App. 1027