### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. MARLOW TODD EGGUM, Appellant. No. 72020-1-1

UNPUBLISHED OPINION FILED: October 3, 2016 

### Verellen, C.J. — Marlow Eggum has been the subjectofseveral criminal 

### proceedings, convictions, and appeals. He has also been a party to a dissolution action. Related to those actions, Eggum has litigated, on several occasions and in 

### differentforums, a rightto certainvideotapes portraying his formerwife seized by the State. This past litigation includes a motion to show cause regarding the videotapes infederal district court, as well as a Whatcom County SuperiorCourt orderby Judge 

### Mura reserving ruling upon the distribution of the videotapes "until a civil action is 

### filed andall interested parties have an opportunityto be heard."1 Here, Eggumappeals an August28, 2015 superior court orderentered in a criminal proceeding denyingEggum's post-trial motion for show cause tofind the State and Whatcom County Sheriff's Office incontemptfor allegedly destroying the
1Clerk's Papers (CP) at 791.No. 72020-1-1/2 

### videotapes.2 The August 28, 2015 orderexpressly provides that "there is no basis to determine that contempt has occurred."3 The order refers to "Judge Mura's several orders regarding [the] return ofthe property" containing a condition precedent—the filing of a civillawsuit to address the ownership ofthe videotapes, the federal district court's dismissal ofEggum's lawsuit regarding the videotapes, and the issue of 

### ownership ofthe videotapes having yet to be resolved bythe filing of a civil lawsuit.4 Eggum asserts that while there is an existing order expressly prohibiting the distribution ofthe videotapes until a civilaction is filed, he is in possession ofe-mails between the attorney general and a Whatcom County sheriff's deputy questioning their authorization to destroy the videotapes. Eggum alleges that the State and Whatcom County Sheriff's Office have since destroyed the videotapes. He contends that, absent a specific order expressly authorizing the State orWhatcom County Sheriff's Office to release or destroy the videotapes, the trial court was compelled to find the State and Whatcom County Sheriff's Office incontempt. But Eggum does not establish that the denial of a motion to show cause for order of contempt in this 

### setting is appealable as a matter ofright.5

2 CP at 1119. 3 CP at 1119. 4CPat1119. 5A commissionerfrom this court referred the appealability ofthe August 28, 2015 order denying Eggum's motion to show cause to a panel ofjudges and directed 

### Eggum to briefany argument in support ofthe order's appealability as a matter of rightunder RAP 2.2(a) or as a matter ofdiscretionary review under RAP 2.3(b).No. 72020-1-1/3
In his opening brief, Eggum argues the trial court's August 28, 2015 "ruling 

### attempts to determine an action and/or discontinue further contempt proceedings" and therefore, "is reviewable under RAP Rule 2.2(a)(3)."6 RAP 2.2(a)(3) permits an appeal as a matter of right from "[a]ny written decision affecting a substantial right in
a civilcase that in effect determines the action and prevents a final judgment or discontinues the action."7 Because "this rule by its text applies only to a written decision in a civilcase," the rule is inapplicable here since the trial court's order is a 

### written decision in a criminal case.8 Therefore, Eggum fails to show he is entitled to appeal as a matter of right under RAP 2.2(a)(3). For the first time in his reply brief, Eggum argues he is entitled to appeal the 

### denial of his motion to show cause as a matterof rightunder RAP2.2(a)(13).9 We note that an "issue raised and argued for the first time in a reply brief is too late to warrant consideration."10 Nevertheless, RAP 2.2(a)(13) permits a party to appeal a 

### trial court's "finalorder made afterjudgmentthat affects a substantial right." Eggum asserts that the "willful violation of multiple court orders prohibiting the destruction of 

### this property constitutes a violation of the appellant's due process rights."11

6Appellant's Br. at 27. 7(Emphasis added.) 8State v. Richardson, 177 Wn.2d 351, 364, 302 P.3d 156(2013). 

### 9We have considered Eggum's reply brief filed September 12, 2016. To the extent Eggum seeks any further extension, we deny his motion. 10 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549(1992). 11 Reply Br. at 16.No. 72020-1-1/4

Butthe interplay between Judge Mura's existing order reserving the distribution ofthe videotapes pending the filing of a civil action does not establish on 

### this limitedrecord that the attorney general and sheriff's office were required to obtain another court order before they took other actions regarding the property. Here, the 

### trial court denied Eggum's motion to show cause for order ofcontempt because 

### Eggum had not met his burden offiling a civil lawsuit to adjudicate the rights to the 

### videotapes. Therefore, in this setting, Eggum does notestablish that the August 28, 2015 orderdenying his motion to show cause was a finalorder affecting a substantial right. 

### Eggum also makes no showing of obvious or probable error, or a showing that the trial court "departed from the accepted and usual course of judicial proceedings" 

### that would merit discretionary review under RAP2.3(b).12 Further, Eggum's briefing fails to refer to the record on appeal. Anappellant 

### must provide "argument insupport of the issues presented forreview, togetherwith 

### citations tolegal authority and references torelevantparts ofthe record."13 Therules ofappellate procedure additionally require that "[reference to the record must be included for each factual statement."14 Arguments unsupported by reference to the 

### record orcitation to authoritywill not be considered.15

12 RAP 2.3(b)(1), (2), (3). 13 RAP 10.3(a)(6). 14 RAP 10.3(a)(5). 15Cowiche, 118 Wn.2d at 809.No. 72020-1-1/5
Eggum cites to exhibits which are attached as appendices to his brief. But
some ofthose exhibits were not designated to this court as part ofthe record on appeal. Under RAP 10.3(a)(8), "[a]n appendix may not include materials not contained inthe record on review without permission from the appellate court." Since Eggum has not obtained the requisite permission, these documents are not considered. Accordingly, we affirm.

WE CONCUR:

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