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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. RUSSELL EARL LOVEN, Appellant. No. 66005-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 18. 2013 

### Spearman, A.C.J. — Russell Loven was convicted of several counts of rape of


### a child, one count ofchild molestation, one count of sexual exploitation of a minor, 

### and one count of possessing depictions ofminors engaged in sexually explicit conduct. On appeal, he claims the trial courterred in (1) denying hisfor-cause 

### challenges totwo potentialjurors; (2) denying his requestfor a multiple-acts unanimity instruction for the depictions count; and (3) considering his prior convictions for rape ofa child as predicate offensesduring sentencing. Concluding that the first twoissues are controlled bycase lawadverse to Loven's position and 

### thathis prior convictions are not constitutionally invalid ontheirface, weaffirm.
FACTS 

### Loven lived in twodifferent apartments owned by Chris Nyhus from 2004 until October 2008. Loven worked as a handyman forNyhus in exchange for rent. Nyhus's 

### stepson, R.B., met Loven in 2004, when R.B. was 10 years old. Loven engaged inNo. 66005-5-1/2 

### sexual actswith R.B. starting from when thelatterwas 10yearsold until he was 14.1 Loven told his roommate, Christina Evans, that his relationship with R.B. "was just touching and oral, nothing else." Verbatim Report of Proceeding (VRP) at 901, 931. Loven told Evans he did not think the relationship was wrong because he considered it to be consensual. Over the course of four years, Loven took photographs and videos of R.B., posting some ofthese images on the internet. When R.B. was 14 years old, he introduced Loven to his 15-year-old friend 

### C.J. Lovengave R.B. and C.J. marijuana and alcohol. On one occasion when R.B. and C.J. were at Loven's apartment, Loven told C.J. that R.B. and Loven were going into the bedroom to have oral sex. Loven touched C.J.'s penis with his hand on several occasions and asked C.J. repeatedly to allow Loven to perform fellatio on him. C.J. refused at first but eventually agreed. 

### Loven had an extensive collection ofchild pornography, including images of 

### children between the approximate ages of4 to 14 engaging in sexual acts with adults and other children. Loven told Evans that he kept some ofthese materials in one of his cars because he did not want to get caught withthem inside the apartment. In October 2008, Evans' friend Julie Leach called the police and took Evans to 

### speak to Detective Keith Savas aboutLoven. Savas interviewed Loven onOctober 24, 2008. During this interview, Loven denied having sexual contactwith R.B. but admitted to possessing child pornography. 

### The State charged Loven with one count of rape of a child in the first degree 

### (victim R.B.), onecount ofrape ofa child in thesecond degree(R.B.), two counts of
During thisfour-year period, Loven was between 39 and 43 years old.No. 66005-5-1/3 rape of a child inthe third degree (R.B. and C.J.), one count of child molestation in the third degree (C.J.), one count of sexual exploitation of a minor (R.B.), and one count ofpossessing depictions of minors engaged in sexually explicit conduct. 

### A jurytrial on these charges took place inJanuary 2010. Before trial, prospectivejurors answered the following questions: 

### 13. Are you able to sit on a jury in a case involving an accusation ofsexual misconduct by an adult male against two male children? 

### 14. Are you able to sit on a jury in a case involving an accusation of rape of a child? 

### 15. Are you able to sit on a jurywhere youwould view graphic images of childrenengaged in sexual conduct? 

### Clerk's Papers (CP) at 285, 297. Jurors 25 and 47 answered each ofthese questions 

### "no." jd. During voir dire, thesejurors elaborated on the difficulties theywould havein 

### sitting on thecase.2 Loven challengedjurors 25 and 47for cause. The court denied the challenges. The defenselater usedtwo peremptory challenges to excusejurors 25 and 47 and ultimately used all six allotted peremptory challenges.

2Juror 25 stated that she would tend to believe a child witness and the child's allegations of sexual abuse. She expresseduncertainty when thecourt asked herwhether she could "listen to 

### evidence regarding this topic and assesswitnesses' credibility and beafair and unbiasedjuror." Defense counsel brought up hercomments thatshe would startfrom theposition thata child's 

### allegations ofsexual abuse were true unless she were shown evidence to the contrary and asked, "Sort ofin this kind ofcase guilty until proven innocent, right?." Sheresponded, "Yeah." When the 

### court attempted to clarify her position, shesaid shewould probably lean toward believing the child but "would find outwhat'strue" and "wouldn'tjustassume it's right." She responded "yes" when thecourt asked if shecould presume thedefendant innocent until proven guilty and hold the Statetoits burden of proof. VRP at 559-68. Juror 47 revealed that her husband had taken photographs of their 13- and 14-year-old 

### daughter "as shewent into adolescence, and he insists that itwas art, but Ithought itwas very inappropriate[.]" VRP at388, 392. Shebelieved shecould not siton a caseinvolving similar accusations becauseitwould bring up feelings thatshe had at thatearliertime. She alsosaid she believed children most oftentell the truth. When the court asked whether she could be a fair and 

### impartialjuror, she answered, "I probably could." VRP at389. The court again asked, "Do you think you can be afair and impartialjurorfor both the defense and the State given what's happened? Can you setaside what happened with your daughterand only listen to the evidence in this case?" Juror 47 said, "Ibelieve I can." VRP at 389.No. 66005-5-1/4 At trial, the State presented testimony from R.B. and C.J., who testified that Loven had oral sex with them during the charging periods. Police witnesses testified that Loven possessed over 4,000 still images and 40 videos of children. Savas testified these consisted of, "[ajmong other things, numerous, thousands ofimages of children engaged in sex acts with other children, children engaged in sex acts with 

### adults, photographs that depict naked, partially clothed, or fully clothed children in 

### sexually suggestive poses we callchild erotica." VRP at 1408. The State admitted 26 CDs and DVDs containing images and videos. The images and videos that were admitted and shown to the jury included images and videos of R.B., including 

### depictions ofhim performing fellatio on Loven; a video of a 5- or6-year-old girl having anal sex with an adult male; and a photograph depicting young boys witherect penises. Loven asked the trial court to instruct the jury that itmust be unanimous as to 

### which act supported a guilty verdict on each ofthe seven counts. Regarding the depictions count, Loven argued that because the evidencefor the depictions count 

### and the exploitation count was being presented to thejury in the same trial, thejury could convict him of both counts based on the same image. He expressed concerns 

### thatthis might violate doublejeopardy. The State opposed such an instruction for the depictions count, asserting there was only one "unit ofprosecution" which could be based on "onephoto, maybe 5,000photos." VRP at 1493. The court denied a 

### unanimity instruction for the depictions count.3 In closing argument, the prosecutor did not elect an image to support the depictions count, making a general reference to

1 The court approved a unanimity instruction forthe six other counts.No. 66005-5-1/5 the thousands of images and videos found in Loven's possession and then discussing the photographs of R.B. and the video of the 5- or 6-year-old child. The jury convicted Loven as charged. At sentencing, the trial court found that Loven had previously been convicted of two counts ofrape of a child in the first 

### degree and imposed the mandatorysentence oflife in prisonwithoutthe possibility of 

### parole.4 Loven appeals, assigning errorto (1) the denial of hisfor-cause challenges to jurors 25 and 47, (2) the denial of his request for a multiple-acts unanimity instruction, and (3) the consideration of his previous convictions for rape of a child as predicate offenses at sentencing. DISCUSSION For-Cause Challenge to Jurors 

### The denial of a challenge forcause is reviewed forabuse ofdiscretion. State


### v. Gonzales, 111 Wn. App. 276, 278, 45 P.3d 205 (2002). A defendant has the right 

### to an impartialjury underboth the state andfederal constitutions. State v. Roberts, 142Wn.2d 471, 517, 14 P.3d 717 (2000). A prospective jurorshould be removedfor


### cause when thejuror's views oropinions would "'prevent orsubstantially impair the 

### performance ofhis duties as ajuror in accordance with his instructions and his oath.'" State v. Hughes. 106 Wn.2d 176, 181, 721 P.2d 902 (1986) (quoting Wainwright v. 

### Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)). This "actual bias" 

### isdefined by statute as "the existence ofa state ofmind on the part ofthejuror in reference to the action, or to eitherparty, which satisfies the court that the challenged

4TheStatealleged Loven had previously beenconvicted ofrapeofa child in thefirst degree. Asecond conviction for rape ofa child in thefirst orsecond degree thus resulted in a sentence oflife without parole. RCW 9.94A.030(37)(b); RCW 9.94A.507.No. 66005-5-1/6 person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging!.]" RCW 4.44.170(2). This case is controlled bv State v. Fire. 145 Wn.2d 152, 34 P.3d 1218 (2001). Fire was charged with child molestation. Id. at 154. He brought a for-cause challenge 

### against a juror who expressed that he might have difficulty putting aside his strong 

### feelings about the type of accusation against the defendant in determining guilt or innocence. JU at 155-56. Afterthe trial court denied the for-cause challenge, Fire 

### used a peremptory challenge to excuse the juror and subsequently used all of his peremptory challenges. Id, at 156. There was no evidence that a biased jurorsat on thejury, and Fire was convicted as charged. Id, at 156, 159. 

### On appeal, this courtheld that thejuror had demonstratedactual bias and should have been excluded bythe trial court. State v. Fire, 100Wn. App. 722, 729- 

### 30, 998 P.2d 362 (2000). We reversed Fire'sconvictions, noting that under State v. Parnell. 77 Wn.2d 503, 463 P.2d 134 (1969), a trial court's erroneous denial of a for
### cause challenge requires reversal regardless ofwhether thejurorwas ultimately 

### removed by a peremptory challenge. Fire, 100 Wn. App. at 727 (citing Parnell. 77 Wn.2d at 508). 

### TheWashington Supreme Court grantedreview and reversed this court. 

### Abrogating Parnell in relevant part, the court held there was no basis for reversal of
the conviction under those circumstances: 

### We find that even if that juror should have been dismissed for cause, Fire exercised one of his peremptory challenges to remove 

### thejuror, and there is no showing that a biasedjuror, againstwhom the peremptory challenge might have been used, sat on his panel. Following the reasoning in United States v. Martinez-Salazar. 528 U.S. 304, 307, 315-16, 120 S.Ct. 774, 145 LEd.2d 792 (2000) andNo. 66005-5-1/7 State v. Roberts. 142 Wn.2d 471, 517-18, 14 P.3d 713 (2000), we conclude that Fire did not lose a peremptory challenge, but exercised it. Therefore, he has not demonstrated prejudice and has not been deprived of any constitutional right. Without having to decide whether the juror should have been removed for cause, we reverse the Court of Appeals and remand for actions consistent 

### with this opinion.151 Fire. 145 Wn.2d at 154. Fire is directly on point. As in Fire, even ifjuror 25 or juror 47 should have been dismissed for cause, Loven has not alleged that a biased juror sat on the panel 

### and has not demonstrated prejudice.6 Loven contends Fire waswrongly decided and 

### argues we should follow pre-Fire cases, including Parnell.7 But Parnell was abrogated byFire, and this court may notoverlook binding precedent ofthe 

### Washington Supreme Court. Statev. Hunlev. 161 Wn. App. 919, 932, 253 P.3d 448 (2011), affd, 175 Wn.2d 901, 287 P.3d 584 (2012).

5The cited portion ofFire isfrom thelead opinion, which wassigned by fourjustices and concluded thatWashington case law had tacitly abandoned Parnell'srule that the erroneous deprivation ofa peremptory challenge in itselfrequired reversal. Fire, 145 Wn.2d at 159-63. Justice Alexander, concurring in the result, expressed the view thatthe Parnell rule had notyet been abandoned butthat itshould be in light ofMartinez-Salazar. Fire. 145Wn.2d at 165-68 (Alexander, C.J., concurring). Thus, a majority ofthecourt agreed thatwithout a showing ofprejudice, themere useofa peremptory challenge tocure anerroneously denied for-cause challenge did not violate the defendant's right to an impartial jury. 6Also as in Fjre, wedonot reach the issueofwhetherthejurors should have beenremoved for cause. 7He also cites McMahon v. Carlisle-Pennell Lumber Co.. 135 Wash. 27, 30, 236 P. 797 

### (1925); State v. Stentz. 30 Wash. 134, 70 P. 241 (1902), abrogated by Fire, 145 Wn.2d at 163; State v Lattin 19Wash. 57, 60-61, 52 P. 314(1898); State v. Moody. 18Wash. 165, 170-72, 51 P. 356 

### (1897); State v. Rutten. 13 Wash. 203, 43 P. 30 (1895); State v. Wilcox. 11 Wash. 215, 223, 39 P. 368 (1895); State v. Murphy. 9Wash. 204, 37 P. 420 (1894); and State v. Stackhouse. 90 Wn. App. 344, 351-52, 957 P.2d 218 (1998).No. 66005-5-1/8 Loven also argues Fjre should be overruled on state constitutional grounds, 

### providing briefing ofthe Gunwall8 factors andcontending article I, section 21 and article I, section 22 ofthe Washington Constitution provide greater protection of "the right to an impartial jury as protected by our state right to appeal" than does the Sixth Amendment. Specifically, he cites the right to an impartial jury under article I, section 22; the right to appeal under article I, section 22; and the inviolate right to trial by jury 

### under article I, section 21.9 He appears to argue that these provisions create a hybrid independent right that was violated in his case. But Loven cites no authority in support of this argument. Moreover, it is evident that Loven was tried by a jury in this

case and he is before us now on appeal ofthe jury's verdicts. Thus, we conclude that neither article I, section 21 nor the right to appeal under article I, section 22 was violated in this case. Turning to Loven's claim that the "impartial jury" guarantee under article I, section 22 provides greater protection than the Sixth Amendment in this case, we reject this claim because a majority of the Washington Supreme Court has concluded

8State v. Gunwall, 106Wn.2d 54, 720 P.2d 808 (1986)sets forth sixnonexclusive factors to guide Washington courts in determining whether a state constitutional provision affords greater rights than its federal counterpart: (1) the textual language of the state constitution; (2) significant differences in the texts of the parallel provisions of the federal and state constitutions; (3) state constitutional and common lawhistory; (4) preexisting state law; (5) differences in structure between the federal and state constitutions; and (6) matters of particular state interest or local concern. Jd. at 61-62. 9Wash. Const., art. I, § 21 states: The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve incourts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury incivil cases where the consent of the parties interested is given thereto. Wash. Const, art. I, § 22 provides, in relevant part: In criminal prosecutions the accused shall have the right... to have a speedy public trial by an impartialjury of the county in which the offense is charged to have been committed and the right to appeal in all cases .... 8No. 66005-5-1/9 that the Parnell rule (i.e., that a defendant is presumed to be prejudiced when he is compelled to exhaust his peremptory challenges to remove a juror who should have been removed for cause) is not a constitutional rule. While the lead opinion expressed the view that the rule in Parnell. Rutten. and Stentz was based on constitutional rather than common law grounds, Justice Alexander opined that the Parnell rule was not constitutionally based but rather based on the broader purpose 

### of peremptory challenges, to allow a party to exclude a potential juror for which no
reason need be given. Fire, 145 Wn.2d at 164-65 (plurality); 168 (Alexander, J., 

### concurring). Justice Sanders, in a dissenting opinionjoined by three other justices, concluded, "The basis for the rule that a defendant is presumed to be prejudiced 

### when he is compelled to exhaust his peremptory challenges to remove a jurorwho should have been removed for cause is found in neither the state nor the federal 

### constitution. Rather it isfirmly ensconced in Washington common law." Id at 177 

### (Sanders, J., dissenting). Thus, the rule in Parnell has been interpreted by a majority ofoursupremecourt as notrooted in ourstate constitution, and Gunwall istherefore
of no assistance. Jury Unanimity 

### A defendant has a right to a unanimousjury verdict under the Sixth Amendment to the United States Constitution and article I, section 22 ofthe 

### Washington Constitution. State v. Kitchen, 110Wn.2d 403, 409, 756 P.2d 105 

### (1988). To protectthis right in cases where theevidence indicates thatmore than one distinct criminal act has been committed but the defendant is charged with only one 

### count ofcriminal conduct, either (1) the State may elect the act uponwhich itwill relyNo. 66005-5-1/10 for conviction or (2) jurors must be instructed that they must agree that the same 

### underlying criminal act has been proved beyond a reasonable doubt. State v. Petrich. 101 Wn.2d 566, 572, 683 P.2d 173 (1984). Loven claims the trial court erred in denying a Petrich instruction for the count 

### ofpossessing depictions of minors engaged in sexually explicit conduct. Hefirst contends as a general matter that possession can occur at differenttimes and 

### places, and can be constructive, actual, or unwitting. He asserts that, in his case, 

### rationaljurorscould have found that he did notpossess all ofthe images (believing the defense's suggestion at trial that Leach planted some ofthe images or gave them 

### to police under the pretense that they were Loven's). But he does notspecify how the
numerous photographs, digital images, and videosfound in hiscase broke down into multiple distinct acts. His argumentsimply rests on the notion that each image 

### presented to thejury was a separate act and thatthejury was required to agree as to the image upon which its conviction was based. 

### We rejected this notion in Statev. Furseth. 156 Wn. App. 516, 233 P.3d 902, rev, denied. 170Wn.2d 1007 (2010). There, Furseth was chargedwith one count of 

### possessing depictions ofminors engaged in sexually explicit conduct. ]d at518. At trial, multiple images found stored onhis computer wereintroduced into evidence, 

### some depicting apparently prepubescent children engaged in sexual intercourse and othersdepicting young men andboys in various stages ofundress. ]d at 519. The 

### jury convicted him as charged. ]d On appeal, Furseth argued his conviction was invalid because thejury was not instructed it had to unanimously agree as towhich 

### image out ofseveral constituted child pornography found in his possession, and the

10No. 66005-5-1/11 State did not elect a particular image. ]d We rejected this argument based on State

v. Sutherbv. 165 Wn.2d 870, 204 P.3d 916 (2009), where the court held that regardless ofthe number of images involved or the number of minors depicted, possession of multiple images of child pornography constitutes a single "unit of 

### prosecution."10 Furseth. 156Wn. App. at 520-21 (citing Sutherbv. 165Wn.2d at 882). We held in Furseth that "because the State could not have charged Furseth with multiple, separate counts ofpossession of child pornography, evidence that he 

### possessed multiple images does not constitute evidence ofmultiple criminal acts," 

### and therefore a unanimity instruction was not required.11 Furseth. 156 Wn. App. at
522. 

### Loven argues that Furseth was wrongly decided, citing State v. Adel. 136 Wn.2d 629, 965 P.2d 1072 (1998), and State v. King. 75 Wn. App. 899, 878 P.2d 466 

### (1994). Furseth is notinconsistent with these cases. In Adel. the defendant was convicted of two counts ofmisdemeanor marijuana possession for possessing 

### marijuana simultaneously in two different locations, in his car and in his store. Adel. 136 Wn.2d at 631. The issue was whether Adel's possession ofmarijuana in two

10 The legislature subsequently amended thestatute defining possession ofdepictions of minors engaged in sexually explicitconductby dividing it into two degrees based on the contentofthe material involved. Lawsof2010, ch. 227 § 6. The unitof prosecutionfor the first-degree offense is now "each depiction orimage" possessed by a defendant. RCW 9.68A.070(1)(c). The unit ofprosecution for thesecond-degree offense is"each incident ofpossession ofoneormore depictions orimages." RCW 9.68A.070(2)(c). These amendments occurred after the events in Loven's case. 11 We do not read Furseth as holding, as a matteroflaw, that an allegation of possessingchild pornography can never involve multiple acts. We noted in Furseth that "[w]e donot address situations in which spatial ortemporal differences might give rise toallegations ofmultiple actsofpossession." Furseth, 156 Wn. App. at522 n.5. Loven's argumentthat possession canoccur atdifferent times and 

### places and can beactual orconstructive could relate to the "spatial orand temporal differences" issue we mentioned in Furseth. But he does notexplain how spatial or temporal issues created distinct multiple acts of possession in his case.
11No. 66005-5-1/12 places constituted one criminal act (or "unit ofprosecution"), in which case his two convictions violated doublejeopardy. Jd. at 632. The court stated: The proper question for this case is what act or course of conduct has the Legislature defined as the punishable act for simple 

### possession of a controlled substance? When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime. 

### ]d at 634. The court concluded that the pertinent statute failed to indicate whether 

### the Legislature intended to punish a person multiple timesfor possession based on 

### drugs being keptin multiple places. Under the rule oflenity, therefore, Adel could be found guilty on only one count of possession whereall ofthe drugs werewithin his domain and control at the same time. ]d at 635-36. Adel holds that the unit of 

### prosecution analysis defines thecriminal act thatforms the basisfor a conviction for
a given crime and is consistentwith Sutherbv. upon which ourdecision in Furseth

was based. 

### Next, King is distinguishable from this case and Furseth. King was convicted of one count ofcocaine possession based on evidence that he possessed cocaine 

### (1) in a carin which hewas a passenger (constructive possession) and (2) in afanny pack hewas wearing (actual possession). King, 75 Wn. App. at901. King claimed the cocaine in thefanny packwas planted by the police and that the cocaine in the


### carbelonged to thedriver. Id at901-04. Attrial, thecourt initially offered tosubmit a written unanimity instruction, but denied King's subsequent requestfor a unanimity instruction after the prosecutoragreed to make an election as to the specific instance 

### ofpossession. The prosecutor did not make anelection, however, and thetrial court did not give a unanimity instruction. Id. at 903.

12No. 66005-5-1/13 King claimed on appeal that the trial court erred in failing to provide a Petrich instruction because the State agreed to elect but failed to do so. Id at 900. The State argued on appeal that King's conviction was based on a continuing course of conduct, and thus, no unanimity instruction was required. ]d at 902-03. This court agreed with King: Ifthe State claims it will elect one out of multiple incidents to rely on for conviction it may not later equivocate. In such a case, the trial court must remedy the State's error by issuing a unanimity instruction. Here, as a result of the State's comment and the court's inaction, we cannot say that the jury acted with unanimity as to one act of possession. ]d at 903. Here, unlike in King, the State never agreed to elect. Furthermore, King allegedly possessed cocaine in two different ways (constructive versus actual) and 

### presented differentdefenses as to each, |d at 903-04. These facts distinguish King from Furseth. As noted, in this case Loven never explained how the many images in his case broke down into separate multiple acts. In fact, defense counsel conceded 

### in closing argument that Loven was guilty ofpossessing depictions of children 

### engaged in sexually explicit conduct, and asserted nodefenses that distinguished 

### between any purportedly separate acts ofpossession as in King.12
Predicate Conviction 

### In a statement of additional grounds, Loven claims his two 1994 convictions 

### for rape of a child in the first degree, which were used as predicate offenses for a sentence of life under RCW 9.94A.507, were invalid and suffer from constitutional

12 Defense counsel argued that Leach gave police some images thatdid notbelong to Loven, butthis was presented to discredit Leach's testimony as itmight relate to the counts Loven argued he did not commit.
13No. 66005-5-1/14 defects. Primarily he contends his counsel misadvised him as to his eligibility for a Special Sex Offender Sentencing Alternative and provided ineffective assistance, rendering his plea to those offenses facially invalid, involuntary, and unconstitutional. A prior conviction that has "previously determined to have been unconstitutionally obtained or which is constitutionally invalid on its face may not be considered" in a sentencing proceeding. State v. Ammons. 105 Wn.2d 175, 187-88, 713 P.2d 719 (1986). "Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude." ]d at 188. The Ammons court explained that "[t]o require the state to prove the 

### constitutional validity of prior convictions before they could be used would turn the 

### sentencing proceeding into an appellate review of all priorconvictions." Id Here, Loven's 1994 convictions have not previously been determined to have 

### been unconstitutionally obtained. And, as the trial courtfound, the judgment and sentence appears valid on its face. 8/27/10 RP 6. His conviction does not, without further elaboration, show infirmities of a constitutional magnitude. Loven does not 

### point specifically to anything in the document to show itsfacial invalidity, and the defects he alleges cannot be determined from the judgment and sentence. His 

### recourse, ifany, is to challenge the constitutionality of hisguilty pleas collaterally in a 

### personal restraint petition underRAP 16.3. State v. Lewis. 141 Wn. App. 367, 397 n.21, 166 P.3d 786 (2007).

14No.. 66005-5-i/15
Affirmed.

WE CONCUR:

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