### FILED MARCH 21,2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. CARRIE LEEAENK, Appellant. ) ) ) ) ) ) ) ) ) No. 34035-0-111

UNPUBLISHED OPINION

FEARING, C.J.

- CarrieAenk appeals convictions for attempted second degree theft and third degree theft. She argues that the trial court deniedherthe constitutional rightto present a defense whenthe court excludedhearsay testimony. She also argues the Statepresented insufficient evidence on whichto convicther. We disagree and affirm the convictions. FACTS Carrie andAllanAenk, wife andhusband, operate Shepherd's Way AnimalNo. 34035-0-111 State v. Aenk
Rescue (Shepherd's Way), a dog and horse rescue ranch in Springdale. OnJuly 6, 2013, Elle Hatfield, ofPostFalls, Idaho, called Shepherd's Way to discuss an advertisement for the adoption ofa rescue horse. Hatfield's husband, Dustin, then labored in Afghanistan. Hatfield spoke with Carrie Aenk, owner and manager ofShepherd's Way. Hatfield mentioned that she desired a horse for her autistic daughter to ride. Aenkresponded that she works with autistic children on herranch and the advertised horse, Duke, suited Hatfield's needs. Aenk also volunteeredthat otherpotential buyers had showed interest in Duke and that Aenkwould sell to the first acceptable offeror. The day following the phone call, Elle Hatfield and her daughter visited Shepherd's Way, where Hatfield examined Duke. The daughter fell in love withDuke. Because ofotherpotential buyers, Hatfield signed a contract on July 7 for Duke's adoption. The contract required a $500.00 nonrefundable adoption fee. Hatfield tendered a check for $520.00, $500.00 for the adoption fee and $20.00 for a bookwritten by Carrie Aenk. OnAugust 9, 2013, Carrie Aenk cashed the $520.00 check at Global CreditUnion in Spokane. Elle and Dustin Hatfield recently hadpurchased a home with acreage, and the property lacked a fence for a horse. On July 7, Elle Hatfield mentioned to Carrie Aenk that Hatfield mustboard Duke until she erected a fence on herproperty. Aenk agreed to board Duke temporarily. Aenk also insisted onteaching the Hatfield daughter in riding
2No. 34035-0-III State v. Aenk
Duke before the Hatfields took Duke home. Duringthe visit to Shepherd's Way, Elle Hatfield inquired about other adoptable horses. During this first visit, Elle Hatfield asked Carrie Aenk for a copy ofthe signed Duke purchase agreement. Because the two stood in the field, Aenk stated she would later e-mail Hatfield a copy. Hatfield never received a copy. A week later, Elle Hatfield and her daughter returned to Shepherd's Way so that the teenager could ride Duke. Carrie Aenk instructed the daughter on riding Duke. During this second visit, Elle Hatfield again expressed interest in adopting other horses. Aenk mentioned Quinn and Baron as her only adoption horses, yet claimedthey
were her favorite horses. ·Still, Aenk asserted that she wouldnot sell either horse for less than $5,000. Hatfield assumed that Aenkjoked about a price since Aenk earlier stated she would not sell either equine. Hatfieldjestedthat she would notpay $5,000 for a horse. Aenk then grew friendlier and talkier. Hatfield remarked that she wouldpay $2,500. Aenk replied: "Yeah, a piece." Report ofProceedings (RP) at 139. Hatfield exclaimed thather husband would not approve ofpaying $2,500 perhorse, after which Aenk labeled Hatfield a "trophy wife." RP at 139. Carrie Aenkthen escortedElle Hatfield to the location ofQuinn and Baron. Hatfield adored the loveable Tennessee Walkers, stated she wanted the two horses, butrepeated that she would notpay Aenk's pnce. Carrie Aenk stated she would speak to her husband about a sale ofthe horses, and 3No. 34035-0-III State v. Aenk
the conversation and visit ended. At some unidentified time, Elle Hatfield called Carrie Aenkto schedule a time for Hatfield's daughter to again ride Duke. Hatfield asked Aenk ifAenkhad spokento her husband about the sale ofQuinn and Baron. According to Hatfield, Aenkresponded that she had spoken to her husband, the two were reluctant to sell the two horses for $2,500, but, since no one else rode the horses, they would sell the Tennessee Walkers for $2,500. Hatfield endedthe conversation by stating she wanted herhusband to see the horses. Upon Dustin Hatfield's return from Afghanistan, Dustin, Elle, and their daughter traveled to Shepherd's Way to see Quinn and Baron. During this August 18, 2013 visit, the daughter rode Duke. Elle Hatfield met Carrie Aenk's husband, Allan, and Dustin Hatfield met both Aenks. Carrie showedthe Hatfields Quinn and Baron. Dustin Hatfield soughtto reaffirm that the total price for the two horses was $2,500, and, according to Dustin, Carrie Aenk expressed agreementto the figure. Elle Hatfield commencedto complete one form contract for the purchase ofQuinn and Baron. Carrie Aenk interruptedElle, presented Elle with a second contract, and directed Elle to complete a contract for each horse. Hatfield then crossed outBaron's
name from the first contract. Elle asked herhusband for the answerto $2,500 dividedby two. Dustin Hatfield responded $1,250, butthen checked his head mathwith his cellphone's calculator. According to Elle Hatfield, she then completedboth contracts by 4No. 34035-0-III State v. Aenk inserting $1,250 as the nonrefundable adoption fee for the respective horses. Dustin Hatfield wrote a check to Carrie Aenk for $2,500. Dustin postdatedthe checkto August 24, 2013. On August 18, the Hatfields left Shepherd's Way without a copy ofthe two contracts. Carrie Aenktold the couple she would later e-mail them copies. Aenk added that she and her husband held the right to inspectthe Hatfields' property at any time to determine the property's suitability to house a horse. The Aenks kept possession of Quinn and Baron until the Hatfields erected a suitable fence to keep the horses. Carrie Aenk claims Elle and Dustin Hatfield agreed, on August 18, to pay $2,500 per horse. Copies ofeach contract later in the possession ofCarrie Aenk state the purchase price for each horse to be $2,500. Nevertheless, the copies show some doctoring ofthe nonrefundable price. According to Allan Aenk, Elle Hatfield wrote a check for $2,500. The Hatfields would pay the remaining $2,500 on delivery ofthe horses.Between August 18 and 24, 2013, Carrie and Allan Aenk visited the Hatfields' property at least three times. On the first visit, the Aenks told the Hatfields that the Hatfields needed to purchase other fence posts and alterthe configuration ofthe fence. The Hatfields obeyed. The alterations cost $1,000. On the second visit, the Aenks demanded one more change in the fence. 

### 5No. 34035-0-III
· State v. Aenk
On Saturday, August 24, 2013, Carrie Aenktelephoned Elle Hatfield. Aenk reported that the Hatfields' postdated check would not clearthe banking system. Hatfield called herbank, which informed her that her account held sufficient funds to pay the check. Hatfield called Aenk and informed Aenk that she should encounterno difficulty in cashing the check. The two then dialogued: [AENK:] "Well, I need the money or you guys can'tget the horses delivered." [HATFIELD:] "Okay, well, you know, we can meet you at the bank." [AENK:] "No, Ijustneed cash." [HATFIELD:] "Okay, ifyoubring us the check, we'll get you cash." [AENK:] "Okay, well, Allan and I are already in town; so we can justmeet you at the property." RP at 154-55. The Hatfields went to theirbank and withdrew $2,500 in cash. The Hatfields and the Aenks then met at the Hatfields' property. According to Elle Hatfield, her husband exited the family car and handed the cash to one ofthe Aenks, who remained in their vehicle. The Aenks did not return the $2,500 check and did notprovide Dustin Hatfield a receipt for the cash. According to Allan Aenk, he discussed with Elle and Dustin Hatfield, during the August 24 visit, a time for the delivery ofthe horses and access to water for the horses at the Hatfields' land. The record does not show Carrie Aenkto be present during the
6No. 34035-0-111 State v. Aenk
discussion. Allan Aenk insisted that the Hatfields had yet to prepare the property to care for horses. He also stated that he and his wife agreed to delivery ofthe horses on Monday, August 26. Upon Dustin Hatfield's return to the car, Elle Hatfield learned that Dustin received
no receipt nor the $2,500 check. Fromthe car, Elle Hatfield called Carrie Aenk, and the two conversed by speakerphone: [HATFIELD:] "So, Carrie, um, you forgot to bring us the check." [AENK:] "Yeah. Oh, darn it. It's at my house." [HATFIELD:] "Yeah, and you were going to bring that receipt, too." [AENK:] "Yeah, I'll bring it when I bring the horses." RP at 155. Elle and Dustin Hatfield anticipated delivery ofQuinn and Baron on August 25, 2013, the day following the tender ofthe $2,500 in cash. The Aenks appeared on August 25 without the horses. The Aenks announced that, because ofother commitments, they
were unable to deliver the Tennessee Walkers for another two weeks. TheAenks also had yet to deliver Duke to the dismay ofthe Hatfield daughter. On August 26, 2013, Elle Hatfield texted Carrie Aenk and wrote that, ifthe Aenks did not deliver Quinn and Baron by August 27, the Hatfields would cancel the contractto purchase the two horses. Elle Hatfield volunteered to retrieve the horses from Shepherd's Way. Carrie Aenk responded that the Aenks already had a commitment and would not
7No. 34035-0-III State v. Aenk

engage in two commitments at one time. Eventually Aenktexted Hatfield: Ifthe unreasonableness continues, I will abide by the contract and determine thatthe horses will be unsafe in that environment and cancel all three contracts. Ex. 13. Elle Hatfield reminded Carrie Aenkthat Aenk had never mailed a copy ofthe contracts to Hatfield. Aenk ended the texting with a threat and a prophecy: Ifyou come to the ranch, you will betrespassing. See you in court. Ex. P-15. Duringthe morning ofAugust 27, 2013, Dustin Hatfield and Carrie Aenk spoke by phone. Aenk stated that the Board ofDirectors ofShepherd's Way votedto preclude the Hatfields from adopting the three horses because ofa hostile environment at the Hatfields' property. Aenk declared, however, that Shepherd's Way would refund the Hatfields the purchase prices. Later on August 27, 2013, Carrie Aenkvisited ACE check cashing service and attempted to cash the $2,500 check. ACE called Dustin Hatfield. Dustin directed ACE not to cash the check. Aenk later claimedthat she wasjusttrying to see ifthe check remained valid. She also declared that she was entitled to the check. Dustin Hatfield called his bank and placed a stop payment order on the check. Hethen called Crime Check and reported the conduct ofElle Hatfield.

8No. 34035-0-111 State v. Aenk
The Hatfields still pursued obtaining possession ofthe horses. The couple rented a trailer to 

### ferry the horses from Shepherd's Way to the Hatfields' land. Carrie Aenk responded that she would shoot the Hatfields ifthe couple came near herranch. The Aenks never delivered any ofthe three horses to the Hatfields. PROCEDURE The State ofWashington charged Carrie Aenk with attempted second degree theft and third degree theft. The attempted second degree theft charge arose from the receipt ofat least $2,500 for the purchase ofQuinn and Baronwithout an intentionto deliver the horses to the Hatfields. The third degree theft charge stems from the receipt of$500 for the acquisition ofDuke without an intent to deliver the horse to the Hatfields. Duringtrial, Elle Hatfieldtestified that she eventually concludedthat the Aenks would not deliver any ofthe three horses. Dustin Hatfield testified that Carrie Aenk stole $3,000, that he concludedthat the Hatfields would never see the horses again, and that the Hatfields would lack recourse to rectify the theft. During Allan Aenk's testimony, defense counsel asked Allan questions about comments made by Elle and Dustin Hatfieldto him and discussions betweenthe three, on August 24, as to the date ofdelivery ofthe horses. The State repeatedly objected to the questions on hearsay grounds. The crux ofthe questioning follows:

9No. 34035-0-111 State v. Aenk Q
....Onthat Saturday [August 24, 2013], did you have discussions with eitherMr. orMrs. Hatfield about when the horses could be delivered? A. Yes. Q. Okay. Andwhatwas the substance ofthose discussions? MS. ZAPPONE: Objection, hearsay. THE COURT: So Counsel, he can testify to whathe said; but if you're asking for the substance ofthe discussions, you're asking him to testify to what otherpeople said. MR. WALL [Defense Counsel]: Well, Your Honor, I don'tknow how thejury can understand whathappened ifhe can'ttestify as to what was talked about in terms ofwhen the horses wouldbe delivered. RP at 374-75. After excusing thejury, AllanAenk andthe trial court discoursed: [ALLANAENK]: So iflbase my actions and my language ormy discussion with Elle and Dustin, ifI base that offofwhatthey've told me, I can't say that they told me this and that's why I did this. Is thatwhat you're saying? THE COURT: I'mtelling you you can'ttestify to whatthey told you. I will let you testify to whatyou did. Youjustcan't say, "Theytold me this." It's hearsay. RP at 377-78. Defense counsel arguedthat he did not offerAllanAenk's testimony for the truth ofthe matter asserted. Counsel asserted that he would use the testimony to explain Elle Hatfield's state ofmind concerning the horse transactions. Counsel also argued that the comments made by the Hatfields to Allan Aenkhelped to establish the agreement reached between the parties as to the timing ofdelivery ofthe horses. Nevertheless,

10No. 34035-0-111 State v. Aenk
Carrie Aenkpresented no offer ofproofthat AllanAenklatertold Carrie Aenkwhatthe Hatfields said such that Carrie Aenkrelied onthe Hatfields' statements whenreflecting
on the agreed time for delivery. Carrie Aenkpresented no testimony that she was present and overheardthe conversation between her husband and the Hatfields. Her counsel
never asked her ifshe had a conversation withthe Hatfields concerning timing of delivery. Carrie Aenktestified to the following: Q. Okay. We talked about these contracts, okay, andthat each of them says $2,500 for Quinn and [Baron], correct? A. Correct. Q. Was that whatwas written on those contracts whenyou first received them? A. Yes. Q. Okay. Didyou alter that in any way? A. No. Q. Didyou ever scratch out a different number and replace it? A. No. Q. Was it yourunderstanding thatthe Hatfields had agreed to pay a $2,500 adoption fee for each ofthe horses Quinn and [Baron]? A. Correct. Q. Okay. And did you receive payment for Quinn? A. Yes. Q. Okay. And did you have an understanding thatyouwere supposedto wait any period oftime before negotiatingthat check? A. Yes. RP at 451. Q. Okay. Were you anticipating when you gotto the property that you were goingto collect cash from Mr.- A. Yes. 11No. 34035-0-III State v. Aenk

RP at 455. Q. -Hatfield? Okay. And did you collect cash? A. Yes. Q. Andhow much? A. $2,600. Q. And whatwas your understanding ofwhat that money was for? A. It was for Quinn's adoption fee.
Q. And did you ultimately end up keeping the check? A. Yes. Q. Okay. Whatwas your understanding ofwhy you werekeeping the check? A. Because we were-I can't give hearsay. Q. No. I'mjustasking youwhatyourunderstanding was. A. Myunderstanding ofbeing allowed to keep the checkwas for the secondpayment for [Baron]. Q. Okay. And did youthen intend at somepointto negotiate that check for the contract for [Baron]? A. We didn'ttry to negotiate it. Q. No, no. Did you intend at some time to cash that check? Not on that day. it. A. Not on that day. We wentto verify it, but we did not try to cash Q. I'm asking ifyou intendedto cash that check at somepoint. A. At some point. Q. Okay. And at whatpoint did you intend to actually cashthe check?
RP at 458-59.A. When we delivered [Baron].
Q
....Did Mrs. Hatfield ask you something inthatphone call? A. Yes. Q. What did she ask you? A. Why haven'twe cashed the check yet? Q. Okay. Andwhat did youtell her?
12No. 34035-0-III State v. Aenk
A. I told herbecause we weren't supposedto cash it until after [Baron] was delivered. RP at 460. Carrie Aenk did not testify that her husband mentioned to her statements made by Elle and Dustin Hatfield about an agreed time for delivery ofany ofthe three horses.Thejury found Carrie Aenk guilty ofboth attempted second degree theft and third degree theft. Aenk filed a motion for a new trial based on the trial court's decision to sustain the hearsay objections during Allan Aenk's testimony. The trial court denied the motion. LAW AND ANALYSIS Issue 1: Whether theproposedtestimony of AllanAenkconstituted inadmissible hearsay? Answer 1: Yes. Carrie Aenk argues that the trial court erred when sustaining a series ofhearsay objections during Allan Aenk's testimony. The objections followed questioning ofAllan Aenk concerning statements made by Elle and Dustin Hatfield to Allan onAugust 24, 2013, at the Hatfields' property. This court reviews evidentiary rulings for manifest abuse ofdiscretion. State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when no

13No. 34035-0-III State v. Aenk
reasonable person wouldhave decided the issue as the trial court did. State v. Rice, 110 Wn.2d 577,600, 757 P.2d 889 (1988). Hearsay is defined as an out ofcourt statement "offered in evidence toprove the truth ofthe matter asserted." ER 801(c). A statement is nothearsay ifit is used only to show the effect on the listener without regard to the truth ofthe statement. State v. Gonzalez-Gonzalez, 193 Wn. App. 683,690,370 P.3d 989 (2016); State v. Edwards, 131 Wn. App. 611,614, 128 P.3d 631 (2006). According to Carrie Aenk, statements uttered by the Hatfields to Allan Aenk helped to establish Carrie Aenk's beliefas to the agreement between the parties, particularly concerning a date for delivery ofthe horses. Carrie Aenkmay also argue that the trial court should have admitted Allan Aenk'stestimony concerningpurported comments ofthe Hatfields in order to show the impact ofthe statements on Allan. Nevertheless, the effect on Allan is not directly relevant to criminal charges against Carrie Aenk. Also, Carrie Aenkpresented no testimony thather husband relayed to her

·any comments uttered to him by the Hatfields. Thus, the Hatfield comments would lack

any impact on Carrie Aenk's understanding ofany agreement. The trial court did not abuse its discretion in excluding the testimony. Carrie Aenk contends that the trial court also precluded her from testifying as to comments uttered by the Hatfields to Carrie about the timing ofdelivery ofthe horses. 14No. 34035-0-III State v. Aenk
The only citation to the record given by Aenk for this purportedpreclusion is a section of
a briefin support ofa motion for reconsideration. The brief, in tum, contains no citation to the transcript. Therefore, we conclude the trial courtprecluded no such testimony from Carrie Aenk. RAP 10.3(a)(6) requires an appellant to cite to the relevantportions of the record in the argument section ofherbrief. A party must cite to the record for assigned error. Glazer v. Adams, 64 Wn.2d 144, 149, 391 P.2d 195 (1964). Carrie Aenk further assigns error to the trial court's purported refusal to allow her to testify that Dustin Hatfield directed herto keep the $2,500 check as the second payment for the adoption ofQuinn and Baron. Again, the only citation in the briefto this alleged error is the briefin support ofthe motion for reconsideration. The motion for reconsideration lacks any citation to the trial record. Issue 2: Whether the trial courtprecluded CarrieAenkfrompresentinga defense when the courtsustaineda series of hearsay objections duringAllan Aenk's testimony. Answer2: No. Carrie Aenk contends the hearsay rulings also violated herright, underthe Sixth Amendmentto the United States Constitution, to present a defense. We discern no error.

15No. 34035-0-III State v. Aenk
When addressing her constitutional argument, Carrie Aenk argues that the standard ofreview for evidentiary rulings is de novo. The State responds thatthis reviewing court should employ an abuse ofdiscretion criterion, the familiar review for evidentiary issues. The standard ofreview under these circumstances is unclear. In State v. Jones, the Washington Supreme Court wrote: "[s]ince Jones argues thathis Sixth Amendmentright to present a defense has beenviolated, we review his claim de novo." 168 Wn.2d 713,719,230P.3d 576 (2010). However, in State v. Aguirre, the state high court declared: Although Aguirre does have a constitutional right topresent a defense, the scope ofthatright does not extend to the introduction of otherwise inadmissible evidence. The admissibility ofevidence underthe rape shield statute, in tum, "is within the sound discretion ofthe trial court." State v. Hudlow, 99 Wn.2d 1, 17,659P.2d 514 (1983). 168 Wn.2d 350, 362-63, 229 P.3d 669 (2010) (internal citations omitted). We do not need to resolve this conflictbecause under either standard we affirm the trial court. The right ofan accused in a criminal trial to due process is, in essence, the right to
a fair opportunity to defend against the State's accusations. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A defendant's right to an opportunity to be heard in his defense, including the right to examine witnesses against him and to offertestimony, is basic in our system of jurisprudence. Chambers v. 16No. 34035-0-111 State v. Aenk Mississippi, 410 U.S. at 294. Nevertheless, an accused does not have a right to offer incompetent, privileged, or otherwise inadmissible evidence under standard rules of evidence. Taylor v. Illinois, 484 U.S. 400,410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988); State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022, 369 P.3d 501 (2016). We previously held that the proffered testimony did not violate evidentiary rules. Therefore, the trial court committed no constitutional error. Issue 3: Whether sufficient evidence supports the element of"deception" for CarrieAenk's theft in the thirddegree conviction. Answer 3: Yes. Carrie Aenk argues that the State failed to produce evidence that she deceived the Hatfields when she accepted payment ofthe $500 nonrefundable adoption fee for Duke. We disagree. Evidence is sufficient ifa rational trier offact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980) (plurality opinion). Both direct and indirect evidence may supportthejury'sverdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor ofthe State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). In claiming insufficient evidence, the defendant necessarily admits the 17No. 34035-0-111 State v. Aenk
truth ofthe State's evidence and all reasonable inferences that can be drawn from it. State v. Homan, 181 Wn.2d 102,106,330P.3d 182 (2014). Only the trier offact weighs the evidence andjudgesthe credibility ofwitnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). The statute governing theft in the third degree provides: A person is guilty oftheft in the third degree ifhe or she commits theft ofproperty or services which (a) does not exceed seven hundred fifty dollars in value. RCW 9A.56.050(1). In this context, "theft" means: [b]y color oraidof deception to obtain control over theproperty or services ofanother or the value thereof, with intent to deprive him orher of such property or services. RCW 9A.56.020(1)(b) (emphasis added). RCW 9A.56.010 defines additional terms: (4) "By color or aid ofdeception" means that the deception operated to bring about the obtaining ofthe property or services; it is not necessary that deception be the sole means ofobtainingthe property or services; (5) "Deception" occurs when an actor knowingly: (e) Promises performance which the actor does not intend to perform or knows will not be performed. In herbriefing, Carrie Aenk emphasizes her testimony regarding a lack ofintent to deceive. She focuses on her and herhusband's testimony that the Hatfields had never adequately preparedthe Hatfields' property to care for horses and thatthe Aenks never 18No. 34035-0-111 State 

### v. Aenk abridged an agreement to deliverthe horses. Nevertheless, we determine sufficiency of evidence by construing the evidence in favor ofthe State. The State presented evidence, which thejury found credible, that Aenknever intended to deliver Duke, valued at $500, to the Hatfields. Exhibits showed alterations by Carrie Aenk ofthe contractprice for the horses. Text messages showed hostile threats from Carrie Aenkto preventthe Hatfields from gaining access to the horses. Elle Hatfield testified to the delays and false promises ofthe Aenks. Dustin Hatfield testified to Carrie Aenk's attemptto cash a check despite a promise to the contrary. Both Hatfields averred concerningthe constant delays in delivering the horses. Underthe contract, the Hatfields paid a $500 nonrefundable price. Thejury couldhave concluded that Carrie Aenkproffered illegitimate excuses to deliver Duke so that she couldpocketthe $500 without forgoing possession ofDuke. Issue 4: Whether this courtshouldawardappellate costs infavor of the State? Answer4: No. Carrie Aenk asks this courtto deny the State an award ofcosts on appeal in the event the State prevails. Generally "theparty that substantiallyprevails onreview" will be awarded appellate costs, unless the court directs otherwise in its decision terminating review. RAP 14.2. An appellate court's authority to award costs is "permissive," and a court may, pursuantto RAP 14.2, decline to award costs at all. State v. Nolan, 141 Wn.2d 620, 628, 8 P.3d 300 (2000). An appellate courthas discretion to require a 19No. 34035-0-III State v. Aenk
convicted defendant to pay appellate costs to the State. RCW 10.73.160(1); RAP 14.2. Carrie Aenk submitted a report ofcontinued indigency that shows herpersisting penury. Therefore, we deny the State appellate costs. STATEMENT OF ADDITIONAL GROUNDS Carrie Aenk lists seven arguments in her statement ofadditional grounds. Each fails. A criminal defendant can submit a pro se statement ofadditional grounds for review "to identify and discuss those matters related to the decision underreview thatthe defendant believes have notbeen adequately addressed by the brieffiled by the defendant's counsel." RAP 10.lO(a). The rule additionally provides in part: Reference to the record and citation to authorities are not necessary orrequired, but the appellate court will not consider a defendant's statement ofadditional grounds for review ifit does not informthe court of the nature and occurrence ofalleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the appellate court is not obligatedto searchthe record in support ofclaims made in a defendant's statement ofadditional grounds for review. Only documents that are contained in the record on review should be attached or referred to in the statement. RAP 10.lO(c); see also State v. Alvarado, 164 Wn.2d 556,569, 192 P.3d 345 (2008). Carrie Aenk's statements 1, 6, and 7 reference information beyondthe trial court record. Statements 2, 3, 4, and 5rely on documents attached to Aenk's statement but

20No. 34035-0-111 State v. Aenk
outside the trial courtrecord. Therefore, we decline to address the merits ofthe statements ofadditional grounds. CONCLUSION We affirm Carrie Aenk's convictions for attempted second degree theft and third degree theft. We deny the State costs on appeal. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Fearing, C.J. WE CONCUR:

Lawrence-Berrey, J. 

## j

21 

# I