STATE v. YOUNG (2004)

PUBLISHED IN PART

The State proved a charge of attempted child molestation solely through testimony about what the 11-year-old victim said to several neighbors immediately after the incident.   We hold that a trial court has discretion to admit hearsay uttered spontaneously in reaction to a startling event even when the hearsay itself is used to establish that the startling event occurred.

Eleven-year-old KL lived with her mother and her younger brother.   Appellant Henry Young, who had been dating KL's mother, was at their house by himself on the afternoon of May 3, 2002, when KL and her brother came home from school.   Young offered to give them money to clean the house and they began cleaning.   A short time later, KL came running across the street and into the house of a teenaged friend who was like a big sister to her.   According to the friend's trial testimony, KL was crying hysterically.   KL said that while she was in the bathroom cleaning, Young came in and stuck his hand underneath her pants and “tried to feel on her butt,” tried to put money under her belt and was trying to undo her belt buckle.¹  Another witness who was present testified that KL came into the house “shaking” and “terrified”, and related KL's descriptions of how Young had put his hands down inside her pants.²

The police were notified.   The State, after investigation, charged Young on July 19, 2002 with attempted first degree child molestation.

KL's mother married Young that same month.   KL wrote a letter to Young recanting the accusation that Young had touched her improperly. This letter was notarized and witnessed by KL's mother.   In late August, KL's mother took her to a therapist.   In the presence of her mother, KL told the therapist that no sexual contact had occurred.   She said she made up the story and told it to the neighbors with the idea of getting Young out of the house.

It became clear that the State would not be able to prove the charge at trial unless KL's hearsay statements to the neighbors were admitted under the excited utterance exception to the hearsay rule.   Before the first trial began, the court took testimony from the neighbors in order to decide the question of admissibility.   KL testified as well, and acknowledged that she had complained to her friends across the street about Young.   She said she did not know him very well at the time, and did not want to have him around.   She said what she told her friends that day was merely that Young put his hand in her back pocket and “squeezed” her butt.³  She said she was not really upset, but made herself cry in order to appear upset to the neighbors, because she thought one of them would get mad enough to make Young leave the house.   The court, having heard the neighbors describe KL as genuinely upset and frightened, ruled that they could testify that KL at the time had described Young putting his hand inside her pants and trying to undo them.

The first trial against Young ended with the jury unable to reach a verdict.   The second trial ended with a conviction.   Because Young had a previous qualifying conviction for rape, the court found him to be a persistent offender and imposed the mandatory sentence of life without parole.   Young appeals.   He primarily challenges the admission of the neighbors' testimony about what KL told them on the afternoon in question.

 An out of court statement offered to prove the truth of the matter asserted is admissible at trial if the statement relates to “a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  ER 803(a)(2).   In making a preliminary determination as to admissibility of evidence, the trial court “is not bound by the rules of evidence”, except those with respect to privileges.  ER 104(a).   The admission of a statement as an excited utterance will be examined for an abuse of discretion.  State v. Woods, 143 Wash.2d 561, 594, 23 P.3d 1046 (2001).

 Three requirements must be satisfied in order for a hearsay statement to qualify under this exception to the hearsay rule:  A startling event or condition must have occurred;  the declarant must make the statement while under the stress or excitement caused by the startling event or condition;  and the statement must relate to the startling event or condition.  State v. Chapin, 118 Wash.2d 681, 686, 826 P.2d 194 (1992).

According to McCormick's treatise on evidence, a statement itself is generally considered sufficient proof that an exciting event occurred, but some courts hold that an excited utterance is admissible only if there is independent evidence of the exciting event.  “Fortunately, only a very few cases need actually confront this knotty theoretical problem if the courts view what constitutes independent evidence broadly, as they should where the circumstances and content of the statement indicate trustworthiness.”  2 McCormick on Evidence, § 272, at 206 (John W. Strond, ed., 5th ed.1999)(internal citation omitted).

 Young asks us to adopt the strict view followed by the Michigan Supreme Court in People v. Burton, 433 Mich. 268, 445 N.W.2d 133 (1989).   In Burton, a police officer saw a woman, the declarant, running down the street, disheveled and wearing no shoes.   She told the officer she had been sexually assaulted by the defendant, provided details, and showed him the house where it had happened.   At trial, the woman testified that she and the defendant had been in an angry argument, but there had been no sexual contact.   She said she made up the story about being raped to get back at the defendant for having slapped her.   Her earlier statement to the officer, admitted as an excited utterance, was the sole substantive evidence that the defendant had committed the forcible sexual assault for which he was convicted.  Burton, 445 N.W.2d at 134-136.

The Michigan Court of Appeals upheld the admission of the statements on the basis that there was substantial corroboration of a startling event in addition to the woman's statement to the officer.   In the view of the Court of Appeals, substantial corroboration was supplied by the fact that the woman was wearing only a dress, she looked over her shoulder as she ran, she tried to get into the police car before the officer had unlocked the doors, she continued to cry for a time while in the car, she repeated her story later that morning, and articles of her clothing were found in the defendant's possession and in his house.  Burton, 445 N.W.2d at 137.

The Michigan Supreme Court reversed and held that an excited utterance cannot be used to prove the underlying startling event where there is no independent proof that such an event took place:

It is the presence of a startling event that lends the utterance emanating therefrom its special reliability.   Care must be taken to ensure that this principle is not reversed, that is, the excited utterance must not be used to substantiate the event from which the utterance must be shown to have arisen.   In order to guard against this “bootstrapping,” we must determine whether the non-excited-utterance evidence independently furnishes proof of the underlying event.

Burton, 445 N.W.2d at 144.   The corroboration relied on by the Court of Appeals at best pointed to a “stressful event with sexual overtones.”   Burton, 445 N.W.2d at 146.   The excited utterances themselves “should not, and cannot, furnish the missing link to the establishment of the specific startling event to which the utterances must relate and from which they must arise.”  Burton, 445 N.W.2d at 146.

Burton, if followed in the present case, would compel reversal.   Aside from KL's statements to the neighbors at the time, there was no evidence of the startling event to which the statements relate-i.e., no evidence that Young had tried to put his hands inside her pants.   At best, there was evidence of a stressful event with sexual overtones-KL's testimony that Young had attempted to tuck cash into her pants pocket.

Having reviewed the authorities discussed by McCormick and by the Burton court, we conclude that the bright-line Burton analysis is unnecessarily strict.⁴  Certainly, trial courts must carefully evaluate the circumstances surrounding the excited utterance to be sure they truly indicate its trustworthiness.   The analytical view taken by McCormick best accommodates the discretionary nature of the trial court decision.   In this case, KL's own testimony at the preliminary hearing corroborated her earlier hearsay statements in many significant details, including the fact that there was an encounter in the bathroom in which Young “squeezed” her butt while attempting to press money into her pants pocket.⁵  Broadly viewed, this testimony constitutes circumstantial evidence of the startling event to which the hearsay statements relate.

Judge Mattson, who presided over both trials, carefully analyzed the admissibility of KL's hearsay statements on two separate occasions.   As he observed, spontaneity is generally recognized as the key to admissibility of a statement as an excited utterance.   See, e.g., Johnston v. Ohls, 76 Wash.2d 398, 406, 457 P.2d 194 (1969);  State v. Chapin, 118 Wash.2d 681, 686, 826 P.2d 194 (1992);  State v. Brown, 127 Wash.2d 749, 758, 903 P.2d 459 (1995).   While acknowledging “some circular aspects” ⁶ to the analysis, Judge Mattson ultimately found that the evidence of the surrounding circumstances preponderated in favor of KL's statements meeting the requirements for the excited utterances exception.   The testimony was “weak on any evidence other than the excited utterance as to the happening of a startling event but sufficiently strong on spontaneity and a close proximity between the time of the event and the making of a statement ․”.⁷

We've got some young adults who saw her, all of whom seem to have known her before and had contact with her and never seen her in this condition and described her as being in an extreme state of emotional condition in terms of crying, hysterical, gasping for breath, red in the face ․ And this, you know, occurred under circumstances in which from the context of what was said could reasonably be inferred to have just happened․ ․ I do not find it credible that this 11-year-old child was under the circumstances so artful that she created a false impression in the part of all these people․[⁸ ]

Whether corroborating evidence independent of the declaration is needed in a given case to establish the occurrence of such an event is committed to the discretion of the trial judge.   See United States v. Brown, 254 F.3d 454, 460 (2001).   Judge Mattson's thorough and articulate consideration of all the circumstances surrounding the hearsay statements in this case provides ample assurance that the statements were trustworthy.   We find no abuse of discretion in his considering them as evidence of the startling event.

Young also argues that a prior statement is not admissible as an excited utterance if the declarant later admits to having fabricated any portion of it.   He claims this is the bright-line rule established by State v. Brown, 127 Wash.2d 749, 903 P.2d 459 (1995).

The victim in Brown called 911 and reported that she had been abducted and raped in Brown's apartment.   At trial, she maintained the accusation of rape.   But she said that before she called 911, she decided to fabricate the story about being abducted because she was afraid the police would not believe she had been raped if they knew she had gone to the apartment willingly.   The trial court, over defense objection, admitted the tape of her 911 call as an excited utterance.  Brown, 127 Wash.2d at 751-53, 903 P.2d 459.   The Supreme Court reversed.   Since part of the 911 call was plainly the product of fabrication, it was unreasonable to conclude the victim was still under the influence of the startling event when she made the call.   Because the call lacked spontaneity, its content could not qualify as an excited utterance.  Brown, 127 Wash.2d at 758, 903 P.2d 459.

Contrary to Young's argument, Brown does not say that an excited utterance cannot be admitted if the declarant later claims it was a fabrication.   Rather, it stands for the principle that the utterance will not be admitted if the declarant was no longer under the influence of the startling event.   See State v. Briscoeray, 95 Wash.App. 167, 172-73, 974 P.2d 912, rev. denied, 139 Wash.2d 1011, 994 P.2d 848 (1999).   In deciding that KL was still under the influence of the startling event when she made the statements relating to it, the trial court appropriately evaluated the credibility of KL's testimony and compared it to the strong evidence that her earlier statements were spontaneous.   The rationale is well-stated in Briscoeray:

Because the excited utterance rule is based on the premise that the speaker has no opportunity to lie before making the utterance, if the speaker in fact did have that opportunity, then by definition the statement cannot be an excited utterance.   In such a case, the credibility of the statement is irrelevant.

In contrast, in a case such as the present one, where there is substantial evidence that the witness did not have the time or opportunity to fabricate a story before making the statements at issue, the statements may properly fall within the excited utterance exception.   If the witness later recants, the trial court does not err by weighing the witness's credibility against the evidence indicating that the statements were spontaneous and reliable.

Briscoeray, 95 Wash.App. at 172-73, 974 P.2d 912.   The trial court discounted KL's various efforts to disavow her earlier statements, in part because it appeared she had been under some pressure from her mother, and also because the neighbors testified credibly that KL was virtually hysterical when she made the statements.

In summary, neither KL's recantation of her earlier statements, nor the fact that her earlier statements provided the only evidence that Young attempted to molest her, precluded the admission of those statements as excited utterances.   We find no abuse of discretion.

Affirmed.

The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

SUFFICIENCY OF THE EVIDENCE

Young argues that the evidence was insufficient to sustain the conviction of first degree child molestation.   A challenge to the sufficiency of the evidence to support a conviction requires that the evidence and all reasonable inferences be viewed in a light most favorable to the State.  State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980).   There is sufficient evidence to support the conviction if a rational trier of fact could find each element of the crime proven beyond a reasonable doubt.  State v. Mewes, 84 Wash.App. 620, 622, 929 P.2d 505 (1997).

To convict Young, the State had to prove that he attempted to have sexual contact with KL for the purpose of sexual gratification.   A person is “guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.”  RCW 9A.28.020(1).   Sexual contact is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.”  RCW 9A.44.010(2).   The term intimate parts has been interpreted “to include ‘parts of the body in close proximity to the primary erogenous areas ․’ including the hips, buttocks, and lower abdomen.”  State v. Powell, 62 Wash.App. 914, 917 n. 3, 816 P.2d 86 (1991) (quoting In re Adams, 24 Wash.App. 517, 519-21, 601 P.2d 995 (1979)).

The testimony of the neighbors varied as to the exact words they heard KL say.   Young contends that the lack of consistency creates an inherent difficulty in assessing the sufficiency of the evidence.   He argues, without citation to authority, that the trial court had an obligation to “resolve these contradictory accounts and determine what statement KL made.” 9

Given the length of time between the incident in May 2002 and the testimony of the three witnesses at trial months later, it is unrealistic to expect that each witness would remember KL saying the exact same thing.   It is for the trier of fact to resolve conflicting testimony and evaluate the credibility of witnesses.  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).   It would have been improper for the trial court to specify the exact words of the statement that would be admitted.   The defendant was free to argue to the jury that the inconsistencies undermined the credibility of the witnesses.   The jury, however, was free to conclude that the inconsistencies were immaterial.

The substance of the testimony was the same-that Young put his hand inside KL's pants under the guise of making “payment” for the housecleaning.   The substantial consistency between the statements provides a sound basis for judging the evidence sufficient to support Young's conviction.

Young also argues that even with the apparent agreement of the witnesses that he touched KL in the area of her buttocks, the State's proof is insufficient to prove that the touch was intended to be anything other than fleeting or inadvertent.   Where the evidence shows touching of intimate parts of the body other than the primary erogenous areas or if the touching is done over clothing, additional evidence of sexual gratification is required to prove a completed act of molestation.  Powell, 62 Wash.App. at 917, 816 P.2d 86.

The evidence, viewed in the light most favorable to the State, was sufficient for the jury to find that Young took a substantial step toward touching KL's intimate parts with the intent of gratifying his sexual desire.   According to one neighbor, KL said Young stuck his hand underneath her pants and tried to feel her butt, repeatedly tried to stick money under her belt, and tried to undo her belt.10  According to another neighbor, KL said Young came up behind her in the bathroom and offered her money.   When she asked what she had to do for it, he put his hands in her pants, touched her skin, and said “You know what you have to do for it.” 11  This evidence and the inferences therefrom sufficiently support the conviction.

ADMISSION OF IMPEACHMENT TESTIMONY

During KL's direct examination by the prosecution, she denied that Young had touched her inappropriately.   The prosecution then called Detective Walker to impeach her testimony with the accusation that she made to him during an investigative interview.   Before Walker testified, Young objected to his being a witness, arguing that his entire testimony was hearsay.   The court overruled this objection on the basis that the purpose of Detective Walker's testimony was to impeach KL's current testimony denying that Young had touched her inappropriately.

To the extent that a witness's own prior inconsistent statement is offered to cast doubt on his or her credibility, it is not offered to prove the truth of the matter asserted, it is nonhearsay, and it may be admissible to impeach.  State v. Williams, 79 Wash.App. 21, 26, 902 P.2d 1258 (1995).   Young argues, however, that under ER 613, the State did not lay an adequate foundation for Detective Walker to impeach KL.

A party may impeach a witness by extrinsic evidence of a prior inconsistent statement, but the witness must have an opportunity to explain or deny the prior statement:

(a) Examining Witness Concerning Prior Statement.   In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness.   Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

ER 613(a),(b).

Young points out that if the State had confronted KL with her inconsistent statement to Detective Walker and if she had admitted making it, Detective Walker would not have been allowed to testify because the admission would have completed the impeachment.   5A K. Tegland, Washington Practice, Evidence, § 613.10, 489 (1999).   This is true, but Young has not demonstrated that it was the State's obligation to ask KL about her prior inconsistent statement.   The evidence rule, ER 613, merely requires that the witness be afforded an opportunity to explain or deny the statement.   If Young wanted to avoid having the officer impeach KL's trial testimony, he could have attempted on his own to elicit her admission to making the prior inconsistent statement to the officer.   No violation of the rule occurred, and so we find no abuse of discretion in the court's admission of the testimony.

EVIDENCE OF CHILD PROTECTIVE SERVICES INVESTIGATION

Young claims that the trial court should have let him present evidence that investigations into the same incident by Child Protective Services were “inconclusive”.12  He argues that by excluding this evidence, the trial court deprived him of the right to present a defense.

The trial court properly excluded the proffered evidence as irrelevant.  “We don't get into trials of the goodness or badness of other agencies' investigations or outcomes.   That's why we have a jury here.” 13  The court further explained that it would be like allowing an expert to offer an opinion on guilt.  “We don't do that.   We don't let people come in and give their opinions about whether they think there was or was not a crime committed.” 14  These were tenable grounds for exclusion.

Young argues that the State opened the door for admission of the results of the investigation.   The trial court ruled that the State would open the door if the State's witnesses mentioned anything about referrals to Child Protective Services.   During trial, the State asked one of the neighbors if she had called “law enforcement” after talking to KL, and she said yes.15  On cross, when Young asked if she had called “the police”, the neighbor responded that she had called “the authorities.”   After a sidebar, the court ruled that Young could not inquire further as to what the witness meant by “authorities”. 16

Young argues that he had the right to clarify the testimony because the testimony implied that the neighbor had called the police when she in fact had not.   But clarification of the terms was not material to the testimony.   The State complied with the court's ruling so as to avoid opening the door to otherwise irrelevant testimony about an actual call that was made to Child Protective Services.   We find no abuse of discretion.

MOTION FOR NEW TRIAL

One of the neighbors, KL's 19-year old friend who treated her like a “little sister”,17 recanted her trial testimony in a letter she signed after the trial.   Then, in a detailed statement to Detective Walker, she took back the recantation and described how she had been pressured to recant by KL's mother.18  The trial court found that the initial recantation letter was not credible, and denied the motion.19

Abuse of discretion is the standard of review for a trial court's decision on a motion to vacate the judgment and grant a new trial.  State v. Macon, 128 Wash.2d 784, 803, 911 P.2d 1004 (1996).   Recantation of trial testimony is generally treated as “newly discovered evidence.”  Macon, 128 Wash.2d at 799-800, 911 P.2d 1004.   In order to obtain a new trial based on newly discovered evidence, a defendant must show among other things that the evidence is material. Macon, 128 Wash.2d at 800, 911 P.2d 1004.

If the recantation of a key witness is not credible, then it is not material, and an essential factor that would support a new trial is missing.  State v. Ieng, 87 Wash.App. 873, 875, 942 P.2d 1091 (1997).   In Young's case, after careful consideration, the trial court found Johnson's post-trial recantation letter not to be credible.20  Such a determination is not to be lightly set aside by an appellate court, in part because recantations are inherently suspect.  Macon, 128 Wash.2d at 803, 911 P.2d 1004.   We affirm the ruling denying Young's motion for a new trial.

PERSISTENT OFFENDER RULING

Prior to his current conviction, Young was convicted in 1991 of first degree rape in Wagoner County, Oklahoma.   The trial court found that Young's Oklahoma offense constituted a strike under RCW 9.94A.030(32)(b)(i).   After a conviction of an offense under this provision, the offender need only be convicted of a second qualifying offense in order to be sentenced as a persistent offender. RCW 9.94A.030(32)(a)(i),(b)(i).   Young's conviction of first degree attempted child molestation, a class A felony, constituted this second qualifying offense 21 and the court sentenced him to life in prison.

Young argues that the court's use of his prior conviction in enhancing his sentence violated his constitutional right to a jury trial.   He first contends that after the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the fact of a prior conviction has to be determined by a jury rather than a judge.   But this argument was addressed and specifically rejected in State v. Smith, 150 Wash.2d 135, 141-43, 75 P.3d 934 (2003).

Young further argues, however, that what was at issue in his case was not simply the fact of a prior conviction, but the underlying facts of the prior conviction, and therefore a jury determination was called for as it was in State v. Ortega, 120 Wash.App. 165, 84 P.3d 935 (2004).

In Ortega, the prior conviction-Ortega's Texas conviction for indecency with a child-did not specify the age of the child victim, a necessary fact to determine whether the conviction was comparable to a Washington crime that qualifies for persistent offender treatment.   Under the Texas statute the child could be any age below 17, whereas the Washington statute required the child victim to be under 12.  Ortega, 120 Wash.App. at 172-73, 84 P.3d 935.   The State attempted to establish, through testimony during the sentencing phase and letters not admitted at trial, that the Texas victim actually was 10 years old at the time of the offense.  Ortega, 120 Wash.App. at 173, 84 P.3d 935.   It was held, however, that the prior conviction could not be used to make the defendant a persistent offender because the underlying facts that would qualify it as a strike had not been proved to the trier of fact beyond a reasonable doubt.  Ortega, 120 Wash.App. at 174, 84 P.3d 935.

In contrast to Ortega, in Young's case there were no facts that the trial court needed to establish before it could determine comparability;  the only question for the trial court was whether Young's Oklahoma rape conviction was comparable to a qualifying Washington crime.

The Oklahoma statute at that time defined rape in relevant part as an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances:

1.  Where the victim is under sixteen (16) years of age.[22]

First degree rape was “rape committed by a person over eighteen (18) years of age upon a person under fourteen (14) years of age”.  Okla. St. Ann. Tit. 21, § 1114(A)(1)(1991).

In Washington, a person is guilty of second degree rape of a child when “the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.”  RCW 9A.44.076(1).

As the State's presentencing memorandum demonstrates, the two statutes prohibit the same conduct.   Although they are phrased somewhat differently, anyone in Washington who engaged in conduct in 1991 that consisted of the elements of Oklahoma's Rape in the first degree would, at a minimum, have been subject to the penalties associated with Washington's Rape of a Child in the second degree.23  This is a legal analysis, not a factual one.   Because Young has failed to show the necessity of establishing facts to support the comparability determination, his argument fails.

Finally, Young argues that the Persistent Offender Accountability Act violates the single subject rule of article II, § 19 of the Washington Constitution, and therefore needs to be struck down in its entirety.   The Supreme Court rejected this argument in State v. Thorne, 129 Wash.2d 736, 757, 921 P.2d 514 (1996).   A later case found a violation of the single subject rule in the Act's provision for earned early release.   As a remedy, the court struck the offending provision from the initiative.  State v. Cloud, 95 Wash.App. 606, 617-18, 976 P.2d 649 (1999).   Young argues that the proper remedy in Cloud would have been to strike the entire initiative rather than just the offending portion.   But he does not explain how this court could reach that result and remain consistent with Thorne.   Following Thorne, we reject the argument.

Affirmed.

FOOTNOTES

1.   Report of Proceedings (Volume III of III, part 1 of 2) at 334.

2.   Report of Proceedings (Volume III of III, part 1 of 2) at 450.

3.   Report of Proceedings (Volume I of III) at 139.

4.   But see State v. Terry, 10 Wash.App. 874, 880, 520 P.2d 1397 (1974) (stating in dicta, the excited utterance exception will not be extended where the statement “relates merely to an event which is not established except by the hearsay testimony itself”);  cited in Burton, 445 N.W.2d at 140.

5.   Report of Proceedings (Volume I of III) at 139.

6.   Report of Proceedings (Volume I of III) at 153.

7.   Report of Proceedings (Volume I of III) at 386-87.

8.   Report of Proceedings (Volume I of III) at 166.

9.   Appellant's Brief at 15.

10.   Report of Proceedings (volume II of III) at 334.

11.   Report of Proceedings (volume III of III, part 1 of 2) at 453.

12.   Report of Proceedings (volume II of III) at 207.

13.   Report of Proceedings (volume II of III) at 209.

14.   Report of Proceedings (volume II of III) at 210.

15.   Report of Proceedings (volume III of III, Part 2 of 2) at 523.

16.   Report of Proceedings (volume III of III, Part 2 of 2) at 529-530.

17.   Report of Proceedings (volume II of III, Part 1 of 2) at 324.

18.   Clerk's Papers at 138-172.

19.   Clerk's Papers at 219-224.

20.   Clerk's Papers at 223.

21.   RCW 9.94A.030(32)(a)(i).

22.   Okl. St. Ann. Tit. 21 § 1111(A)(1).

23.   Clerk's Papers at 195.

BECKER, J.