STATE v. CHRISTENSEN (2003)

Oliver Christensen appeals his conviction for second degree robbery, contending that the trial court abused its discretion when it admitted evidence acquired in violation of RCW 9.73.030, the state privacy act.   He also argues that the trial court abused its discretion when it denied his motion to dismiss based on alleged preaccusatorial delay that resulted in a loss of juvenile court jurisdiction and a due process violation.   Finally, Christensen argues that the evidence was insufficient to support the jury's verdict.

The trial court did not abuse its discretion when it admitted into evidence an intercepted telephone conversation that did not violate RCW 9.73.030.   The trial court did not abuse its discretion when it denied Christensen's motion to dismiss.   We also conclude that the evidence was sufficient to support the jury's verdict.   We affirm.

In October 2000 at approximately 8:30 p.m., Wilma Loeb was walking in downtown Friday Harbor, returning to her  hotel after a meal out alone.   As she made her way up the sidewalk on Spring Street, two young men approached her and one grabbed her purse.   Initially, Loeb resisted, but she let go of the purse after falling to the ground and damaging her glasses.   The young men ran away.

Following his 18th birthday, which was 47 days after the robbery, the State charged Christensen with second degree robbery.   He moved to dismiss, arguing that the prosecutor and law enforcement had intentionally delayed charging him until after his 18th birthday.   The trial court denied the motion.   The court also denied Christensen's motion in limine to exclude certain testimony of Carmen Dixon, his girlfriend's mother.   Carmen monitored a telephone conversation between her daughter and Christensen discussing the robbery.   Carmen used the speakerphone function at the base of a cordless phone after her daughter, Lacey, took the handset to her room to take Christensen's call.   The challenged testimony centered on what Carmen heard.

The jury found Christensen guilty of second degree robbery, and the court sentenced him to the high end of the standard range.

Christensen appeals.

PRIVACY ACT

Christensen argues that the trial court abused its discretion by admitting evidence obtained in violation of RCW 9.73.030, which prohibits intercepting or recording private communications.   We conclude listening to a telephone conversation at the base of a cordless telephone under the circumstances of this case does not violate the privacy act.

Washington's privacy act provides that it is unlawful for any individual to “intercept, or record any”:

[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated,  without first obtaining the consent of all the participants in the communication.[1]

This statute is one of the most restrictive in the nation.²  Evidence obtained in violation of the statute is generally inadmissible in any civil or criminal case.³  This court reviews a trial court's decision on the admissibility of evidence for an abuse of discretion.⁴

There is no dispute that Carmen Dixon's monitoring of her daughter's telephone conversation with Christensen by use of the base of the cordless phone was an intercept.   Thus, we must determine if the communication between Lacey and Christensen was a private communication recorded and/or transmitted by a qualifying device.

1. Private Communication

 Our supreme court has adopted the dictionary definition of the word private:  “belonging to one's self ․ secret ․ intended only for the persons involved (a conversation) ․ holding a confidential relationship to something ․ a secret message:  a private communication ․ secretly:  not open or in public.” ⁵

The subjective intention of the parties to the communication is among the factors that the court may consider in determining if a communication is private.   A court may also consider other factors bearing on the reasonableness of the participants' expectations, such as the duration and subject matter of the communication;  the location of the communication and the presence of potential third parties;  and the role of the  nonconsenting party and his or her relationship to the consenting party.[⁶ ]

The mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private.⁷  The question of whether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed.⁸

The conversation between Lacey and Christensen was a private communication.   A cordless telephone conversation is generally private under RCW 9.73.030.⁹  The manifested intention of the parties here was that the conversation would be private.   Lacey went upstairs to her own room with the handset to take the call after her mother answered the call from Christensen.   While there is evidence in the record that Carmen regularly monitored her daughter's calls because of an alleged drug problem, there is no indication in the record that either Lacey or Christensen knew this.   Certainly, the subject matter of the call, which included an alleged confession to a crime by a boyfriend to his girlfriend, was indicative of a conversation that the parties intended to remain private.   The location of the receipt of the call-Lacey's room-buttresses this view.

The roles and relationships of the parties may also be a factor.   In State v. Bonilla,¹⁰ the accused called a police dispatcher and confessed to his wife's murder.   In Bonilla, the court concluded that he had no reasonable expectation of privacy given the subject matter and the recipient of his  call.¹¹  That is not the case here.   The expectation of privacy was reasonable.

 We reject the State's contention that the conversation was not private because “a parent has the right to monitor the phone calls coming into the family home.”   Such an argument is unsupported by a plain reading of the state privacy act.   This argument appears to be nothing more than a request to engraft a judicial domestic telephone extension exception to the statute.¹²  This policy choice is best left to the Legislature, not this court.

The State maintained at oral argument that In re M.G.¹³ should govern this inquiry to the extent it stated the proposition that circumstances, such as concerns for safety, may justify the curtailment of a minor's constitutional rights in ways not permissible for adults.¹⁴  We are disinclined to follow that reasoning.  M.G. concerned geographical restrictions on a child the court had determined to be an “at-risk” youth.¹⁵  It did not concern a determination of privacy rights under the state privacy act, and did not discuss the admissibility of evidence in that context.

We conclude that the conversation between Lacey and Christensen was a private communication under the first prong of RCW 9.73.030.

 2. Device designed to record and/or transmit

 We must next determine whether the interception of this private communication was “by any device electronic or otherwise designed to record and/or transmit said communication.”   There is no contention here that Carmen employed any device “designed to record.” Therefore, we must address whether she used a “device ․ designed to ․ transmit [the] communication” at issue in this case.   We conclude that the base of a cordless phone ¹⁶ is not such a device under the circumstances before us.

 The State argues that the purpose of the privacy act is “to prevent the use of a separate transmitting device” to intercept calls.¹⁷  Our supreme court recently rejected this precise argument.

In Townsend, e-mails sent by the accused were stored on the recipient's computer.¹⁸  Our supreme court concluded that a computer was a device for recording the communication at issue, rejecting the State's argument that a device different from the device used to perform the communication was required to violate RCW 9.73.030.¹⁹  Rejecting an argument to the contrary in the concurring opinion, the majority stated that a device separate from the device used for recording is not required.  “That the communications were recorded on a device that can also be used to communicate is, as the Court of Appeals observed, ‘a distinction without a legal difference.’ ” ²⁰

We turn next to the phrase “device ․ designed to ․ transmit.”   Neither the phrase nor the word “transmit” is defined in the act.   Well-established precedent indicates  that we should look to the dictionary to determine the meaning of these terms.²¹

 In context, the phrase “device … designed to … transmit” is most reasonably read to be a transmitter.   The American Heritage Dictionary defines transmitter as “[t]he portion of a telephone that converts the incident sounds into electrical impulses that are conveyed to a remote receiver.” ²²  Webster's Third New International Dictionary contains similar definitions of this word.²³

These definitions of transmitter do not apply to the base of the cordless phone as Carmen Dixon used its speaker function here.   Two telephone cases where the privacy act was at issue are particularly instructive on this point.²⁴

State v. Corliss²⁵ is the first case.   It was a VUCSA prosecution.   There, a police informant, who was standing next to a detective in a phone booth, “tilted” the receiver so that the detective could listen in on a conversation with the accused.²⁶  Our supreme court found no violation of the privacy act.   The court concluded:

․there was no violation of the statute because the conversation was not ‘intercepted’ by a ‘device’ designed to record or transmit.   Here the officers did not ‘intercept’ an otherwise private communication by means of any kind of device.   They  simply listened, in person, to what they could hear emanating from the telephone.   Because there was no device used to record or transmit the conversation, we conclude that by the plain language of the statute, it is not applicable under the facts in this case.[²⁷ ]

The “tilted receiver” monitoring approved in Corliss is the functional equivalent of the monitoring here.   Our focus here is on the mother's monitoring of the conversation while using the speakerphone at the base of a cordless phone, where the daughter was using the handset of that phone in another room.   As in Corliss, Carmen was able to listen, in person, to the sound waves emanating from the telephone base of the cordless phone while Lacey used the handset.   For purposes of analysis of the second prong of the privacy act inquiry, it is irrelevant that Carmen was in a different room from Lacey while the detective and informant in Corliss were in the same phone booth.

Bonilla, which the Corliss court cited with approval, is also instructive.   In Bonilla, the defendant telephoned the Kelso Police Department and told the dispatcher that he shot and killed his wife.²⁸  The dispatcher did not record the conversation, but did summon a police officer to listen to the conversation on an extension line in the office.²⁹  The court concluded that there was no evidence that a device designed to record and/or transmit the telephone conversation was used.  “Police overheard the conversation on an ordinary extension telephone, without benefit of a recording or transmitting device.” ³⁰

The base unit here was the functional equivalent of the extension telephone in Bonilla.   Carmen used the base of the cordless phone as an extension to listen, in person, to the conversation at issue.   Again, the fact that Lacey was is  another room, using the handset, is not relevant to the second prong of the analysis.

 Significantly, the Legislature has let stand the interpretation of the privacy act in light of these two cases.  “In construing legislation, we presume the Legislature is [aware of] judicial interpretations of its [statutes].” ³¹  Thus, absent activity to amend the legislation, we can presume that the court's construction of the statute is consistent with legislative intent.³²

One may debate whether the privacy act has kept pace with technology changes.   But the fact remains that two appellate courts have construed the act to permit the type of monitoring at issue here, and the Legislature has seen fit to let those interpretations stand.   Those cases are indistinguishable from the matter before us.

Because the base unit, as used in this case, is not the type of device contemplated by the statute, there was no violation of the privacy act.   We conclude that the evidence of the content of Lacey and Christensen's private telephone conversation was not acquired in violation of RCW 9.73.030.   There was no abuse of discretion in admitting it.

We affirm the judgment and sentence.

Because the remaining issues presented here are not of precedential importance, the remainder of this opinion is unpublished.³³

PREACCUSATORIAL DELAY

Christensen next argues that the trial court manifestly abused its discretion when it denied his motion to dismiss under CrR 8.3(b) based on claimed preaccusatorial delay, which resulted in a loss of juvenile court jurisdiction and a due process violation.   He contends that the prosecution deliberately or negligently delayed by refusing to interview key witnesses until after his 18th birthday.   We conclude that Christensen fails to prove deliberate or negligent delay warranting dismissal.

This court reviews the trial court's decision on a motion to dismiss under CrR 8.3(b) for a manifest abuse of discretion.34

In determining whether preaccusatorial delay in the filing of a criminal charge against a juvenile defendant violates due process, a court must (1) consider whether the defendant was prejudiced by the delay;  (2) consider the reasons for the delay;  and (3) balance the reasons for the delay against the prejudice sustained by the defendant.35  A defendant meets his initial burden of establishing prejudice for purposes of this three-level inquiry when a preaccusatorial delay deprives the juvenile court of jurisdiction.36

In Calderon, our supreme court first used the three-level inquiry to determine “whether the action complained of ․ violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions.’  ” 37 In State v. Dixon,38 that court also held that “absent a showing of deliberate or negligent delay on the part of the State which results in a loss of juvenile court jurisdiction, a juvenile's right to due process is not violated.” 39  Courts generally permit delays for continued investigation of the crime, citing broad prosecutorial discretion in the charging decision as the policy reason for not formulating strict rules with regard to the proper time to bring a charge.40  Courts will “infringe upon prosecutorial discretion only where reasonable minds would concur that the delay was unwarranted.” 41  Without a showing of deliberate or negligent delay, there is no need to reach the third inquiry of balancing prejudice to the defendant against the reasons for the delay. 42  The relevant period for analysis is between the date of the crime and the defendant's 18th birthday, here, 47 days.43

Christensen contends that the State deliberately or negligently waited to charge him as an adult.   We disagree.

On November 10, 2000, Jeff Bryant, an acquaintance of Christensen and Kean, gave a statement implicating them in the robbery.   On November 15, Lacey Dixon, Christensen's girlfriend, was interviewed at the police station and provided an alibi for Christensen for the night of the robbery.   On November 16, Carmen Dixon, the mother of Lacey, contacted a detective and informed him that she had overheard a telephone conversation between Lacey and Christensen that appeared to implicate Christensen in the robbery.   On November 16, Detective Commet found the stolen purse and sent it to the crime lab for fingerprinting.   Awaiting results from the crime lab, the sheriff searched both the Kean and Dixon residences, but did not find any relevant evidence.   On November 17, Detective Commet and Sgt. Brennan interviewed Christensen.   He provided no information on the robbery.   At the end of the month, the fingerprint tests came back negative.   On December 10, Christensen turned 18.   This timeline shows no unusual delays associated with continued investigation.   Given broad prosecutorial discretion in the charging decision, we conclude that there was no deliberate or negligent delay.

Nevertheless, Christensen contends that deliberate or negligent delay is evidenced by the State's failure to question his co-defendant, Chris Kean, in a timely manner.   But apart from Bryant's statement, there was no evidence against Kean at the time relevant to Christensen's challenge.   The State was not aware of other witnesses who could implicate Kean and Christensen until after the latter's 18th birthday.

In State v. Boseck,44 the court held that a delay in order to obtain incriminating testimony from co-defendants outweighed the prejudice to the defendant.   In that case, the State had a signed confession from the juvenile defendant, but waited for his co-defendants to plead guilty in order to secure their testimony in the event that the defendant's confession was inadmissible.45

Here, the State acted within its discretion to wait to charge Christensen until it had secured Kean's guilty plea and his agreement to testify against Christensen, which occurred in April 2001.   Washington courts “have recognized sequential prosecution as a legitimate and sufficient reason justifying preaccusatorial delay.” 46  We see no reason to depart from that standard here.

Christensen also argues that Sheriff Cumming's alleged threat to charge him as an adult if he did not confess to the robbery demonstrates an intent to delay prosecution.   Christensen challenges the trial court's finding that Sheriff Cumming was merely advising him of the consequences of losing juvenile jurisdiction.

Despite Christensen's assertion that we should review de novo the trial court's factual findings, such factual determinations will not be disturbed on appeal if supported by substantial evidence.47  Substantial evidence exists where the record contains a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the contention.48

In his declaration in support of the motion to dismiss, Christensen recounts:

[Sheriff Cumming] told me that they knew I did it, and if I didn't confess, he would wait until I turned 18 on December 10th and then charge me as an adult.   He said that I would be going to prison, where I was going to be “butt-fucked by Bubba,” so I had better confess while I was still a juvenile.

Christensen's mother, Roxanne, relates a similar conversation in her declaration.

Sheriff Cumming told me that Oliver had until his 18th birthday on December 10, 2001 to come in and confess to the robbery or else they would charge Oliver with the crime after his birthday, so they could charge him as an adult.   Sheriff Cumming told me the exact number of days Oliver had left until his birthday.

Cumming describes a different version of the conversation in his declaration:

I do recall a straight forward [sic] conversation about the consequences if the robbery of Ms. Loeb was not solved before Oliver turned 18 and it turned out that Oliver was the perpetrator.   I told him it would then be possible to charge him as an adult, and that as an adult he could receive a prison sentence from the judge.   I did not refer to prison rape by a mythical person called “Bubba.”

The trial court decided that it was just as likely that Sheriff Cumming was attempting to inform Christensen and his mother that there would be serious consequences if the police were unable to solve the crime before Christensen's 18th birthday, and that this did not rise to the level of vindictiveness alleged by Christensen.   The trial court resolved, in favor of Sheriff Cumming, the factual dispute among conflicting affidavits.   Sheriff Cumming's affidavit, as well as the timeline of the investigation, was substantial evidence from which the trial court could conclude that Sheriff Cumming's conversations with Christensen and his mother were advisory, not threatening.   We do not disturb this factual finding on appeal.

We similarly reject Christensen's ex post facto argument.   Ex post facto analysis is not applicable here, and the case cited by Christensen is inapposite.49  Furthermore, to the extent Christensen challenges his standard range sentence based on this argument, we do not reach it.50

SUFFICIENCY OF THE EVIDENCE

Christensen finally argues that there was insufficient admissible evidence to support the jury's finding of guilt.   We disagree.

When reviewing a challenge to the sufficiency of the evidence, the court must determine, considering the evidence in the light most favorable to the prosecution, whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 51  We draw all reasonable inferences from the evidence in the prosecution's favor, and interpret the evidence most strongly against the defendant.52  We assume the truth of the prosecution's evidence and all inferences that the trier of fact could reasonably draw from it.53  We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses.54  Circumstantial evidence is as probative as direct evidence.55

To be found guilty of second degree robbery the State must prove that a defendant committed robbery, which is defined as:

unlawfully tak[ing] personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.   Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking;  in either of which cases the degree of force is immaterial.[[56]

Chris Kean, who was with Christensen the night of the robbery, testified about the events leading up to the robbery and that it was Christensen who grabbed the purse from Wilma Loeb after a small struggle.   Kean also testified that he saw Christensen take the purse to “ditch it” at another location after they were finished going through it.   Although Christensen attempts to call into question Kean's credibility because of his drug use, there was no implication during cross or redirect by Christensen that Kean's memory of the events was faulty due to his consumption of methamphetamine the day of the robbery.

Lacey Dixon testified that Christensen was at her house until 7:30 p.m. on the night of the robbery and then left to meet Kean in town.   She testified that the next morning at school Christensen told her that he and Kean stole a purse from an old woman the night before and got a camera and some money and then ditched the purse.   She also testified that she lied by providing an alibi when she initially spoke with the police because she did not want Christensen to get in trouble.

Bette Weiss testified that on the night of the robbery, at approximately 8:30 p.m., she was driving along Blair Street, about to turn onto Spring Street, when two young men, approximately 16 to 18 years old crossed in front of her car as she was slowing down for a stop sign.   Although at the time she could not put a name to the face, she testified that she recognized one of the men as Christensen.   The two men turned onto Spring Street and when Weiss again passed them, they were approximately 30 feet behind an older woman with a purse walking up Spring Street.   When she arrived home, Weiss heard over her police scanner that a robbery had occurred on Spring Street, realized she had seen the people involved, and telephoned the police.

Paul Dyer, a friend of Kean and Christensen, testified that when he was at the Christensen house, Lacey made the comment that “it was stupid for Oliver to take that old lady's purse.”   Christensen responded:  “[y]ou're right;  that was stupid.”   Dyer testified that he took Christensen's comment to be an admission that he had committed the crime.

Carmen Dixon testified to the conversation she overheard between Lacey and Christensen on the base of her cordless phone.   Christensen stated, “he was expecting the police to show up at any minute to arrest him.”   When Lacey told him that the police said they had the purse, Christensen responded “…they don't have the purse.   They'll never find the purse.   They have to cross a ditch and go through stickers.   It's not findable.”

Even without the testimony of Carmen Dixon, the jury had ample evidence to convict Christensen of second degree robbery.   Weiss and Kean placed him at the scene of the crime, Kean testified that he actually witnessed Christensen commit the robbery, and Lacey and Dyer testified that Christensen admitted to his involvement in the robbery after the fact.

There was substantial evidence to convict Christensen of second degree robbery.

We affirm the judgment and sentence.

FOOTNOTES

1.   RCW 9.73.030(1)(a) (emphasis added).

2.   State v. Townsend, 147 Wash.2d 666, 672, 57 P.3d 255 (2002).

3.   RCW 9.73.050.

4.   State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999).

5.   Townsend, 147 Wash.2d at 673, 57 P.3d 255.

6.   Townsend, 147 Wash.2d at 673-74, 57 P.3d 255 (citing Clark, 129 Wash.2d at 225-27, 916 P.2d 384).

7.   Townsend, 147 Wash.2d at 674, 57 P.3d 255 (citing State v. Faford, 128 Wash.2d 476, 485, 910 P.2d 447 (1996)).

8.   State v. Clark, 129 Wash.2d 211, 225, 916 P.2d 384 (1996).

9.   Faford, 128 Wash.2d at 484, 910 P.2d 447.

10.   23 Wash.App. 869, 598 P.2d 783 (1979).

11.   Bonilla, 23 Wash.App. at 873, 598 P.2d 783.

12.   While a “domestic telephone extension exception” is recognized under the federal wiretap statutes, no similar exception has been identified or articulated by Washington courts under our privacy act.   See Oregon v. Capell, 156 Or.App. 582, 585, 966 P.2d 232 (1998), review denied, 328 Or. 418, 987 P.2d 512 (1999) (“18 USC § 2510(5)(a)(i) is commonly referred to by the federal case law as the ‘domestic telephone extension exception’ to [18 USC § 2515].   Most of the federal courts that have considered the reach of the act in the context of a parent-child relationship have held that the exception applies to the recording of conversations that are pertinent to a child's well-being.”).

13.   103 Wash.App. 111, 11 P.3d 335 (2000).

14.   M.G., 103 Wash.App. at 118, 11 P.3d 335.

15.   M.G., 103 Wash.App. at 114, 11 P.3d 335.

16.   In cordless telephones, “[c]ommunication takes place when radio waves are transmitted between the mobile receiver and the base unit.”   Robert A. Crook, Sorry, Wrong Number:  The Effect of Telephone Technology on Privacy Rights, 26 Wake Forest L.Rev. 669, 687-88 (1991).

17.   (Emphasis added.)

18.   Townsend, 147 Wash.2d at 670-71, 57 P.3d 255.

19.   Townsend, 147 Wash.2d at 674, 57 P.3d 255.

20.   Townsend, 147 Wash.2d at 674-75, 57 P.3d 255.

21.   Faford, 128 Wash.2d at 482, 910 P.2d 447.

22.   The American Heritage Dictionary, 1902 (3d. ed.1992).

23.   Webster's Third New International Dictionary, 2429 (1993) (“one that transmits…a part on a telephone into which one speaks and which contains a mechanism for converting sound waves into equivalent electric waves”).

24.   The only reported decision involving a cordless telephone in Washington is Faford.  Faford is distinguishable.   It involved the use of a police scanner to capture radio waves from a cordless phone by intercepting the radio transmissions sent between the cordless phone and the base unit.  Faford, 128 Wash.2d at 479, 910 P.2d 447.   The court concluded that a scanner that could intercept the radio waves used in a cordless phone was a device under the statute.  Faford, 128 Wash.2d at 483, 910 P.2d 447.   The Faford court did not rule on whether the base unit of a cordless phone is a device for purposes of RCW 9.73.030, the question before us.

25.   123 Wash.2d 656, 870 P.2d 317 (1994).

26.   Corliss, 123 Wash.2d at 658-659, 870 P.2d 317.

27.   Corliss, 123 Wash.2d at 662, 870 P.2d 317 (emphasis omitted).

28.   Bonilla, 23 Wash.App. at 870, 598 P.2d 783.

29.   Bonilla, 23 Wash.App. at 870, 598 P.2d 783.

30.   Bonilla, 23 Wash.App. at 873, 598 P.2d 783.

31.   Glass v. Stahl Specialty Co., 97 Wash.2d 880, 887, 652 P.2d 948 (1982).

32.   Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 327, 971 P.2d 500 (1999).

33.   See RCW 2.06.040.

34.   State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997).

35.   State v. Norby, 122 Wash.2d 258, 263, 858 P.2d 210 (1993);  State v. Calderon, 102 Wash.2d 348, 353, 684 P.2d 1293 (1984).

36.   State v. Alvin, 109 Wash.2d 602, 604, 746 P.2d 807 (1987).

37.   Calderon, 102 Wash.2d at 353, 684 P.2d 1293 (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)).

38.   114 Wash.2d 857, 792 P.2d 137 (1990).

39.   Dixon, 114 Wash.2d at 866, 792 P.2d 137.

40.   Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752;  Dixon, 114 Wash.2d at 862-63, 792 P.2d 137.

41.   Dixon, 114 Wash.2d at 863, 792 P.2d 137.

42.   State v. Gidley, 79 Wash.App. 205, 210, 901 P.2d 361 (1995).

43.   See Calderon, 102 Wash.2d at 351-52, 684 P.2d 1293.

44.   45 Wash.App. 62, 70, 723 P.2d 1182 (1986).

45.   Boseck, 45 Wash.App. at 64, 723 P.2d 1182.

46.   Dixon, 114 Wash.2d at 861, 792 P.2d 137 (citing Boseck, 45 Wash.App. at 67, 723 P.2d 1182).

47.   State v. Halstien, 122 Wash.2d 109, 128, 857 P.2d 270 (1993).

48.   Halstien, 122 Wash.2d at 129, 857 P.2d 270.

49.   See State v. Valentine, 132 Wash.2d 1, 52, 935 P.2d 1294 (1997) (citing Sanders, J., dissent for the proposition that “ex post facto clauses of both the state and federal constitutions prohibit the state from enacting any law which imposes punishment for an act which was not punishable when committed.”).

50.   State v. Friederich-Tibbets, 123 Wash.2d 250, 252, 866 P.2d 1257 (1994);  State v. Mail, 121 Wash.2d 707, 710, 854 P.2d 1042 (1993) (a sentence within the standard range for an offense is not appealable).

51.   State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

52.   State v. Joy, 121 Wash.2d 333, 339, 851 P.2d 654 (1993);  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

53.   State v. Wilson, 71 Wash.App. 880, 891, 863 P.2d 116 (1993), rev'd on other grounds, 125 Wash.2d 212, 883 P.2d 320 (1994).

54.   State v. Boot, 89 Wash.App. 780, 791, 950 P.2d 964, review denied, 135 Wash.2d 1015, 960 P.2d 939 (1998).

55.   State v. Vermillion, 66 Wash.App. 332, 342, 832 P.2d 95 (1992), review denied, 120 Wash.2d 1030, 847 P.2d 481 (1993) (citation omitted).

56.   RCW 9A.56.210;  RCW 9A.56.190.

COX, A.C.J.