STATE v. DAVID (2003)

OPINION PUBLISHED IN PART

Victor David lived with his disabled wife, Linda David, on a small sailboat.   David acted as Linda's guardian and received state funding to provide care for her.   After several unsuccessful attempts by state employees to examine Linda, police were called to investigate.   They found Linda living in squalor with severe facial disfigurement and several broken bones.   The State charged David with assault in the second degree.   The first trial resulted in a hung jury.   A second trial yielded a guilty verdict, and the court sentenced David to the 10-year maximum.

On appeal David argues that the court erred by (1) refusing to give a missing witness instruction, (2) failing to excuse two jurors for cause, (3) refusing a change of venue, (4) refusing to give a unanimity instruction, and (5) imposing an exceptional sentence.   He also argues that the prosecutor committed misconduct.   We find no reversible error, and affirm.

FACTS

In the 1960s and early 1970s Linda Pitt was an active young woman with no apparent injuries or physical disabilities.   She rode and cared for her horses, and was able to walk up and down stairs, hold a job, and take care of children.   She attended a school for the mentally and physically challenged.

Linda married Victor David in 1980 and they lived at various locations on the Tacoma waterfront in the 1980s and early 1990s.   The Davids received supplemental income  through the State Department of Social and Health Services (DSHS) and through the Social Security Administration.   David was Linda's designated attendant care worker under the state program.   In order to maintain eligibility, Linda's needs had to be assessed every 18 months.   Linda was evaluated by DSHS social worker Lammert Funk in 1992.   At that time, Linda appeared to be of sound mind.   She did not have apparent injuries to her face.

In 1993, social worker Harlan Eagle Bear met with the Davids outside a Tacoma restaurant to reevaluate Linda for continued benefits through DSHS. According to Eagle Bear, Linda was mentally oriented, did not have any memory impairment, and appeared to be able to see.   David told Eagle Bear that Linda needed total assistance with ambulation, transfers, and personal hygiene, as well as other basic activities of daily living.   David told Eagle Bear that Linda required a wheelchair.   Eagle Bear observed no injuries to Linda's face.

For a period of time, the Davids lived on their two boats tied up to some pilings behind Berg Scaffolding at the end of the Thea Foss Waterway in Tacoma.   Periodically, David had contact with the employees of Berg Scaffolding.   No one from the business had contact with Linda, although David told the employees that she lived on the boat.   She was seldom seen on the boat.   David told the employees that Linda was an invalid with multiple sclerosis and that he was doing everything he could to take care of his wife.   Around this time, David told his friend, Gary Inman, that Linda was injuring herself due to her disability, but poverty prevented him from providing better care for her.

In August 1994, David invited Jerome Johnson, a producer with KIRO Television to his boat.   David had an ongoing battle with illegal drug activity on the Thea Foss Waterway and had frequently called the police to report it.   David wanted to report his concern that the police were not doing enough to abate illegal drug activity.

Johnson met with both of the Davids on their boats.   Johnson testified later that the Davids were impoverished  but content.   He said that the Davids' boat was “livable” and that he would have called the authorities if it was not.   Linda appeared to be able to see Johnson.   Linda moved slowly and had a reddish nose like an alcoholic, but she had no visible injuries on her face.

In September 1995, the Davids moved to Seacrest Marina in Everett. People living at the marina saw David frequently, but never with anyone else.   David rejected numerous offers from other residents at the marina to have Linda on shore for a visit.   David did not have water or power hooked up to the boats.   He did have a small generator.   Residents noted that David would be gone from his boat for days at a time.

In July 1996, Social Security Administration field representative Frank Mendez visited the boats to evaluate Linda.   David refused to let him see her and became angry.   Mendez ultimately left without seeing Linda.

Six months later, social worker James Mead attempted to meet with Linda.   David refused and became angry.   Mead called the police.   Officer Jonathan Jensen arrived on the boat and found Linda lying on a berth surrounded by several large dogs.   Linda was too weak to remove a printer that had fallen on her legs.   Linda was removed from the boat and placed in a nursing home.   Mead testified that Linda's ears were cauliflowered, her nose and face were scarred, and when she was taken from the boat she said she wanted to be back home.   X-rays revealed several fractures in Linda's arms.   Linda was functionally blind, wheelchair bound, and required substantial assistance.

David was charged with one count of assault in the second degree committed “on or about September 1993 to January 31, 1997,” and one count of alien in possession of a firearm.   The first trial occurred in September and October of 2000.   Linda was shown to be competent by the prosecution and was called as a State's witness.   She testified on direct that David assaulted her, but on cross testified that David never hurt her and that her injuries were a result of falling on board the boat.   At the close of the first trial, the  jury could not reach a verdict on the assault charge, and the trial court declared a mistrial.

Six months later the second trial against David commenced.   This time, the State did not call Linda as a witness.   The jury found David guilty of one count of assault in the second degree as charged. The trial court imposed an exceptional sentence of 10 years, the statutory maximum.   David appeals.

ANALYSIS

A. Missing Witness Instruction

 David contends that a missing witness instruction ¹ was required in this case.   He argues that Linda was peculiarly available to the State and not called as a witness because her testimony would have been damaging to the State's case.   We do not agree that Linda was peculiarly available to the State.

 “A party's failure to produce a particular witness who would ordinarily and naturally testify raises the inference in certain circumstances that the witness's testimony would have been unfavorable.”²  To invoke the missing witness rule and obtain an instruction in a criminal case, the defendant is not required to prove that the prosecution deliberately suppressed unfavorable evidence.   Instead, the defendant must establish circumstances which would indicate, as a matter of reasonable probability, that the prosecution would not knowingly fail to call the witness in  question unless the witness's testimony would be damaging.³

 The missing witness instruction is appropriate only when the uncalled witness is “peculiarly available” to one of the parties.   For a witness to be peculiarly available to one party to an action, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, that it was reasonably probable that the witness would have been called to testify for such party except for the fact that the testimony would have been damaging.⁴  A trial court's refusal to give a requested instruction is a matter of discretion and will not be disturbed on review except upon a clear showing of abuse of discretion.⁵

David asserts that he did not have direct access to Linda, but that the prosecutor had ongoing contact on multiple occasions with “[Linda's guardian] regarding limitations that could be placed on the scope of defense discovery of [Linda's] medical records through preemptive motions for protective orders.”   We find no support for this assertion in the record.   Because Linda was a victim of domestic violence, defense counsel did not have direct access to Linda, but neither did the prosecutor.   For Linda's protection, at the request of her guardian, only the court had knowledge of Linda's whereabouts. The court notified defense counsel prior to trial that it would make Linda available for interviews, and that either party could call her as a witness at trial.   We conclude that because Linda was not peculiarly available to the State, the court did not abuse its discretion in refusing to offer the missing witness instruction.

 B. Challenges for Cause

David next contends that the trial court erroneously denied his challenges for cause during jury selection.   He argues that jurors 17 and 32 were biased against him because they were exposed to media accounts which portrayed him as guilty.   Based upon the record, we conclude that the trial court did not abuse its discretion in denying the juror challenges.

 As a threshold matter, the State argues that because David failed to use all of his peremptory challenges, he waived his right to challenge the impartiality of the jury, and therefore cannot argue that the two jurors were biased.   Our Supreme Court rejected that argument in State v. Fire: ⁶

[I]f a defendant believes that a juror should have been excused for cause and the trial court refused his for-cause challenge, he may elect not to use a peremptory challenge and allow the juror to be seated.   After conviction, he can win reversal on appeal if he can show that the trial court abused its discretion in denying the for-cause challenge.⁷

Thus, a defendant need not use all of his peremptory challenges before he can show prejudice arising from the selection and retention of a particular juror.   In fact, the opposite is true, if a defendant exhausts his peremptory challenges to remove a juror after denial of a for-cause challenge, the defendant cannot then argue on appeal that he was prejudiced by the denial of the for-cause challenge, because the juror was not seated.⁸

 The Sixth Amendment and article I, section 22 of the Washington Constitution guarantee every criminal defendant the right to a fair and impartial jury.   To ensure this right, a juror will be excused for cause if his or her views would “ ‘prevent or substantially impair the performance of  his duties as a juror in accordance with his instructions and his oath.’ ” ⁹

 The denial of a challenge to a juror for cause is within the trial court's discretion.¹⁰  We defer to the judgment of the trial judge regarding whether a particular juror is able to be fair and impartial, because the trial judge is in the best position to evaluate “ ‘the fairness of a juror by the juror's character, mental habits, demeanor, under questioning and all other data which may be disclosed by the examination.’ ” ¹¹

 However, if a potential juror demonstrates actual bias, the trial court must excuse that juror for cause.¹²  Actual bias is “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” ¹³

Juror Hinch (No.17)

 David points to Hinch's statements during voir dire that she had seen newspaper and television coverage regarding his case, and that the news was unfavorable to the defendant.   She also admitted to having seen Linda's face on television, and that the attorneys in the case were concerned that “we have formed a preconceived idea of [the case].”

But examination of the record, 17 pages in all for Hinch, reveals no actual bias by this juror.   She declared no bias against David.   Hinch stated that she had seen reports one  or two years before regarding the David case and knew with certainty that the news reports never portrayed the whole story.   She also promised that she would only consider the evidence produced at trial and completely disregard any prior news accounts, and stated that she had no opinion as to David's guilt.   The trial court did not abuse its discretion in denying the for-cause challenge to Hinch.

Juror Woldeit (No. 32)

 Woldeit initially stated that she had formed an opinion as to David's guilt:  “When you read something like that, you tend to think the person you are reading about is guilty.”   When asked by the court if she would be able to set aside the opinions she formed from the news accounts and afford the defendant the presumption of innocence she answered, “I believe so.”   The prosecutor then attempted to rehabilitate her:

Prosecutor:  I will ask you, do you understand the need and right for a fair trial means the defendant is completely innocent as he sits there right now?

Woldeit:  By all means.

Prosecutor:  You agree with that completely?

Woldeit:  Totally.

Prosecutor:  Do you think that anything you heard on TV or read in the newspaper is evidence admitted in Court?

Woldeit:  I would assume so.   I don't know.   I have never been involved in a court proceeding before.

Woldeit later stated that “in every case, a person deserves a fair trial” and that it would be her goal to decide the case based upon what she heard in the courtroom.   When asked by the defense whether she could presume David's innocence she stated, “I feel comfortable that I can do it.   It would be difficult to do, but I feel comfortable that I can do it.”

 Woldeit's responses were equivocal.   But equivocal answers alone do not require that a juror be removed when  challenged for cause.¹⁴  The question is whether a juror with preconceived ideas can set them aside, and the trial judge is best situated to determine a juror's competency to serve impartially.¹⁵  Because of the deference owed to the trial court, we conclude that it did not manifestly abuse its discretion in denying David's for-cause challenge of Woldeit.

For the foregoing reasons, we affirm the judgment and sentence.

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.

C. Change in Venue

David next argues that the court erroneously denied his motion for a change in venue.   Considering the factors developed in State v. Crudup,16 we conclude that the trial court did not abuse its discretion in denying David's motion for a change of venue.

We first consider and reject the State's argument that David failed to preserve this issue for appeal because he did not renew his motion for a change of venue after the trial court made a tentative ruling on the motion. 17  The State overlooks the trial court's April 26, 2001 ruling, when during voir dire the court unequivocally denied the defense's renewed objection, “the Court will deny the challenge of the panel and again deny the request to again change venue to another county.”   The issue has been preserved for appeal.

The due process guaranty of a fair and impartial trial requires a change of venue motion to be granted when the defendant shows a probability of unfairness or prejudice from pretrial publicity.18  Pretrial publicity alone is not a sufficient reason to change venue.19  To aid in determining whether the trial court abused its discretion in denying the request for change of venue, we consider the factors developed in Crudup:

(1) the inflammatory or noninflammatory nature of the publicity;  (2) the degree to which the publicity was circulated throughout the community;  (3) the length of time elapsed from the dissemination of the publicity to the date of trial;  (4) the care exercised and the difficulty encountered in the selection of the jury;  (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them;  (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause;  (7) the connection of government officials with the release of publicity;  (8) the severity of the charge;  and (9) the size of the area from which the venire is drawn.20

Regarding the first Crudup factor, David points to ongoing sensational media coverage in both television and print as inflammatory because it painted a horrific story of abuse and treated the story as true.   A review of the media reports shows that the coverage was fairly consistent in its theme-that David horribly abused and disfigured Linda.   The stories described Linda as a prisoner who had been tortured by her husband.   The headlines shared a common theme and include, “No more abuse cases like Linda David's, Locke orders;” “Police arrest man in brutal abuse of wife;” and “She was the girl next door ․ with a bright future.   But what happened to Linda David stunned Western Washington.” Linda's face was shown many times.   Because the media attention was highly inflammatory, this factor weighs in favor of changing the venue of the trial.

The second Crudup factor also weighs in David's favor because the degree of publicity was significant.   Tempo IV, the media clearinghouse that documents all local media, estimated the Linda David story to be the most widely reported television news story of any kind in the year 2000 in Western Washington, behind the 2000 election and the Robert Yates case.   The publicity was published in print and television in every major newspaper and television channel.

Regarding the third Crudup factor, the record is unclear as to when the media blitz regarding this story tapered off.   It is clear that by the time of the second trial the media was still producing some stories that had been seen by members of the jury pool, but the six-month period that separated the two trials mitigates this factor.21

The fourth Crudup factor weighs in the State's favor.   Thirty-nine of 110 or roughly 36 percent of the jurors were excused for cause.   The record shows the court exercised great care in empanelling the jury.   The court decided to test the saturation level of the publicity by first conducting individual voir dire of all jurors who had heard about the case in order to ascertain bias and prejudice.   This was appropriate considering that “the best test of whether an impartial jury could be empanelled [is] to attempt to empanel one.” 22  The judge instructed the venire to avoid current media coverage or discussions about the case.   The court asked each juror whether the admonition was followed.   Those admittedly biased in favor of guilt were dismissed outright.   After jury selection, the court again strongly and repeatedly admonished against all discussion and media publicity about the case.   In sum, the trial court's exceptional care offset the difficulties presented in final jury selection.

Regarding the fifth factor, the critical inquiry is whether the jurors had such fixed opinions that they could not be impartial.   Thirteen of the fourteen seated jurors stated they had no opinion as to whether David was guilty.   The remaining juror Woldeit stated she could set aside any opinion previously formed.   This factor weighs in the State's favor.

The sixth factor focuses on the challenges exercised by the defendant.   David did not exercise all six of his peremptory challenges.   Thus, this factor weighs in the State's favor.23

The seventh Crudup factor examines the government's connection to the publicity.   The record is devoid of evidence showing governmental connection to the publicity.   This factor does not support a change of venue.

The eighth factor, regarding severity, David was charged with second degree assault, a class B felony.   This factor does not favor a change of venue because there is an elevated class of more severe crimes.

Finally, we examine the size of the area from which the jurors were drawn.   Snohomish is the third largest county in Washington with a population of 600,000;  326,000 of which are registered voters. This factor does not favor a venue change.

Although some factors support a venue change, on balance the court did not abuse its discretion in denying David's motion for change of venue.   The record shows no juror who, despite knowledge of the case, had such fixed opinions that they could not act impartially.24  David fails to show an abuse of discretion in the denial of his motion for change of venue.25

D. Unanimous Verdict Instruction

David next assigns error to the trial court's failure to give a unanimous verdict instruction.   Because Linda suffered a systematic pattern of assault in an identifiable location over a fixed time frame, we conclude that David engaged in a continuing course of conduct, and was therefore not entitled to a unanimity jury instruction.

Defendants in Washington have a constitutional right to a unanimous verdict when the facts show multiple acts which could constitute the crime charged. 26  In cases involving multiple acts, the State must either elect the individual act upon which it will rely for conviction, or the court must instruct the jury that they must unanimously agree which act establishes guilt beyond a reasonable doubt.27  This requirement is not necessary, however, if the evidence shows the defendant was engaged in a continuing course of conduct.28

Courts make a commonsense evaluation of the facts to determine whether the defendant engaged in continuing criminal conduct.29  Factors relevant in determining whether the defendant engaged in a continuing course of conduct include whether the acts occurred in “a separate time frame” or an “identifying place.” 30  Multiple assaults against a single individual can constitute a continuing course of conduct if each assault is meant to further a singular purpose.31  Courts look for a systematic pattern of abuse on a single victim in finding a continuing course of assault.32

Here, the record supports the conclusion that the assaults all took place in an identifiable place-David's sailboat.   The only evidence to the contrary was speculative and contradicted by other, corroborated testimony.   No one saw a woman leave or enter David's sailboat during the entire time it was moored at Seacrest Marina.   Authorities discovered Linda completely immobilized.

The record also shows that Linda suffered a systematic pattern of abuse.   Several doctors examined Linda, and all of them concluded that her injuries were the result of recurring, brutal beatings.   Linda was completely isolated from August 1994 until authorities discovered her in January 1997.   David refused others' requests to see his wife, sometimes threatening violence.   He kept her isolated on his boat.   The record supports the trial court's conclusion that he engaged in a continuing course of assault.

David counters that he could not have engaged in continuous conduct because his multiple assaults occurred over a four-year period.   We disagree.   In State v. Craven, we discounted the necessity that the time span involved be a brief one, noting that “the continuing course exception can be applied to an assault prosecution in a factually appropriate case.” 33  This case presents unique facts.   Linda's incapacity was similar to that of a pre-verbal child.   She did not have the same state health and welfare protection available to children.   Had it been available, state authorities might have discovered the abuse much sooner.   That she had no such protection and that the abuse went on for years does not bar a trial court finding that this case presents a continuing course of conduct.

E. Prosecutorial Misconduct

David next argues that the prosecutor committed reversible misconduct in closing argument by intimating that David gambled his money away while his wife was left at home.   Assuming arguendo that the argument was improper, we conclude that it was harmless.

A defendant alleging prosecutorial misconduct bears the burden of showing both the improper conduct and its prejudicial effect.34  To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict.35

During the closing argument, the prosecutor attempted to controvert David's claim that he could not financially provide a better lifestyle for Linda.

What's his life like?   Look at the bank records.   I can't tell you what he was doing down there all those times, all the many times he withdrew money from Enchanted Parkway.   While he is at Enchanted Parkway, she is not in Enchanted Boatway.   But sometimes it's $200 or $300 at a time.   I don't know if he is buying expensive cedar chips or goat's milk or gambling in casinos.  (Emphasis added.)

The defense objected to the uncorroborated suggestion that David had been gambling, and the trial court struck the comment.   The trial court denied the subsequent motion for a mistrial, ruling that there was not incurable prejudice because “[t]he context of the comment is we really don't know what he is doing with the money.”   David correctly points out that the State never produced any evidence of gambling.   Nonetheless, David has not shown that the comment affected the jury's verdict.   A “high degree of deference” is paid to the trial court in its decision to deny a mistrial for prosecutorial misconduct. 36  A trial court “ ‘should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.’ ” 37

Here, the trial court struck the comment and cautiously provided a curative instruction.   Jurors are presumed to follow instructions to disregard improper evidence.38  The comment was brief and not repeated.   David has not established that this lone statement substantially influenced the verdict of the jury or that the trial court abused its discretion in concluding David could still receive a fair trial.

F. Exceptional Sentence

David next contends that the trial court erred in imposing an exceptional sentence.   The court based its sentence on the following:

1.  Linda was particularly vulnerable due to disability or ill health and David was aware of this fact;

2.  The effect of the assaults on Linda was greater than normal for second degree assault;

3.  David's conduct constituted an abuse of trust;

4.  The offense involved domestic violence that included an ongoing pattern of physical abuse of Linda manifested by multiple incidents over a prolonged period of time;

5.  The offense involved multiple blows that constituted gratuitous violence;  and

6.  David actively engaged in conduct to conceal his crime.

The court stated that it would impose the exceptional sentence based on any one of the six grounds.

A trial court's justifications for imposing a sentence outside the standard range must be substantial and compelling.39  A defendant may challenge an exceptional sentence on the grounds that the facts relied upon to justify the sentence are not supported by the evidence, the legal justification is not supported by the law, or the sentence was clearly excessive in light of the circumstances.40  Review of the legal justification for an exceptional sentence is de novo;  review of the factual findings is under the clearly erroneous standard.41

The vulnerability of a victim is a statutory aggravating factor that will support an exceptional sentence when the defendant knows of the victim's particular vulnerability and the vulnerability must be a substantial factor in accomplishing the crime.42  The critical inquiry regarding victim vulnerability focuses on whether or not the victim was more vulnerable to the offense than other victims due to extreme youth, advanced age, disability, or ill health, and whether the defendant knew of that vulnerability.

The State's charging period covered from September 1993 to January 31, 1997.   The record indicates that as of September 30, 1993, Linda required substantial assistance and was wheelchair bound. She was also functionally blind during a portion of this time.   David was aware of Linda's condition.   He told numerous friends and other individuals that Linda was disabled and that he cared for her.   Dr. Wilson testified that she had several fractures and extremely slow reflexes.   Substantial evidence supports this exceptional sentence.   Because the court found that any one of the factors would support the exceptional sentence, we need not address the remaining factors.

For the foregoing reasons, we affirm the judgment and sentence.

AFFIRMED.

FOOTNOTES

1.   WPIC 5.20 reads:If a party does not produce the testimony of a witness who is [within the control of] [or] [peculiarly available to] that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.11 Washington Pattern Jury Instructions:  Criminal 5.20, at 130 (2d.3d.1994).

2.   State v. McGhee, 57 Wash.App. 457, 462-463, 788 P.2d 603 (1990).

3.   State v. Davis, 73 Wash.2d 271, 280, 438 P.2d 185 (1968) (citing 2 Wigmore, Evidence § 286 (3d ed.1940)).

4.   Davis, 73 Wash.2d at 277, 438 P.2d 185 (holding that an uncalled undersheriff, who was an eyewitness to the interrogation in question and worked closely with the county prosecutor's office, was peculiarly available to the prosecution).

5.   State v. Picard, 90 Wash.App. 890, 902, 954 P.2d 336 (1998).

6.   145 Wash.2d 152, 34 P.3d 1218 (2001).

7.   Fire, 145 Wash.2d at 158, 34 P.3d 1218.

8.   Fire, 145 Wash.2d at 165, 34 P.3d 1218.

9.   State v. Hughes, 106 Wash.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)).

10.   State v. Witherspoon, 82 Wash.App. 634, 637, 919 P.2d 99 (1996).

11.   State v. Noltie, 116 Wash.2d 831, 839, 809 P.2d 190 (1991) (quoting Lewis H. Orland & Karl B. Tegland, Washington Practice:  Trial Practice § 203, at 332 (4th ed.1986)).

12.   Ottis v. Stevenson-Carson Sch. Dist. No. 303, 61 Wash.App. 747, 752-53, 812 P.2d 133 (1991).

13.   RCW 4.44.170(2).

14.   State v. Rupe, 108 Wash.2d 734, 749, 743 P.2d 210 (1987).

15.   Patton v. Yount, 467 U.S. 1025, 1039, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984);  State v. Gosser, 33 Wash.App. 428, 434, 656 P.2d 514 (1982).

FN16. 11 Wash.App. 583, 524 P.2d 479 (1974)..  FN16. 11 Wash.App. 583, 524 P.2d 479 (1974).

FN17. State v. Jamison, 105 Wash.App. 572, 586, 20 P.3d 1010, rev. denied, 144 Wash.2d 1018, 32 P.3d 283 (2001) (where a trial court has made a tentative ruling or has not ruled, the defendant must seek a final ruling in order to preserve the issue for appeal)..  FN17. State v. Jamison, 105 Wash.App. 572, 586, 20 P.3d 1010, rev. denied, 144 Wash.2d 1018, 32 P.3d 283 (2001) (where a trial court has made a tentative ruling or has not ruled, the defendant must seek a final ruling in order to preserve the issue for appeal).

FN18. State v. Hoffman, 116 Wash.2d 51, 71, 804 P.2d 577 (1991)..  FN18. State v. Hoffman, 116 Wash.2d 51, 71, 804 P.2d 577 (1991).

FN19. State v. Laureano, 101 Wash.2d 745, 756-57, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wash.2d 124, 761 P.2d 588, adhered to on reh'g, 113 Wash.2d 520, 782 P.2d 1013 (1989) 787 P.2d 906 (1990)..  FN19. State v. Laureano, 101 Wash.2d 745, 756-57, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wash.2d 124, 761 P.2d 588, adhered to on reh'g, 113 Wash.2d 520, 782 P.2d 1013 (1989) 787 P.2d 906 (1990).

FN20. Crudup, 11 Wash.App. at 587, 524 P.2d 479..  FN20. Crudup, 11 Wash.App. at 587, 524 P.2d 479.

FN21. State v. Jeffries, 105 Wash.2d 398, 409, 717 P.2d 722 (1986) (six months between murders and trial sufficient)..  FN21. State v. Jeffries, 105 Wash.2d 398, 409, 717 P.2d 722 (1986) (six months between murders and trial sufficient).

FN22. Hoffman, 116 Wash.2d at 72-73, 804 P.2d 577..  FN22. Hoffman, 116 Wash.2d at 72-73, 804 P.2d 577.

FN23. Jeffries, 105 Wash.2d at 409, 717 P.2d 722..  FN23. Jeffries, 105 Wash.2d at 409, 717 P.2d 722.

FN24. State v. Rice, 120 Wash.2d 549, 558, 844 P.2d 416 (1993)..  FN24. State v. Rice, 120 Wash.2d 549, 558, 844 P.2d 416 (1993).

FN25. Hoffman, 116 Wash.2d at 71, 804 P.2d 577..  FN25. Hoffman, 116 Wash.2d at 71, 804 P.2d 577.

FN26. State v. Petrich, 101 Wash.2d 566, 572-73, 683 P.2d 173 (1984)..  FN26. State v. Petrich, 101 Wash.2d 566, 572-73, 683 P.2d 173 (1984).

FN27. Petrich, 101 Wash.2d at 572, 683 P.2d 173..  FN27. Petrich, 101 Wash.2d at 572, 683 P.2d 173.

FN28. State v. Handran, 113 Wash.2d 11, 17, 775 P.2d 453 (1989)..  FN28. State v. Handran, 113 Wash.2d 11, 17, 775 P.2d 453 (1989).

FN29. State v. Elliott, 114 Wash.2d 6, 13-15, 785 P.2d 440 (1990)..  FN29. State v. Elliott, 114 Wash.2d 6, 13-15, 785 P.2d 440 (1990).

FN30. Petrich, 101 Wash.2d at 571, 683 P.2d 173..  FN30. Petrich, 101 Wash.2d at 571, 683 P.2d 173.

FN31. Handran, 113 Wash.2d at 17, 775 P.2d 453..  FN31. Handran, 113 Wash.2d at 17, 775 P.2d 453.

FN32. State v. Craven, 69 Wash.App. 581, 588, 849 P.2d 681 (1993)..  FN32. State v. Craven, 69 Wash.App. 581, 588, 849 P.2d 681 (1993).

FN33. Craven, 69 Wash.App. at 589, 849 P.2d 681..  FN33. Craven, 69 Wash.App. at 589, 849 P.2d 681.

FN34. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997)..  FN34. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997).

FN35. Brown, 132 Wash.2d at 561, 940 P.2d 546..  FN35. Brown, 132 Wash.2d at 561, 940 P.2d 546.

FN36. State v. Munguia, 107 Wash.App. 328, 336, 26 P.3d 1017 (2001), rev. denied, 145 Wash.2d 1023, 41 P.3d 483 (2002) (quoting State v. Luvene, 127 Wash.2d 690, 703-04, 903 P.2d 960 (1995))..  FN36. State v. Munguia, 107 Wash.App. 328, 336, 26 P.3d 1017 (2001), rev. denied, 145 Wash.2d 1023, 41 P.3d 483 (2002) (quoting State v. Luvene, 127 Wash.2d 690, 703-04, 903 P.2d 960 (1995)).

FN37. Munguia, 107 Wash.App. at 336, 26 P.3d 1017 (quoting State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996))..  FN37. Munguia, 107 Wash.App. at 336, 26 P.3d 1017 (quoting State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996)).

FN38. State v. Russell, 125 Wash.2d 24, 84, 882 P.2d 747 (1994)..  FN38. State v. Russell, 125 Wash.2d 24, 84, 882 P.2d 747 (1994).

FN39. State v. Nordby, 106 Wash.2d 514, 518, 723 P.2d 1117 (1986)..  FN39. State v. Nordby, 106 Wash.2d 514, 518, 723 P.2d 1117 (1986).

FN40. State v. Barnett, 104 Wash.App. 191, 201, 16 P.3d 74 (2001)..  FN40. State v. Barnett, 104 Wash.App. 191, 201, 16 P.3d 74 (2001).

FN41. State v. Hooper, 100 Wash.App. 179, 183, 997 P.2d 936 (2000)..  FN41. State v. Hooper, 100 Wash.App. 179, 183, 997 P.2d 936 (2000).

FN42. State v. Vermillion, 66 Wash.App. 332, 349, 832 P.2d 95 (1992);  State v. Jackmon, 55 Wash.App. 562, 566, 778 P.2d 1079 (1989)..  FN42. State v. Vermillion, 66 Wash.App. 332, 349, 832 P.2d 95 (1992);  State v. Jackmon, 55 Wash.App. 562, 566, 778 P.2d 1079 (1989).

BAKER, J.