Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 71170-4
Title of Case: Personal Restraint Petition of
v.
Shawn Andress
File Date: 10/24/2002
Oral Argument Date: 03/12/2002
SOURCE OF APPEAL
----------------
JUSTICES
--------
Authored by Barbara A. Madsen
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Richard B. Sanders
Dissenting: Faith E Ireland
Susan J. Owens
Bobbe J. Bridge
Tom Chambers
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Timothy K. Ford
Macdonald Hoague & Bayless
705 2nd Avenue Ste 1500
Seattle, WA 98104-1745
Counsel for Respondent(s)
James M. Whisman
King County Pros Office--Appellate Unit 1850 Key Tower
700 5th Ave #1850
Seattle, WA 98104
Amicus Curiae on behalf of Wacdl
Patricia S. Novotny
Attorney At Law
3418 NE 65th St Ste a
Seattle, WA 98115
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re Personal Restraint Petition of ) No. 71170-4
)
SHAWN ANDRESS, ) EN BANC
)
Petitioner. )
)
) Filed October 24, 2002
MADSEN, J. -- Personal restraint petitioner Shawn Andress was
convicted of second degree felony murder. He urges this court to
reconsider whether assault can serve as the predicate felony for second
degree felony murder. We agree that the time has come to reassess this
question. We conclude that in light of a change in the second degree
felony murder statute that we have not previously considered in the context
here and decisions that together illuminate the illogic of a conviction of
second degree felony murder where assault is the predicate crime, assault
cannot serve as the predicate felony for second degree felony murder.
Accordingly we grant Andress's personal restraint petition on this issue,
vacate his conviction for second degree felony murder, and remand for
resentencing consistent with our opinion.
FACTS
Andress became involved in a fight outside a bar with Eric Porter and
Edwin Foster. After the fight had continued for a time, Porter saw Foster
stumble off holding his chest, and a little later Porter realized that both
he and Foster had been stabbed by Andress. Foster died from the stabbing.
The State charged Andress with second degree intentional murder and second
degree felony murder with assault in the second degree as the predicate
felony, arising from the stabbing of Foster, and first degree assault,
arising from the stabbing of Porter; the information alleged that Andress
committed each of these offenses while armed with a deadly weapon. In an
amended information, the State dropped the second degree intentional murder
alternative, leaving only the second degree felony murder charge predicated
on assault as the underlying felony. The jury found Andress guilty of
second degree felony murder (Foster) and second degree assault (Porter).
The jury also returned a deadly weapon verdict on each count.
Andress appealed, and the Court of Appeals affirmed his convictions in
an unpublished opinion. This court denied discretionary review of the
Court of Appeals decision. State v. Andress, 138 Wn.2d 1002, 984 P.2d 1034
(1999). Andress filed a personal restraint petition, which the Acting
Chief Judge of the Court of Appeals dismissed. Andress then sought
discretionary review, RAP 16.14(c), which we granted only on the question
whether assault may serve as the predicate felony for second degree felony
murder.
ANALYSIS
Andress raises both constitutional and nonconstitutional challenges to
his felony murder conviction. We turn to the nonconstitutional challenge
first. Where a personal restraint petitioner asserts nonconstitutional
grounds for relief from personal restraint, the petitioner "must establish
(1) he or she is being unlawfully restrained, (2) due to a `fundamental
defect which inherently results in a complete miscarriage of justice.'" In
re Pers. Restraint of Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996)
(quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506
(1990)). Andress maintains that when the Legislature changed the wording
of the second degree felony murder statute in 1975, it became clear that
assault could not serve as the predicate felony. We agree that the
language of the statute, particularly in light of decisional law, does not
encompass assault as a predicate felony. Our conclusion results from a
careful review of the history of this question and the relevant statutory
and decisional law that has developed since this court first rejected the
argument that assault cannot serve as the predicate felony to felony
murder. Since we agree that Andress is entitled to relief from personal
restraint based upon his nonconstitutional challenge, we do not reach the
constitutional challenges he raises.
In 1966, this court first considered whether the felony murder rule
should apply to homicides where the predicate felony is an assault on the
person killed. State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). The
court noted that the felony murder doctrine originated in the common law as
early as 1536 in England. Id. at 931 (citing Albert E. Arent & John W.
MacDonald, The Felony Murder Doctrine and its Application under the New
York Statutes, 20 Cornell L.Q. 288, 289 (1935); Mansell & Herbert's Case, 2
Dyer 128b (1536)). At the time the doctrine was first recognized, nearly
all felonies were punishable by death. Harris, 69 Wn.2d at 931; see Wayne
R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law sec. 7.5(a)
(2002). As time passed, offenses that once were characterized as
misdemeanors and gross misdemeanors were made felonies by statutory
enactments, and as a result the common law rule became too harsh. This
harshness was ameliorated in American jurisdictions in several ways,
including limitations requiring that the defendant's actions proximately or
legally cause the victim's death, that the attempted or completed predicate
felony be dangerous to life, that the predicate felony be independent of
the homicide, or that strict interpretation be made of the requirement that
the death occur in the commission or attempted commission of a felony. Id.
Limiting the felony murder rule to certain predicate felonies has taken
various forms, with Washington limiting first degree felony murder to
crimes that were generally felonies at common law, i.e., robbery in the
first or second degree, rape in the first or second degree, burglary in the
first degree, arson in the first or second degree, kidnapping in the first
or second degree. RCW 9A.32.030(c); see LaFave & Scott, supra. However,
the second degree felony murder statute is not similarly restricted;
instead, the statute refers to "any felony other" than those referred to in
the first degree felony murder provision. RCW 9A.32.050(b).
In Harris, the court was asked to adopt New York's "merger rule," that
is, "the precedent felony, if an assault on the person killed, is merged in
the resulting homicide." Harris, 69 Wn.2d at 932. Put another way, an
assault cannot be the predicate felony for felony murder because it is not
a felony independent of the homicide. The court declined to adopt the
assault-felony murder merger rule, reasoning that the statutory schemes of
Washington and New York were sufficiently distinct that the justification
for the rule in New York did not apply in Washington. As the court
observed, under New York law practically all cases of homicide resulted
directly or indirectly from an assault. Id. Every homicide that was not
justifiable or excusable would amount to first degree felony murder in the
absence of the merger rule, with the result being that "all the second-
degree murder and manslaughter statutes would have been emasculated." Id.
at 933. Further, the court noted, absent the merger rule, it would never
be necessary in New York to show intent to kill, deliberation or
premeditation because every murder could be charged as first degree felony
murder. Id. The court in Harris concluded that the same was not true in
Washington, given the Legislature's specific designation of felonies that
would result in a first or second degree felony murder charge. The court
did note, though, that the felony murder doctrine might be in need of
reform in Washington, but not in a case, such as Harris, where the
defendant had, with gun in hand, threatened to kill several people, pointed
the gun at one, and pulled the trigger. Harris, 69 Wn.2d at 934. The
court added that the defendant was fortunate not to have been charged with
first degree murder. Id.
The court subsequently adhered to its decision rejecting the merger
rule. E.g., State v. Wanrow, 91 Wn.2d 301, 306-10, 588 P.2d 1320 (1978);
State v. Thompson, 88 Wn.2d 13, 23, 558 P.2d 202 (1977). In Wanrow, the
court again considered Washington's statutory scheme, concluding that it
did not support adoption of the merger rule.1 In Thompson, however, the
court recognized that "{m}ost states which have considered the question
have adopted the merger rule, resulting in a holding that only felonies
independent of the homicide can support a felony murder conviction." Id.,
88 Wn.2d at 17.
Harris, Wanrow, and Thompson all involved a prior version of the
second degree felony merger statute, which provided:
The killing of a human being, unless it is excusable or justifiable, is
murder in the second degree when --
(1) Committed with a design to effect the death of the person killed or of
another, but without premeditation; or
(2) When perpetrated by a person engaged in the commission of, or in an
attempt to commit, or in withdrawing from the scene of, a felony other than
those enumerated in {former} RCW 9.48.030.
Former RCW 9.48.040 (1974). Subsection (2) defined the crime of second
degree felony murder.
Former RCW 9.48.040 was replaced effective July 1, 1976, when the
Legislature recodified some criminal statutes, amending some of them at the
same time. Laws of 1975, 1st Ex. Sess. ch. 260, sec. 9A.32.050 (effective
July 1, 1976, see Laws of 1975, 1st Ex. Sess. ch. 260, sec. 9A.04.010);
Laws of 1975-76, 2d Ex. Sess. ch. 38, sec. 4. The new statute defining
second degree felony murder is the same version in effect now. It provides
in relevant part:
(1) A person is guilty of murder in the second degree when:
(a) With intent to cause the death of another person but without
premeditation, he causes the death of such person or of a third person; or
(b) He commits or attempts to commit any felony other than those enumerated
in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such
crime or in immediate flight therefrom, he, or another participant, causes
the death of a person other than one of the participants
. . . .
RCW 9A.32.050. Following passage of the amended version of the second
degree felony murder statute, subsection (b), the court continued to reject
arguments that assault cannot be used as the predicate felony for second
degree felony murder. In Thompson, decided in 1977, the court noted that
the Legislature had recently modified parts of the criminal code, but said
that it left unchanged the statutory context in question. Thompson, 88
Wn.2d, at 17-18. Similarly, in Wanrow, decided in 1978, the court noted in
one part of the opinion that former RCW 9.48.040 had been superseded,
Wanrow, 91 Wn.2d at 304, but said that the Legislature had taken no steps
to change the Harris rule, Wanrow, 91 Wn.2d at 307.
However, the court did not address in either case, nor has it ever
addressed, the specific language of the amended statute in connection with
the argument again advanced in this case. This is not surprising, because
the statutorily-based challenges in Harris, Thompson, and Wanrow were all
brought by defendants convicted under the prior version of the second
degree felony murder statute, former RCW 9.48.040. We are thus faced with
a change in the language of the statute which has never been specifically
analyzed in the context here.
We have, however, had occasion to interpret the new language in the felony
murder statutes in one other context (the first degree felony murder
statute has the same "in furtherance of" language that the second degree
felony murder statute has). In State v. Leech, 114 Wn.2d 700, 790 P.2d 160
(1990), the defendant was convicted of first degree felony murder with
arson as the predicate felony. A fire fighter was killed after the arson
fire was set and before the fire was extinguished. The defendant contended
that the death did not occur in the course of and in furtherance of the
arson, because the defendant did not cause the death in acting to promote
or advance the arson. Leech, 114 Wn.2d at 706. Relying on a leading
treatise, and to avoid absurd results, we concluded that the "in
furtherance of" language must be construed to mean that the death "was
sufficiently close in time and place to the arson to be part of the res
gestae of that felony." Id., 114 Wn.2d at 709. The absurd results that
would have followed if defendant's argument that the "in furtherance of"
language applied only to the time when the arson fire was set would be that
an arsonist whose fire killed would almost never be liable for murder.
Id., 114 Wn.2d at 709. That would not effectuate the purpose of the first
degree felony murder statute where arson is the predicate felony; indeed,
it would be contrary to manifest legislative purpose. See RCW
9A.32.030(1)(c) (listing "arson" as a predicate felony).
Although Andress contends that we should accept a different interpretation
of the "in furtherance of" language in this case, we decline to do so. The
reasons for the construction of that language in Leech are still as
compelling today as when Leech was decided. However, applying the
construction from Leech leads to the conclusion that an assault on the
person killed is not encompassed within the newer version of the second
degree felony murder statute. If it were, the statute would provide,
essentially, that a person is guilty of second degree felony murder when he
or she commits or attempts to commit assault on another, causing the death
of the other, and the death was sufficiently close in time and place to the
assault to be part of the res gestae of assault. It is nonsensical to
speak of a criminal act -- an assault -- that results in death as being
part of the res gestae of that same criminal act since the conduct
constituting the assault and the homicide are the same. Consequently, in
the case of assault there will never be a res gestae issue because the
assault will always be directly linked to the homicide. Therefore, if
assault were encompassed within the unenumerated felonies in RCW
9A.32.050(1)(b), the "in furtherance of" language would be meaningless as
to that predicate felony. In short, unlike the cases where arson is the
predicate felony, the assault is not independent of the homicide.
As this court said in Leech when construing the "in furtherance of"
language in the felony murder statutes, "`statutes should be construed to
effect their purpose, and strained, unlikely, or absurd consequences
resulting from a literal reading are to be avoided.'" Leech, 114 Wn.2d, at
708-09 (quoting State v. Neher, 112 Wn.2d 347, 351, 771 P.2d 330 (1989)).
We will not construe a statute to reach an absurd result because we do not
presume that the Legislature intended absurd results. State v. Vela, 100
Wn.2d 636, 641, 673 P.2d 185 (1983); State v. Gaines, 109 Wash. 196, 200,
186 P. 257 (1919); see also In re Pers. Restraint of Davis, 142 Wn.2d 165,
177, 12 P.3d 603 (2000); State v. Ammons, 136 Wn.2d 453, 457-58, 963 P.2d
812 (1998); Leech, 114 Wn.2d at 708-09; Neher, 112 Wn.2d at 351; In re
Pers. Restraint of Lehman, 93 Wn.2d 25, 27, 604 P.2d 948 (1980). The "in
furtherance of" language is strong indication that the Legislature does not
intend that assault should serve as a predicate felony for second degree
felony murder.
The State contends, contrary to this conclusion, that the Legislature has
affirmatively declined to omit assault from the felonies encompassed by RCW
9A.32.050(1)(b). We do not agree.
The State says that during the recodification process of the 1970s a draft
code (the "Orange Code") was prepared that would have excluded assault as a
basis for felony murder. The State concludes that the Legislature rejected
elimination of assault (as well as manslaughter) as a predicate felony when
it instead adopted the present version of the felony murder statute. The
argument is unpersuasive. First, even where an actual bill is before the
Legislature, we generally decline to speculate as to why the Legislature
rejects a proposed amendment. E.g., Spokane County Health Dist. v.
Brockett, 120 Wn.2d 140, 153, 839 P.2d 324 (1992). Second, the principle
that the court refuses to speculate applies with added force, because there
are numerous other aspects of the proposed draft that legislators might
have found objectionable. The "Orange Code" provision at issue defined
"murder" in a way that significantly departed from previous law in many
respects, aside from expressly providing that assault could not serve as a
predicate felony for felony murder. The proposed draft provision made
murder a "degreeless" crime, did away with premeditation, defined reckless
endangering as the basis for a murder conviction only where the conduct
endangered several persons, not just one, limited the felony murder rule to
only the actual killer and not fellow accomplices, limited felony murder to
killings in the commission of forcible felonies, and imposed a required
mental state, recklessness, for any killing serving to ground the felony
murder rule. Suppl. Br. of Resp't App. A. Given such a sweeping proposed
overhaul of the murder statutes, there are numerous aspects of the draft
felony murder provision that legislators may have found objectionable.
Therefore, even if we were to treat the draft provision as an amendment
rejected by the Legislature, we cannot conclude that the fact that the
draft provision was not enacted as law means that the Legislature
affirmatively rejected one of many changes proposed. See Leeper v. Dep't
of Labor & Indus., 123 Wn.2d 803, 816, 872 P.2d 507 (1994) (declining to
accept, as legislative intent, a legislative vote rejecting a bill
including proposed amendments to five separate sections of the Industrial
Insurance Act, four of which had nothing to do with the issue before the
court). Finally, the cases relied upon by the State are readily
distinguishable. In State v. Jackson, 137 Wn.2d 712, 723, 976 P.2d 1229
(1999), the court found significant the fact that the Legislature enacted a
criminal statute pertaining to accomplice liability modeled on a Model
Penal Code provision but failed to include in the statute certain language
in the model provision. The Legislature's omission of language contained
in a model provision otherwise adopted may indicate a deliberate choice to
reject the omitted portion. The same is not true here. In Rhoad v. McLean
Trucking Co., 102 Wn.2d 422, 686 P.2d 483 (1984), the Legislature repealed
a statute in the Worker's Compensation Act providing for a worker's cause
of action against a third party, and enacted a replacement statute that did
not contain certain language respecting proportionate sharing of fees and
expenses that had appeared in the earlier statute. The court reasoned that
it must presume the Legislature meant to leave out the language, noting
also that where a material change is made in a statute a change in
legislative intent is presumed. Again, the situation is unlike that in the
present case.2
In addition to the change of language in the second degree felony murder
statute, decisions relating to felony murder and the statutory scheme as a
whole
disclose that assault as a predicate felony for felony murder results in
much harsher treatment of criminal defendants than was apparent when this
court decided Harris. This has become more obvious as various issues have
come before the appellate courts of this state, and, in light of the
statutory scheme as a whole, we believe the Legislature did not intend this
result.
First, as this court recently held, neither degree of manslaughter is a
lesser degree of second degree felony murder. State v. Tamalini, 134 Wn.2d
725, 953 P.2d 450 (1998). Thus, the jury is not given the option of
considering, in cases involving second degree felony murder with assault as
the predicate felony, whether the defendant should be convicted of the
lesser crime of first or second degree manslaughter. The Court of Appeals
in this case upheld the trial court's refusal to instruct the jury on
manslaughter in light of Tamalini. State v. Andress, No. 37250-5-I, at 11
(Wash. App. Jan. 19, 1999). In contrast, manslaughter may be a lesser
included offense of intentional second degree murder. See State v. Berlin,
133 Wn.2d 541, 551, 947 P.2d 700 (1997).
Additionally, a lesser included offense instruction on assault is normally
inappropriate in a felony murder case. Evidence in a case must support an
inference that only the lesser crime was committed before a lesser included
offense instruction is required as a matter of right. See Berlin, 133
Wn.2d at 548; State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978);
State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999). Stated somewhat
differently, "{i}f the evidence would permit a jury to rationally find a
defendant guilty of the lesser offense and acquit him of the greater, a
lesser included offense instruction should be given." Berlin, 133 Wn.2d at
551. Ordinarily, this factual prong of the test for when a lesser included
offense instruction is a matter of right cannot be met in a felony murder
case to permit a lesser included instruction on assault because the assault
has resulted in the death. See Lyon, 96 Wn. App. at 450.3
Thus, in a case where second degree felony murder is charged a jury will
rarely have any choice but to convict or acquit on that charge, with no
other alternative.
Further, where assault is the predicate felony, the State can elect to
charge second degree felony murder rather than second degree intentional
murder and thus not have to establish intent to kill, regardless of whether
there is evidence of intent to kill. This case is an example, where the
alternative charge of second degree intentional murder was dropped,
evidently because the State would have had difficulty proving the requisite
mental intent given the defendant's level of intoxication.
In addition, first, second, and third degree assault are all felonies, and
thus could stand as a predicate felony for second degree felony murder if
RCW 9A.32.050(1)(b) is read to include assault. Yet for a number of
assaults, no mental element comparable to intent is required. See, e.g.,
RCW 9A.36.021(1)(c) (second degree assault where a person "{a}ssaults
another with a deadly weapon"); RCW 9A.36.031(1)(b) (third degree assault
where a person "{a}ssaults a person employed as a transit operator or
driver . . . while that person is performing his or her official duties");
RCW 9A.36.031(1)(d) (third degree assault where "{w}ith criminal
negligence, {the person} causes bodily harm to another person by means of a
weapon or other instrument or thing likely to produce bodily harm"). By
electing to charge second degree felony murder, the State may, depending
upon the circumstances, be relieved of any burden to prove intent or any
comparable mental state. And, of course, by electing to charge second
degree felony murder, the State does not have to prove intent to kill, or,
indeed, any mental element as to the killing itself.
The present statutory scheme dictates that the jury will not be instructed
on any lesser included or lesser degree offenses where the charge is second
degree felony murder, in contrast to a charge of second degree intentional
murder, where both might be appropriate. In addition, a defendant may be
charged and convicted of second degree felony murder without any need for
the State to prove intent to kill or any comparable mental element with
respect to the assault. Thus, as the recent decisions make clear, the
present second degree felony murder statute occupies a place in the
homicide statutes more analogous to that of the New York first degree
felony murder statute discussed in Harris than recognized at that time.
In this regard we also note that the dissent in Tamalini observed, albeit
in connection with the issue in that case:
"A felony-murder rule that punishes all homicides committed in the
perpetration of a felony whether the death is intentional, unintentional or
accidental, without the necessity of proving the relation of the
perpetrator's state of mind to the homicide, violates the most fundamental
principle of the criminal law -- `criminal liability for causing a
particular result is not justified in the absence of some culpable mental
state in respect to that result.'"
Tamalini, 134 Wn.2d at 746 (Sanders, J., dissenting) (citing Commonwealth
v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409 (1982) (quoting People v.
Aaron, 409 Mich. 672, 708, 299 N.W.2d 304, 328 (1980))). We recognize, of
course, that the Legislature may nonetheless intend that a felony murder
statute not require proof of a mental element vis vis the killing.
However, under the present statutory scheme, if assault can serve as the
predicate felony for the second degree felony murder rule, then a negligent
third degree assault resulting in death can be second degree murder,
although RCW 9A.32.070 provides that a person who with criminal negligence
causes the death of another is guilty only of second degree manslaughter.
That makes little sense. We are reluctant to conclude that the Legislature
intended that result.4
In conjunction with our conclusion that the "in furtherance of" language in
RCW 9A.32.050(1)(b) makes no sense if applied where assault is the
predicate felony, the undue harshness of using assault as the predicate
felony for second degree felony murder persuades us that the Legislature
did not intend assault to serve as the predicate felony for second degree
felony murder. Accordingly, we construe the 1976 version of the second
degree felony murder statute so as to avoid strained and absurd results,
and conclude that assault is not a predicate felony for purposes of RCW
9A.32.050(1)(b).
This holding is consistent with the State's concession that manslaughter
cannot serve as the predicate felony for second degree felony murder.
Suppl. Br. of Resp't at 6 n.1 ("{i}t is axiomatic that manslaughter cannot
be the predicate for felony murder{,}") (citing Wayne R. LaFave & Auston W.
Scott Jr., Substantive Criminal law, sec. 7.5(g)(1) (2002)). What the
State fails to note is that the same treatise cited by the State treats
manslaughter and aggravated battery, i.e., felony assaults such as assault
with a deadly weapon or that causes great bodily harm, together when
discussing whether either should serve as predicate felonies for the felony
murder rule.
Andress has met his burden under In re Personal Restraint of Cook, since he
was improperly sentenced on a conviction of second degree felony murder.
Accordingly, we grant his personal restraint petition on the limited issue
of whether assault can serve as the predicate felony for second degree
felony murder. We vacate his sentence, and remand for resentencing in
accord with this decision. Without commenting specifically on this case or
any other, we note that whatever considerations may, by statute and
decisional law, be taken into account in resentencing generally may be
taken into account where a sentence for second degree felony murder is
vacated because of the error that occurred here.
1 The court has also rejected arguments that the assault-felony murder
merger doctrine must be adopted in order to avoid constitutional
infirmities in the felony murder statutes. State v. Crane, 116 Wn.2d 315,
333, 804 P.2d 10 (1991); State v. Leech, 114 Wn.2d 700, 712, 790 P.2d 160
(1990); State v. Wanrow, 91 Wn.2d 301, 309-13, 588 P.2d 1320 (1978).
2 The State also maintains that the Legislature has acquiesced in decisions
of this court rejecting the assault-felony murder merger rule. This
argument is of little persuasiveness, given that we have never directly
addressed the language of the 1976 second degree felony murder statute in
this context.
3 The court in State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999)
found a lesser included instruction on assault was appropriate where there
was evidence from which the jury could conclude that the death resulted
from a later, unrelated assault by another person.
4 Andress also contends that the harshness of using assault as a predicate
felony for second degree felony murder is exacerbated by decisions of the
Court of Appeals that Andress characterizes as holding that a victim of
assault resulting in death who was involved in a mutual fight is not a
"participant" for purposes of the second degree assault statute. E.g.,
State v. Goodrich, 72 Wn. App. 71, 863 P.2d 599 (1993); State v. Langford,
67 Wn. App. 572, 837 P.2d 1037 (1992); State v. Brigham, 52 Wn. App. 208,
758 P.2d 559 (1988).