State Of Washington v. Charles C. Hartzell, IV

Filed
Washington State
Court of Appeals
Division Two
July 9, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51211-4-II
Respondent,
v.
CHARLES CARROLL HARTZELL IV, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Charles Hartzell appeals his convictions for attempting to elude a pursuing
police vehicle, hit and run property damage, possession of heroin with intent to deliver, possession
of methamphetamine, and two counts of unlawful possession of a payment instrument.1 Hartzell
alleges that the police conducted unlawful impound and inventory searches and seizures. We
disagree. However, because the prosecutor committed prejudicial misconduct in her cross-
examination of a defense witness, we reverse Hartzell’s conviction for possession of heroin with
intent to distribute.2 We affirm his other convictions and remand to the superior court for further
proceedings.
1
Hartzell raises no issues as to the first two convictions except as they relate to legal financial
obligations.
2
This remedy is the relief requested by Hartzell for this violation.
51211-4-II
FACTS
I. INCIDENT
On February 6, 2017, at about 10:00 p.m., Jefferson County Deputy Brian Anderson saw
Hartzell in a vehicle at a gas station. Anderson knew that a valid arrest warrant existed for Hartzell.
When Hartzell drove away from the gas station, Anderson pulled him over, approached, and told
him he was under arrest.
Hartzell immediately accelerated and fled in his vehicle. Anderson returned to his vehicle
and gave chase with his lights and sirens activated. Hartzell exceeded 100 miles per hour.
Eventually, Hartzell lost control of his vehicle and hit a tree on private property. He then exited
his vehicle and fled on foot. Anderson tried to pursue Hartzell, but lost sight of him and called for
back-up.
Police found Hartzell about thirty minutes later and took him to the hospital for injuries he
had sustained in the crash. After the hospital cleared Hartzell, Anderson took him to jail. Anderson
then returned to the scene of the crash.
II. IMPOUND AND INVENTORY SEARCH
While other deputies, including Anderson, searched for Hartzell, Deputy Brian Peterson
secured the crashed vehicle. Hartzell’s collision had knocked the tree out of the ground and left
the car stuck on the roots. Peterson requested a tow of Hartzell’s vehicle, but the tow truck driver
refused to move the car until the tree was “dismantled.” 1 Report of Proceedings (RP) at 53.
Peterson hired a contractor who came at some point after midnight and cut down the tree. A tow
truck driver then towed the vehicle away from the stump and left it nearby so Anderson and
Peterson could perform an inventory search, which they did.
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The car was not drivable. Peterson testified that he intended to impound the car because it
was “part of the crime scene” and they couldn’t leave it on private property. 1 RP at 54. Anderson
said they impounded it because “it was involved in a pursuit and it was on somebody’s property,
and it was not drivable to have it removed.” 1 RP at 16. The deputies did not consider any
alternatives to impounding it.
Peterson began filling out an inventory search form as Anderson searched the vehicle.
Anderson entered through the driver’s side door, picked up a backpack from the floor in front of
the passenger seat, and placed it on the driver’s seat. He observed that all the zippers were open.
Anderson “might have kneeled on [the backpack] while conducting his search” and “admitted that
if he had been kneeling on the backpack, this would have manipulated it.” Clerk’s Papers (CP) at
267.
Peterson observed a baggie containing a white crystalline substance in one of the backpack
pouches and drew Anderson’s attention to it. After observing the substance, neither deputy
touched the backpack or baggie. They determined they would need a warrant to continue
searching. They left the backpack on the seat, shut the car door, and had the tow company transport
the car to the impound lot. Their inventory search lasted less than a minute.
The inventory form Peterson filled out listed, “Misc clothes/shoes” and “Pictures” as the
only items. CP at 276. The deputies “admitted under oath that [Jefferson County Sheriff’s Office]
policies with respect to inventory searches were not followed” because they never created a
detailed itemized inventory and Jefferson County policies mandate that the searching officer fill
out the form. CP at 269. The trial court found that, “With regard to any irregularities in the
completion of the inventory record form, it is not realistic to think that in the early morning hours
an officer is going to pick through a car item by item and write it out on the form.” CP at 268.
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Once the vehicle arrived at the impound lot, Anderson applied for and received a search
warrant. Anderson searched the vehicle and found in the backpack two baggies containing a total
of more than 40 grams of methamphetamine and one baggie containing heroin. Also in the vehicle,
officers found checkbooks with various people’s names on them and three cell phones.
III. CRIMINAL CHARGES
The State charged Hartzell with one count of attempting to elude a pursuing police vehicle,
one count of hit and run property damage, one count of driving with a suspended or revoked
license, two counts of possession of a controlled substance with intent to manufacture or deliver,
one each for heroin and methamphetamine, and four counts of unlawful possession of payment
instruments.
Hartzell moved to suppress all evidence seized from the backpack. He argued that the
inventory search had been a purely pretextual investigatory search for evidence at the scene of the
crash. The court denied this motion after an evidentiary hearing, concluding that the officers
performed a proper inventory search and the drugs were in plain view.
At trial, Hartzell called Gabrhea Caudill, who had provided him with chemical dependency
treatment. About a month before trial, Caudill had assessed Hartzell for a substance use disorder
and determined that he had severe methamphetamine use disorder, severe opiate use disorder, and
alcohol use disorder.
On cross-examination, the prosecutor asked Caudill, “did Mr. Hartzell break down and cry
like this when you saw him at the jail and did your interview? Or was he just able to sit and answer
your questions?” 4 RP at 760-61. Hartzell objected on relevance grounds and the trial court
overruled the objection. Caudill testified that “[t]here was one point where he did cry while he
was talking about somebody holding a gun to his head at a river in Mexico.” 4 RP at 761.
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The prosecutor also asked Caudill whether, in reviewing Hartzell’s criminal history, she
saw “any arrests for drug dealing or drug use.” 4 RP at 767. Hartzell objected and the trial court
sustained the objection. The prosecutor then asked whether Hartzell told Caudill “that he had
arrests, or something about drug use in his history.” 4 RP at 767. The trial court again sustained
an objection and told the prosecutor, “We’re not going there.” 4 RP at 767.
Later in the cross-examination, the prosecutor, referring to Caudill’s report, commented,
“I thought I read something in here about a drug cartel, so I’m going to look for that.” 4 RP at
775. Hartzell objected on grounds of improper impeachment and the court declined to rule until
the prosecutor asked a question. The prosecutor then questioned Caudill about an event where
Hartzell “was blown up by a grenade or got hit with shrapnel from a grenade” in Mexico. 4 RP at
776-77.
Hartzell objected, arguing the line of questioning was irrelevant and improper
impeachment, and that the State was attempting to introduce impermissible ER 404(b) evidence
through Caudill’s evaluation. The parties argued over the objection in front of the jury. The
prosecutor said she was “just attempting to impeach the defendant’s credibility on what he told
[Caudill] and the basis for her opinion. And these are things he told her.” 4 RP at 777. The
prosecutor agreed that ER 404(b) still applied and the court said, “So don’t go there. So the
objection’s overruled so far. I haven’t heard anything that—that’s a problem.” 4 RP at 778.
The prosecutor then asked Caudill whether Hartzell “attribute[d] what happened to him as
being based on his involvement in drugs” and Caudill answered, “Yes. And I—I believe that’s”
before being cut off by another defense objection. 4 RP at 778. The court sustained the objection
and then said, outside the presence of the jury:
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I want to make this very simple. 404(b) applies to this defendant. And also there’s
only certain types of prior convictions and so forth that can be used to impeach the
defendant if he testifies. You cannot bring up through her a bunch of prior bad acts.
And I’m not going to allow that to happen. I don’t a mistrial [sic]. I don’t need a
bunch of mistakes. And the State doesn’t either.
So I—quite frankly, I’m not sure what you’re thinking or what road you’re
going down, okay? You’ve made a number of points already about, oh, this is
totally based on his statements and his reporting, and all that. I don’t know how far
you feel like you need to go with impeaching this evaluation.
So is there any confusion now about what can be asked and what cannot be?
There’s a lot of other stuff in there I’m sure that can be asked unrelated to prior
criminal behavior, or alleged criminal behavior, or “alleged bad acts.” And as far
as I’m concerned that’s not going to come in and it can’t come in.
4 RP at 778-79. The prosecutor said she understood the ruling, but that she wished to “get to the
underpinnings” of Caudill’s opinions about Hartzell’s drug history and treatment and “how drugs
ha[d] messed up his life.” 4 RP at 779. She argued that Hartzell’s drug history was “the only thing
that supports what [Caudill was] saying.” 4 RP at 779. The prosecutor contended the evidence
was relevant because Hartzell had not been arrested or charged in previous drug cases, suggesting
that his statements to Caudill about drug problems were false.
Hartzell moved for a mistrial, arguing that the prosecutor’s actions were inappropriate
based on her questions “about the cartel in Mexico and a grenade” which were highly prejudicial.
4 RP at 781. The court told the prosecutor there was “no reason why and no basis” to “bring up
[Hartzell’s] criminal history and prior bad acts.” 4 RP at 782. It forbade the prosecutor from
continuing the line of questioning, but denied the motion for a mistrial. The court offered to
provide a jury instruction but did not “detect anything that needed to be corrected” and did not do
so. 4 RP at 784.
The jury found Hartzell guilty of attempting to elude police, hit and run property damage,
possession of methamphetamine, possession of heroin with intent to deliver, and two counts of
unlawful possession of payment instruments.
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Hartzell’s sentence included a $200 criminal filing fee and a $100 DNA (Deoxyribonucleic
acid) collection fee, both of which the trial court concluded were mandatory. Hartzell appeals his
convictions.
ANALYSIS
I. IMPOUND OF VEHICLE
Hartzell contends that the trial court erred by denying his motion to suppress because the
deputies lacked authority to impound his vehicle. He contends that, because the officers in this
case did not consider any alternatives to impoundment, it was unlawful and items discovered in
the inventory search must be suppressed. Hartzell did not raise this issue in his suppression motion
before the trial court. Because no reasonable alternatives existed in this case, we disagree with
Hartzell.
RAP 2.5(a) permits us to “refuse to review any claim of error which was not raised in the
trial court.” However, an appellant may “raise for the first time a ‘manifest error affecting a
constitutional right.’” State v. Lazcano, 188 Wash. App. 338, 356, 354 P.3d 233 (2015) (quoting
RAP 2.5(a)).
A manifest error affecting a constitutional right must be “truly of constitutional
magnitude.” State v. Scott, 110 Wash. 2d 682, 688, 757 P.2d 492 (1988). “The defendant must
identify a constitutional error and show how, in the context of the trial, the alleged error actually
affected” his rights, and “the facts necessary to adjudicate the claimed error must be in the record
on appeal.” State v. Torres, 198 Wash. App. 864, 877, 397 P.3d 900 (2017). We often review the
merits of a constitutional claim to determine whether the defendant can show a manifest error
affecting a constitutional right. See State v. Kirwin, 165 Wash. 2d 818, 823-24, 203 P.3d 1044 (2009).
We do so here.
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“When reviewing a suppression order, we determine whether substantial evidence supports
the trial court’s findings of fact and whether the findings support the conclusions of law.” State v.
Froehlich, 197 Wash. App. 831, 837, 391 P.3d 559 (2017). Unchallenged findings of fact are verities
on appeal. Froehlich, 197 Wash. App. at 837. We review the trial court’s conclusions of law de
novo. Froehlich, 197 Wash. App. at 837.
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution prohibit warrantless searches unless an exception to the warrant
requirement applies. Froehlich, 197 Wash. App. at 837. One of these exceptions is for inventory
searches of impounded vehicles. State v. Tyler, 177 Wash. 2d 690, 700-01, 302 P.3d 165 (2013). “A
noninvestigatory inventory search of a vehicle may be conducted in good faith after it is lawfully
impounded.” Tyler, 177 Wash. 2d at 701.
The police may impound a vehicle if it is evidence of a crime, under the community
caretaking function, or pursuant to a statute. Tyler, 177 Wash. 2d at 698. “[E]ven when authorized
by statute ‘impoundment must nonetheless be reasonable under the circumstances to comport with
constitutional guaranties.’” Tyler, 177 Wash. 2d at 699 (quoting State v. Hill, 68 Wash. App. 300, 305,
842 P.2d 996 (1993)). “‘[I]mpoundment is inappropriate when reasonable alternatives exist.’”
Tyler, 177 Wash. 2d at 699 (quoting Hill, 68 Wash. App. at 306). “The police officer does not have to
exhaust all possible alternatives, but must consider reasonable alternatives.” Tyler, 177 Wash. 2d at
699. “Whether an impoundment is reasonable depends on the facts of each case.” Froehlich, 197
Wash. App. at 838. “[F]acts subsequent to impoundment do not bear on whether the impoundment
was reasonable.” Tyler, 177 Wash. 2d at 699.
Hartzell does not contest that the deputies had statutory authority to impound his vehicle;
rather he alleges that they failed to exhaust reasonable alternatives to impound, such as contacting
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the vehicle’s registered owner or asking Hartzell what he wanted done with it. Neither of these
alternatives was reasonable in this case.
Hartzell crashed into a tree on private property shortly after 10:00 p.m. No one else was
in the vehicle and the crash rendered it inoperable. It took the deputies one to two additional hours
after the crash to remove the tree and get a tow driver to remove the vehicle and they did not finish
dealing with the vehicle until after midnight. The deputies never considered any alternatives to
impounding Hartzell’s vehicle. Hartzell did not own the vehicle and the deputies did not attempt
to contact the vehicle’s registered owner.
Although officers need not “exhaust all possible alternatives,” they “must consider
reasonable alternatives.” Tyler, 177 Wash. 2d at 699. Although Tyler stated this principle in broad
terms, the facts in Tyler are distinguishable. In Tyler, the vehicle could be driven and contained
another occupant whom the officer did not arrest. 177 Wash. 2d at 695. Because the occupant lacked
a valid driver’s license, the officer allowed him to use a cell phone to find another driver to come
take the vehicle, but he was unable to do so. Tyler, 177 Wash. 2d at 695.
Hartzell did not own the vehicle, it was not drivable, it had to be removed from a tree which
first had to be cut, it was on private property, and the crash took place late at night when it would
have been difficult to reach the registered owner. In addition, no passengers were present who
might have been able to take the vehicle, Hartzell had fled the scene, and officers were searching
for him while Peterson dealt with extracting the vehicle from the tree. The trial court did not have
the opportunity to consider whether reasonable alternatives existed because Hartzell did not make
this argument before the trial court.
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Although the deputies did not consider any alternatives to impound in this case, they must
do so only if reasonable alternatives existed. Their decision to impound the vehicle without
considering other alternatives was reasonable given the circumstances in this case. Accordingly,
Hartzell has not shown a manifest error affecting his constitutional rights.
II. INVENTORY SEARCH
Hartzell contends that the inventory search violated department policies and procedures.
He claims that the inventory search was purely pretextual and the trial court erred by denying his
motion to suppress the evidence seized as a result.3 We disagree.
“Inventory searches have long been recognized as a practical necessity. A noninvestigatory
inventory search of a vehicle may be conducted in good faith after it is lawfully impounded.”
Tyler, 177 Wash. 2d at 700-01 (internal citations omitted). Such inventory searches must be
conducted in good faith to preclude searches as a pretext for an investigatory search. Tyler, 177
Wash. 2d at 701.
“Warrantless inventory searches are permissible because they (1) protect the vehicle
owner’s (or occupants’) property, (2) protect law enforcement agencies/officers and temporary
storage bailees from false claims of theft, and (3) protect police officers and the public from
potential danger.” Tyler, 177 Wash. 2d at 701. The “direction and extent of [inventory] searches
must be restricted to effectuating the purposes which justify their exceptions to the Fourth
Amendment.” State v. Houser, 95 Wash. 2d 143, 154, 622 P.2d 1218 (1980). “Not every inventory
taken in compliance with police department regulations is lawful and where a search is improper
3
Hartzell also contends that the plain view exception to the warrant requirement does not apply
because “the deputies were not lawfully conducting an inventory search” so they had “no valid
justification for being in the car and moving the backpack.” Br. of Appellant at 19. Because
Hartzell’s plain view argument is entirely dependent on whether the deputies conducted a lawful
inventory search, we address only that issue.
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it cannot be legitimatized by conducting it pursuant to standard police procedure.” Houser, 95
Wash. 2d at 154.
Where officers merely “pull[] an inventory search of [a] vehicle for personal property” and
neither make a “complete list of other items in the vehicle” nor do they continue searching after
finding incriminating evidence, their search “cannot fairly be characterized as an inventory
search.” State v. Gluck, 83 Wash. 2d 424, 429, 518 P.2d 703 (1974).
The inventory search in this case lasted less than one minute. As soon as the deputies
noticed the methamphetamine in the open backpack pocket, they stopped searching, shut the car
door, and “determined that to do anything else they needed to get a warrant.” CP at 268. The
deputies never created an “itemized-detailed inventory” at any point before or after their inventory
search, or the later warrant search. CP at 269. Both deputies “admitted under oath that [Jefferson
County Sheriff’s Office] policies with respect to inventory searches were not followed.” CP at
269.
The deputies’ actions in this case are consistent with a lawful inventory search that rapidly
became investigatory when they discovered incriminating evidence. Upon finding drugs in the
vehicle, items of evidentiary value, they immediately stopped their inventory search and sealed the
vehicle to get a warrant. Given that the discovery of this evidence transformed their motive from
inventory to investigation, the deputies followed proper protocol when they discovered the drugs.
The officers did not comply with inventory procedures, and they included minimal
information about the vehicle’s contents and damaged condition on the inventory form, suggesting
that their search did not effectuate the purposes of a lawful inventory search under Tyler. However,
the deputies only stopped their search when they found contraband; if they had not done so, there
is no reason to believe they would not have finished the inventory search and completed the form.
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Absent evidence in the record that their search was pretextual, we conclude that the deputies
followed proper procedure in this case and the inventory search was lawful.
III. PROSECUTORIAL MISCONDUCT
Hartzell contends that the prosecutor committed misconduct by asking Caudill repeated
questions about Hartzell’s criminal history despite sustained objections. He contends that, in light
of the misconduct, the trial court erred by denying his motion for a mistrial. We agree.
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012). An
appellant claiming prosecutorial misconduct must demonstrate that the prosecutor’s misconduct
was both improper and prejudicial. State v. Emery, 174 Wash. 2d 741, 759-60, 278 P.3d 653 (2012).
“‘Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.’”
State v. Thorgerson, 172 Wash. 2d 438, 460, 258 P.3d 43 (2011) (quoting State v. Brett, 126 Wash. 2d
136, 174-75, 892 P.2d 29 (1995)).
Where a defendant objects or moves for a mistrial on the basis of prosecutorial misconduct
at trial, the inquiry consists of two prongs: “(1) whether the prosecutor’s comments were improper
and (2) if so, whether the improper comments caused prejudice.” State v. Lindsay, 180 Wash. 2d
423, 431, 326 P.3d 125 (2014). A trial court’s denial of a motion for a mistrial is reviewed for
abuse of discretion. State v. Roberts, 142 Wash. 2d 471, 533, 14 P.3d 713 (2000). 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.” State v. Lewis, 130 Wash. 2d 700, 707,
927 P.2d 235 (1996).
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Evidence of gang affiliation is generally not admissible in criminal trials when it merely
reflects a person’s beliefs or associations. State v. Scott, 151 Wash. App. 520, 526, 213 P.3d 71
(2009). Such evidence is considered prejudicial and its admission is measured under the standards
of ER 404(b). Scott, 151 Wash. App. at 526.
In this case, while the prosecutor cross-examined Caudill, she commented that she “read
something in [Caudill’s report] about a drug cartel” and then asked questions about Hartzell being
“blown up by a grenade” in Mexico. 4 RP at 775-77. The court overruled an objection to this
testimony, but then sustained an objection to a follow-up question about whether Hartzell
attributed the grenade incident to his involvement with drugs. The court then denied a defense
motion for a mistrial.
The prosecutor did not actually present evidence of Hartzell’s affiliation or connection with
a drug cartel. However, she commented in front of the jury that Caudill’s report referenced a cartel
and then questioned Caudill about Hartzell’s experience of being exploded by a grenade in Mexico
in connection with his drug involvement. This comment and line of questioning referenced
inadmissible and inherently prejudicial information about Caudill’s affiliation with drug cartels.
The prosecutor’s statement and line of questioning were improper.
The prejudicial information was “of a nature likely to ‘impress itself upon the minds of the
jurors.’” State v. Escalona, 49 Wash. App. 251, 256, 742 P.2d 190 (1987) (quoting State v. Miles,
73 Wash. 2d 67, 71, 436 P.2d 198 (1968)). It would likewise be “extremely difficult, if not
impossible” for the jury to ignore the seemingly relevant facts. Escalona, 49 Wash. App. at 256. In
Escalona, the trial court specifically instructed the jury to disregard the prejudicial information,
but the instruction was unable to remove the prejudice due to the inherently prejudicial nature of
evidence of the defendant’s prior criminal conduct. 49 Wash. App. at 255.
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In this case, the trial court did not specifically instruct the jury to disregard; rather the State
contends that the generic instruction to disregard evidence ruled inadmissible sufficiently cures
any prejudice. This part of the standard instruction stated:
One of my duties has been to rule on the admissibility of evidence. Do not
be concerned during your deliberations about the reasons for my rulings on the
evidence. If I have ruled that any evidence is inadmissible, or if I have asked you
to disregard any evidence, then you must not discuss that evidence during your
deliberations or consider it in reaching your verdict. Do not speculate whether the
evidence would have favored one party or the other.
CP at 97. This generic instruction to disregard evidence ruled inadmissible does not cure
inherently prejudicial information about Hartzell’s involvement with a drug cartel.
In evaluating prejudice, we also consider the relative strength of the State’s case. Escalona,
49 Wash. App. at 256. Other than quantity of drugs, the State presented little evidence of Hartzell’s
intent to distribute heroin. Police found multiple cell phones, which was consistent with dealing
drugs, but there were no scales, packaging, cash, or other drug dealing paraphernalia in the vehicle.
The State also presented evidence of communications in which Hartzell stated people owed him
money and about a trip to Tacoma, which is a common source of drugs that make their way to
Jefferson County. The State’s lack of evidence of intent to distribute in this case intensifies the
prejudicial impact of the misconduct.
The trial court abused its discretion by denying Hartzell’s mistrial motion in this case. The
prosecutor improperly brought up a drug cartel and then immediately asked a witness questions
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about Hartzell’s experiences being “blown up by a grenade” in Mexico, tied to his involvement
with drugs. 4 RP at 776. The prosecutor did not adequately explain this information’s relevance
except as showing a propensity to commit drug crimes and an association with drug cartels. We
reverse Hartzell’s conviction for possession of heroin with intent to distribute.4
IV. LEGAL FINANCIAL OBLIGATIONS
Hartzell contends that legislative changes to Washington’s LFO system since his
sentencing require this court to reverse LFO portions of his sentence. Because we reverse one of
Hartzell’s convictions, the trial court must conduct a new sentencing hearing. On remand, the trial
court should consider Hartzell’s LFOs in light of the 2018 amendments to the LFO provisions,
LAWS OF 2018, ch. 269, and State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018).
V. STATEMENT OF ADDITIONAL GROUNDS (SAG)
In his SAG, Hartzell alleges that the deputies unlawfully impounded his vehicle without
considering reasonable alternatives and that their inventory search was pretext for an unlawful
investigatory search.5 Where a SAG contains errors that “have been thoroughly addressed by
counsel,” they are “not proper matters for [the] statement of additional grounds under RAP
10.10(a).” State v. Thompson, 169 Wash. App. 436, 493, 290 P.3d 996 (2012). We therefore do not
address these arguments.
4
Hartzell does not contend that the misconduct necessitates reversal of any of his other five
convictions.
5
Hartzell also asserts the deputies inappropriately handled the backpack by manipulating it. The
record does not support this assertion.
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CONCLUSION
We reverse Hartzell’s conviction for possession of heroin with intent to deliver due to
prosecutorial misconduct and affirm his other convictions and remand to the superior court for
further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Sutton, J.
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