Opinion
No. 36999-1-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-02237-8, Robert L. Harris, J., entered October 23, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
Don Wesley Winton appeals his sentence following his guilty plea convictions of two counts of first degree child molestation and one count of second degree child molestation. He argues that (1) the sentencing court violated the real facts doctrine and erred when it refused to grant his request for a sentence under the Special Sex Offender Sentencing Alternative (SSOSA) after considering portions of victim statements referring to additional uncharged and unproven offenses, (2) the sentencing court violated his due process rights because it did not ensure that he had the opportunity to preview the proposed victim statements or to challenge the proposed statements in an evidentiary hearing, and (3) the sentencing court erred when it categorically refused to grant his SSOSA request because of the type of offense and when it gave undue weight to the victims' preferences. Because the record clearly establishes that the sentencing court did not consider any uncharged or unproven offenses and that the sentencing court did not categorically deny Winton's SSOSA request or give undue weight to the victims' preferences, we affirm.
Facts I. Child Molestation
Soon after Winton married DRW in 1989, he began to have repeated, inappropriate sexual contact with his young stepdaughter, ALD. The abuse started when ALD was about eight years old, before the family moved to Washington. Although there was a period of time when Winton did not abuse ALD, Winton had inappropriate sexual contact with ALD again between July 2, 2000 and July 1, 2002, when ALD was 14 to 15 years old, after the family had moved to Washington.
ALD was born July 2, 1986.
Winton also had inappropriate sexual contact with GLD, ALD's younger cousin and DRW's niece, who had been placed in the Wintons' custody when her (GLD's) parents became unable to care for her. The abuse started before the Wintons' obtained custody, when GLD would visit her aunt, and it continued after the couple obtained custody. The abuse took place between January 1, 1999, and August 7, 2004, when GLD was 6 to 12 years old.
GLD made her statement at the October 23, 2007 sentencing hearing, when she was 15. Thus, it appears she was born some time in 1992, but her exact birth date is not in the record.
II. Procedure
After GLD disclosed the abuse, the State charged Winton with two counts of first degree child molestation involving GLD (counts I and II), and one count of second degree child molestation involving ALD (count III). Winton pleaded guilty. In pleading guilty and during the SSOSA evaluation process, he admitted to repeated sexual contact with the two victims over an extended time. At no point did Winton disclose any other victims, and the presentence investigation report (PSI) did not indicate that there were any additional victims.
Count I occurred between January 1, 1999 and August 31, 2001; count II occurred between September 1, 2001 and August 7, 2004.
A. Ruling Limiting Victim's Statements at Sentencing
Before the sentencing hearing, defense counsel became aware that several individuals who wished to speak at the sentencing hearing intended to disclose that Winton had engaged in inappropriate sexual activity with children other than ALD and GLD. The individuals who wanted to present statements to the sentencing court included ALD; GLD; DRW; AW (Winton and DRW's son); Winton's children from other relationships, including his oldest son, CW; the mothers of these children; and a family friend. Although the prosecutor and W. Todd Pascoe, attorney for "[a]ll victims," supplied Winton with lists of the individuals who wanted to present statements, neither the prosecutor nor Pascoe informed Winton about what these individuals intended to say.
The prosecutor asked the sentencing court to allow Pascoe to assist him (the prosecutor) at the hearing.
Before and during the sentencing hearing, Winton asked the sentencing court (1) to allow him to review the proposed statements and to interview the individuals who intended to present statements to determine if their statements would violate the real facts doctrine; and (2) to prohibit those who spoke from referring to any additional, uncharged offenses in violation of the real facts doctrine. Winton also expressed concern that the State was attempting to introduce statements from individuals who were not entitled to speak at the sentencing hearing by applying an overly broad definition of "victim."
The court ruled that only ALD, GLD, DRW, and AW could present statements at the sentencing hearing. Pascoe and the State then asserted that CW also qualified as a "victim" who should be able to make a statement at sentencing and that the sentencing court should consider statements from other individuals to determine whether Winton had other victims. The sentencing court reiterated its prior ruling and did not allow the others to speak.
B. State's Sentencing Argument
During its sentencing argument, the State described the abuse ALD and GLD had suffered from Winton and emphasized that (1) as ALD's stepfather and GLD's guardian, Winton was in a position of trust; (2) he abused both children over an extended period of time, starting when the girls were very young; (3) GLD was particularly vulnerable because she had been brought into the home after her parents were no longer able to care for her; and (4) Winton's abuse had a serious impact on both girls. The State further stressed that during one of Winton's SSOSA evaluations, Winton admitted that he had (1) abused ALD and GLD "at least fifty times," while at home, on the family boat, and at motels; and (2) taken the children to nude beaches. The evaluator also noted that when Winton disclosed these acts, Winton had appeared to attempt to justify the acts by asserting that he asked for permission first. The State characterized this justification as Winton's attempt to make his victims feel responsible for the abuse. Over Winton's objection, the State added that AW had corroborated some of the victims' statements when he (AW) was examined and interviewed following ALD's and GLD's disclosures.
Although the evaluators testified at the sentencing hearing, the record on appeal does not include their evaluation reports.
Acknowledging that the professionals who had examined Winton had found him amenable to treatment, the State nevertheless argued that the evaluations were not sufficient to justify a SSOSA sentence. Instead, the State argued that RCW 9.94A.670 required the sentencing court also to consider: (1) whether a SSOSA sentence would benefit the community, (2) whether a SSOSA sentence was too lenient in light of the circumstances of the offenses, (3) whether "the offender has victims in addition to the victim of the present offense," and (4) the victims' opinions of what punishment was appropriate. The State then (1) noted the PSI indicated the victims preferred that Winton go to prison and not receive a SSOSA sentence; and (2) asserted that because this situation involved multiple acts, abuse of trust, and particularly vulnerable victims, a SSOSA sentence would be too lenient. The State then commented that it appeared there might have been additional, unreported victims. Defense counsel objected, stating that the sentencing court had already ruled it would not consider whether there were additional victims. The sentencing court directed the prosecutor to "[m]ove forward."
The State (1) commented that Winton's positive SSOSA evaluations were likely based on inaccurate information because the evaluators did not consider additional victims, (2) asserted that the sentencing court should not consider the SSOSA evaluations without also considering the possibility of other victims, (3) opposed Winton's SSOSA request, and (4) argued for standard-range concurrent sentences of 130 months on each of the first degree convictions and 54 months on the second degree conviction.
After presenting its argument, the State urged the sentencing court to change its prior ruling limiting those who were allowed to speak at the sentencing hearing. It argued that although the sentencing court was required to hear the victims and the victims' guardians, it could, in its discretion, also hear from others. The state asserted that RCW 9.94A.670(4) allowed the sentencing court to consider whether there were additional victims and asked that the sentencing court state on the record why it was refusing to consider information related to other potential victims. The court reiterated its earlier limiting ruling.
The sentencing court explained:
Well, basically, we're here on a sentencing based upon the issues that are dealing with these victims and the acts and conduct towards them, and evaluation of what are (sic) the appropriate punishment based upon that (sic) particular acts or crimes as to these victims, and then to determine whether or not there is a reasonable basis to have the person placed into a alternative program against the victims, not opinions.
. . . .
[W]e're not here to take testimony, we're here to take the crime victims' statements, and these are — and the crime victims have been identified as such by the charging decisions.
. . . .
I'm ruling on the purpose of the sentencing to a sentencing based on the crimes charged, the criminal history that he has, the impact he has on the victims that are charged and whether or not his — the — the medical — let's say not medical, but the psychological consequences that can be dealt with by treating him. Report of Proceedings
(RP) at 30-32 (emphasis added).
C. State's Evidence at Sentencing Hearing 1. PSI report
The PSI writer, Shelly Feld, then addressed the sentencing court. She acknowledged that evaluators had found Winton amenable to treatment and at a low risk to reoffend but she concluded that a SSOSA sentence would be too lenient in light of the circumstances of the convicted offenses. She recommended low-end standard range sentences based on (1) Winton's abuse of trust given his position in relation to the victims, (2) the ongoing pattern of abuse involving multiple incidents over a prolonged period of time, (3) multiple victims, and (4) multiple incidents per victim.
The record on appeal does not include the PSI.
2. ALD's statement
Sharon Ensley, Winton's former employee and a family friend, presented ALD's written statement to the sentencing court. ALD was 21 years old when she wrote the statement. ALD's statement addressed Winton's abuse, which started when she was very young; her reaction to that abuse; and how the abuse had negatively affected her relationships and other aspects of her life. ALD also described two acts of physical violence by Winton that were not directly related to the sexual abuse, noting that she had contemplated suicide after one of these violent acts.
Ensley also provided the sentencing court with a written copy of ALD's statement.
When Ensley began to read the part of ALD's statement describing this physical abuse, defense counsel objected that this information was outside the real facts doctrine. The sentencing court told Ensley to proceed. On appeal, Winton does not raise any issues related to this portion of ALD's statement.
ALD stated that she did not want the sentencing court to grant Winton's SSOSA request, asserting that (1) he deserved more punishment in light of the nature of the offenses, and (2) a SSOSA would not get his attention the same way the "humiliation of prison" would. She opined further that (1) Winton's apologies were not genuine and reflected only his disappointment that he got caught; and (2) Winton was "a liar and a good manipulator," so it was likely he would lie and manipulate his way through the SSOSA program.
After Ensley finished reading ALD's statement, defense counsel asked the sentencing court order to order the state to provide Winton with a copy of ADL's statement and with copies of any other statements the State intended to present. Noting that it had never received victim impact statements in advance, the sentencing court told the state to proceed.
3. GLD's statement
Fifteen-year old GLD then spoke to the sentencing court. She described how Winton had abused her, first during visits with her aunt and later, after her aunt had been awarded custody of her (GLD) when she (GLD) was six years old. GLD described herself as "a more vulnerable than usual newcomer"; asserted that Winton "took full advantage" of her; and described how his actions had affected her ability to trust, her feelings of alienation and isolation, and her behavior.
GLD asked the sentencing court to deny Winton's SSOSA request, noting that Winton had also abused ALD and C.W. The sentencing court denied defense counsel's motion to strike GLD's reference to CW, stating, "It's the victim's statement." GLD then continued, emphasizing that she preferred the sentencing court to sentence Winton to 10 years in prison so she could become stronger and older and possibly move away before his release. She stated that she did not want to see him free in less than a year, noting that she would consider this a "slap in the face directly at [her] expense." The sentencing court then accepted a written copy of GLD's statement.
4. AW's statement
CW, Winton's oldest son, then stepped forward to read 12-year-old AW's statement, in which AW referred to ALD, GLD, and CW as "victims." Defense counsel objected, asserting the State was again attempting to introduce evidence of uncharged offenses in violation of the real facts doctrine. The sentencing court noted the objection and told CW to continue.
When CW reached the part of AW's written statement referring to CW's disclosure of additional sexual abuse by Winton, defense counsel objected, asserting that this was information the sentencing court had already ruled it would not consider. The sentencing court instructed CW to skip that portion of AW's statement. CW complied, skipped this portion of AW's statement, and continued, stating that AW did not want Winton out of prison because he did not want Winton to have the opportunity to abuse him (AW) or to hurt any other children.
AW asserted that CW had disclosed that Winton had abused him (CW) from the time CW was 5 years old until he was 15.
5. DRW's statement
DRW then addressed the court. She stated that she did not want the sentencing court to impose a SSOSA and asked that it give great weight to GLD, ALD, and CW's preferences, characterizing the three as Winton's "victims." Defense counsel objected to DRW's reference to CW as a victim; the sentencing court told DRW to proceed. Defense counsel then continued to object as DRW repeatedly referred to CW as an abuse victim throughout her statement. The sentencing court "[n]oted" the continuing objection, and, at one point instructed DRW to skip several lines of her prepared statement in which she discussed Winton's "failure to disclose his 3rd victim, his own biological son, [CW], to any of his professional evaluators and handlers." RP at 62.
DRW also stated that (1) she feared for AW's safety if he were to spend time with Winton; (2) Winton had attempted to use her (DRW's) disclosure to him that she was sexually abused as a child to explain why she believed ALD's and GLD's disclosures; (3) DRW was concerned about Winton's proposed living arrangements should he receive a SSOSA, characterizing them as "disturbingly close" to areas that young children frequented; and (4) she was also concerned about Winton's expressed desire to maintain connection with his minor sons. DRW then asserted that Winton had lied in his evaluations about there being no additional victims and the fact there were no male victims, arguing that these lies should preclude the sentencing court from granting a SSOSA.
DRW asked the sentencing court to read the written statements from the individuals whom the sentencing court had not allowed to speak. Defense counsel objected, asserting that he did not know to what statements DRW was referring. The sentencing court stated that it did not intend to review anything else.
Pascoe then clarified that DRW was referring to prepared statements from individuals other than ALD, GLD, DRW, and AW. Pascoe told the sentencing court that these statements were available for the court and defense counsel to review if they so desired. Pascoe further noted that DRW had been reading from a prepared statement that she had assumed the sentencing court would have, but which the sentencing court did not, in fact, have as a result of its earlier rulings. At this point DRW spoke up, asking once again that the sentencing court consider numerous other "victims" who had not had the chance to "confront this offender." Again, the sentencing court denied the request.
D. Defense Sentencing Argument and Evidence
Defense counsel argued for a SSOSA sentence, emphasizing that (1) Winton had not denied the abuse; (2) Winton had pleaded guilty as a way of accepting responsibility for his actions; (3) Winton was himself a victim of sexual abuse; and (4) testing had established that Winton was a low, almost non-existent, risk to the community and that he was amenable to treatment.
Defense counsel also noted some objections to the PSI, including that the PSI had exaggerated the number, frequency, and nature of the incidents between Winton and ALD and GLD. In addition, defense counsel noted that the prosecutor had "injected a number of facts that were not in the PSI" into the sentencing hearing. On appeal, Winton does not raise any arguments related to these objections.
Defense counsel next presented testimony from three experts who had evaluated Winton: (1) Dr. Kevin McGovern, Ph.D., a psychologist specializing in the assessment and treatment of sexual disorders; (2) Dr. Thomas J. Brewer, a psychologist who had treated Winton; and (3) Dr. Christopher Kirk Johnson, a psychologist, who had evaluated Winton. All three experts opined Winton was (1) amenable to treatment, (2) at a low risk to reoffend, and (3) a good candidate for a SSOSA sentence. During the evaluation procedure, Winton did not disclose any additional victims nor did the testing indicate that there were any additional victims.
Over defense objections, McGovern stated that even if there had been additional victims, he believed that several factors, including treatment, sex offender registrations requirements, monitoring, and the two strikes law, would alleviate any concern that Winton would reoffend. In contrast, Johnson stated that, depending on the number of additional, unreported victims, the existence of additional victims could potentially affect his evaluation.
Addressing the sentencing court directly, Winton accepted responsibility for his inappropriate contact with ALD and GLD, but he denied having abused C.W. He also denied the existence of any additional victims.
Winton did not argue for an exceptional sentence downward.
E. Sentence
The sentencing court acknowledged that the SSOSA evaluations showed that Winton was amenable to treatment and at a low risk to offend. The court also noted that recent legislation required it to give great weight to the victims' views when considering a SSOSA. The sentencing court stated:
The sentencing court was referring to the legislature's 2004 amendment to the SSOSA statute that took effect July 1, 2005. Laws of 2004, ch. 176, § 4. Before that amendment, former RCW 9.94A.670(4) (2004) required the sentencing court to consider the victim's opinion when determining whether to grant the offender a SSOSA sentence. The amendment that took effect in 2005 required the sentencing court not only to consider the victim's opinion but also to "give great weight" to this opinion. RCW 9.94A.670(4). This amendment also required the court to enter written findings explaining its reason for imposing a SSOSA if it did so against the victim's wishes. RCW 9.94A.670(4).
The question basically really comes down to the last part of this equation as to whether or not the activities are such that it would be an excessive rebuke to the children and to our community to permit a SSOSA based upon this long pattern of sexual activity.
I've tried to review in my mind similar cases, and historically where I've had a pattern of sexual abuse of more than one child over a long period of time. I've elected not to use SSOSA. I have sentenced to the Department of Institutions (sic).
Looking at this particular case, it appears it does fit that same pattern. There is treatment available in Twin Rivers. There is (sic) programs available at Twin Rivers.
The question is because of the impact on the children, the long duration that we have experienced, I don't feel that it is justified to use that as a treatment option and not require a more severe type of sentence that the Legislature has prescribed.
The whole thrust of our state Legislature in setting forth what they suggest as sentencing guidelines to the Court indicated that they felt that the SSOSA was being administered in a manner that was too lenient and that they would require a greater criteria before one would be eligible and that they felt that the major offenders should not be allowed within that particular program.
At one point in time the whole program was subject — last year was subject to probable revocation of that particular program. And only cooler heads were able to keep it available to some cases and limited it in part to try (sic) to a situation where there would be, let's say, a family that was trying to come back together and using that as a program availability.
This is not present today. So looking back, all I can say is, yes, you have the ability to follow through and obtain treatment and do the things necessary. It is — we have resources available at Twin Rivers. There is a waiting period. It will take you some period of time to get into that program, but that will be available to you, and under those bases I feel that I am not going to give a SSOSA sentence.
RP at 132-33.
The sentencing court imposed low-end standard-range sentences of 98 and 44 months, respectively, for counts I and II, and set Winton's minimum sentence for count II at 98 months. See former RCW 9.94A.712(1)(a)(i), (3) (2001). Each of these sentences was at the lowest end of the standard range, and all ran concurrently.
Based on offender scores of six for each offense, the standard range for counts I and III was 98 to 130 months and the standard range for count II was 44 to 54 months.
Winton appeals his sentence.
Analysis I. Real Facts Doctrine
Winton first contends that the sentencing court violated the real facts doctrine because when it denied his SSOSA request, it considered portions of victim statements referring to uncharged and unproven offenses against additional victims. This argument fails.
Winton also argues that the sentencing court violated the appearance of fairness doctrine when it allowed the State to present evidence of additional victims despite its rulings that it would not consider this evidence. This is, in effect, a reiteration of Winton's real facts doctrine argument, and we do not address it separately.
Under the real facts doctrine, the sentencing court cannot consider unproven facts or facts probative of a more serious crime. State v. Quiros, 78 Wn. App. 134, 138-39, 896 P.2d 91, review denied, 127 Wn.2d 1024 (1995); see also RCW 9.94A.530(2). RCW 9.94A.530(2) codifies the doctrine as follows:
The purpose of a real facts hearing is to protect the defendant from the trial court's "`consideration of unreliable or inaccurate information.'" State v. Morreira, 107 Wn. App. 450, 456-57, 27 P.3d 639 (2001) (quoting State v. Handley, 115 Wn.2d 275, 282, 796 P.2d 1266 (1990)). Here, however, the sentencing court did not consider such facts.
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537.
If "the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point." RCW 9.94A.530(2) (emphasis added). If the sentencing court holds an evidentiary hearing on a disputed fact, it must determine whether the proponent of the challenged fact proved that fact by a preponderance of the evidence. RCW 9.94A.530(2).
Here, the State sought to present additional victim statements and to present evidence that Winton had molested other children within his family. But the sentencing court refused to hear statements from anyone other than ALD, GLD, DRW, and AW, and repeatedly stated that it was not going to consider evidence of other alleged, but uncharged, molestations. We note that some of the statements the sentencing court heard referred to at least one additional victim (CW) and the State argued that there were additional victims. Nevertheless, the record of the sentencing court's rulings throughout the hearing and its later discussion of why it was denying Winton's SSOSA request clearly show that it carefully limited its consideration to the offenses against ALD and GLD. Nothing in the record supports Winton's assertion that the sentencing court improperly considered the possibility of other victims. We hold, therefore, that the sentencing court did not violate the real facts doctrine.
We further note that although the sentencing court appeared to believe it could not consider whether there were additional victims before it decided whether to grant or deny Winton's SSOSA request, RCW 9.94A.670(4) required the sentencing court to consider this factor. Thus, the sentencing court could have considered the statements Winton now challenges if the statements either did not exceed the real facts doctrine or the sentencing court had held an evidentiary hearing and made the necessary findings.
II. Due Process
Winton next argues that the sentencing court violated his due process rights when it failed to ensure that he had the opportunity to review the proposed victim statements or to provide him with the opportunity to challenge the proposed statements in an evidentiary hearing. Again, the record shows that the sentencing court did not consider those portions of the victim statements to which Winton objected. Because the sentencing court refused to consider these additional facts, there was no need for an evidentiary hearing. RCW 9.94A.530(2) (if "the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.") (Emphasis added). Accordingly, this argument also fails.
Furthermore, because the sentencing court did not consider those portions of the statements to which Winton objects, any error in failing to allow Winton to review these statements in advance was clearly harmless. See State v. Dahl, 139 Wn.2d 678, 688, 990 P.2d 396 (1999) (due process violations are subject to harmless error analysis) (citations omitted).
Winton also appears to argue that the cumulative effect of the sentencing court's refusal to ensure that he received copies of the proposed victim statements and the lack of an evidentiary hearing denied him his right to a fair sentencing hearing. Again, because the sentencing court did not consider the portions of the statements to which Winton now objects, he fails to show cumulative error.
III. Denial of SSOSA Sentence
Lastly, Winton argues that the sentencing court erred in categorically denying his SSOSA request and by giving undue weight to the sentencing victims' preferences. Br. of Appellant at 17-18. In effect, Winton is arguing that the sentencing court (1) misinterpreted RCW 9.94A.670(4)'s requirement that it give the victims' preferences weight, and (2) improperly based its decision to deny his SSOSA request almost entirely on the victims' preferences. We disagree.
A. Standard of Review
Under the Sentencing Reform Act of 1981 (SRA), a "sentence within the standard range . . . for an offense shall not be appealed." RCW 9.94A.585(1); see also, State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). Nevertheless, a defendant may challenge a standard range sentence where he challenges, not the length of the sentence, but rather the trial court's interpretation of the SSOSA statutes. State v. Onefrey, 119 Wn.2d 572, 574 n. 1, 835 P.2d 213 (1992).
We review a trial court's refusal to order treatment under SSOSA for an abuse of discretion. State v. Frazier, 84 Wn. App. 752, 753, 930 P.2d 345 (1997) (citing State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989)). A trial court abuses its discretion when its decision is manifestly unreasonable or is based upon untenable grounds or reasons. State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981) (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)); State v. Moran, 119 Wn. App. 197, 218, 81 P.3d 122 (2003), review denied, 151 Wn.2d 1032 (2004). An untenable decision is one which ?`no reasonable man would take the view adopted by the trial court.'" See Cunningham, 96 Wn.2d at 34 (quoting Blight, 89 Wn.2d at 41). The sentencing court does not abuse its discretion simply by rejecting an evaluator's SSOSA recommendation. See Frazier, 84 Wn. App. at 754; Hays, 55 Wn. App. at 17. We find no such abuse here.
See also State v. Autrey, 136 Wn. App. 460, 470, 150 P.3d 580 (2006); Mail, 121 Wn.2d at 710.
B. No Categorical Denial
Winton's assertion that the sentencing court categorically denied his SSOSA request fails. The sentencing court compared Winton's case to other, factually similar offenses, and noted that it had previously denied SSOSA requests made under similar circumstances. And the court's ruling clearly demonstrated that it considered only the facts specific to this case when it denied Winton's SSOSA request, including the duration of the abuse, the impact on the victims, and the victims' sentencing preferences.
C. Victims' Preferences
RCW 9.94A.670(4) required the sentencing court to consider and to give great weight to the victims' preferences in determining whether to grant Winton's SSOSA request. The record shows that although the sentencing court may have given weight to the victims' preferences, it also examined other factors, such as the duration and extent of the abuse, the age of the victims, Winton's relationships with the victims, and the fact that there were two victims. In contrast, the record does not show that the sentencing court improperly gave any undue weight to any one of these factors. Accordingly, this argument also fails.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. VAN DEREN, C.J., concur.