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No.

47506 -5 -II

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION TWO

STATE OF WASHINGTON,

Respondent,

V.

DAVID KALAC,

Appellant.

ON APPEAL FROM THE SUPERIOR COURT OF THE
STATE OF WASHINGTON FOR KITSAP COUNTY

APPELLANT' S OPENING BRIEF

RICHARD W. LECHICH

Attorney for Appellant

WASHINGTON APPELLATE PROJECT
1511 Third Avenue, Suite 701
Seattle, Washington 98101
206) 587- 2711

TABLE OF CONTENTS

1
A. INTRODUCTION................................................................................

B. ASSIGNMENTS OF ERROR.............................................................. 2

C. ISSUES.................................................................................................. 2

D. STATEMENT OF THE CASE............................................................. 4

9
E. ARGUMENT........................................................................................

1. The evidence was insufficient to prove that Mr. Kalac

committed the offense of burglary because he did not enter or
remain "
unlawfully" in a " building." .........................................
9

a. The State bears the burden to prove all the elements of
an offense beyond a reasonable doubt ........................... 9

b. An individual cell housing inmates within a jail is not a
separate "
building" from the jail itself ...........................
9

c. Even if the building," the State
cell qualified as a " failed

to prove that Mr. Kalac " unlawfully" entered or
remained in the cell ...................................................... 16

2. The evidence was insufficient to prove that Mr. Kalac
committed the offense of unlawful imprisonment ................... 18

a. Unlawful imprisonment requires proof of restraint,

meaning that a person' s movements are restrained in a
manner which interferes " substantially" with his or her
liberty. This requires that the interference be
considerable."............................................................. 18

b. Mr. Kalac' s brief, simple assault of another inmate did
not amount to substantial or considerable interference
with the inmate' s liberty of movement ........................ 20

I

3. The conviction on the lesser offense of attempted fourth -degree

assault bars any future prosecution for attempted murder on the
same facts. The court improperly dismissed the charge of
attempted murder without prejudice ........................................ 22

a. When a defendant is convicted of a lesser included

offense, double jeopardy bars a later prosecution for the
greater offense.............................................................. 22

b. The court improperly dismissed, without prejudice, the
charge for attempted first degree murder when Mr.
Kalac was convicted of a lesser included offense........ 24

c. Counsel was ineffective in failing to object and in
signing the agreed order of dismissal ........................... 26

d. The remedy is reversal of the dismissal order with
instruction that the charge be dismissed with
prejudice....................................................................... 27

4. Any request that costs be imposed on Mr. Kalac for this appeal
should be denied because the trial court determined that Mr.

Kalac did not have the ability to pay legal financial
obligations................................................................................ 28

F. CONCLUSION....................................................................................
30

ii

....... Ct... 2d 566 ( 2012) ..... 3d 1093 ( 2015) ...... 466 U... 1068..... 616 P....... 104 S.......... Cheatam.... 14 Strickland v... 182 L... Glasmann..... 1510.....2d 857......................... 18... Ed. S.... S..........2d 117..... Ct...... 2d 1 ( 2013) .... 337 P.... Ct. 28 State v.............. 183 Wn. 9 in ....................... 517. 13 Green v... Blazina.... S............ of Chosen Freeholders of Cty.. U........ King................ Ed.... S....... 443 U.......... 355 P........................................... 1. of Burlington................ 150 Wn.. 397 U.. 25 Hudson v.... 100 S....... Ct........ 13.... 61 L...... 23........ S.... 25 L. 410. 57 L.......................... 132 S........ Ct... 2d 560 1979)................... Bd. 2d 1 1978)........... 2d 674 1984)....... United States................................ 133 S................ 24 In re Winship..... Ct..... 468 U...... 90 S. 344 P..... 132 P. Ed.. Washington........... 65 L.............. 3d 830 ( 2003) . Ed.. 16 Florence v......... 2d 228 1980)... 181 Wn. 2 L.. 81 P... 437 U... Virginia..... 14 State v........... 221..... S........... Ct...........2d 819................... Cantu... 156 Wn............................2d 626... 27 Washington Supreme Court Cases State v. Ct. 2052. 2d 199 1957)............... 3d 829 ( 2015) .............. 349 P....... 78 S.............. Ed.. 447 U......... 2d 628 ( 1980) ...... Vitale........... Berg.. 2d 393 1984)....... U..... 80 L.......... 1958...... 182 Wn... 3d 310 ( 2014) ...... 9 State v. 3194........ 186 L.. Ed.... TABLE OF AUTHORITIES United States Supreme Court Cases Burks v.. 2d 706......... Conover.2d 827...................2d 216. 94 Wn......... 668. 2260............... 14 Illinois v... S. 2d 368 ( 1970).... Green.... 184....... United States......S.. 82 L.. Ed.. 9 Maryland v.. Ed. Ct............ Palmer...... 183 Wn. 2781........... 20 State v.. S..................... 358....... 307. 25 State v. 104 S..... 3d 725 ( 2006) .. 98 S. .. 2141..... 99 S..... 17 State v..... 355 U... 9 Jackson v.. 3d 680 ( 2015) ............. Ed........ .....................

... Howe.. Boy Scouts of Am........ 9191 Wn......P. 110 P. 24 State v. 960960 P...... 157 Wn......... 169 Wn... 75 Wn.. Miller....... 12 State State v...... Nolan. 582 P...... McKague.. App....... 177 Wn......2d 643.............. 2d 777. App.. 17..... 792 P...... 29 State v......... 23. 238 P.......... 2d 766 ( 1982) . 2d 620............. 3d 177 ( 2009) .......... 125.. .. 14 State v..... 882..... Womac. 879......... 805 P... 16 State State v.... App. 2d 514 ( 1990) .. 3d 890 ( 2012) ..... 597 P........... App. 24 State v.2d 448. 954 P... 138 P. Culp....2d 416..... 3d 1278 ( 2013) .............. 3d 1053 ( 2006)..... 876 P....... Henderson....... 8 P.. App..... 29 Washington Court of Appeals Cases State v. 2d 806 ( 1991) .. 30 Wn... 720. 2d 892 ( 1979) .. 2d 867........... 454.. 347 P.. 176 Wn... 20 State v. 90 Wn. 15 State v.... 2d 1359 ( 1995) . 92 Wn........... 172 Wn.. 17 State v.... 632. 132 P... 160 P...... 3d 1225 ( 2011) ......... 186 Wn.......................... 27 State v.. 13 State v......... 3d 1177 ( 2013) .. 894 P. 13....2d 856.. App... 293 P. 168 Wn.... 134............. v. 156 Wn..Miller.... Turner........ Audley....Wn. 2020 State v. 3d 72 ( 2015) ... Miller..... App.. 116 Wn. 23 State v...... Strine.... 19 State v.......... 2d 357......... 639 P..... 2d 580 ( 1978) ........ Davis.... Babcock.... Rich.... App... 215 P...... 114 Wn......17....... 26 State v....... 2d 802.... 3d 849 ( 2005) .State v.... 20 Wn. 160 Wn.... Robinson. 22 1V .... 279 P.... 311 P.... App......2d 466... 1818 State v.. v.. 13 State v................ 3d 40 ( 2007) .. Allen.. 2d2d 464464 ( ( 1998)1998) .............869.... 26 State v.... 2d 970 ( 1994) . 3d 300 ( 2000) ...... 869.. 19.......... Linton.... 24 T. S. 598........ 166 Wn..2d 742. 77 Wn..... 3d 127 ( 2006) ..... Deitchler....... 141 Wn.... 2d 925 ( 1998) . 23.... Robinson. Kyllo. 3d 461 ( 2010) .App.. 262 P...... 127 Wn... App. 897.. v...

................. Schneider................... § 9.... 11........ I............................. App..... 11 RCW 9A................ § 3.......................... 1616 RCW 9A. Wilson... 160( 1).......... Crim........... Const............. amend......... art................................................... 596........................................ 17 Other Cases Brazzel v............... 13..................................... 36 Wn.................. V...................................... 861 P. App................. Thomson..... art.52.... 010( 6). Washington........ 14 Constitutional Provisions Const.... 020( 1).. 18 RCW9A...04.................. 491 F.. U................. 110( 5)......... art................. 634.........State v... S............................................. Statutes RCW10.................... 237................. 73........................ 26 9 U......... 25 Oles v..................... 16 RCW 9A........................................... 136 Wn.. 16 State v.................... 18 RCW9A................ 673 P................ App.................. 9 Const.... 010( 5).............. VI........... Const............. State............... 150 P...... 71 Wn... 993 S.... 080( 1)( a)..................... 3d 144 ( 2007) ................. § 22..04......... 2d 492 ( 1993) ..................... 010( 6)... 040.. I............................ I.............. 2d 103 ( Tex............... S......................... 26 Const............................ App....................52.............................52.................... 22 22 U....... 2007) .. XIV........................................................40. 29 RCW 9A.........40.................................... 15 State v... Const..................................... 1999) .......... amend..... 25 RCW9A................................... 3d 976 ( 9th Cir.... amend...................... 2d 200 ( 1983) .. W................. S. 10 V ..................................

....................................... 30 RAP2.................................. 160( 3)............... 28. 29 vi .............................................................. 26 RCW10........... Rules RAP14.... 73.................. 2..................................... 5( a)( 3)......................................................

1 . so long as that conviction stands. Mr. David Kalac escaped his jail cell. Kalac of attempted murder. That charge was resolved when the jury convicted Mr. this Court should reverse the order dismissing the charge of attempted murder without prejudice. first degree burglary. Kalac immediately complied. double jeopardy prohibits retrial on the greater offense. Kalac' s simple assault of the other inmate did not constitute a substantial interference with that inmate' s liberty of movement. simple assault. Because a jail inmate cannot burglarize another inmate' s cell and Mr. the State sought to convict Mr. the jury convicted him of the lesser offense of attempted fourth degree assault. About two minutes after he entered the cell.on. the court later ordered that the charge of attempted murder be dismissed without prejudice. INTRODUCTION Wanting to fight another inmate one. and unlawful imprisonment. Kalac of a lesser offense and. the convictions for burglary and unlawful imprisonment should be reversed for insufficient evidence. For this brief.one.A. Kalac as charged. Additionally. and assaulted the inmate. officers at the jail responded and ordered the inmates to stop fighting. entered the jail cell of the other inmate. Despite being sentenced on all three counts. Otherwise the jury convicted Mr. Rather than convict Mr. Kalac of attempted murder.

section three of the Washington Constitution. In violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and article one. the conviction for unlawful imprisonment is not supported by sufficient evidence. In violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and article one. Mr. the trial court improperly dismissed the charge of attempted murder without prejudice. each 2 . such as an apartment building. ASSIGNMENTS OF ERROR 1. In violation of the Sixth Amendment to the United States Constitution and article one. Accordingly. 3. section three of the Washington Constitution." In a multi -unit structure. C. 4. the conviction for first degree burglary is not supported by sufficient evidence. Kalac was deprived of his right to effective assistance of counsel. ISSUES 1. each tenant has a separate privacy interest.B. 2. section nine of the Washington Constitution. Burglary requires proof that the defendant entered or remained unlawfully in a " building. section twenty-two of the Washington Constitution. In violation of the prohibition against double jeopardy under the Fifth Amendment and article one.

the prohibition against double jeopardy forbids retrial on the greater offense. Should the burglary conviction premised on this entry be reversed because a jail cell is not a " building" separate from the jail itself? 2. simple assault constituted a substantial. Mr. Kalac." Inmates in jail. meaning that the defendant substantially interfered with the victim' s liberty of movement. Hence. While the State presented evidence establishing that Mr. an inmate at the jail." Over the course of about two minutes. When a defendant is convicted of a lesser included offense.unit is considered its own " building. i. the State did not present evidence proving that it was unlawful for him to enter or remain in other jail cells. jail cells do not constitute " buildings" separate from the jail itself. Unlawful imprisonment requires proof of restraint.. Did the State fail to prove beyond a reasonable doubt that this brief. considerable.e. Kalac was not supposed to have been out of his cell. however. 3 . Kalac was a jail inmate. entered the cell of another inmate. " Substantial" means " considerable. Kalac assaulted another inmate by kicking him and briefly placing him a headlock. Burglary requires proof that the entering or remaining was unlawful. Mr. Mr. Did the State fail to prove the unlawful" presence element beyond a reasonable doubt? 3. interference with the inmate' s liberty of movement? 4. have no legitimate privacy interest in their jail cells.

it locks automatically. RP 648. without prejudice.92. Each cell has a speaker which can be used to communicate with an officer. RP 562. Kalac lacks the ability to pay legal financial obligations? D. Kalac was convicted of attempted fourth degree assault. There are windows on the doors of the cells. Each cell houses two inmates. Kalac did not have the present or future ability to pay legal financial obligations.Mr. When a cell door is shut. a lesser included offense of attempted first degree murder. Should this Court exercise this discretion to not allow costs when the trial court ruled that Mr. He was confined to " Unit B.49. David Kalac was an inmate at the Kitsap County Jail in Port Orchard. The trial court determined that Mr. RP 591. STATEMENT OF THE CASE In December 2014. like the other units in the jail. Despite being sentenced on this conviction. the court dismissed. the charge of attempted murder. This unit. has 26 cells. Did the trial court err when there was no charge left to dismiss and reprosecution would violate the prohibition against double jeopardy? 5. Unit B has 13 cells on two floors.69." RP 891. RP 562. RP 563. E . RP 659. RP 568. This Court has discretion to not allow appellate costs even if the State is the substantially prevailing party.

RP 895. another inmate in Unit B. called him over to inquire about Mr. Unit B has a dayroom on the lower level. Kalac was locked inside his cell while Mr. Mr. RP 592. Carlson was outside the cell in the dayroom. RP 562. Kalac got into a loud. Mr. Kalac testified he was at the window of his cell when he saw Mr. Carlson' s gesture. RP 882. Sometime before December 9. RP 593. was confined to a cell on the upper level. RP 882. with tables. RP 591. a television. Carlson. Inmates on the lower and upper levels are let out into the dayroom at different times. Kalac about three years earlier for about a month or two. Mr.63. Carlson was aware that Mr. Hence. Mr. Kalac and had not seen him since. RP 592. 596. and vice versa.93.92. Kalac did not recall living with Mr. 9 . Mr. He did not really get along with Mr. RP 897. RP 591. and a door to the recreation yard. Carlson. who did not remember Mr. an inmate confined on the upper level would not be in the dayroom at the same time as an inmate confined on the lower level. Mr. Carlson claimed to have shared a place with Mr. Wayne Carlson. Mr. Carlson flipping him off. 2014. RP 896. RP 591. RP 592. Carlson and Mr. Kalac was confined to a cell on the lower level. Kalac was in the jail. heated exchange. Mr. Kalac.

29. RP 898.' RP 596. Kalac was in jail on a charge of murder. 917. Mr. Carlson said. leaving the door cracked open. At about 4: 58 p. Carlson ate his dinner and returned to his cell. he placed a playing card in the locking mechanism of the door.01.29. m. Mr. RP 900. 897.on. Kalac concocted a plan to get out of his cell so he could fight Mr. Mr. when Mr. 6 .The two had a loud and unpleasant conversation. Mr. Kalac. RP 899. RP 900. RP 900. At about 3: 30 p. 628. Carlson was in because he could see the upper tier through the reflection on the dayroom wall. Mr. See RP 593.97. RP 735.30. Kalac being in jail was not permitted to be disclosed to the jury.99. RP 900. the inmates from the upper tier were released out of their cells and allowed to be in the dayroom until 6: 00 p. Carlson one. Kalac left his cell and proceeded directly upstairs to Mr.m. This made it so that the door appeared to be locked when closed.. Because the two were not out of their cells at the same time.. RP 605. m.one. On December 9. although it was not. Kalac knew what cell Mr. Mr. Kalac was not happy about what Mr. Carlson' s cell. 2014. Mr. 471. Mr. Kalac decided to settle their differences by fighting Mr. RP 23. Mr. Carlson' s cellmate was in the dayroom. Mr. Carlson. Kalac returned to his cell. RP 23. Kalac knew that the So as to not unfairly prejudice Mr. the substance of this conversation and the reason for Mr. RP 605.

RP 612. Mr. Kalac picked him up off of the floor by the neck. 658. 678- 7 . Because he only wanted to fight. Kalac entered the cell. He pulled Mr. 611. and placed him in a headlock. RP 576. 655.guards would not be in the unit because it was after dinner service.56. Mr. Carlson in a headlock. Mr. 735. Mr. 908. 909. While the two were wrestling around. 904. Three officers responded quickly and went to the cell. RP 904. Carlson refused. 906. The officer in the lead saw through the window of the door that Mr. RP 570. which could have been used as weapons. Mr. m. RP 610. Carlson. When Mr. According to Mr. Kalac to get onto the ground and place his hands behind his back. RP 913. RP 609. RP 608. The officer in the control room notified other officers that the emergency button for cell B. Mr. While Mr. closing the door behind him. RP 903. Carlson. RP 652. not kill. Kalac said he was going to kill him. arriving at 5: 00 p.10. including a broom and a mop ringer. Kalac did not stop to retrieve available cleaning tools. Kalac had Mr. Carlson was on the ground. the lead officer told them to stop fighting and ordered Mr. Carlson hit his head on the sink. RP 609. Carlson off of the top bunk. Mr.16 had sounded and asked them to investigate because he thought it might be a fight. Mr. 645. RP 607. Kalac kicked him and told him to get up and fight. Through the door.76. Carlson was able to hit the emergency button many times and called for a guard. 575. RP 647.

Kalac with simple assault.94. the State charged him with attempted murder in the first degree ( Count I). Carlson had no problems breathing. RP 829.30. RP 789. Kalac of first degree burglary and unlawful imprisonment. 986. Kalac immediately complied. Kalac testified that he had only planned to fight. 670. however. Prior to law enforcement arriving to investigate. Carlson. He suffered a laceration on his head. Mr. CP 110. first degree burglary ( Count II). 107.12. The jury convicted Mr. Carlson out of the unit. 867. The jury. The officer then unlocked the door and entered. Carlson' s neck was visibly red. CP 92. A nurse who saw Mr. RP 655.79. 97. Carlson testified that no bandages or stiches were medically necessary. CP 10. RP 652. Kalac in an interview room and escorted Mr. and unlawful imprisonment ( Count III). 910. Mr. Mr. RP 670. CP I10. Mr. RP 792. Mr. Rather than charge Mr.89. In relation to the charge of attempted murder ( Count I). Kalac was sentenced on all three 8 . Mr. convicted Mr. Kalac obtained a lesser included offense instruction on attempted fourth degree assault.11. RP 931. CP 110. RP 654. not kill. jail staff cleaned up the scene of the assault. Mr. The officers placed Mr. RP 898. The jury did not reach agreement on the charge of attempted murder and left the verdict form blank. At trial. Kalac of the lesser offense of attempted fourth degree assault.69. RP 788.

An individual cell housing inmates within a jail is not a separate " building" from the jail itself. Questions of statutory interpretation are reviewed de novo. Conover. art. b. 183 Wn. Kalac committed the offense of burglary because he did not enter or remain " unlawfully" in a " building. 443 U. ARGUMENT 1. CP 172. "' State v. State v. 1096 ( 2015). § 3. 3d 1093. 319. amend. 99 S. 2781. 221. U. Intent is determined I . 2d 368 ( 1970). S. Green. XIV. 397 U. 61 L. the appellate court analyzes "` whether. 307. 2d 560 ( 1979)). 364. S." a. after viewing the evidence in the light most favorable to the prosecution. 25 L. 1068. Const. 90 S." without prejudice. Ed.counts. Virginia. 2d 706. CP 149. In re Winship. The evidence was insufficient to prove that Mr. S. The State bears the burden to prove all the elements of an offense beyond a reasonable doubt. 94 Wn. Id. 2d 216. The State bears the burden of proving all the elements of an offense beyond a reasonable doubt. 358. E. In reviewing whether the State has met this burden. Const. 2d 628 ( 1980) ( quoting Jackson v. 616 P. I. The State later obtained an order purporting to dismiss the charge of attempted murder in the first degree. any rational trier offact could have found the essential elements of the crime beyond a reasonable doubt. described as " Count I. The primary purpose is effectuate the intent of the lawmaker. Ct. 355 P. Ed. Ct.

2014. context of the statute. 3) That in so entering or while in the building or in immediate flight from the building the defendant assaulted a person. If so. Id. 020( 1). the defendant entered or remained unlawfully in a building. First degree burglary requires proof that the defendant entered or remained " unlawfully" in a " building": A person is guilty of burglary in the first degree if. Consistent with the law. amendments. in entering or while in the building or in immediate flight therefrom. accord CP 98 ( jury instruction).from the statute' s plain language. under the " to -convict" instruction. Id. 2014. and the whole statutory scheme." CP 101. 10 . CP 102. and 4) That any of these acts occurred in the State of Washington. If more than one reasonable interpretation exists. 2) That the entering or remaining was with intent to commit a crime against a person or property therein. the State was required to prove that on or about December 9. the actor or another participant in the crime ( a) is armed with a deadly weapon. the statute is ambiguous. he or she enters or remains unlawfully in a building and if. then the rule of lenity applies and the language must be construed in the defendant' s favor. which considers the text. or ( b) assaults any person. the defendant entered or remained unlawfully in a building. 2 2 The " to -convict" instruction required the State to prove: 1) That on or about December 9. related provisions. RCW 9A. Id. 52. with intent to commit a crime against a person or property therein.

" Id. Thomson. Thus. This Court held that the woman' s bedroom was not a " building" separate from the house. Id. each family member has a privacy interest in the entire house. Thomson. 861 P. the term " building" was defined for the jury to have its " ordinary meaning" and to include " any dwelling. 2d 492 ( 1993). The man was convicted of first degree rape. the man broke into the woman' s room and raped her. Id. App. the woman permitted the man to stay in a guest room. Consistent with its statutory definition." RCW 9A. Later that night. Id. The woman rebuffed the man' s sexual advances. a woman invited a man into her home. The foundational case construing this language is State v. CP 99 ( jury instruction). at 636. The Court reasoned that rooms in single family houses did not qualify as " buildings" because there is a single privacy interest in the entire house: In the situation involving the house. 110( 5). which required proof that the defendant had feloniously entered into a " building. and that interest is not different from the interests of other family members. App. 71 Wn. 11 . at 646. Still. Id. There. it makes sense to characterize the burglarized rooms as parts of a single building. 634. " Each unit of a building consisting of two or more units separately secured or occupied is a separate building.04." Id. 71 Wn.

137.04. Id. it makes sense to characterize the burglarized rooms as separate " buildings. so it is not surprising that the Legislature intended it to apply to multi -unit buildings such as hotels. Deitchler. 110( 5) mandates the second approach." Id. 2d 970 ( 1994). State v.46. Thus. 876 P. separate stalls and coin boxes at a car wash were not their own " buildings" because the car wash was 12 . Similarly. 110( 5) should be construed as applying to multi -unit buildings in which two or more rooms are occupied or intended to be occupied by different tenants separately. this Court held that an evidence locker within a police station was not a separate " building" because the police station was occupied by a single tenant and was not a building consisting of multiple separately secured units. The Court reasoned the outcome would be different for some multi -unit structures because the tenants would have a separate " privacy interest" from other tenants in their space: In the situation involving the multi -unit structure. and that interest is separate from the interests of other tenants." The second part of RCW 9A. The Court concluded that " RCW 9A. App. each tenant has a privacy interest in his or her room or apartment.Id. 134. but not to dwellings wholly occupied by a single tenant. Id. at 645. apartment houses and rooming houses. at 645. but not to dwellings wholly occupied by a single tenant. Following Thomson. 75 Wn. 04. The Court further reasoned that its construction was supported by the rule of lenity.

See State v. 91 Wn. Miller. Schneider. 642. 3d 830 ( 2003). In contrast. State v. Jails are where the government forcibly holds people against their will. not simple ownership). Cheatam. Ct. 132 S. qualified as a " building" given the separate privacy interest. App. 894 P. If they are held 13 . App. This case is unique in that it that the structure at issue is a jail. 1510. 2d 1359 ( 1995) ( statute authorizing strip searches in particular contexts was constitutional). App. 908. 1515. 2d 464 ( 1998). S. 2d 200 ( 1983) ( noting that a landlord can be guilty of burglarizing a tenant' s property because the question is occupancy or possession of premises.73. their possessions may be seized and inventoried. When they arrive. 90 Wn. of Chosen Freeholders of Cty." State v. used by a tenant and secured with a lock. Florence v. U. not a house or apartment complex. They are not tenants. 673 P. 241. Miller. 869. 237. 81 P. Bd. State v. App. Audley. 182 L. 2d 925 ( 1998). occupied by a single tenant and was not a building consisting of two or more units separately secured or occupied. 954 P. of Burlington. 77 Wn. 897. They may be strip searched. 150 Wn. a large storage locker inside the common area of an apartment complex. 2d 566 ( 2012) ( detainees may be required to undergo a close visual inspection while undressed). Ed. 729. 870. . 720. People detained within cells inside jails do not choose to reside there. 2d 626. see also State v. 36 Wn. 960 P.

2d 83. King. U. Ed. 104 S. . 993 S. 133 S. "`[n] o situation imaginable is as alien to the notion of privacy than an arrestee sitting in a j ail cell. 879. The record in this case shows that the privacy of inmates at the Kitsap County Jail was not any greater. Ed." the government may even seize their DNA without violating the Fourth Amendment. 150 Wn. 605- 06. 2d 393 ( 1984). 3194. State v. 2d at 638 ( quoting Oles v. S. 517. Inmates. Inmates are locked in their cells and inmates have no control over when the door to their cell is locked. RP 563. App. The dayroom can be viewed from the control room through a one- way mirror. including Mr. 891. 1958. W.76. Maryland v. Kalac. 605. 89. 598. As for the jail cell itself. have cellmates. 279 P. an inmate has no right to preclude another person from entering or remaining in his or her cell. Babcock. Ct. not an inmate. 168 Wn. Palmer. 1999)). 468 U. Ct.04. 109 ( Tex. Carlson and Mr. See RP 562. 186 P. 164 Wn. 1980. State v.on a " serious offense. App. S. 893. That right belongs entirely to the jail. Their calls may be recorded. Hudson v. Crim. 714. Modica. The cells have 14 . Cameras are present. In short. 2d 1 ( 2013). 3d 1062 ( 2008)."' Cheatam. Certainly. 2d 103. State. RP 770. Calls from the jail are recorded. 186 L. RP 60. 3d 890 ( 2012) ( citing Hudson for proposition that inmate did not have a privacy interest in his cell). inmates in a Washington jail lack any privacy interest in their cells. RP 567. 82 L. 527.

it is a reasonable one. 15 . Kalac' s interpretation of the statute is not the only reasonable interpretation. Given the unique circumstances of a jail. Thomson. a jail is not truly analogous to an apartment building or hotel. at 645- 46. and the rule of lenity. But even if Mr. at 730. Accordingly. Hence.speakers that can be used by the jailers to eavesdrop. In sum. the lack of a privacy interest by the inmates in the cells used to hold them. Inmates do not possess a privacy interest in the cells used to hold them. Kalac' s narrower interpretation.90. App. RP 583. Therefore. the reasonable interpretation is that jails cells are not separate " buildings" within the meaning of the statute. RP 887. at the least. Miller. 110( 5). at 730. 90 Wn. Kalac' s conviction for burglary should be reversed and dismissed with prejudice. the statute is ambiguous. 598. such as clothing. requiring application of the rule of lenity and adoption of Mr. 90 Wn. this Court should hold that a jail cell is not a separate " building" within the meaning of RCW 9A. Mr. 71 Wn. State v." Miller. " Application of the burglary statute to [ the] defendant' s conduct was clearly outside the purpose of the Legislature. As for the belongings inmates are permitted to keep in their cell. 889. these belongings are required to be kept inside a clear bag so that guards can more easily search the cells.04. App. App.

Kalac " unlawfully" entered or remained in the cell. Even if the building." RCW 9A.2d 466. 137. " A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of a building which is not open to the public." State v." RCW 9A. c." State v. Even assuming that the cells within the jail were separate buildings. 52. 98 S. 1. accord CP 101. Kalac entered or remained " unlawfully" in the other cell. Allen. S. 469. 2d 1 1978). 805 P. App. " If a person is privileged to enter the building. 010( 6). Premises includes the term " building. 010( 5)." the State failed to prove with sufficient evidence that Mr. 57 L.Burks v. invited. Schneider. accord CP 101. 110 P. 3d 849 ( 2005) The " State must introduce evidence" to prove the unlawful presence requirement. A person ` enters or remains unlawfully' in or upon premises when he or she is not then licensed. at 241. CP 102. 11. United States. 2d 806 16 . accord CP 100. 52. then he cannot be convicted of burglary. 437 U. 125. 010( 5)." RCW 9A. 127 Wn. Howe. or otherwise privileged to so enter or remain." the State cell qualified as a " failed to prove that Mr. 2141. Ct. 36 Wn. 52. App. Ed. 116 Wn. Unlawful presence and criminal intent must coincide for a burglary to occur.

347 P. The State did not meet its burden to prove the unlawful presence requirement. 3d 72 2015). 1991). Accordingly. the State did not present any evidence of any jail regulations. Kalac was unlawfully in the other cell. 648. Kalac was not supposed to be in Mr. 132 P.2d 18. 136 Wn. 607. 596. 825. A privilege to enter may be limited expressly or by clear implication. Carlson' s cell. 3d 725 ( 2006). RP 594." State v. 355 P. Kalac was required to be in his cell at the time. 3d 1153 ( 2015). Rich. 17 . Kalac' s presence was unlawful. Here. This does not establish that Mr. 632. 186 Wn. this did not establish that his entering or remaining was unlawful. r the conviction should be reversed and dismissed. 150 P. Rather. nth 183 Wn. State v. App. 917. 156 Wn. The State simply asked the jury to presume that Mr. including any which forbade inmates from entering other cells. Wilson. See State v. rev.2d 819.08. While the State elicited testimony establishing that Mr. " Merely asking the jury to presume a fact necessary for conviction does not satisfy the requirements of the proof beyond a reasonable doubt guarantee of the Fourteenth Amendment' s due process clause. 3d 144 ( 2007) ( no -contact order which forbade defendant from contacting girlfriend did not make defendant' s entry into home where girlfriend lived unlawful). it only established that Mr. App. Cantu. 913.

Kalac committed the offense of unlawful imprisonment." CP 105 to -convict" instruction. meaning that a person' s movements are restrained in a manner which interferes " substantially" with his or her liberty. "` Restraint' is defined as a restriction of a person' s movement without his or her consent and without legal authority. 3d 310 ( 2014) ( citing RCW 9A." State v.40. 454. 3d 1278 ( 2013). 010( 6)). 461. It requires proof that the defendant " knowingly restrains another. This offense is a lesser included offense of kidnapping. 311 P. Kalac guilty of unlawful imprisonment. Kalac " restrained the movements of Wayne Carlson in a manner that substantially interfered with his liberty.). Unlawful imprisonment requires proof of restraint.40." RCW 9A. in a manner substantially interfering with that person' s liberty. The term " substantial" is not defined by statute and the term was not defined for the jury.2d 857." The evidence was also insufficient to prove beyond a reasonable doubt the offense of unlawful imprisonment. 177 Wn. Berg. a case challenging the sufficiency of the evidence to sustain a conviction for unlawful imprisonment. the State had to prove beyond a reasonable doubt that Mr. to find Mr. a. This requires that the interference be considerable. Davis. 181 Wn. The evidence was insufficient to prove that Mr. App. State v. 2. In Robinson. a . 337 P. 863. Consistent with this definition. 040.

the majority concluded that the evidence was sufficient to convict the defendant of unlawful imprisonment. 19 ." State v.87. Our Supreme Court summarily agreed that the evidence was sufficient to convict the defendant in Robinson of unlawful imprisonment. Id.2d 357.. 882. 884. 2d 357. " to mean a `real' or ` material' interference with the liberty of another as contrasted with a petty annoyance. at 884 n. however. 360. at 886. The defendant had forcibly grabbed a teenage girl who was walking home from school and pulled her toward his running car. Robinson. at 883. The teenager fought back and was able to secure her release. dissenting). 582 P. App. a slight inconvenience. The Court cited two out. 597 P.of-state civil cases in support of this definition. 20 Wn. Id. 597 P. 2d 892 ( 1979). J. the dissent maintained that the term has " a broader meaning than " actual" or " real. 92 Wn. or an imaginary conflict." Id.majority of this Court defined the term " substantial" ( for the purposes of unlawful imprisonment). Id. 2d 892 ( 1979). State v. Id. In contrast. 92 Wn. at 886 ( Roe. did not discuss or construe the meaning of the term substantial." Id. The dissent reasoned that the offense " requires something more than mere assault by gripping and pulling" and that the evidence was inadequate to prove the offense. The court. Applying this definition. 1. Robinson. 2d 580 ( 1978) affd.

" State v. McKa ague. 262 P. Here." State v. Given this length of time. 3d 1225 ( 2011). in context of a case involving second degree assault. the defendant held a man at gunpoint on the ground for around 30 minutes. Mr. Rather. simple assault of another inmate did not amount to substantial or considerable interference with the inmate' s liberty of movement. or worth. Kalac committed the offense by restricting Mr. Our Supreme Court' s most recent decision on the topic of restraint. this Court recently applied this definition in the context of the reckless endangerment statute. Since Robinson. Carlson' s liberty through physical force. 172 Wn. 186 Wn. at 647. RP 20 . Rather. Berg. Following McKague. Thus. Kalac' s brief. b. is consistent with this understanding. Berg. value. App. 181 Wn. There. the evidence was sufficient to prove that the defendant " restrained" the man. the term substantial has a broader meaning than a " real" interference with a person' s liberty. it must also be a " considerable" interference. contrary to the majority decision in Robinson."' Id. the court concluded that " substantial" means "` considerable in amount. our Supreme Court rejected a definition defining substantial as meaning " something having substance or actual existence. which requires proof of a " substantial" risk. at 805 ( quoting Webster' s Third New International Dicti 2280 ( 2002)). the State contended primarily that Mr. 2d at 872. 2d 802. 805. Id. Rich.

97. Carlson. 652. Carlson. It was more akin to purposefully pushing an elevator button so as to force the occupant to a 21 . Mr. arguably tended to show restraint. Mr. Carlson' s movements to degree that substantially interfered with his liberty. Carlson and got on the ground. Mr. which locked automatically. 735. Kalac' s closing of the cell door. RP 1039. interference with a person' s liberty of movement. Because Mr. RP 612. Kalac restrained Mr. m. Kalac immediately released Mr.e. Closing the cell door was a mere annoyance which lasted only about two minutes.986.. RP 735. After he was in this hold for an estimated 20 to 30 seconds. Rather. Carlson refused. RP 647. Kalac picked him up by the neck and placed him in a headlock. In contrast to Berg. the evidence did not establish any substantial. but properly conceded in rebuttal that merely closing the door was inadequate. RP 986. m. The State initially argued this evidence was relevant. Mr. however. and assaulted Mr. RP 611. Kalac entered the cell at 4: 58 p. telling him to get up and fight. the officers arrived at the cell at 5: 00 p. This evidence did not prove beyond a reasonable doubt that Mr. considerable. While on the floor. RP 735. During this assault. Kalac kicked Mr. Mr. Carlson was able to hit the emergency button multiple times. Mr. 1048. it only established a simple assault lasting about two minutes. RP 614. RP 609. i.

3. simple assault of Mr. Carlson' s movements in a manner that substantially interfered with his liberty. Carlson' s liberty of movement. this Court should hold that to prove restraint. U. I. Mr. Kalac' s closing of the door substantially interfered with Mr. Carlson inside the jail cell was insufficient to prove that Mr. V. These provisions forbid ( 1) a second prosecution for the same offense after acquittal. See RP 604. Const. Const. S. Kalac restrained Mr. The conviction should be reversed and dismissed. The State and federal constitutions prohibit double jeopardy. Thus. When a defendant is convicted of a lesser included offense. Carlson had intended to stay inside his cell.floor beyond which he or she wanted to go. Robinson. a. § 9. Mr." Applying this standard. Moreover. art. The court improperly dismissed the charge of attempted murder without prejudice. at 885. which this Court indicated would be insufficient to prove restraint. 607. double jeopardy bars a later prosecution for the greater offense. 20 Wn. ( 2) a second prosecution 22 . Carlson had no right to be outside the cell. the interference must be " considerable. it cannot be concluded that Mr. Consistent with recent precedent. The conviction on the lesser offense of attempted fourth - degree assault bars any future prosecution for attempted murder on the same facts. more is necessary than a " real" interference with a person' s liberty. Rather. Regardless. amend. the brief. App.

3d 127 ( 2006) ( Sanders J.. Linton. the defendant could not be prosecuted for negligent homicide because the defendant had already been convicted of a lesser included offense. 132 P. Id. 650.).51. App. terminates jeopardy. 2260. 881. 156 Wn. concurring). 100 S. State v. the conviction. 2d 228 ( 1980). S. "[ i] f jeopardy attaches. 639 P. Under these principles. 160 Wn. however. and ( 3) multiple punishments for the same offense imposed in the same proceeding. concurring) where the jury is hung on the greater charge but convicts of the lesser included charge. Id. 30 Wn.. 23 .2d 643. accord State v. 3d 40 ( 2007). 447 U. 2d 777. Thus. 792. 410. Ct. Culp. 160 P. at 794 ( Chambers.. Vitale. In other words." State v. in Culp. 421. 2d 766 ( 1982) ( citing Vitale. and the defendant cannot be retried for the greater charge if it constitutes the 3 same offense for double jeopardy purposes . 447 U. Linton. once final. Ed. The lead opinion. at 410). and the conviction of the lesser included charge is not overturned on appeal. The remaining justice held that the issue was resolved by the statutory prohibition against double jeopardy. J.2d at 789.for the same offense after conviction. held there was an implied acquittal of the first degree assault and did not reach the argument that the conviction for second degree assault barred retrial on first degree assault. prosecution for a lesser included offense will bar a later prosecution for a greater offense. 879." Illinois v. S. at 3 Both the lead opinion and Justice Sander' s concurring opinion garnered four votes. 65 L. " a conviction on a lesser -included offense bars subsequent trial on the greater offense. Womac. 156 Wn.

at 881. 452. at 421. 160 Wn. 447 U. See 24 . Culp. 2d at 647 ( same). Kalac was charged with attempted first degree murder. Kalac was sentenced to 90 days of confinement ( to be served concurrently with the sentences for burglary and unlawful imprisonment). C£ State v. Kalac may not be retried on this greater offense. Kalac for attempted first degree murder. 238 P. without prejudice. 3d 461 ( 2010) trial courts improperly tried to keep lesser vacated offenses alive). the State moved for an order dismissing the charge of attempted murder in the first degree. CP 172. On Count I. Turner. However. Womac. Mr. so long as the lesser conviction for attempted fourth degree assault stands. App. The jury did not acquit Mr. Mr. 30 Wn." without prejudice. CP 170. The court improperly dismissed. Kalac successfully appealed this conviction. Vitale. b. For this count.2d 448. If Mr. Although Mr. Mr. he obtained a lesser included offense instruction for attempted fourth -degree assault. Kalac of attempted murder. Kalac was convicted of a lesser included offense. The purpose of the State' s action appears to be an attempt to keep alive the possibility of retrying Mr. but convicted him of the lesser offense. The court signed the order of dismissal without prejudice. CP 149. Count I. S. then under Washington precedent he may be retried on the greater offense. 169 Wn. Kalac had already been sentenced. On this count. the charge for attempted first degree murder when Mr.

State v. 183 Wn. 355 U. 04. S. Mr. 78 S. 491 F. It presents a false public record as to what actually happened on Count L But most importantly. 985 9th Cir. Washington. 2d 199 ( 1957) (" the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense. 119. 187. There was nothing to dismiss. this order of dismissal without prejudice may lead the State to erroneously prosecute Mr. 2 L. Here. 349 P. Kalac again for attempted murder. Kalac was convicted and sentenced on the lesser offense ( Count I).88. Glasmann. contra Brazzel v. thereby subjecting him to 25 . Kalac' s conviction on this offense is final. 221. once Mr.2d 117. United States. RCW 9A. 3d 976. 184. 2007) ( holding that such blank verdict forms constitute an implied acquittal). The court erred in granting this request because Mr. Hence. Still. Mr. Ed. Kalac should not be subjected to this situation again. See Green v. Ct. 080( 1)( a). This danger is especially acute because there is not a statute of limitations for murder. Kalac is not challenging the conviction for attempted fourth degree assault on appeal. the greater offense cannot be revived. the State obtained an order dismissing the charge for the greater offense ( Count I) without prejudice. 3d 829 ( 2015) ( State may retry a defendant for the greater offense without violating double jeopardy when lesser offense is reversed on appeal and jury left verdict form on greater offenses blank).

Kalac has the right to effective assistance of counsel under our state and federal constitutions. the invited error doctrine arguably applies. c. 3d 1177 2013). Kalac' s attorney not only failed to object. S. 792 P." Const. Strickland v. VI. Mr. Henderson. I. Const. Kalac did not object to the Court' s order. art. CP 173. S.. as well as enhancing the possibility that even though innocent he may be found guilty.2d 867. However. amend. U. See State v. amend. 4 To establish ineffective assistance of counsel. Mr. S. Kalac' s counsel. 4" In all criminal prosecutions. but he also signed the dismissal order. art. 2d 514 1990). 114 Wn. 176 Wn. 26 . Const. 5( a)( 3). § 22. 466 U. a party must show deficient performance and resulting prejudice. 293 P. In criminal prosecutions the accused shall have the right to appear and defend in person. Thus. Hence. the accused shall enjoy the right . Const. § 22. VI. Washington. 2d 742. State v. If this Court holds that the error was waived through the actions of Mr. this Court may properly consider the issue. 868." U.") Mr. I. to have the Assistance of Counsel for his defence.. the error should be examined through the lens of ineffective assistance of counsel. issues of double jeopardy may be raised for the first time on appeal as manifest constitutional error. expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.embarrassment. Strine. RAP 2. or by counsel. 751. Counsel was ineffective in failing to object and in signing the agreed order of dismissal.

without prejudice. Kms. As for the Strickland prejudice prong. but should also remand with instruction that the trial 27 . 80 L.668. 863. Kalac cannot be retried on that offense so long as the lesser conviction for attempted fourth degree assault stands. Because Mr. Kalac has not challenged this conviction. 104 S. d. the conviction for attempted fourth degree assault ( Count I) bars a second prosecution. Count I. the order without dismissal may result in the State erroneously bringing a second prosecution against Mr. Here. Id. 2052. 687. gives the contrary impression. performance is not deficient. 2d 856. State v. however. 215 P. there was no strategic reason for agreeing to dismissal of the charge of attempted murder in the first degree. As argued. it will become final. this Court should not only reverse the order of dismissal without prejudice. The remedy is reversal of the dismissal order with instruction that the charge be dismissed with prejudice. Ct. Kalac for attempted first degree murder when double jeopardy prohibits this. Hence. 3d 177 ( 2009). When counsel' s conduct can be characterized as legitimate strategy or tactics. 2d 674 ( 1984). Deficient performance is performance falling below an objective standard of reasonableness. The dismissal order. Mr. Ed. 166 Wn. The court erred in dismissing the charge of attempted first degree murder without prejudice.

If Mr. 344 P.23. Kalac' s ability to pay legal financial obligations. RAP 14. The trial court found that Mr. The trial court fulfilled its duty to inquire into Mr. CP 153. Any request that costs be imposed on Mr. 182 Wn. Kalac does not substantially prevail in this appeal. A "commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review.2d 827. Kalac for this appeal should be denied because the trial court determined that Mr. 4/ 24/ 15RP 22. Accordingly. 2. See State v." RAP 14. the State may request appellate costs. Kalac cannot be retried on the greater charge of attempted first degree murder. Kalac did not have the ability to pay legal financial obligations. 3d 680 ( 2015). 2 ( emphasis added). Blazina. 4/ 22/ 15RP 22. our Supreme Court has held that this rule allows for the appellate court itself to decide whether costs should be allowed: Once it is determined that the State is the substantially prevailing party. In interpreting this rule. but ordered the mandatory legal financial obligations of $600 ( consisting of $500 penalty assessment and 100 DNA/ biological sample fee). the court rejected the imposition of discretionary legal financial obligations. unless the appellate court directs otherwise in its decision terminating review. 2 affords the appellate court . 4.court enter an order stating that Mr. RAP 14. Kalac did not have the present or future ability to pay discretionary legal financial obligations.

73. Homan. Boy Scouts of Am. and superior courts may require an adult offender convicted of an offense to pay appellate costs. 3d 300 ( 2000) ( emphases added). 160( 3). 2 with respect to the commissioner or clerk. 626. 73. v. and which is directed by the reasoning conscience of the judge to a just result. 29 . 462. 141 Wn. 2d 416. 138 P. S. Judicial discretion" means "` a sound judgment which is not exercised arbitrarily. RCW 10. latitude in determining if costs should be allowed. but with regard to what is right and equitable under the circumstances and the law. 157 Wn. This interpretation is consistent with the permissive language used by the statute authorizing the appellate courts to impose costs upon a defendant. it makes no sense for this Court to add significant financial obligations to the judgement and sentence when the trial court found an inability to pay and waived all discretionary legal financial obligations.") ( emphasis added). 3d 1053 ( 2006) ( quoting State ex rel. 8 P. 2d 620. 303 P. State v. 2d 290 ( 1956))."' T. Given that the trial court has determined that Mr. Here. an award of appellate costs becomes part of the judgment and sentence. supreme court. Nolan. but that rule allows for the appellate court to direct otherwise in its decision.. 49 Wn. Clark v. 423. RCW 10. use of the word " will" in the first sentence appears to remove any discretion from the operation of RAP 14. 2d 457. 160( 1) (" The court of appeals. Kalac does not have the present or future ability to pay legal financial obligations.

this Court should direct that no costs will be allowed. Kalac entered or remained unlawfully. Finally. exercising its discretion to reach a just and equitable result. 2." The State also failed to prove unlawful imprisonment because Mr.Thus. These two convictions should be reversed and dismissed. Lechich —WSBA #43296 Washington Appellate Project Attorney for Appellant 30 . Even if it were a building. s/ Richard W. Kalac' s simple assault of another inmate did not result in substantial or considerable restraint of the inmate' s liberty of movement. RAP 14." the State failed to prove that Mr. Kalac committed a burglary. Lechich Richard W. 2015. That order should be reversed with instruction that refiling that charge violates double jeopardy in light of the conviction for the lesser of offense of attempted fourth degree assault. Respectfully submitted. F." the State failed to prove that Mr. the charge of attempted murder should not have been dismissed post -trial without prejudice. DATED this 18th day of December. CONCLUSION Because a cell within a jail is not a separate " building.

WAWA 9810198101 x'( 206) 587. DAVID KALAC. 2015. wa. Appellant. MAIL 352173 ( ) HAND DELIVERY WASHINGTON STATE PENITENTIARY ( } 1313 N 13TH AVE WALLA WALLA.4681 COA PORTAL X] DAVID KALAC ( X) U. 47506 -5 . X WashingtonWashington AppellateAppellate ProjectProject 701701 MelbourneMelbourne TowerTower 15111511 ThirdThird Avenue Avenue Seattle. WA 99362 SIGNED IN SEATTLE. I CAUSED THE ORIGINAL OPENING BRIEF OF APPELLANT TO BE FILED IN THE COURT OF APPEALS — DIVISION TWO AND A TRUE COPY OF THE SAME TO BE SERVED ON THE FOLLOWING IN THE MANNER INDICATED BELOW: X] RANDALL SUTTON kcpa@co. Respondent. MARIA ANA ARRANZA RILEY.II V. DECLARATION OF DOCUMENT FILING AND SERVICE I.2711 x'( . WASHINGTON THIS 18T" DAY OF DECEMBER. MAIL KITSAP COUNTY PROSECUTING ATTORNEY ( ) HAND DELIVERY 614 DIVISION ST. S. STATE THAT ON THE 18" DAY OF DECEMBER. us] ( ) U.. 2015. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION TWO STATE OF WASHINGTON.Seattle. WA 98366.SERVICE= VIA PORT ORCHARD. NO. S. MSC 35 ( X) E . kitsap.

us . of Volumes: Hearing Date( s): Personal Restraint Petition ( PRP) Response to Personal Restraint Petition Reply to Response to Personal Restraint Petition Petition for Review ( PRV) Other: Comments: No Comments were entered. pdf Case Name: STATE V. DAVID KALAC Court of Appeals Case Number: 47506. wa. org A copy of this document has been emailed to the following addresses: kcpa@co. Sender Name: Maria A Riley . 2015 . kitsap.4: 23 PM Transmittal Letter Document Uploaded: 4 -475065 -Appellant' s Brief. Email: maria(cbwashap). WASHINGTON APPELLATE PROJECT December 18. No.5 Is this a Personal Restraint Petition? Yes @ No The document being Filed is: Designation of Clerk' s Papers Supplemental Designation of Clerk' s Papers Statement of Arrangements Motion: Answer/ Reply to Motion: p Brief: Appellant' s Statement of Additional Authorities Cost Bill Objection to Cost Bill Affidavit Letter Copy of Verbatim Report of Proceedings .