State Of Washington v. Yussuf Hussein Abdulle ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72799-1-
Respondent,
DIVISION ONE
v.
YUSSUF HUSSEIN ABDULLE, UNPUBLISHED OPINION
Appellant. FILED: April 25, 2016
Becker, J. — Yussuf Abdulle appeals his conviction on two counts of
promoting commercial sex abuse of a minor. He argues the trial court erred
when it admitted irrelevant expert testimony regarding the prostitution business
and when it admitted cell phone data obtained using a universal forensic
examination device the State failed to authenticate under ER 901(a). Because
the expert testimony was relevant and the State presented a prima facie case
demonstrating the accuracy of the forensic device, the trial court did not abuse its
discretion when it admitted this evidence.
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FACTS
Background
Bl was born in July 1996. She began prostituting when she was 15 years
old. Soon after, she left her family and began living with friends. In February
2013, Bl moved in with Yussuf Abdulle, who went by the name "Derrick." Bl
asked Abdulle if her acquaintance, AP, could also stay with them because she
had nowhere else to live. Like Bl, AP was born in July 1996 and had left her
family as a teenager. She began prostituting in 2013. Abdulle agreed to allow
AP to stay with him and Bl. He drove to a mutual friend's house to pick up AP
and Bl the next day.
Abdulle introduced himself to AP as "Derrick." Abdulle told AP he would
get her dates—or "jugs"—in exchange for a percentage of what she earned
prostituting:
[Abdulle asked] if I [AP] know what I'm doing, like going out here
and making these jugs and if I'm really going to give him the cut,
and I'm not going to—and I'm not going to—he's not going to put
me on with a jug and then I run off, stuff like that.
AP testified that she was "fine" with the arrangement because Abdulle was giving
her a place to stay and "he wouldn't even really ask for a lot" of what she earned.
She said that if she earned $100 dollars from prostituting, Abdulle would usually
get $40.
When AP first moved in, Abdulle wanted Bl to take some pictures of her
and then he told AP "he was going to call some of the jugs [and] get things going
from there." Abdulle set up six dates for AP. Abdulle arranged the dates, set the
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price, and typically drove AP to and from the dates. AP received $120-$130 for
each date and would split the money with Abdulle afterward. Bl claimed she
worked independently, arranged her own dates, kept her earnings, and never
paid rent to Abdulle. Abdulle did provide Bl with transportation to and from dates
"one or two times." AP testified that Bl and Abdulle argued about money. She
said that Bl "didn't really want to give him enough money to stay" in the
apartment. Bl eventually left the apartment due to her financial disputes with
Abdulle. Before she left the apartment, Bl gave Abdulle a cell phone and about
$100 dollars in cash she had earned prostituting.
On or about March 14, 2013, AP became severely ill due to a pill Abdulle
gave her. She called 911 at a nearby 7-11 and was transported to Swedish
Hospital. While there, AP met with Sheronda Duncan, an advocate for Real
Escape from the Sex Trade. AP disclosed to Duncan that she had been
prostituting. Duncan helped AP retrieve her clothing and belongings from
Abdulle's apartment and enrolled her in a transitional housing program.
AP's mother contacted the police after learning the details of AP's
experience and finding a message on her phone from "Derrick" asking AP to call
him back. On April 11, 2013, AP met with Detective Maurice Washington. AP
disclosed to Det. Washington that she and Bl had been prostituted by Abdulle.
AP went with Det. Washington to identify the apartment she had lived in with
Abdulle. She also identified two vehicles parked outside the apartment she
believed belonged to Abdulle. Det. Washington took AP's cell phone for forensic
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examination. He later used a universal forensic examination device to extract
data from AP's cell phone.
Det. Washington then located photos of Bl through social media and
contacted her. Bl agreed to cooperate with Det. Washington's investigation. She
corroborated many of the details AP had provided to Det. Washington. Bl knew
the address of the apartment she had lived in with AP and Abdulle. Bl went to
the location with Det. Washington, where she pointed out the building and the
specific unit of Abdulle's apartment. She also identified the same two vehicles
that AP had identified as belonging to Abdulle. Bl provided her cell phone to Det.
Washington who examined it using the forensic device. Later in the
investigation, Bl identified Abdulle as "Derrick" in a photo montage.
Det. Washington reviewed the results of the reports from the forensic
device on both AP's and Bl's phones. He discovered a number in both phones
that he suspected belonged to Abdulle. AP confirmed this number belonged to
"Derrick," and Bl had the same number stored in her phone. AP's phone
received a text message from this number requesting to meet.
On May 6, 2013, Det. Washington, using AP's phone, posed as AP and
arranged a meeting with "Derrick" via text message. Det. Washington brought
AP to the meeting location. AP positively identified "Derrick" driving a white
Toyota. Officers approached the car, ordered "Derrick" out, and arrested him.
After arresting "Derrick," officers discovered a cell phone he had dropped on the
ground.
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Det. Washington requested and obtained search warrants for Abdulle's
apartment and vehicles. A search of one of the vehicles yielded an auto
insurance policy for "Yussuf Abdulle" and a yellow receipt with the name
"Derrick." Det. Washington took photos of "Derrick" following his arrest, and Bl
immediately identified him from those photographs.
Det. Washington then attempted to recover cell phone data from the
phone obtained during Abdulle's arrest. The universal forensic examination
device was unable to connect to the phone, so Det. Washington manually
retrieved cell phone information by systematically photographing the cell phone's
entire phone call history, text message history, and contact list. He also called
the number for "Derrick" he received from AP's phone, and the cell phone
recovered from Abdulle began ringing. While searching Abdulle's phone, he
discovered AP's number stored in the contact list under the name "Emily." Det.
Washington noted several calls and text messages to and from AP's number on
Abdulle's phone, some occurring on the day of his arrest. Det. Washington
recognized some of the messages on Abdulle's phone as those AP had received
prior to the arrest.
Det. Washington also used a universal forensic examination device to
analyze a second cell phone recovered from Abdulle's white Toyota. On the
second cell phone, Det. Washington discovered 10 to 12 text messages
exchanged with AP's phone and 6 to 8 messages exchanged with Bl's phone.
He found one text exchange from February 19, 2013, where Abdulle told a
potential client that he had a "girl" who looked young and would be turning 18 in
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July. This corroborated Bl's testimony that she told Abdulle she would turn 18 in
July that year.
On May 9, 2013, the State charged Abdulle by amended information with
two counts of promoting commercial sex abuse of a minor, unlawful
imprisonment, and second degree assault.
Expert Testimony
Before trial, the State sought to introduce expert testimony from Det. Joel
Banks regarding the prostitution business including the terminology, the
relationship between pimp and prostitute, and the culture of the business. Det.
Banks worked as a police officer for 19 years, including 13 years as a detective
for the Street CrimesA/ICE unit for the Sea-Tac Police Department. The State
argued Det. Banks's testimony would be helpful as context and background.
Abdulle argued to exclude the testimony because the prostitution business
was within the common knowledge of jurors, and the testimony would improperly
permit jurors to conclude Abdulle was engaged in the prostitution business. He
further argued that the victims' testimony about their experience as prostitutes
would likely be sufficient to inform the jury of prostitution practices.
The court ruled that Det. Banks was an expert based on his extensive
experience and found his testimony relevant because the topic would be outside
the common knowledge of jurors. The court also determined that the expert
testimony would be helpful to the trier of fact:
Then my next question would be whether this information
would be helpful to the trier of fact. And I do appreciate the
Defense position with respect to relevance. However, an expert
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needn't be strictly necessary for a party's case. The question is
whether that evidence would be helpful to the trier of fact. And this
is clearly an area where I think most jurors have very limited, if no
information or experience. And so for those reasons, I think, it
would be helpful for them to hear about, for example, recruiting,
typical living arrangements, the business arrangements between
the sex worker and the pimp. How that's determined, how the
dates are set up, all of that, I think, would be helpful to the trier of
fact in addition, to, of course, the particular terms used that may be
unfamiliar to jurors.
I won't allow anything that gets close to testimony that this
Defendant must have been a pimp that, that he falls within the
profile. That won't be allowed.
At trial, Det. Banks defined many terms regularly used by prostitutes,
including "game," "blade," "circuit," "jug," "juke," "trick," and "bottom bitch." He
explained that pimps sometimes recruit underage girls to work for them, that
pimps usually impose a series of rules, and that if a prostitute breaks those rules,
she could be punished. Some of the rules included the pimp setting up dates,
screening potential dates via text message, and collecting all of the earned
money. Det. Banks also testified to the importance of cell phones. He explained
that pimps and prostitutes are "constantly texting." Typically, an investigation of
a prostitute's phone would reveal "how they're treated by their pimp, the way he
speaks to them, the orders he gives, where to meet, how much money was your
last jug, that kind of stuff."
After Det. Banks was excused, Abdulle renewed his earlier objection and
asked the court to strike the expert testimony. He argued Det. Banks's testimony
was not specialized, not relevant to the anticipated testimony, and not outside the
common knowledge of the jury. The court denied Abdulle's motion to strike,
stating that Det. Banks's expertise was beyond the knowledge of the average
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person and that his testimony was relevant to the case because he discussed
how pimps set up dates, use text messaging, and divide money.
Cell Phone Testimony
Det. Washington used a universal forensic examination device to
investigate the cell phones he recovered from AP, Bl, and Abdulle. The device,
when turned on, indicates whether it is properly functioning and calibrated. The
device then displays a step by step process guiding the user to connect a cell
phone and prepare it for examination. Det. Washington explained how the
extraction process works:
Okay. So, the interaction between the device and the phone
is, the device is set up to do two types of reads or analysis of the
phone. It can do a physical extraction of information from the
phone and it can do a logical extraction. The difference, physical
extraction is a bit by bit copy of the flash memory of the phone. So
you're getting all the live data, phone calls that were made in and
out, text messages, instant message, emails, applications that are
used, Facebook, Twitter, any of those types of things. You're
getting that from a physical extraction. You're also getting from a
physical extraction any hidden information that's on the phone, i.e.
pass words, secret vaults that are put on the phone, you're getting
that, and you're also getting deleted data, anything that the person
has recently tried to delete off the phone, that information is
captured with a physical extraction.
Okay? And then the other type of extraction it does is the
logical extraction. And the logical extraction does a live or extracts
live data from the phone, what has just occurred on the phone and
can be absorbed or kept in its memory. That does not include
hidden data, and that doesn't include deleted data.
The device will determine which type of extraction it can perform on the phone.
The device will notify the user that the extraction is complete.
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Det. Washington testified that he had received "several weeks, several
months" of training on how to operate the device. He had been trained by fellow
detectives and FBI agents. He also testified that he uses the device "two to three
times a week" and had done so on "hundreds" of previous occasions. The
devices are kept in a forensic office and a FBI office with specially trained
personnel who maintain the machines and update their software.
Det. Washington performed a full extraction from AP's phone but only a
partial extraction of Bl's phone. A portion of the report from AP's phone
containing text messages from the number associated with Abdulle was
admitted. Only a portion of Bl's "contacts" list containing the same number
identified as "answer don't" was admitted. The report of Abdulle's phone
containing messages exchanged with AP and Bl was admitted.
At the conclusion of trial, the jury convicted Abdulle on two counts of
promoting commercial sex abuse of a minor. The jury acquitted him of the
unlawful imprisonment and assault counts. The court imposed a sentence of 189
months in prison followed by 36 months of community custody. Abdulle appeals.
ANALYSIS
Expert Testimony
Abdulle contends the trial court abused its discretion when it admitted Det.
Banks's expert testimony regarding the business practices and subculture of
pimps and prostitutes.
ER 702 provides that if "specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
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an expert.. . may testify thereto in the form of an opinion or otherwise." ER 702.
Expert testimony is admissible under ER 702 if the witness is qualified as an
expert and if the testimony is helpful to the jury. State v. Groth. 163 Wn. App.
548,562,261 P.3d 183(2011), review denied. 173Wn.2d 1026(2012). Expert
testimony is helpful if it concerns matters beyond the common knowledge of the
average layperson and is not misleading. Groth. 163 Wn. App. at 564. Courts
generally interpret possible helpfulness to the trier of fact broadly and will favor
admissibility in doubtful cases. Moore v. Hagge. 158 Wn. App. 137, 155, 241
P.3d 787 (2010) (quoting Miller v. Likins. 109 Wn. App. 140, 148, 34 P.3d 835(2001)), review denied, 171 Wn.2d 1004 (2011).
Expert testimony must be relevant. In re Pet, of Duncan. 142 Wn. App.
97, 109, 174 P.3d 136 (2007), affd, 167 Wn.2d 398, 219 P.3d 666 (2009).
Testimony is relevant if it has a "tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." ER 401. The court must
consider whether "relevant" evidence is "substantially outweighed by the danger
of unfair prejudice." ER 403. The trial court has broad discretion in determining
whether an expert's testimony is admissible under ER 702. In re Pet, of McGary,
175 Wn. App. 328, 339, 306 P.3d 1005. review denied, 178Wn.2d 1020(2013).
Ifthe reasons for admitting or excluding the opinion evidence are fairly
debatable, the trial court's exercise of discretion will not be reversed on appeal.
Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979). In State v. Simon,
64 Wn. App. 948, 964, 831 P.2d 139 (1991), affd in part, re\/d in part, 120
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No. 72799-1-1/11
Wn.2d 196, 840 P.2d 172 (1992), the court held that a detective's testimony
regarding the relationship between a pimp and prostitute was helpful to the jury
"because the average juror would not likely know of the mores" of the pimps and
prostitutes.
Here, Abdulle does not dispute that Det. Banks qualified as an expert
witness. Instead, he argues that Det. Banks's testimony was unhelpful and
therefore irrelevant. Specifically, Abdulle contends the pimp and prostitute
relationship Det. Banks described was unrelated to the trial evidence. He claims
the record shows neither AP nor Bl was recruited by Abdulle, that there was no
agreement or understanding between them, that Abdulle did not advertise either
victim on the internet, and that Abdulle did not impose any rules on AP or Bl.
Abdulle further argues that Det. Banks's testimony regarding common
prostituting terminology was cumulative of testimony by AP and Bl.
The trial court did not err in finding that Det. Banks's testimony was helpful
here. See Simon, 64 Wn. App. at 964. Det. Banks's testimony provided context
for the evidence. Contrary to Abdulle's assertions, the record supports an
inference that Abdulle did have an agreement or understanding with AP and Bl.
Before Abdulle allowed AP to live with him and Bl, he made sure she was willing
to go on dates and give him a percentage of her earnings. AP had to convince
Abdulle that she would not "run off" after he "put [her] on with a jug." Further,
consistent with Det. Banks's testimony, the record supports an inference that
Abdulle imposed some rules on AP and Bl. AP testified that Abdulle forced Bl
out of the apartment because she would not comply with his payment demands.
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She said that Bl "didn't really want to give him enough money to stay" in the
apartment. Abdulle also advertised AP. He instructed Bl to take pictures of AP
and said he would use them to "get things going from there." The cell phone
data recovered from Abdulle's phone also showed that he used text messages to
advertise AP and Bl. The cell phone evidence was also consistent with Det.
Banks's testimony regarding the importance of cell phones in the prostitution
business.
Under these circumstances, the court did not abuse its discretion when it
admitted Det. Banks's expert testimony. See Simon, 64 Wn. App. at 964.
Authenticity
Abdulle argues the trial court abused its discretion when it admitted cell
phone data obtained using a universal forensic examination device. He claims
the State failed to meet the authentication requirements of ER 901(a).
"The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims." ER 901(a).
Authentication of a process or system can consist of evidence "describing a
process or system used to produce a result and showing that the process or
system produces an accurate result." ER 901(b)(9). A proponent need only
make a prima facie showing of authenticity. State v. Payne, 117 Wn. App. 99,
108-09, 69 P.3d 889 (2003), review denied, 150 Wn.2d 1028 (2004). This
requirement is met "if sufficient proof is introduced to permit a reasonable trier of
fact to find in favor of authentication or identification." State v. Danielson, 37 Wn.
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App. 469, 471, 681 P.2d 260 (1984). The trial court is not bound by the rules of
evidence when making a determination as to authenticity. State v. Bradford. 175
Wn. App. 912, 928, 308 P.3d 736 (2013). review denied. 179Wn.2d 1010
(2014).
The State made a sufficient showing of authenticity here. Det.
Washington testified to his extensive experience using the universal forensic
examination device. He stated he used the device two to three times a week and
had previously done so on "hundreds" of other occasions. He had extensive
training with the device, including from trained FBI agents. Det. Washington
testified that the device is designed to notify the user if it is not working properly
or if an extraction attempt is unsuccessful.
Significantly, witness testimony corroborated the accuracy of the reports
obtained by using the device. Det. Washington took the results of AP's phone
extraction and had AP identify and verify the text messages from Abdulle or
"Derrick." The results from Bl's phone showing "Derrick's" phone number stored
as "answer don't" was corroborated by Bl's testimony that she had stored
"Derrick's" number in her phone. This is sufficient proof to permit a reasonable
trier of fact to find in favor of authentication or identification.
Abdulle's arguments to the contrary are unpersuasive. Abdulle cites two
cases involving traffic radar guns to support the proposition that the State failed
to show the device is reliable when functioning properly. See City of Bellevue v.
Liqhtfoot. 75 Wn. App. 214, 877 P.2d 247 (1994), review denied, 125 Wn.2d
1025 (1995); City of Seattle v. Peterson, 39 Wn. App. 524, 693 P.2d 757 (1985).
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These cases are inapposite. Det. Washington's testimony supported an
inference that the device functioned properly. Unlike the cases cited by Abdulle,
witness testimony corroborated the accuracy of the evidence at issue here.
Abdulle also contends that the court's reliance on Bradford is misplaced
because the accuracy of the "phone dump" in that case was not directly at issue.
Though Abdulle correctly argues that we did not address authenticity of the
device used during the "phone dump" in that case, Bradford, 175 Wn. App. at
928 n.8, it does not follow that the State failed to authenticate the device used in
this case. As discussed above, the record supports a prima facie showing of
authenticity sufficient for ER 901(a). The trial court did not abuse its discretion
when it admitted the reports.
Statement of Additional Grounds
Abdulle submitted a statement of additional grounds for review as
permitted by RAP 10.10.
First, Abdulle argues the State failed to present sufficient probable cause
to justify his warrantless arrest and the search warrant permitting the search of
his apartment and vehicles. He contends the "informants"—AP and Bl—lacked
sufficient indicia of reliability to support probable cause.
When an officer bases his probable cause on an informant's tip, the State
must present (1) circumstances establishing the informant's reliability or (2) some
corroborative observation, usually by the officers, that shows either the presence
of criminal activity or that the informer's information was obtained in a reliable
fashion. State v. Z.U.E.. 183 Wn.2d 610, 618, 352 P.3d 796 (2015).
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No. 72799-1-1/15
AP and Bl were not anonymous informants; their identities were known to
Det. Washington, and he disclosed their identities to the court. They provided
information that was corroborated and that had been obtained by reliable means.
Both provided Det. Washington with facts based on personal experience. Bl
positively identified a photograph of Abdulle. AP identified Abdulle moments
before he was arrested. These details are sufficient to support probable cause
justifying a warrantless arrest. Z.U.E.. 183 Wn.2d at 618. They are likewise
sufficient to justify a search warrant. See State v. Lair, 95 Wn.2d 706, 709-10,
630 P.2d 427 (1981).
Second, Abdulle argues the trial court abused its discretion when it denied
his motion for a bill of particulars. Count 1 of the amended information alleged
that Abdulle advanced commercial sexual abuse of a minor, AP, between
February 20 and March 14, 2013. Count 2 alleged he advanced commercial
sexual abuse of a minor, Bl, between February 1 and March 31, 2013. Before
trial, Abdulle sought a bill of particulars to specify the acts allegedly committed on
either count before March 2. Omar Artan, who lived in Abdulle's apartment, was
arrested and taken into custody on March 2. Therefore, if the alleged acts had
occurred before March 2, Abdulle could argue during trial that Artan committed
the alleged crimes. The State explained that the reason it set the charging
periods on those dates in the amended information is because the victims could
not recall specific dates. Accordingly, the State estimated the charging period
based on how old the victims were or on the general time period they recalled.
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No. 72799-1-1/16
The court denied Abdulle's motion for a bill of particulars because the State
lacked the information Abdulle sought.
The court did not abuse its discretion when it denied Abdulle's motion for a
bill of particulars. A trial court acts within its discretion when it denies a motion
for a bill of particulars "specifying matters which the prosecution is unable to
furnish because of lack of information." 12 Royce A. Ferguson, Washington
Practice: Criminal Practice and Procedure § 1904 (3d ed. 2004); see also
State v. Brett. 126Wn.2d 136, 157. 892 P.2d 29 (1995). cert, denied. 516 U.S.
1121 (1996).
Third, Abdulle claims the State improperly surprised defense counsel by
injecting new evidence into the case midtrial. On one occasion documented in
the record, defense counsel notified the court that during an interview with AP, he
discovered information that created "a significant basis to believe that the
description of the State's case is not accurate, and the defenses apply that were
not obvious when the case was opened." Defense counsel did not describe this
information, but asked the court to continue a recess to allow an opportunity to
research the issue. The court denied defense counsel's request. On the second
occasion, a witness, outside the presence of the jury, offered a statement made
by Abdulle in a text message that the State allegedly had not disclosed to
defense counsel. The State informed the court that it was the first time it had
heard the exact words of the text message.
Abdulle repeatedly refers to these instances as "Brady violations" and
suggests they caused prejudice. This argument does not warrant review.
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No. 72799-1-1/17
Abdulle presents no meaningful reason to believe there was a violation of Brady
v. Maryland. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The cited
portions of the record do not indicate the State suppressed evidence favorable to
him. Indeed, defense counsel never argued the State violated Brady. Abdulle
only speculates the State violated Brady. Thus, he has failed to inform us of the
"nature and occurrence of [the] alleged errors." RAP 10.10(c).
Fourth, Abdulle argues the court abused its discretion when it denied his
motion to continue a recess under CrR 3.3. The grant or denial of a requested
continuance will not be disturbed on appeal absent a showing of manifest abuse
of discretion. State v. Terrovona. 105 Wn.2d 632, 651, 716 P.2d 295 (1986).
Abdulle's request for a continuance occurred well into the trial. The court noted
that it had already granted several recesses and the trial was well behind
schedule. Abdulle claimed he needed a continuance because he discovered
new evidence when interviewing a witness, and he needed time to determine the
value of that evidence. But Abdulle had already interviewed that witness several
times. The trial court believed Abdulle could investigate the evidence as the trial
progressed. Under these circumstances, Abdulle has failed to show that the trial
court based its decision on "untenable grounds, or for untenable reasons." State
v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
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No. 72799-1-1/18
Affirmed.
WE CONCUR:
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