State Of Washington v. Larrin J. Breitsprecher ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 13, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51346-3-II
Respondent,
v.
LARRIN JOSEPH BREITSPRECHER, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Larrin J. Breitsprecher appeals his convictions for third degree possession
of stolen property, commercial fishing using unlawful fishing gear, and first degree unlawful
interference with fishing gear. Breitsprecher argues that (1) there is insufficient evidence to
support these convictions, (2) the trial court erred by failing to give an accomplice liability
instruction for the commercial fishing using unlawful fishing gear and the first degree unlawful
interference with fishing gear charges, and (3) the trial court erred by denying his motion to dismiss
and motion to arrest judgment. We affirm.
FACTS
I. BACKGROUND
The State of Washington through the Department of Fish and Wildlife regulates the
commercial crabbing industry in Washington.1 RCW 77.04.012. A commercial crabber must
label their crab pots and buoys to identify the owner. RCW 77.15.520. When the commercial
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Title 77 RCW—Fish and Wildlife Code of the State of Washington.
No. 51346-3-II
crabbing season is closed, Fish and Wildlife issues permits to retrieve derelict crabbing gear from
the ocean. RCW 77.70.500. The person with the permit making the recovery can possess and
own a recovered crab pot. RCW 77.70.500(4)(b).
Breitsprecher was the captain, owner, and operator of a commercial fishing vessel, the
Shearwater II, which he operated offshore of Westport, Washington. Kory Kerzman, a former
crewmember of the Shearwater II, met with Fish and Wildlife agents and told them that
Breitsprecher taught him how to steal other people’s commercial crab pots and ordered him to
steal a number of commercial crab pots during the 2016 commercial crabbing season.
Breitsprecher stored his pots and gear at the Westport gear yard at the Port of Grays Harbor.
After an investigation, Fish and Wildlife agents obtained and executed a search warrant for the
Shearwater II and Breitsprecher’s gear pile at the Westport gear yard. The search warrant
authorized Fish and Wildlife agents to search for and seize from the Shearwater II and
Breitsprecher’s gear pile any stolen crab pots, along with the vessel’s global positioning system
(GPS), chart plotter, and a red grinder that was used to grind off identification markings on crab
pots. Kerzman helped Fish and Wildlife agents by identifying which pots, pot tags, and buoys in
Breitsprecher’s gear pile were stolen. Pursuant to the warrant, Fish and Wildlife agents seized 32
crab pots from Breitsprecher’s gear pile identified by Kerzman as having been stolen during the
2016 commercial crab season. Agents also seized the GPS, chart plotter, and red grinder from the
Shearwater II.
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II. CHARGES AND TRIAL
The State charged Breitsprecher with second degree theft, second degree possession of
stolen property, commercial fishing using unlawful gear, and first degree unlawful interference
with fishing gear.
At trial, the primary factual disputes were whether Kerzman had, at Breitsprecher’s
direction, pulled commercial crab pots and buoys aboard the Shearwater II that belonged to other
commercial fishermen, and whether those pots and buoys remained part of Breitsprecher’s
commercial fishing gear. The primary legal issues were whether the crab pots without an
identifying buoy in the ocean were abandoned property, and whether the original owner still had
a possessory interest in those pots.
Kerzman testified that when he worked for Breitsprecher, he was instructed to pull up
commercial crab pots that belonged to other commercial fisherpersons who owned and operated
crab boats offshore of Westport during the 2016 commercial crab season. Kerzman testified that
during the 2016 commercial crab season, he pulled anywhere from two to twenty crab pots that
did not belong to Breitsprecher each time they took the Shearwater II out. Kerzman testified that
he was instructed to pull up buoys attached to the pots that were different colors than the orange
and red buoys Breitsprecher owned. Sometimes the crew pulled up additional pots in a single pull
because the lines were tangled in a “wrap-around.”2 Verbatim Report of Proceedings (VRP) (Oct.
2
A “wrap-around” occurs when the line attached to one crab pot that is sitting in the water gets
tangled with another line attached to a different crab pot that is also sitting in the water. Verbatim
Report of Proceedings (Oct. 17, 2017) at 55-56. A “wrap-around” becomes problematic when one
pulls up their own crab pot and, in doing so, also pulls up someone else’s crab pot due to the
tangled lines.
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18, 2017) at 220. Kerzman and the other crew members knew when to pull pots that did not belong
to Breitsprecher because Breitsprecher would, “rev [the boat’s] motor” as a sign to grab the buoy
and pull the attached pot. VRP (Oct. 18, 2017) at 291.
After a crab pot that did not belong to Breitsprecher was brought on board, Kerzman
inspected the crab pot to determine, “How easy it would be to make it ours.” VRP (Oct. 18, 2017)
at 224. If Kerzman determined that the pot was worth keeping, he would then manipulate the pot
to make it look like Breitsprecher’s other pots. Kerzman and other crew members would strip the
pot and buoy to make it look like Breitsprecher’s property by removing the buoy tags, changing
the lines and bait containers, and at times, using a red grinder to grind down the weight bars on the
pots to remove the name of the proper crab pot owner. Sometimes, Kerzman would put the buoys
into the pots and sink the whole bundle. Kerzman further testified that Breitsprecher taught him
these practices and that Breitsprecher knew what he [Kerzman] was doing.
Kenneth Rausch, the operations manager for the Port of Grays Harbor at Westport, and
Cole Miller, one of Breitsprecher’s former employees, testified as to the layout and accessibility
of the stacks of crab pots at the Westport gear yard and that the stacks of crab pots searched by
Fish and Wildlife agents belonged to Breitsprecher. Rausch testified that the gear yard was fenced,
but accessible at all hours. He also testified that either fish processing companies or individual
fishermen, including Breitsprecher, rented space to store crabbing gear.
The State sought to admit at trial five of the thirty-two pots seized by Fish and Wildlife
agents. The trial court admitted all five crab pots and they bore either Shearwater II pot tags or
buoys. Christine Winn, owner of the fishing vessel Qualaysquallum, described how commercial
fisherpersons recognize their fishing gear, even without crab pot tags and buoys, by using unique
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identifiers that are personal to the owner. Winn identified one of the five pots as hers because she
had a “Q” welded on the pot’s weight bars. VRP (Oct. 18, 2017) at 318.
Pete Wilson, owner of the fishing vessel Johnny B, testified that he was able to recognize
his crab pots without identifying tags or buoys:
[W]hen you have so many of these and this is what you’ve done and you put them
all together the exact same way, you know when they’re yours. It’s like you just
know. I mean I have a white Ford F-350, but if there were five of them in the
parking lot I would know which one is mine.
VRP (Oct. 18, 2017) at 345. He also identified one of the five crab pots as his and noted that the
weight bar had a section that had been “ground smooth and it’s not wearing the same as the rest of
this weight bar, because my initials have been ground off.” VRP (Oct. 18, 2017) at 349-50.
Matthew Winsberg, owner of three commercial crabbing vessels, testified that he
immediately identified six crab pots in the Fish and Wildlife evidence yard as his. At trial,
Winsberg identified two of the five crab pots as his. He further noted that both pots had
Breitsprecher’s Shearwater II buoy attached.
Rex Rhoades, owner of the fishing vessel Lady Michelle, testified that he identified four
crab pots at the Fish and Wildlife evidence yard as his. At trial, he identified one of the five crab
pots as his. Rhoades testified that his pot bore the pot tag of the Shearwater II.
Breitsprecher filed a motion to dismiss arguing there was insufficient evidence to show
that the crab pots were taken because they could be considered abandoned. The trial court denied
this motion.
The trial court then instructed the jury as follows. To prove third degree possession of
stolen property, the State had to prove beyond a reasonable doubt that Breitsprecher knowingly
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No. 51346-3-II
received, retained, possessed, concealed, or disposed of stolen property; Breitsprecher acted with
knowledge that the property had been stolen; Breitsprecher withheld or appropriated the property
to the use of someone other than the true owner or person entitled thereto; and these acts occurred
in Washington. The trial court’s instruction on constructive possession and dominion and control
stated:
Possession means having the property in one’s custody or control. It may
be either actual or constructive. Actual possession occurs when the item is in the
actual physical custody of the person charged with possession. Constructive
possession occurs when there is no actual physical possession but there is dominion
and control over the property.
Proximity alone without proof of dominion and control is insufficient to
establish constructive possession. Dominion and control need not be exclusive to
support a finding of constructive possession.
In deciding whether [Breitsprecher] had dominion and control over the
property, you are to consider all the relevant circumstances in the case. Factors that
you may consider, among others, include whether [Breitsprecher] had the
immediate ability to take actual possession of the property, whether the defendant
had the capacity to exclude others from possession of the property, and whether
[Breitsprecher] had dominion and control over the premises where the property was
located. No single one of these factors necessarily controls your decision.
Clerk’s Papers (CP) at 52.
The court also instructed the jury that a person’s use, control, or operation of any crab pot
bearing a tag identifying the pot as belonging to another person was illegal subject to certain
exemptions. CP at 52.
To prove the charge of commercial fishing using unlawful fishing gear, the State had to
prove beyond a reasonable doubt that (1) Breitsprecher acted for commercial purposes, (2)
Breitsprecher took or fished for any fish or shellfish using any gear in violation of a rule of the
Washington State Fish and Wildlife Commission specifying, regulating, or limiting the gear for
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No. 51346-3-II
taking, fishing, or harvesting of such fish or shellfish, and (3) the acts occurred in Washington.
The trial court instructed the jury that
[a] person “acts for commercial purposes” if the person engages in conduct
that relates to commerce in fish, seaweed, shellfish, or wildlife or any parts thereof.
Commercial conduct may include taking, delivering, selling, buying, or trading
fish, seaweed, shellfish, or wildlife where there is present or future exchange of
money, goods, or any valuable consideration.
CP at 53.
To prove first degree unlawful interference with fishing gear, the State had to prove beyond
a reasonable doubt that Breitsprecher removed or released fish or shellfish from commercial
fishing gear without the owner’s permission, or he intentionally destroyed or interfered with
commercial fishing gear. The trial court also instructed the jury that
[a]t the time of the alleged offense, the [Washington State Fish and Wildlife]
Commission had enacted a rule prohibiting any person from the use, control, or
operation of any crab pot bearing a tag identifying the pot as belonging to another
person, except: (a) An alternate operator designated on a primary license may
possess and operate crab buoys and crab pots bearing the tags of the license holder,
(b) Persons operating under a valid coastal gear recovery permit issued by [Fish
and Wildlife] may possess crab pots or buoys bearing the tags of another license
holder, provided the permittee adheres to provisions of the permit, (c) Persons
operating under a valid coastal gear transport permit issued by [Fish and Wildlife]
may possess crab pots or buoys bearing the tags issued by another state, provided
the permittee adheres to provisions of the permit.
CP at 52.
The jury convicted Breitsprecher of third degree possession of stolen property, commercial
fishing using unlawful gear, and first degree unlawful interference with fishing gear. CP at 98.
The jury acquitted Breitsprecher of second degree theft.
Following the jury verdict, Breitsprecher filed a motion to arrest judgment based on
insufficient evidence and the trial court’s failure to give an accomplice liability instruction for the
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No. 51346-3-II
commercial fishing using unlawful gear and unlawful interference charges. Breitsprecher never
requested an accomplice liability jury instruction. The trial court denied the motion, entered
judgment, and sentenced Breitsprecher. Breitsprecher appeals.
ANALYSIS
Breitsprecher argues that there was insufficient evidence to support the convictions, the
trial court erred by failing to give an accomplice liability instruction for the unlawful fishing gear
and unlawful interference charges, and the court erred by denying his motion to dismiss and motion
to arrest judgment. We reject Breitsprecher’s arguments.
I. SUFFICIENCY OF EVIDENCE
In a challenge to the sufficiency of the evidence, the inquiry is whether a “‘rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” State v.
Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (italics omitted) (quoting Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The elements of the crime may be
established by either direct or circumstantial evidence. State v. Thompson, 88 Wash. 2d 13, 16, 558
P.2d 202 (1977). “In challenging the sufficiency of the evidence, the appellant admits the truth of
the State’s evidence and all inferences that can reasonably be drawn from it,” giving equal weight
to circumstantial and direct evidence. State v. Hermann, 138 Wash. App. 596, 602, 158 P.3d 96
(2007). “The State bears the burden of proving all the elements of the crime charged beyond a
reasonable doubt.” Hermann, 138 Wash. App. at 602. “[W]e must defer to the trier of fact on issues
of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State
v. Killingsworth, 166 Wash. App. 283, 287, 269 P.3d 1064 (2012).
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No. 51346-3-II
Because the trial court denied the motion to arrest judgment after the jury verdict, we utilize
the same standard of review for both motions.
A. ACTUAL OR CONSTRUCTIVE POSSESSION OF STOLEN PROPERTY
Breitsprecher argues that insufficient evidence exists to prove that he had actual or
constructive possession of the stolen crab pots. He argues that the State relied on the seizure of
Breitsprecher’s stack of pots at the Westport gear yard to allege that these pots were stolen, but
claims that he did not personally stack the pots there, nor did he have exclusive access to the gear
yard. Breitsprecher further argues that mere proximity of the stolen crab pots to his stack of pots
found in the gear yard does not establish that he had actual or constructive dominion and control
over the stolen pots, nor could he immediately and actually possess the pots even if they were
found in his stack of pots. We disagree.
The jury heard testimony and considered exhibits from four different commercial
fisherpersons who identified as their own, five of the crab pots that the Fish and Wildlife agents
seized from Breitsprecher’s stack of pots located at the Westport gear yard. All five crab pots
seized and admitted at trial bore either Shearwater II pot tags or buoys.
Because the crab gear was heavy to store, Breitsprecher’s gear was loaded by a fish
processing company in a place designated just for him and his gear was labeled by buoys. The
evidence demonstrated that Breitsprecher had possession of the area in the gear yard where the
stolen crab pots were found by the Fish and Wildlife agents. The jury also heard and considered
testimony by Kerzman that Breitsprecher instructed him when to remove crab pots from the water
that belonged to other fishermen and how to modify the pots and buoys to make them appear to
belong to Breitsprecher.
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No. 51346-3-II
Viewing the evidence and all reasonable inferences in the light most favorable to the State,
a rational trier of fact could have found beyond a reasonable doubt that the State proved that
Breitsprecher had actual or constructive possession of stolen property.
B. PROPERTY OF ANOTHER
Breitsprecher next argues that insufficient evidence existed to prove that the crab pots were
the property of another. He claims that (1) the only evidence relied on by the State was Kerzman’s
testimony, (2) the State failed to introduce any evidence that Breitsprecher fished using unlawful
gear or that he interfered with fishing gear, and (3) none of the State’s witnesses confirmed that
their crab pots had actually been stolen. We disagree.
Kerzman testified that Breitsprecher acted for commercial purposes as the captain, owner,
and operator of the Shearwater II, Breitsprecher fished for commercial crab using gear in violation
of Fish and Wildlife’s statutes and regulations governing commercial crabbing, and Breitsprecher
regularly directed him to pull crab pots that belonged to other commercial crab fishermen.
Breitsprecher directed him to steal crab pots at sea, sort the contents, keep the harvestable crab,
retain the stolen crab pots after modifying their appearance to make them appear to belong to
Breitsprecher, and then return to Westport with the crab and the stolen crab pots.
Additional evidence showed that the stolen pots were found in Breitsprecher’s gear pile at
the Westport gear yard. Each commercial fisherperson identified his or her crab pots by their
distinctive markings on the pots and testified that they did not sell, give, or otherwise permit
Breitsprecher to possess or use their crab pots for commercial purposes. Further, Wilson and Winn
specifically stated that they believed their crab pots had been stolen.
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No. 51346-3-II
Viewing the evidence and all reasonable inferences in the light most favorable to the State,
a rational trier of fact could find beyond a reasonable doubt that the State proved that the crab pots
were the property of another.
C. CRAB POTS WERE NOT ABANDONED
Breitsprecher next argues that the State presented insufficient evidence that the crab pots
were not abandoned, and that the common law doctrine of finds applies. He claims that the crab
pots he pulled onto his vessel were abandoned and were legally recovered by him during the crab
season and that none of the State’s witnesses identified the pots as being stolen rather than being
lost at sea, being derelict gear, or being abandoned. Breitsprecher claims that the common law
doctrine of finds applies in this case and that the salvage or recovery of property lost on navigable
waters is governed by maritime law within the admiralty jurisdiction of the federal courts.
The State argues that (1) it presented sufficient evidence, (2) it had jurisdiction to charge
Breitsprecher with possessing, using, and interfering with commercial fishing gear, (3) the trial
court properly instructed the jury on the charges, and (4) Breitsprecher’s claim that the common
law doctrine of finds applies, fails. We agree with State.
The trial court properly instructed the jury to consider whether the crab pots were
abandoned property under relevant law. However, the jury did not determine that the crab pots
were abandoned property as Breitsprecher has asserted. We do not review the credibility of
witnesses. Killingsworth, 166 Wash. App. at 287. As discussed above, there was a wealth of
evidence in the record from which a rational trier of fact could find beyond a reasonable doubt that
Breitsprecher had taken the property of another and that the crab pots were not abandoned property
that he could lawfully keep.
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“The law of finds is a common law principle granting title to the first party to discover and
reduce to possession unknown or abandoned artifacts found in the sea.” In re Pers. Restraint of
Tortorelli, 149 Wash. 2d 82, 92-93, 66 P.3d 606 (2003) (citing Commonwealth v. Mar. Underwater
Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549 (1988)).
Breitsprecher fails to explain how the common law doctrine of finds applies here to trump
the relevant state statutes and regulations governing commercial fishing in Washington.
Additionally, the trial court did not instruct the jury on the law of finds, nor did Breitsprecher offer
such an instruction. Because the trial court properly instructed the jury, Breitsprecher’s claim that
the law of finds applies, fails.
D. EVIDENCE THAT A CRIME WAS COMMITTED
Breitsprecher argues that there was insufficient evidence that any crime was committed
and that Kerzman’s statements should not have been admitted because there was no independent
proof that Breitsprecher fished using unlawful gear or that he unlawfully interfered with fishing
gear other than Kerzman’s statements. We disagree.
“Corpus delicti means the ‘body of the crime’ and must be proved by evidence sufficient
to support the inference that there has been a criminal act.” State v. Brockob, 159 Wash. 2d 311, 327,
150 P.3d 59 (2006) (quoting State v. Aten, 130 Wash. 2d 640, 655, 927 P.2d 210 (1996)). Under the
corpus delicti rule, “[a] defendant’s incriminating statement alone is not sufficient to establish that
a crime took place.” Brockob, 159 Wash. 2d at 328 (emphasis added) (footnote omitted). The corpus
delicti rule arose from judicial distrust of confessions. City of Bremerton v. Corbett, 106 Wash. 2d
569, 576, 723 P.2d 1135 (1986). Courts feared that confessions would be uncritically accepted by
juries, even if there was evidence that the admissions were involuntary, coerced, or untruthful.
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No. 51346-3-II
Aten, 130 Wash. 2d at 656-57. However, the corpus delicti rule applies to incriminating statements
made by a defendant, not to statements made by an accomplice. Brockob, 159 Wash. 2d at 328.
Here, the State did not rely on any incriminating statements by Breitsprecher to support the
convictions; rather, the State relied on the statements of Kerzman, an accomplice. Thus, the corpus
delicti rule does not apply here, contrary to Breitsprecher’s arguments. Further, Kerzman’s
testimony as an accomplice was properly admitted. Kerzman testified that at Breitsprecher’s
direction, he stole the crab pots that were in Breitsprecher’s possession on his vessel and in his
gear storage stacks, and that the manner in which he [Kerzman] stole the pots violated the
applicable Fish and Wildlife commercial fishing statutes and regulations. Kerzman’s testimony
alone was sufficient to support the convictions. However, in addition to Kerzman’s statements,
the State presented testimony by several commercial crab fisherpersons who testified that they did
not sell, give, or permit Breitsprecher to possess their crab pots. The State also presented physical
evidence at trial by admitting five of the thirty-two stolen crab pots. Viewing the evidence and all
reasonable inferences in the light most favorable to the State, a rational jury could find beyond a
reasonable doubt that sufficient evidence supports the convictions and that the law of finds does
not apply here. Thus, we hold that Breitsprecher’s arguments fail.
E. WASHINGTON’S OFFSHORE JURISDICTION
Breitsprecher next argues that the State presented insufficient evidence that the unlawful
acts of possessing stolen property and using unlawful fishing gear occurred within 12 miles of the
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No. 51346-3-II
shore of Washington state, citing to the United National Convention on the Law of the Sea, Article
3,3 and 43 U.S.C. Section 1311. We disagree.
Breitsprecher’s claim that the State did not prove jurisdiction related to the possession of
stolen property conviction fails. The jury heard testimony that the stolen crab pots were seized
from his stack of pots in the gear yard located in Washington. That testimony is sufficient to prove
jurisdiction.
Breitsprecher’s argument that the State did not prove jurisdiction for the commercial
fishing using unlawful fishing gear conviction, also fails. As discussed above, the State was
required to prove beyond a reasonable doubt as an element of the crime that Breitsprecher acted
“for a commercial purpose and did take or fish for any fish or shellfish” in violation of Fish and
Wildlife’s statutes and regulations. CP at 50. The evidence presented by the State proved that
Breitsprecher’s act of fishing for commercial crab and taking shellfish included landing the catch
in Westport when the Shearwater II came back into port. Kerzman’s testimony established that
Breitsprecher directed him to steal crab pots at sea, sort the contents, keep the harvestable crab,
retain the stolen crab pots after modifying their appearance to make them appear to belong to
Breitsprecher, and then return to Westport with the crab and the stolen crab pots.
Breitsprecher’s argument that the State failed to prove jurisdiction for the unlawful
interference with fishing gear conviction, also fails. The record establishes that Breitsprecher
removed commercial crab unlawfully from other commercial fisherperson’s gear—their crab pots.
Breitsprecher did this without their permission and he intentionally destroyed or interfered with
3
United National Convention on the Law of the Sea, sec. 2, art. 3 at 27, located at:
https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
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others’ commercial fishing gear in violation of state statutes and regulations, thus, establishing a
violation subject to the State’s jurisdiction.
Viewing the evidence and all reasonable inferences in the light most favorable to the State,
the State provided sufficient evidence that a rational trier of fact could find beyond a reasonable
doubt that the alleged unlawful acts of possessing, using, and interfering occurred in the State of
Washington under the State’s offshore jurisdiction.
II. ACCOMPLICE LIABILITY
Breitsprecher also argues that the trial court failed to instruct the jury on accomplice
liability for the commercial fishing using unlawful gear and the unlawful interference with fishing
gear charges, and thus, the court erred by denying his motion to arrest judgment. We hold that the
trial court did not err because Breitsprecher failed to proffer an accomplice liability jury
instruction.
An appellant who fails to raise an issue at trial, such as the trial court’s failure to give a
jury instruction, waives the issue on appeal unless he can show a manifest error affecting a
constitutional right. RAP 2.5(a)(3); State v. O’Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 (2009).
Here, Breitsprecher did not proffer an accomplice liability jury instruction. He also does
not argue why the failure to instruct the jury on accomplice liability constituted a manifest error
affecting a constitutional right. Thus, this issue is waived.
To the extent that Breitsprecher argues that the evidence was insufficient to convict him
absent an accomplice instruction, we have explained above that the evidence was sufficient to
support Breitsprecher’s conviction for possession of stolen property because Breitsprecher himself
possessed the stolen crab pots. We have also explained above that Breitsprecher himself acted for
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No. 51346-3-II
commercial purposes as the captain, owner, and operator of the Shearwater II, and he fished for
commercial crab using gear in violation of Fish and Wildlife’s statutes and regulations governing
commercial crabbing. Finally, as described above, there was evidence that Breitsprecher himself
intentionally interfered with others’ commercial fishing gear, supporting his conviction for
unlawful interference with fishing gear. As a result, the absence of an accomplice liability
instruction does not undermine the sufficiency of the evidence supporting Breitsprecher’s
convictions.
CONCLUSION
We hold that sufficient evidence supports Breitsprecher’s convictions, his jury instruction
claim fails, and the trial court did not err by denying his motion to dismiss and motion to arrest
judgment. 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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MELNICK, P.J.
GLASGOW, J.
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