author: Lawrence-Berrey, C.J.

text:
    STATE of Washington, Respondent, v. Brandon Thomas TULLAR, Appellant.
    No. 35956-5-III
    Court of Appeals of Washington, Division 3.
    FILED JUNE 11, 2019
    Andrea Burkhart, Two Arrows, PLLC, 8220 W. Gage Blvd #789, Kennewick, WA, 99336, for Appellant.
    Arian Noma, Okanogan County Prosecuting Attorney, David Stevens, Attorney at Law, Po Box 1130, Okanogan, WA, 98840-1130, for Respondent.
    PUBLISHED OPINION
   Lawrence-Berrey, C.J.

¶ 1 Each party is entitled to have the jury instructed on its theory of the case if there is sufficient evidence to support the theory. To determine whether the evidence is sufficient, trial courts must view the evidence in the light most favorable to the party who requests the instruction. This ensures that juries are the arbiters of factual disputes.

¶ 2 Here, the trial court denied Brandon Tullar his requested self-defense instruction because he did not testify that he feared his opponent would badly beat him. But the law allows Tullar to establish his subjective fear by circumstantial evidence through the testimony of others. Because Tullar's evidence sufficiently established a self-defense theory, the trial court erred in not giving Tullar's requested instruction. We reverse Tullar's conviction and order a new trial.

FACTS

¶ 3 On December 31, 2017, correctional officer Timothy Millward was making his welfare checks on inmates at the Okanogan County jail when he came across Johnathan Cook's cell. Officer Millward saw Cook facing away from the door, and Officer Millward could tell something was wrong. Officer Millward asked Cook to turn around, and he noticed bruising and a laceration on Cook's face, a bloodstained shirt, and bruising on his ear. Officer Millward took Cook to get medical attention. Cook was diagnosed with a fractured nose and a fractured left eye socket.

¶ 4 Sergeant Eugene Davis was dispatched to investigate the assault. Cook reported that he was in his cell around 10:00 p.m., when Brandon Tullar entered it and punched him in the back of the head. As Cook turned around, Tullar elbowed him in the left eye. This caused Cook to lose his vision and fall. Cook tried to defend himself by covering his face, but Tullar continued to hit him and knee him in the nose, stomach, and chest. The assault lasted about three minutes.

¶ 5 Sergeant Davis then spoke with Tullar. Tullar denied he fought Cook. Sergeant Davis noticed marks on Tullar's hands and his elbow, as well as red marks on his neck.

¶ 6 The State charged Tullar with assault in the second degree. Tullar asserted the defenses of self-defense and mutual combat.

¶ 7 At trial, the State called Officer Millward, Sergeant Davis, and Cook. Their testimonies were generally consistent with the facts related above. After Cook testified, the State rested.

¶ 8 Tullar withdrew his claim of self-defense and proceeded with the defense of mutual combat. He then called two fellow inmates who witnessed the fight. According to both inmates, Cook and Tullar were arguing, and Cook challenged Tullar to a fight. Cook and Tullar then went upstairs to Cook's cell, with Tullar going first. Once inside the cell, Cook hit Tullar from behind. Cook put Tullar in a chokehold, but Tullar escaped. They exchanged punches until Cook gave up.

¶ 9 During the jury instruction conference, the State argued that public policy precluded inmates charged with assault to assert the defense of mutual combat. The trial court agreed and declined to give a mutual combat instruction. Tullar then requested a self-defense instruction. He argued the instruction was warranted because there was testimony that Cook threw the first punch. The State argued that a self-defense instruction was not warranted because Tullar did not testify to his state of mind. The State further argued that persons other than Tullar could not testify about Tullar's state of mind because that would be conjecture. The trial court noted that self-defense requires a subjective standard and because Tullar had not testified about his subjective fear, it would not give the instruction on self-defense. The trial court also noted that self-defense was inconsistent with mutual combat.

¶ 10 The jury found Tullar guilty of assault in the second degree. Tullar timely appealed.

ANALYSIS

¶ 11 Tullar raises three issues on appeal, including whether the trial court erred by not instructing the jury on self-defense. Because that issue is dispositive, we do not address the other two.

SELF-DEFENSE INSTRUCTION

¶ 12 Tullar contends the trial court erred by not instructing the jury on self-defense. He argues the instruction was warranted based on the testimonies of his two fellow inmates. We agree.

¶ 13 The standard of review for a trial court's refusal to give a jury instruction depends on the basis of the trial court's decision: If the decision was based on a factual determination, it is reviewed for an abuse of discretion; if the decision was based on a legal conclusion, it is reviewed de novo. State v. Condon , 182 Wash.2d 307, 315-16, 343 P.3d 357 (2015). Here, the trial court refused to instruct the jury on self-defense because Tullar did not testify about his subjective fear. Whether a defendant must testify about his subjective fear to receive a self-defense instruction is a question of law, which we review de novo.

¶ 14 Each side is entitled to have the jury instructed on its theory of the case if there is sufficient evidence to support that theory. State v. Williams , 132 Wash.2d 248, 259, 937 P.2d 1052 (1997). In order to raise self-defense before the jury, a defendant bears the initial burden of producing some evidence that tends to prove the assault occurred in circumstances amounting to self-defense. See State v. Janes , 121 Wash.2d 220, 237, 850 P.2d 495 (1993). While the threshold burden of production for a self-defense instruction is low, it is not nonexistent. Id. For the jury to be instructed on self-defense, the defendant must produce some evidence regarding the statutory elements of that defense. Id. "In determining whether the evidence is sufficient to support a jury instruction on an affirmative defense, the court must view the evidence in the light most favorable to the defendant." State v. O'Dell , 183 Wash.2d 680, 687-88, 358 P.3d 359 (2015).

¶ 15 In Washington, the use of force is lawful when used by a person about to be injured, provided that the force used is not more than necessary. RCW 9A.16.020(3). Because self-defense is a lawful act, it negates the mental state and the "unlawful force" elements of second degree assault. State v. Acosta , 101 Wash.2d 612, 616-18, 683 P.2d 1069 (1984).

¶ 16 Although self-defense has both subjective and objective components, neither requires testimony from the defendant. Evidence of self-defense may come "from 'whatever source' and ... the evidence does not need to be the defendant's own testimony." State v. Walker , 164 Wash. App. 724, 729 n.5, 265 P.3d 191 (2011) (quoting State v. Jordan , 158 Wash. App. 297, 301 n.6, 241 P.3d 464 (2010), aff'd , 180 Wash.2d 456, 325 P.3d 181 (2014) ), adhered to on remand , State v. Walker , No. 39420-1-II, 2013 WL 703974 (Wash. Ct. App. Feb. 25, 2013) (unpublished), http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion & filename=394201MAJ.

¶ 17 Here, Tullar's witnesses testified that Cook hit Tullar from behind and then put him in a chokehold. From this, a trier of fact could infer that Tullar reasonably feared that if he did not fight back, he would be rendered unconscious. Tullar's witnesses testified that Tullar stopped fighting when Cook gave up. From this, a trier of fact could find that Tullar used no more force than necessary. A self-defense instruction was warranted to let the finder of fact determine whether it believed Cook or whether it believed Tullar's witnesses.

¶ 18 A court's refusal to instruct the jury on a party's defense theory when it is supported by sufficient evidence is reversible if the failure to instruct is prejudicial. State v. Werner , 170 Wash.2d 333, 337, 241 P.3d 410 (2010). At trial, Tullar did not contest that he fought Cook and that he caused Cook's injuries. Tullar's only argument for acquittal was that he lawfully defended himself. The trial court's decision to not instruct the jury on self-defense virtually guaranteed Tullar's conviction. The outcome of this case turns on whose version of events the jury believes and the question of lawful self-defense. The trial court's refusal to give a self-defense instruction thus prejudiced Tullar.

¶ 19 Reversed.

WE CONCUR:

Fearing, J.

Pennell, J.

      This detail is consistent with Sergeant Davis's observation that Tullar had red marks on his neck.

      The trial court also believed that self-defense was inconsistent with mutual combat. We generally agree. But the terms of mutual combat did not include being sucker punched. Tullar's evidence indicates he was attacked by Cook. When attacked, a person, including a prisoner, is entitled to avoid further injury by using reasonable force. RCW 9A.16.020(3) ; see also State v. Bradley , 141 Wash.2d 731, 10 P.3d 358 (2000) (prisoner was entitled to self-defense instruction against corrections officer).

      Had the trial court refused to instruct on self-defense because the State was prejudiced due to Tullar's brief withdrawal of his self-defense theory, our review would be "abuse of discretion." But this was not the basis for the trial court's refusal.


source: Caselaw Access Project

author: Fearing, J.

license: Public Domain

text:
    RST PARTNERSHIP, Appellant, v. CHELAN COUNTY, a municipal corporation, Respondent.
    NSJB Enterprise, Inc., a Washington corporation d/b/a Evergreen Production, Appellant, v. Chelan County, a municipal corporation, Respondent.
    No. 35838-1-III (consolidated with 35840-2-III)
    Court of Appeals of Washington, Division 3.
    FILED JUNE 13, 2019
    Charles Raymond Steinberg, The Steinberg Law Firm PS, 323 N. Miller St., Wenatchee, WA, 98801-1905, Taudd Alexander Hume, Parsons Burnett Bjordahl Hume, 159 S. Lincoln St., Ste. 225, Steam Plant Sq., Spokane, WA, 99201-4418, for Appellant.
    April Dawn Hare, Chelan County Prosecuting Attorney, Po Box 2596, 401 Washington St., Fl 5, Wenatchee, WA, 98807-2596, Kenneth W. Harper, Menke Jackson Beyer, LLP, 807 N. 39th Ave., Yakima, WA, 98902-6389, for Respondent.
    Taudd Alexander Hume, Parsons Burnett Bjordahl Hume, 159 S. Lincoln St., Ste. 225, Steam Plant Sq., Spokane, WA, 99201-4418, Charles Raymond Steinberg, The Steinberg Law Firm PS, 323 N. Miller St., Wenatchee, WA, 98801-1905, for Other Parties.
    PUBLISHED OPINION
   Fearing, J.

¶ 1 Usually questions concerning service of process concern service of a summons, complaint, or petition on an opposing party. This case entails the unique posture of sufficient service of process on a cooperating party whose interests are identical to the petitioner. The appeal asks whether parties to a land use petition act (LUPA) action may agree to accept service of process by e-mail. We hold in the affirmative and reverse the trial court's dismissal of a petition for lack of timely service.

FACTS

¶ 2 The two appellants are RST Partnership (RST) and NSJB Enterprise, Inc. (NSJB), also known as Evergreen Productions, to whom we jointly refer to as "landusers." RST owns an industrial building in Monitor and leases the property to NSJB.

NSJB utilizes the property for the purpose of operating a cannabis growing and processing business. On February 10, 2017, the Chelan County Department of Community Development issued RST a "Notice and Order to Abate Zoning and Building Code Violations Pursuant to Chapter 16.06 to the Chelan County Code." The notice and order listed violations of local regulations surrounding the production or processing of cannabis. The substance of those violations lack relevance to this appeal.

¶ 3 On February 27, 2017, the landusers filed a joint notice of appeal of the notice and order to abate with the Chelan County hearing examiner. The landusers appeared with respective counsel before the hearing examiner on May 17, 2017, and presented argument and evidence during an administrative proceeding. On June 5, 2017, the hearing examiner authored findings of fact and conclusions of law affirming the notice and order. The findings identified RST and NSJB as appellants before the examiner.

¶ 4 On June 6, 2017, Chelan County's counsel e-mailed a copy of the hearing examiner's decision to counsel for RST and NSJB. Chelan County attorney's e-mail read:

I wanted to make sure you received a copy of Hearing Examiner Kottkamp's decision.

Clerk's Papers (CP) at 87. On June 13, 2017, the Chelan County Community Development Department sent RST another copy of the hearing examiner's decision via e-mail. No Chelan County agent sent the hearing examiner's decision to RST or NSJB by certified or first-class mail.

PROCEDURE

¶ 5 On June 26, 2017, NSJB filed a land use petition that sought review of the hearing examiner's decision. On the same day, RST filed its own land use petition that sought review of the examiner's decision. The two petitions read similarly.

¶ 6 Counsel for RST and NSJB knew of the other party's filing of a petition. The two counsel coordinated efforts with the understanding that their clients would later consolidate both cases. In the interest of time, both parties agreed to electronic service of each other's petition. In fulfillment of this agreement, counsel sent each other his respective client's petition by e-mail. According to NSJB attorney Taudd Hume's declaration:

Under that agreement, a copy of Evergreen's [NSJB's] LUPA petition was sent to Mr. Steinberg's office [RST's counsel] ... on June 26, 2017.

CP at 199. According to the declaration of RST's attorney Charles Steinberg:

Taudd Hume (counsel for Evergreen Production) and I coordinated our efforts as we prepared our respective LUPA Petitions for filing, with the understanding that we would ultimately consolidate both cases, and had exchanged drafts, he agreed to waive service of process of our LUPA petition, and we e-mailed him the conformed copy on June 28, 2017.

CP at 434-35 (grammar in original).

¶ 7 Because counsel for NSJB officed outside Chelan County, RST's counsel directed his staff to physically serve a copy of NSJB's petition on the Chelan County auditor. Staff physically served the two petitions on the deputy county auditor on June 26, 2017.

¶ 8 Chelan County moved to dismiss the two LUPA petitions on the basis that RST and NSJB did not timely serve one another with their respective petitions. The county argued that, under the land use petition act, RST and NSJB needed to serve one another with the respective petitions by June 27, twenty-one days after Chelan County's counsel e-mailed the hearing examiner's decision to counsel. The county further maintained that e-mail service was an improper method of service of a LUPA petition. The trial court consolidated the two motions in the respective cases. The trial court agreed with Chelan County and dismissed the petitions.

LAW AND ANALYSIS

¶ 9 RST and NSJB forward the same arguments on appeal. The landusers contend that the time for filing their land use petitions has yet to expire because Chelan County never properly served them with the hearing examiner's decision, since the county never sent the decision by certified mail. The landusers also contend that, even if they needed to serve the petitions within twenty-one days of receipt of the hearing examiner's decision, they complied with this deadline when e-mailing, with permission, the petition to the other party's counsel. Thus, two distinct questions arise on appeal. First, when, if ever, did Chelan County complete service of the hearing examiner's decision on the landusers such as to commence the time by which the landusers needed to file and serve their LUPA petitions? This first question raises the subquestions of whether Chelan County effectuated service by its counsel's e-mail to the landusers' counsel on June 6? If not, did the LUPA limitation period begin to run anyway because of the landusers' actual knowledge of the hearing examiner's decision or because the hearing examiner's decision had been made available to the public? Second, when, if ever, did the landusers effectuate service of the LUPA petition on one another?

¶ 10 We answer the second question by holding that NSJB perfected service on RST on June 26, when RST's counsel accepted service of NSJB's LUPA petition by agreement and by e-mail. Therefore, we do not answer the first question.

¶ 11 The land use petition act governs our decision. LUPA is the exclusive means of judicial review of land use decisions. RCW 36.70C.030. RCW 36.70C.040 identifies the date on which the government issues its land use decision, announces the limitation period for filing the LUPA petition, and controls the method of service of the petition on parties. The lengthy statute reads in pertinent part:

(1) Proceedings for review under this chapter shall be commenced by filing a land use petition in superior court.
(2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served on the following persons who shall be parties to the review of the land use petition:
(a) The local jurisdiction, which for purposes of the petition shall be the jurisdiction's corporate entity and not an individual decision maker or department;
(b) Each of the following persons if the person is not the petitioner:
(i) Each person identified by name and address in the local jurisdiction's written decision as an applicant for the permit or approval at issue; and
(ii) Each person identified by name and address in the local jurisdiction's written decision as an owner of the property at issue;
... and
(d) Each person named in the written decision who filed an appeal to a local jurisdiction quasi-judicial decision maker regarding the land use decision at issue, unless the person has abandoned the appeal or the person's claims were dismissed before the quasi-judicial decision was rendered. ...
(3) The petition is timely if it is filed and served on all parties listed in subsection (2) of this section within twenty-one days of the issuance of the land use decision.
(4) For the purposes of this section, the date on which a land use decision is issued is:
(a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available;
....
(5) Service on the local jurisdiction must be by delivery of a copy of the petition to the persons identified by or pursuant to RCW 4.28.080 to receive service of process. Service on other parties must be in accordance with the superior court civil rules or by first-class mail.

(Emphasis added.).

¶ 12 The petitioner must strictly meet the procedural LUPA requirements before properly invoking a trial court's appellate jurisdiction under the act. Citizens to Preserve Pioneer Park LLC v. City of Mercer Island , 106 Wash. App. 461, 467, 24 P.3d 1079 (2001). A superior court may not hear a land use petition if a petitioner fails to timely serve a petition on persons designated in RCW 36.70C.040(2) as necessary parties to the review.

Citizens to Preserve Pioneer Park LLC v. City of Mercer Island , 106 Wash. App. at 467, 24 P.3d 1079.

¶ 13 Based on the principle of strict compliance, Chelan County contends that the landusers could not serve one another in fulfillment of RCW 36.70C.040(5) through e-mail and by acceptance of service by counsel. The county also maintains that the landusers' argument that it could accept service through counsel employs the substantial compliance doctrine and the doctrine does not apply in a LUPA action. We question whether the county can challenge service on another party who agrees it was properly served. We address the merits of the argument anyway. We hold that RCW 36.70C.040 permits counsel to accept the petition on behalf of the client. We need not rely on the substantial compliance tenet.

¶ 14 RCW 36.70C.040(5) permits service of the land use petition as provided under the civil rules. CR 4 does not expressly permit an attorney or a party to accept service of process, but at least one of its provisions recognizes acceptance as a permissible method. CR 4(g) declares, in relevant part:

Return of Service. Proof of service shall be as follows:
....
(5) The written acceptance or admission of the defendant , the defendant's agent or attorney ;
....
(7) In case of service otherwise than by publication, the return, acceptance , admission, or affidavit must state the time, place, and manner of service. Failure to make proof of service does not affect the validity of the service.

(Emphasis added.)

¶ 15 Because RCW 36.70C.040 permits service pursuant to CR 4 and CR 4 recognizes acceptance of service, we hold that the landusers' counsel could accept service. We know of no reason to distinguish between acceptance of service for purposes of a LUPA action and other causes of action. Based on the universal usage of electronic mail, we also hold that a party or its attorney may accept service by e-mail. Tacoma Pierce County Small Business Incubator v. Jaguar Security, Inc. , 4 Wash. App. 2d 935, 424 P.3d 1247 (2018) recognizes that parties may agree to be served by e-mail.

¶ 16 Courts universally recognize acceptance of service as an allowable, if not preferable, method of serving process. Acceptance of service is as effective as service of process on the defendant in person. McCord v. Smith , 43 So. 2d 704, 708 (Fla. 1949). Unquestionably, this rule prevails when actual participation in the suit to its conclusion fortifies an acceptance of service for in such event every doubt which might otherwise arise as to genuineness or authenticity of the acceptance is dispelled. McCord v. Smith , 43 So. 2d at 708. A waiver or acceptance is, by law, as effectual as actual service. Flanagan v. Bruner , 10 Tex. 257, 258 (1853).

¶ 17 The purpose of service of process is to give notice of a lawsuit to parties to the suit. RCW 36.70C.040(5) allows service of a LUPA petition by first-class mail. Acceptance of service by e-mail constitutes a trustier method of service than first-class mail.

¶ 18 The law should promote parties accepting service of process either directly or through counsel. Although not applicable in state court, the Federal Rules of Civil Procedure encourages defendants to waive service of process in order to minimize expenses of litigation.

¶ 19 Chelan County contends that the record establishes that the landusers' attorneys agreed to accept service, but does not show that the clients permitted their respective attorneys to accept service. The contrary is also true. No facts show that the landusers did not wish for their attorneys to accept service of the petition filed by the other party. Strong evidence suggests the clients consented. Attorneys have represented RST and NSJB during the entire process of appealing the notice and order to abate. The parties have cooperated and asserted the same arguments against the notice and order of abatement. One party's counsel served the other party's petition on Chelan County's authorized representative. Absent fraud, the actions of an attorney authorized to appear for a client bind the client.

Rivers v. Washington State Conference of Mason Contractors , 145 Wash.2d 674, 679, 41 P.3d 1175 (2002).

¶ 20 Chelan County argues the record lacks admissible evidence that either counsel e-mailed his client's land use petition to opposing counsel within the statutory deadline. The county also faults counsels' declarations for violating court rules regarding proof of service. The county states that the declarations omit the date of e-mailing, the sender, and the receiver. We disagree. NSJB counsel's declaration states he sent the petition to RST's counsel on June 26. Anyway, under CR 4(g)(7), failure to supply proof of service does not equate to invalidity of service.

¶ 21 We agree with Chelan County that RST counsel declared that he e-mailed RST's petition to NSJB's attorney on June 28, which would exceed the deadline by one day, assuming the date of issuance of the hearing examiner's decision to be June 6. We see no need to decide whether service of the RST petition fulfilled the limitation period. RST would otherwise remain a party to NSJB's petition action and could assert its arguments in that proceeding. We thereby avoid the quagmire of determining when Chelan County issued its land use decision.

CONCLUSION

¶ 22 We reverse the trial court's dismissal of the LUPA petitions on the basis of untimely service of process. We remand to the superior court for proceedings consistent with this opinion.

WE CONCUR:

Korsmo, J.

Siddoway, J.


author: Hazelrigg-Hernandez, J.

text:
    The STATE of Washington, Respondent, v. David Brent HAGGARD, Appellant.
    No. 77426-3-I
    Court of Appeals of Washington, Division 1.
    FILED: June 3, 2019
    Jared Berkeley Steed, Nielsen Broman & Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
    Gavriel Gershon Jacobs, Attorney at Law, Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Hazelrigg-Hernandez, J.

¶1 David B. Haggard seeks reversal of his convictions for arson and burglary, arguing that he was sentenced based on an improper offender score. Haggard contends that his score was miscalculated because a misdemeanor conviction dismissed after successful completion of a deferred sentence should not have interrupted the washout period for his prior class C felony convictions. Because the plain language of the statute is unambiguous and does not indicate that the legislature intended dismissal to be equivalent to vacation, we affirm.

FACTS

¶2 David Haggard was convicted of three felonies in California in 2002, 2004, and 2005. He was released from incarceration for the last of these offenses on May 22, 2008. Haggard was charged with assault in the fourth degree in Snohomish County District Court for events occurring in late 2010 and pleaded guilty to the reduced charge of disorderly conduct. Haggard received a deferred sentence. On March 1, 2012, the Snohomish County District Court found Haggard to be in compliance with the conditions of his deferred sentence and dismissed the case ex parte.

¶3 In this case, Haggard was charged with arson in the second degree and burglary in the second degree for events that took place on June 5, 2016. The trial court engaged in a full colloquy with Haggard and found that he knowingly, voluntarily, and intelligently waived his right to a jury trial and stipulated to the facts. The court found sufficient facts beyond a reasonable doubt to convict Haggard of both arson in the second degree and burglary in the second degree.

¶4 The State filed a memorandum detailing the timing of Haggard's prior convictions, which affected his offender score. The State argued that the critical distinction between dismissal and vacation was that a prior vacated offense would not impact a future offender score. Because Haggard's 2010 conviction had been dismissed but not vacated, the State contended that he was not entitled to exclude his prior California felony convictions from the offender score calculation. Haggard argued in response that the supreme court's analysis of the analogous felony dismissal and vacation statutes compelled the conclusion that a misdemeanor dismissed after a deferred sentence may not be included when calculating an offender score.

¶5 The court also heard oral argument on Haggard's offender score. The State argued that the governing statute specifically states that vacated convictions will not be used to calculate a future offender score but does not provide the same benefit to charges dismissed after a deferred sentence. Haggard responded that the distinction between "vacation" and "dismissal" was artificial and the two terms were interchangeable for misdemeanor convictions. He argued that the two statutes recognized a procedural distinction and applied in different stages: dismissal when the trial judge still had jurisdiction over a defendant and vacation when the trial court no longer had jurisdiction because the defendant's probation had expired.

¶6 Haggard argued that the statute was ambiguous because it was unclear whether vacation under RCW 9.96.060 had a different legal effect than a dismissal under RCW 3.66.067, and the court should apply the rule of lenity in his favor. The State responded that RCW 9.96.060 was not ambiguous because it was a general, stand-alone statute that applied to all courts in which a defendant seeks vacation of a misdemeanor. The trial court found that the statute was not ambiguous and that it was clear from the language of the statute that the defendant had to petition the court and give notice to the prosecutor to have the conviction vacated. Only then would the court exclude the prior conviction when calculating an offender score. Therefore, the court found that Haggard's dismissed misdemeanor conviction interrupted the washout period for his prior felonies because the misdemeanor was not vacated.

¶7 Because Haggard's prior felonies did not wash out, the court determined that he had an offender score of six. Haggard was sentenced to 39 months imprisonment on the arson charge and 29 months on the burglary charge. The sentencing hearings for this matter and another case in which Haggard was convicted of unlawful possession of a firearm and violation of the Uniform Controlled Substances Act occurred simultaneously. All four sentences were ordered to run concurrently. Haggard timely appealed. Haggard also appealed this same issue with a separate Statement of Additional Grounds for Review in State of Washington v. David B. Haggard, No. 77427-1-I.

DISCUSSION

I. Offender Score

¶8 Haggard contends that his dismissed 2010 conviction should not have been included in his criminal history when calculating his offender score because dismissal of a misdemeanor conviction is equivalent to vacation of that conviction.

¶9 We review both offender score calculations and questions of statutory construction de novo. State v. Mutch, 171 Wash.2d 646, 653, 254 P.3d 803 (2011) ; State v. Breazeale, 144 Wash.2d 829, 837, 31 P.3d 1155 (2001). Our objective when interpreting a statute is to determine the legislature's intent. State v. Jones, 172 Wash.2d 236, 242, 257 P.3d 616 (2011). We will give effect to the plain meaning of a statute if it is evident from the text of the statute itself and context within the statutory scheme. Id. If the statute is susceptible to more than one reasonable interpretation, it is ambiguous. Id.

¶10 A defendant's offender score is calculated according to RCW 9.94A.525. Generally, prior felony convictions each count as one point toward the offender score, except in certain specific circumstances set out in the statute. RCW 9.94A.525. However, some prior class C felonies can "wash out" (that is, be excluded from the calculation) if the offender spent five consecutive years in the community without committing any crime that results in a conviction since the last date of confinement. RCW 9.94A.525(2)(c). The issue before the trial court was whether Haggard's dismissed 2010 conviction interrupted the washout period for his prior class C felony offenses.

¶11 Courts of limited jurisdiction may dismiss misdemeanor offenses under RCW 3.50.320 and RCW 3.66.067. On a showing of good cause during a deferred sentence, the court may allow the defendant to withdraw a guilty plea, enter a plea of not guilty, and dismiss the charges. RCW 3.50.320 ; RCW 3.66.067. The dismissal statutes do not limit the number of deferred sentences a person may receive or the number of cases that may be dismissed. RCW 3.50.320 ; RCW 3.66.067. Although the statutes do not explicitly state the effect that dismissal has on a defendant's criminal history, Division Three of this court has remarked that "[n]othing in RCW 3.66.067 implies that a conviction is automatically deleted or expunged from the criminal record after dismissal." State v. Gallaher, 103 Wash. App. 842, 844, 14 P.3d 875 (2000).

¶12 A person convicted of a misdemeanor offense who has satisfied the terms of the sentence may apply to the sentencing court for vacation of the conviction. RCW 9.96.060(1). The court may in its discretion vacate the record of conviction if the applicant qualifies under the relevant statute. RCW 9.96.060(1) - (2). Certain offenses, including violent offenses, driving under the influence offenses, and sex offenses, are not eligible for vacation. RCW 9.96.060(2)(b)-(c). If the court vacates the record of conviction, the applicant "shall be released from all penalties and disabilities resulting from the offense and the fact that the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction." RCW 9.96.060(5)(a). A person may not have a misdemeanor conviction vacated if "[t]he applicant has ever had the record of another conviction vacated." RCW 9.96.060(2)(h).

¶13 Apart from the limited reference in State v. Gallaher, 103 Wash. App 842, 14 P.3d 875 (2000), Washington courts do not seem to have addressed the relationship between the misdemeanor dismissal and vacation statutes. However, the Ninth Circuit Court of Appeals has considered whether a federal defendant's prior Washington state misdemeanor conviction, which had been dismissed under RCW 3.66.067, could be used in calculating his offender score. United States v. Vassar, 40 Fed. Appx. 463, 465 (9th Cir. 2002) (unpublished). The court found nothing in the misdemeanor statute evidencing the legislature's intent that the dismissed conviction be set aside or expunged from the record. Id. at 466. The Ninth Circuit relied on this court's statement about the misdemeanor statute in Gallaher for support of that proposition. Id. Ultimately, the court concluded that the district court had properly included the defendant's dismissed misdemeanor conviction as part of his criminal history when calculating his offender score. Id. at 466.

¶14 The Washington Supreme Court considered a similar issue concerning analogous felony statutes in In re Carrier, 173 Wash.2d 791, 272 P.3d 209 (2012). In Carrier, the petitioner argued that the trial court improperly counted a dismissed felony conviction as a strike in his criminal history. Id. at 796, 272 P.3d 209. He argued "that dismissing a conviction pursuant to former RCW 9.95.240 is equivalent to vacating a conviction under former RCW 9.94A.640" and "that the two statutes have the same legal effect in removing convictions from a defendant's criminal history." Id. at 804, 272 P.3d 209.

¶15 The Carrier court discussed its prior decision regarding the relationship between the felony dismissal and vacation statutes in Breazeale. The court clarified that its holding in Breazeale was "that a court's dismissal of a pre-SRA conviction pursuant to former RCW 9.95.240 has the same legal effect as vacating the conviction under the SRA." Carrier, 173 Wash.2d at 806, 272 P.3d 209. The court acknowledged that Carrier would prevail under the rationale in Breazeale, but went on to note that the legislature had amended RCW 9.95.240 in response to Breazeale to require a two-step process to vacate pre-SRA convictions. Id. at 806-07, 272 P.3d 209. However, the court concluded that Carrier was entitled to relief because the amendment did not apply to him retroactively. Id. at 818-19, 272 P.3d 209.

¶16 In his written argument to the trial court, Haggard drew the court's attention to the Supreme Court's comment in Carrier that Breazeale would compel the conclusion that Carrier's dismissed conviction should not have been included in the calculation of his offender score if not for the subsequent amendment to the statute. He contended that, because the misdemeanor statute was not similarly amended, Breazeale controls the result in this case. However, the court in Breazeale relied on the language of the felony dismissal statute mandating that, after dismissal, the defendant " 'shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.' " Breazeale, 144 Wash.2d at 835, 31 P.3d 1155 (quoting former RCW 9.95.240). This language was common to both the dismissal and vacation statutes. Id. at 837, 31 P.3d 1155. The court had previously interpreted that statement "to mean that a person who has been granted dismissal under RCW 9.95.240 is entitled to assert that he or she has never been convicted." Id. (citing In re Reinstatement of Stroh, 108 Wash.2d 410, 417-18, 739 P.2d 690 (1987) ). This language does not appear in the misdemeanor dismissal statutes. RCW 3.50.320 ; RCW 3.66.067.

¶17 The language of the misdemeanor dismissal and vacation statutes is clear and unambiguous. Although the misdemeanor dismissal statutes do not explicitly state the effect of dismissal on the defendant's record, the existence of a separate procedure for vacation implies that the legislature did not intend for a dismissal to automatically have the same effect as a vacation. The vacation statute contains numerous limitations that are not present in the dismissal statutes, including restrictions on the offenses that are eligible for vacation and the number of convictions that a person may have vacated. A defendant must also apply to the court for vacation, while dismissal can be carried out ex parte, as it was in this instance. Therefore, we find that the two procedures are not equivalent and dismissal does not automatically have the same effect as vacation. The trial court correctly found that Haggard's dismissed 2010 conviction interrupted the washout period for his prior felonies, and did not err in sentencing him based on an offender score of six.

II. Statement of Additional Grounds

¶18 In a Statement of Additional Grounds, Haggard contends that the trial court erred in denying his motions to compel production of evidence and his motion to suppress evidence stemming from an allegedly defective search warrant. Haggard primarily relies on the briefing filed below and adopts the arguments raised by trial counsel.

¶19 In July 2016, Detective Christina Bartlett applied for a warrant to search the property where Haggard and his sister, Jamie, had been living before Jamie's disappearance. During the execution of that warrant on July 15, 2016, officers discovered evidence of the crimes with which Haggard was later charged in this case. Haggard subpoenaed a copy of the affidavit supporting the search warrant and King County Sheriff's Office provided him with a redacted copy.

A. Motions to Compel

¶20 Haggard contends that the trial court erred in denying two motions to compel production of evidence. The first motion sought to compel an unredacted copy of Det. Bartlett's affidavit in support of the search warrant, but the State objected on the grounds that disclosure would compromise the ongoing investigation into Jamie's disappearance. The trial court reviewed the unredacted warrant affidavit in camera and denied the motion to compel. The second motion sought production of investigative records pertaining to Jamie's disappearance. The trial court also denied this motion. The record on appeal is insufficient to allow for our review of these rulings.

B. Motion to Suppress

¶21 Finally, Haggard contends that the trial court erred in denying his motion to suppress evidence obtained from the execution of a search warrant at his residence. He argues that the warrant was neither supported by probable cause nor constrained by adequate particularity, and that Det. Bartlett recklessly omitted material information from her affidavit. He also claims that the search exceeded the scope of the warrant and that witness statements obtained during the execution of the warrant should have been excluded.

¶22 Conclusions of law in an order pertaining to suppression of evidence are reviewed de novo. State v. Gaines, 154 Wash.2d 711, 716, 116 P.3d 993 (2005). We review challenged findings of fact for substantial evidence. State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009). Unchallenged findings of fact are viewed as verities on appeal. Gaines, 154 Wash.2d at 716, 116 P.3d 993.

¶23 Haggard moved to suppress the evidence collected during the searches of his residence on July 15, 2016 and September 1, 2016, as well as the "search of his private affairs" on August 18, 2016, arguing that they violated his constitutional rights. In his motion to suppress, Haggard raised various arguments challenging all three searches. In his Statement of Additional Grounds, Haggard assigns error only to the denial of the motion to suppress evidence obtained from the search warrant executed on July 15, 2016.

1. Issuance of Warrant

a. Probable Cause

¶24 First, Haggard argues that the affidavit in support of the search warrant did not establish probable cause to believe that evidence of specific criminal activity would be found in his residence. Haggard contends that there was no probable cause to believe that Jamie was murdered or that there would be evidence of criminal activity in the place to be searched or items to be seized. The trial court found that there was sufficient probable cause detailed in the affidavit to allow a search of the premises.

¶25 A magistrate may only issue a search warrant after a showing of probable cause. State v. Clark, 143 Wash.2d 731, 747, 24 P.3d 1006 (2001) (citing U.S. CONST. amend. IV ). Probable cause requires only a probability of criminal activity, not a prima facie showing. Id. at 748, 24 P.3d 1006. If the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that a person is probably involved in criminal activity and the evidence of the crime could be found in the place to be searched, probable cause exists. State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999). Generally, appellate courts review the issuance of a search warrant only for abuse of discretion, giving great deference to the issuing judge or magistrate. State v. Neth, 165 Wash.2d 177, 182, 196 P.3d 658 (2008). However, when the trial court has reviewed the affidavit supporting the warrant after a motion to suppress, the trial court's finding of probable cause is a legal conclusion that we review de novo. Id.

¶26 In the affidavit, Det. Bartlett states that Jamie; her half-brother, Haggard; his girlfriend, Carlee Chew; and Jason Nolte lived together in the Kenmore house. Jamie disappeared without notice to anyone, including the person with whom she had plans the day after her disappearance. She had been involved in a physical altercation with Haggard the day before she disappeared. Haggard filled in a hole at the property soon after her disappearance and impersonated Jamie in a text message to their sister. Additionally, Haggard's accounts of the events leading up to Jamie's disappearance changed multiple times over the course of his contacts with police. Because the affidavit sets forth these facts, which are sufficient for a reasonable person to conclude that Haggard was involved in criminal activity and evidence of that activity could be found in the residence, probable cause existed to issue the warrant.

b. Particularity

¶27 Haggard also argues that the warrant was overbroad because it lacked sufficient particularity as to the items to be seized. Specifically, Haggard contends that the warrant allowed property belonging to other residents of the house to be seized because it did not provide objective standards for distinguishing between Jamie's belongings and the belongings of the other residents.

¶28 Det. Bartlett's affidavit said that she believed that evidence of Jamie's murder could be found at the Kenmore house, in Haggard's truck, in Nolte's car, and in the phone records of the relevant parties. The affidavit listed a specific date range for the cell phone data and position information to be searched. The affidavit also listed examples of items in the house that would help to establish whether Jamie was missing voluntarily, including "clothes, phones, belongings, medications, prescriptions (given her abuse of narcotic pain pills), purses, suitcases, documents, diaries, etc." Haggard had stated to officers that Jamie had driven Nolte's car the night before she disappeared and he believed she had been in his truck since her disappearance. The trial court did not see any problems with the particularity of the warrant because the items listed were related to the suspected homicide.

¶29 "A warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search." State v. Keodara, 191 Wash. App. 305, 312, 364 P.3d 777 (2015) (citing State v. Maddox, 116 Wash. App 796, 805, 67 P.3d 1135 (2003) ). A warrant is not necessarily impermissibly broad solely because it lists generic classifications. Id. at 313, 364 P.3d 777 (citing State v. Stenson, 132 Wash.2d 668, 692, 940 P.2d 1239 (1997) ). Washington courts have upheld such general descriptions as "specific items plus any other evidence of the homicide ... any and all evidence of assault and rape included but not limited to ... specified items," and "trace evidence from the victim in the van." Clark, 143 Wash.2d at 754-55, 24 P.3d 1006 (internal quotation marks omitted) (quoting State v. Reid, 38 Wash. App. 203, 211-12, 687 P.2d 861 (1984) ; State v. Lingo, 32 Wash. App. 638, 640-42, 649 P.2d 130 (1982) ). However, "blanket inferences and generalities cannot substitute for the required showing of 'reasonably specific "underlying circumstances" that establish evidence of illegal activity will likely be found in the place to be searched in any particular case.' " Keodara, 191 Wash. App. at 313, 364 P.3d 777 (quoting Thein, 138 Wash.2d at 133, 977 P.2d 582 ).

¶30 Here, although the warrant contains generic classifications of the items to be searched and seized, it gives sufficient guidance to officers to prevent them from "mak[ing] the search a 'general, exploratory rummaging in a person's belongings.' " Clark, 143 Wash.2d at 755, 24 P.3d 1006 (quoting Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L.Ed.2d 627 (1976) ). The listed items were all related to the disappearance and suspected homicide of Jamie Haggard. The warrant was not impermissibly broad.

c. Reckless Omission

¶31 Haggard argues that Det. Bartlett recklessly omitted from her affidavit the fact that Nolte was in jail at the time of Jamie's disappearance, knowing "that the court would draw unfair inferences as to the likelihood of [Nolte's] involvement in criminal activity." The trial court concluded that Det. Bartlett did not recklessly omit any relevant information from her affidavit.

¶32 In order to invalidate the warrant on this basis, the defendant must show evidence of a deliberate, material omission or statements made in reckless disregard of the truth, rather than simply negligence or innocent mistake. Clark, 143 Wash.2d at 751, 24 P.3d 1006. "A trial court's finding on whether an affiant deliberately excluded material facts is a factual determination, upheld unless clearly erroneous." Id. at 752, 24 P.3d 1006 (citing State v. Cord, 103 Wash.2d 361, 367, 693 P.2d 81 (1985) ). Therefore, although the court listed its finding that Det. Bartlett did not recklessly omit any relevant information from her affidavit as a conclusion of law, we review it as a factual determination.

¶33 Haggard contends that the affidavit "gives rise to a clear inference that her disappearance may be linked to the jealous, assaultive boyfriend [Nolte]." However, although Nolte is mentioned throughout the affidavit, the main focus of the affidavit seems to be Haggard's statements and actions leading up to and following Jamie's disappearance. Det. Bartlett's affidavit does not explicitly state that Nolte was in jail when Jamie disappeared, but it does state that he was arrested for domestic violence assault on June 8, 2016 and that Haggard filled in the pond "while Nolte was incarcerated." These references indicate that the lack of an explicit statement that Nolte was in jail when Jamie disappeared was more likely negligence or an innocent mistake rather than a deliberate or reckless omission. Haggard has not shown that Det. Bartlett deliberately excluded material facts from her affidavit, and therefore the court's finding is not clearly erroneous.

2. Scope of Warrant

¶34 Next, Haggard argues that the law enforcement officers who executed the warrant exceeded its scope by searching and seizing property unrelated to the target of the search warrant. Haggard contends that moving a welder to locate its serial number constituted a warrantless search and seizure because the warrant did not authorize them to move the welder. The trial court found it "very clear" that the serial number was in plain view because it was on the front of the welder and exposed. Therefore, the court found that there was no warrantless search or seizure of the welder when the serial number was in plain sight on the front of the equipment. In its written findings, the court concluded that the welder was in plain view in a common area of the house, and taking a picture of an object in plain view at a scene violates neither Article I, Section 4 of the Washington State Constitution nor the Fourth Amendment to the United States Constitution. We review this conclusion of law de novo. Gaines, 154 Wash.2d at 716, 116 P.3d 993.

¶35 Detective Kathleen Decker testified at the CrR 3.6 hearing that she participated in the search of the Kenmore house on July 15, 2016. She oversaw the search-and-rescue personnel and took photographs of the scene. During the search, she noticed a large metal arc welder located in the breezeway between the residence and the garage. She was asked to photograph the welder and she did so. She testified that, although the welder was moved slightly while being photographed, she was able to see the front of the welder without moving it and that the serial number was printed on the front of the welder. Det. Bartlett had told her that the welder was suspected stolen property, and Det. Decker knew that the purpose of photographing the welder was to document the serial number to research whether it was stolen.

¶36 Recording serial numbers that are in plain view does not constitute a search or seizure. Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S. Ct. 1149, 94 L.Ed.2d 347 (1987). In Hicks, a police officer searching an apartment for evidence of a shooting noticed expensive stereo equipment that seemed out of place in the "squalid and otherwise ill-appointed four-room apartment." Id. at 323, 107 S. Ct. 1149. He recorded the serial numbers to check if the equipment was stolen, but had to move components of the equipment to find the numbers. Id. The Court found that moving suspected stolen property in order to locate the serial number constituted a search that must be supported by authority of law. Id. at 324-25, 107 S. Ct. 1149.

¶37 Unlike the serial numbers on the equipment in Hicks, the serial number on the welder was clearly visible before it was moved. Because the serial number was in plain view, photographing that number did not constitute a separate search or seizure. The trial court did not err in finding that recording this information did not violate Haggard's constitutional rights.

3. Statements of Carlee Chew and Jason Nolte

¶38 Finally, Haggard argues that Carlee Chew and Jason Nolte's statements to law enforcement officers when the warrants were executed should be excluded as fruits of the poisonous tree. Because we have concluded that the warrant was valid, Haggard has identified no basis to exclude these statements.

¶39 Affirmed.

WE CONCUR:

Dwyer, J.

Leach, J.

      Although RCW 3.50.320 applies to municipal courts and RCW 3.66.067 applies to district courts, the provisions of the two statutes are functionally identical.

      To avoid confusion, Jamie Haggard will be referred to by her first name. We intend no disrespect.


author: Andrus, J.

text:
    DELIVERY EXPRESS, INC., a Washington corporation, Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
    No. 78796-9-I
    Court of Appeals of Washington, Division 1.
    FILED: June 10, 2019
    Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor, Ste. C, Seattle, WA, 98126-2138, Andrew David Shafer, SIMBURG, KETTER, SHEPPARD & PURDY, 999 3rd Ave. Ste. 2525, Seattle, WA, 98104-4089, for Appellant.
    Maureen Ann Mannix, Paul Michael Crisalli, Anastasia R. Sandstrom, Washington State Attorney General's Office, Seattle Labor & Industries A.g. Office, Attorney at Law, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188,
    PUBLISHED OPINION
   Andrus, J.

¶1 Delivery Express, Inc. (DEI) challenges the Board of Industrial Insurance Appeals' (Board) decision that DEI is obligated to pay Industrial Insurance Act (IIA) premiums for some of its drivers. Because substantial evidence supports the Board's finding that the essence of the drivers' independent contracts with DEI was their personal labor, DEI failed to establish the drivers were exempt under the leased-truck exemption of RCW 51.08.180, and the drivers' status as sole proprietors does not exclude them from coverage under RCW 51.12.020, we affirm.

FACTS

¶2 DEI provides same-day, next-day, and next-week Seattle delivery service, including courier, freight, logistics and freight forwarding. It advertises 24-hour on-call courier services anywhere in Western Washington. When initially founded in November 1996, DEI obtained a Washington Utilities & Transportation Commission (WUTC) intrastate common carrier permit, purchased vehicles, and hired drivers for whom it paid workers' compensation premiums. In 2000, its founder, David Hamilton, decided to expand DEI's business by contracting with drivers who provided their own vehicles. DEI started using an independent contractor agreement, under which it "leased" the vehicle and driver and, in return, paid the driver a commission for each completed delivery. DEI contracted with drivers of 24-foot box trucks, passenger cars, and "everything in between."

¶3 Under the terms of the agreements, the drivers were deemed independent contractors providing transportation services to DEI customers. Each driver was required to furnish and operate a vehicle, pay the cost of operating and maintaining the vehicle, and refrain from competing with DEI for any customer whose freight the driver transported under a bill of lading issued by DEI. The agreements identified the vehicle the driver intended to use but did not mandate any size, make, or model.

¶4 DEI uses a dispatcher "app" to notify drivers of available work. Some drivers have specific routes they drive on a daily basis. Most, however, are "on demand," meaning once they download DEI's app onto their handheld device, they can log in and wait for a delivery assignment. The on-demand drivers can accept or reject any specific delivery, although there is scant evidence they ever rejected a job. The cargo delivered ranged from small items-such as escrow documents and other paperwork, blood samples or medical specimens, T-shirts, and computer hardware-to larger items-such as lumber, raw materials, and non-inventory stock for grocery and department stores.

¶5 In February 2010, the Department of Labor & Industries notified DEI it intended to conduct an audit for the calendar year 2009 to determine DEI's compliance with workers' compensation laws. By October of that year, the Department notified DEI that the firm's independent contractor drivers were covered workers under the HA. The Department concluded the drivers did not meet any exemption under either RCW 51.08.180 or 51.08.195. It notified DEI that effective July 1, 2010, DEI needed to report all driver hours under a risk classification for "parcel delivery."

¶6 Hamilton spoke with the Department auditor, Gina Bautista, by phone and disagreed with her conclusions. One finding in particular seemed to stick out to Hamilton-namely, that the drivers rendered the same services as DEI did. Rather than appeal the decision, DEI decided to change its business model and become a "freight broker," rather than a common carrier. On April 20, 2011, DEI ceased operating as a common carrier when it obtained a freight broker license from the WUTC and the United States Department of Transportation.

¶7 When DEI changed its business model, it asked its drivers to obtain a motor carrier license from the WUTC and required them to execute new agreements, called broker-carrier agreements. This agreement made no mention of "leasing" any vehicles. Instead, it identified DEI as the "broker" and the independent contractor as the "motor carrier." Under the broker-carrier agreement, the drivers agreed to "provide motor vehicle equipment with drivers to provide small package/parcel pick up and delivery service to [DEI's] shippers and consignees." As under the former contractor agreement, the drivers were paid a commission of each invoice DEI issued to its customers. The covenant not to compete with DEI also remained the same.

¶8 Hamilton believed that by converting DEI's business model from common carrier to freight broker, he was bringing the company into compliance with the Department's audit because DEI and the drivers would no longer be in the same line of business. DEI did not pay any IIA premiums for the drivers after it was notified of the 2009 audit results.

¶9 In February 2011, the Department notified DEI it would conduct a second audit for the calendar year 2010. The Department later modified the audit period to include only the last two quarters of 2010 and all of 2011. Once again, the Department determined the drivers were covered workers.

¶10 On September 19, 2012, the Department notified DEI that, as a result of the audit, it was assessing $ 841,639 in workers' compensation premiums, penalties, and interest. The Department imposed a penalty of $ 127,500 for failing to maintain adequate records under RCW 51.48.030 and a penalty of $ 50,000 for "knowingly and intentionally evad[ing] paying workmen's compensation insurance."

¶11 DEI sought reconsideration of the Department's order of assessment. After receiving and reviewing additional documents from DEI, the Department denied reconsideration on January 17, 2014. DEI then appealed the Department's assessment order to the Board. The Board granted the appeal and referred the matter to an Industrial Appeals Judge (IAJ) for an evidentiary hearing.

¶12 The IAJ conducted the hearing beginning in the autumn of 2014 and concluding in the summer of 2015, and, in June 2016, issued a proposed decision and order affirming in part and reversing in part the Department's assessment order. The IAJ found that the majority of drivers were not exempt under RCW 51.08.180 or 51.08.195 but found three drivers qualified for an exemption. It reversed the misrepresentation penalty and affirmed the penalty for failing to maintain adequate records. Because the Department's premium calculation included three drivers whom the IAJ determined should be excluded, the IAJ remanded the matter to the Department for a recalculation of the premiums DEI owed.

¶13 In September 2016, both parties asked the Board to review the lAJ's proposed decision and order. On November 3, 2016, the Board adopted the lAJ's decision and order as its own.

¶14 DEI filed a petition for judicial review in King County Superior Court, which affirmed in substantial part the Board's decision. DEI appeals, arguing that the drivers are exempt from IIA coverage for all or a portion of the audit period under two separate provisions of RCW 51.08.180, or alternatively, as sole proprietors under RCW 51.12.020.

ANALYSIS

¶15 The Administrative Procedure Act, chapter 34.05 RCW, governs this court's review of the Board's IIA premium assessments. RCW 34.05.570(3) provides that this court may grant relief from an agency order if the agency has erroneously interpreted or applied the law, or the order is not supported by substantial evidence. We thus review the Board's factual findings for substantial evidence and view the evidence in the light most favorable to the Department, the party who prevailed before the Board. The Board's conclusions of law are reviewed de novo, giving substantial weight to the agency's interpretation.

A. RCW 51.08.180

¶16 DEI contends the Board erred in finding that the drivers are "workers" under two separate provisions of RCW 51.08.180. This statute extends IIA coverage to:

every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his or her personal labor for an employer under this title, ... PROVIDED, That a person is not a worker for the purpose of this title, with respect to his or her activities attendant to operating a truck which he or she owns, and which is leased to a common or contract carrier.

The Board found that personal labor for delivering items was the essence of the contract between DEI and most of its drivers, and that these drivers were "workers" covered by the IIA. The Board also found the drivers did not lease their vehicles to DEI, making the leased-truck exemption inapplicable.

¶17 DEI challenges the factual basis for the Board's "essence of the contract" finding and the Board's failure to define the word "truck" under the leased-truck exemption.

1. "Essence of the Contract"-the White Test

¶18 To determine whether the essence of a contract is personal labor, this court looks "to the contract, the work to be done, the situation of the parties, and other attendant circumstances." The court focuses on the realities of the situation. Whether a particular individual is a "worker" under this provision of RCW 51.08.180 is a mixed question of law and fact.

¶19 In White v. Department of Labor & Industries, the Supreme Court held that personal labor is not the essence of a contract with an independent contractor (1) when the independent contractor owns or supplies machinery or equipment (as distinguished from the usual hand tools) to perform the contract; (2) when the independent contractor cannot perform the contract without assistance; and (3) when the independent contractor either chooses to or must employ others to do all or part of the work he or she has contracted to perform.

¶20 This court held in Henry Industries, Inc. v. Department of Labor & Industries, a factually analogous case, that a courier service company's independent contracting drivers were workers under RCW 51.08.180 because vehicles they used to deliver packages were not specialized equipment needed to perform the contracted work. As in Henry, there is substantial evidence supporting the Board's finding that the drivers' personal labor is the essence of the agreements between DEI and the drivers. The primary object is not the machinery the drivers own; it is the service of driving packages from point A to point B.

¶21 First, paragraph 1 of the contractor agreement and paragraph 4 of the broker-carrier agreement identify the purpose of the agreements as providing delivery or transportation services. The drivers testified that their full time "job" was delivering packages for DEI, that DEI required them to log in on a regular basis, that they logged in early in the morning and remained available the entire day, that they drove eight hours a day, Monday through Friday, for DEI, and that they never hired anyone or asked anyone to help with the deliveries, or asked anyone to log in on their behalf when they were not available. This evidence supports a finding that the work DEI needed was the labor of driving from one location to another to pick up and drop off packages.

¶22 Second, neither the contractor agreements nor the broker-carrier agreements specified that the drivers had to provide any particular type of vehicle. The majority of drivers used small passenger cars, such as Toyota Yaris, Corolla, Scion and Prius, Subaru Legacy, Honda Fit, Ford Focus, Chevrolet Cavalier, Kia Rio, Nissan Maxima, Hyundai Elantra, and Nissan Versa. As the court in Henry noted, these types of vehicles are not the " 'necessary machinery or equipment' which, under White, would take this agreement outside the operation of the IIA."

¶23 Third, the contractor agreements imposed appearance and conduct requirements on the drivers. For example, the agreement required the drivers to "conduct themselves courteously (both on the road and while with customers) and in a professional manner." They were required to be "neatly attired" and to wear "clean and wrinkle free" uniforms. Hair had to be "clean, neat and conservatively styled," and any mustaches or beards had to be "neatly trimmed." These appearance and behavior provisions are evidence that DEI placed more emphasis on how the drivers interacted with its customers than it did on the equipment the drivers used.

¶24 Finally, both the contractor agreements and the broker-carrier agreements contain non-compete clauses that limit the drivers' ability to solicit business from DEI customers, both during the term of the agreement and for 6 to 12 months thereafter. Such a clause is another strong indication that DEI entered into a contract with the driver for his or her personal skills at delivering packages in an efficient manner, rather than simply leasing a vehicle to effectuate deliveries.

¶25 This evidence provides substantial support for the Board's finding that the drivers' personal labor was the essence of their contracts with DEI.

2. Leased-Truck Exemption

¶26 Next, DEI contends the Board erred in refusing to define the word "truck" as used in the leased-truck exemption of RCW 51.08.180. It also argues the leased-truck provision is unconstitutionally vague. We reject both arguments.

a. Meaning of "Operating a Truck"

¶27 The IAJ noted, in its discussion of the White test, that DEI "pressed for a definition of a truck." The IAJ wrote, "I do not need to and will not define a truck in this opinion," because the definition was unnecessary to determine whether the vehicles were specialized equipment under White. Neither the IAJ nor the Board specifically addressed the term as used in the leased-truck exemption. We agree with DEI that the Board's decision did not address the leased-truck exemption and focused solely on the "essence of the contract" portion of RCW 51.08.180. Nevertheless, we disagree with DEI that any of the passenger cars used by its courier drivers are "trucks" under this clause.

¶28 To trigger the leased-truck exemption, DEI had to prove (1) the drivers' activities were "attendant to operating a truck," (2) which the drivers owned, and (3) which the drivers leased to a common carrier. We must determine, according to established principles of statutory interpretation, whether "operating a truck" extends to delivering small packages via a passenger vehicle.

¶29 The purpose of statutory interpretation is to determine and give effect to the intent of the legislature. Phrases in a statute are given their plain and ordinary meaning absent a contrary statutory definition. We may refer to dictionaries to ascertain the common meaning of statutory language. We must also consider the statute as a whole and harmonize its provisions by reading them in context with related provisions. We presume the legislature does not intend absurd results, and we will reject any reading of a phrase that produces an absurd result. Only if more than one interpretation of the plain language is reasonable, do we find a statute ambiguous and engage in statutory construction and consider the statute's legislative history. Finally, a guiding principle of interpreting HA provisions is to liberally construe the remedial statute "to achieve its purpose of providing compensation to all covered employees injured in their employment," with all doubts resolved in favor of coverage of the worker.

¶30 DEI urges this court to adopt a broad definition of "truck" as that term is defined in our licensing statutes. Under RCW 46.04.653, "truck" means "every motor vehicle designed, used, or maintained primarily for the transportation of property." DEI contends the vehicles its drivers used, although not designed to transport property, were nevertheless primarily used for that purpose and thus should be deemed "trucks" under RCW 51.08.180. We reject this argument because it ignores the ordinary meaning of truck, it takes the word "truck" out of the context in which the legislature used it, it is based on a logical fallacy, and it would lead to an absurd result.

¶31 First, the dictionary definition of "truck" is either "an automotive vehicle built for the transportation of goods on its own chassis," or "a motorized vehicle equipped with a swivel for hauling a trailer." Under the ordinary definition, if the vehicle has a chassis designed to transport property or has a swivel to pull a trailer to transport property, it is a truck within the meaning of RCW 51.08.180. The passenger cars, SUVs, and minivans driven by DEI's couriers clearly fall outside this definition of truck, whereas box trucks and pickup trucks would fit within it.

¶32 Second, the leased-truck exemption must be read in the context in which it occurs. RCW 51.08.180 refers to "trucks" leased to "common carriers." A "common carrier" is any person who undertakes to transport property for the general public "by motor vehicle for compensation." A "motor vehicle" is defined as "any truck, trailer, semitrailer, tractor, ... or any self-propelled or motor-driven vehicle used upon any public highway of this state for the purpose of transporting property, but not including baggage ...." If the legislature had intended RCW 51.08.180 's leased-truck exemption to encompass all motor vehicles, it could have simply said so. By singling out trucks for the IIA exemption, the legislature must have intended to narrow its application to a particular subset of motor vehicles that common carriers use to move freight. Applying the dictionary definition is consistent with this legislative intent. It is also consistent with the well-established principle that the IIA is liberally construed to protect more workers.

¶33 Third, DEI's argument is based on the logical fallacy that because all trucks are motor vehicles that can be used to transport property, and passenger cars are motor vehicles that can be used to transport property, then all passenger cars must be trucks. This argument is a classic non sequitur, known as the fallacy of the undistributed middle:

All trucks [Z] can be used to transport property [B]
A passenger car [Y] can be used to transport property [B]
Therefore, all passenger cars [Y] are trucks [Z]

The result is a logical fallacy.

¶34 Finally, DEI's argument that we should define a "truck" as any motor vehicle that could be used to transport any type of property would lead to an absurd result. Under this approach, any small passenger car or even a motorcycle would qualify. Common sense must inform our analysis, and common sense tells us no ordinary person would consider a motorcycle, a Toyota Yaris, or a Chevy Malibu to be a truck.

¶35 We hold that RCW 51.08.180 's leased-truck exemption applies only to a motor vehicle built to transport goods on its own chassis or to a motor vehicle equipped with a swivel for hauling a trailer to transport goods.

¶36 Using this definition, none of the drivers the Board deemed "workers" under the IIA, with the exception of two, drove trucks to deliver packages for DEI. Two individuals, Matin Syed and Randall Utterback, testified they drove pickup trucks to make deliveries for DEI. Syed drove a 2000 Ford Ranger, a vehicle with a pickup bed, which he used in 2009 and 2010. Utterback drove a Chevy pickup truck with a canopy for DEI business in 2010. The Board included Syed and Utterback in the list of drivers for whom DEI owes IIA premiums for the last two quarters of 2010, and excluded these same drivers from the list for 2011 under RCW 51.08.195.

Thus, the only time period for which the leased-truck exemption could be relevant for Syed and Utterback is the last two quarters of 2010.

¶37 But neither Syed's nor Utterback's contractor agreement during 2010 is in the record. DEI offered Exhibit 284, a contractor agreement between Syed and DEI, and Exhibit 321, a contractor agreement between Utterback and DEI. But the IAJ excluded Syed's agreement because DEI did not produce it during the Department's audit. And the IAJ rejected Utterback's agreement after the hearing. We thus have no agreement to examine to determine if it constituted a truck lease. Furthermore, Utterback testified he never leased his truck to DEI. And even if Syed's agreement had been admitted, it lists a 2005 Honda as Syed's "equipment," not a 2000 Ford Ranger. Thus, based on this record, DEI failed to establish that Syed or Utterback met the leased-truck exemption during the last two quarters of 2010.

b. Constitutionality of Leased-Truck Exemption

¶38 DEI contends the leased-truck exemption is unconstitutionally vague. We disagree. Whether a statute is constitutional is a question of law, reviewed de novo. Statutes are presumed constitutional. Under the due process clause of the Fourteenth Amendment of the United States Constitution, RCW 51.08.180 is unconstitutionally vague if DEI demonstrates that the statute "does not provide ascertainable standards ... to protect against arbitrary enforcement." But due to the inherently vague nature of language, courts do not require "impossible standards of specificity." Constitutional vagueness is "not mere uncertainty." A statute is unconstitutionally vague only "if persons of common intelligence must necessarily guess at its meaning and differ as to its application."

¶39 DEI argues that it was subject to arbitrary enforcement by the Department because its auditors defined the term "truck" differently. The record does not bear this out. When DEI asked Bautista how she defined the word truck, she testified she searched the Federal Motor Carrier Safety Administration's online software program to see if any of DEI's drivers were listed as owning a truck. Bautista also attempted to contact individual drivers to ask them if they drove trucks to deliver packages. Finally, she searched the Washington State Department of Motor Vehicle Licensing website to determine if any drivers had vehicle registrations for any trucks.

¶40 Eliezar Eidenbom, the Department litigation specialist who handled DEI's requested reconsideration of the 2010-2011 audit, used what he called "a common definition of truck," which he defined as a motor vehicle designed to carry cargo. Eidenbom concluded that vans, SUVs, and minivans were not"trucks" because they were designed to carry passengers, not to carry loads. Eidenbom considered a pickup truck to fall within the statutory exemption and would also consider a cargo van to do so, if the van was designed for carrying freight and heavy loads and had its passenger seats removed to allow for loading property.

¶41 Both Bautista and Eidenbom applied a definition consistent with this court's statutory interpretation. We can find nothing arbitrary about the approach they took. Nor can we conclude that a person of ordinary intelligence must guess whether a vehicle is a truck.

¶42 DEI relies on Grant County v. Bohne, to argue that RCW 51.08.180 's leased-truck exemption is unconstitutionally vague. We find that case distinguishable. In Bohne, the Court considered whether a zoning ordinance, which provided that "[n]o buildings [may] be moved in on any lot in this district," was unconstitutionally vague. Grant County claimed the Bohnes violated the ordinance by placing a mobile home on their lot. The Court held the ordinance was unconstitutionally vague because persons of average intellect would expect a prohibition against mobile homes to specifically refer to mobile homes. But this case before us is dissimilar; people have an understanding of what a truck is. There is no guesswork needed to ascertain the meaning of this word. Unlike the "building" versus "mobile home" distinction in Bohne, the average person would not think that a two-door or four-door passenger vehicle is a "truck." The leased-truck exemption is not unconstitutionally vague.

B. RCW 51.12.020

¶43 Finally, DEI claims the Board erred in concluding that drivers who ran a courier business as sole proprietors were not statutorily excluded from the IIA under RCW 51.12.020. This argument was rejected in Henry, and we see no basis for revisiting the issue here.

¶44 RCW 51.12.020(5) provides that sole proprietors are not included within the IIA's mandatory coverage. In Henry, the company argued that this statutory provision categorically exempted it from paying IIA premiums for drivers if those drivers operated their own businesses as sole proprietors. This court held that because neither RCW 51.08.180 nor RCW 51.08.195 referenced RCW 51.12.020 's exclusions,

the most reasonable way to harmonize interpretation of these three statutes is to conclude that the legislature intended to include within the scope of "worker" those sole proprietors who met RCW 51.08.180 's requirements and who were not excluded by RCW 51.08.195. Thus, even though a person may choose to set up his or her business as a sole proprietorship, that alone does not exclude that person from IIA coverage as a "worker." No other interpretation of these statutes makes sense.

DEI's interpretation of RCW 51.12.020 is inconsistent with Henry. The DEI drivers who set up businesses as sole proprietors are not automatically excluded from IIA coverage by virtue of RCW 51.12.020.

CONCLUSION

¶45 We affirm the Board's finding that, during the audit period, the drivers identified in Findings of Fact No. 3 and No. 4 of the Board's order are "workers" under RCW 51.08.180. The record supports the Board's finding that the essence of their contracts with DEI was their personal labor. DEI failed to establish that any of these drivers, with the exception of two, operated trucks and failed to establish that these two drivers leased their vehicles to DEI. Thus, the leased-truck exemption is not applicable. Finally, RCW 51.12.020 's "sole proprietor" exclusion does not alleviate DEI's liability for worker compensation premiums for drivers who are "workers" under RCW 51.08.180.

¶46 We affirm.

WE CONCUR:

Chun, J.

Schindler, J.

      Title 51 RCW.

      RCW 51.08.180 defines "worker" as including independent contractors when "the essence of [the contract] is his or her personal labor."

      RCW 51.08.195 excludes independent contractors who meet a six-factor test set out in the statute.

      Because this was an educational audit, DEI only owed IIA premiums prospectively.

      DEI does not appeal the Board's determination that the drivers do not qualify under the statutory exemption for independent contractors in RCW 51.08.195.

      RCW 51.48.131 ; see also Dep't of Labor & Indus. v. Lyons Enters., Inc., 185 Wash.2d 721, 731, 374 P.3d 1097 (2016).

      Lyons, 185 Wash.2d at 731, 374 P.3d 1097.

      Henry Indus., Inc. v. Dep't of Labor & Indus., 195 Wash. App. 593, 600, 381 P.3d 172 (2016).

      Lyons, 185 Wash.2d at 732, 374 P.3d 1097.

      Id. at 735, 374 P.3d 1097 (quoting Lloyd's of Yakima Floor Cen. v. Dep't of Labor & Indus., 33 Wash. App. 745, 749, 662 P.2d 391 (1982) ).

      Id. at 735-36, 374 P.3d 1097 (internal quotation marks omitted).

      Henry, 195 Wash. App. at 602, 381 P.3d 172.

      48 Wash.2d 470, 294 P.2d 650 (1956).

      Id. at 474, 294 P.2d 650.

      195 Wash. App. 593, 381 P.3d 172 (2016).

      Id. at 609, 381 P.3d 172. This court concluded there was "no persuasive argument that the vehicles the drivers are required to provide constitute special equipment, as opposed to ordinary equipment, to perform the courier services under the agreements." Id. at 608, 381 P.3d 172.

      Id. at 611, 381 P.3d 172 (quoting Lloyd's, 33 Wash. App. at 751, 662 P.2d 391 ).

      Statutory interpretation is a question of law, reviewed de novo. Id. at 622, 381 P.3d 172 ; see also Green v. Dep't of Soc. & Health Servs., 163 Wash. App. 494, 508, 260 P.3d 254 (2011) ("Under RCW 34.05.570(3)(d), the APA's 'error of law' standard, we may substitute our interpretation of the law for the agency's.").

      RCW 51.08.180 ; see also B&R Sales, Inc. v. Dep't of Labor & Indus., 186 Wash. App. 367, 375, 344 P.3d 741 (2015) (employer has burden of showing IIA premiums assessed incorrectly). DEI concedes this provision would only apply to the period during which it held a common carrier permit and became inapplicable once DEI began doing business as a freight broker in April 2011. concedes this provision would only apply to the period during which it held a common carrier permit and became inapplicable once DEI began doing business as a freight broker in April 2011.

      State v. Evans, 177 Wash.2d 186, 192, 298 P.3d 724 (2013).

      State v. Lilyblad, 163 Wash.2d 1, 6, 177 P.3d 686 (2008).

      Budget Rent A Car Corp. v. Dep't of Licensing, 144 Wash.2d 889, 899, 31 P.3d 1174 (2001).

      Henry, 195 Wash. App. at 622, 381 P.3d 172.

      Tingey v. Haisch, 159 Wash.2d 652, 664, 152 P.3d 1020 (2007).

      Evans, 177 Wash.2d at 192-93, 298 P.3d 724 ; Cherry v. Mun. of Metro. Seattle, 116 Wash.2d 794, 799, 808 P.2d 746 (1991).

      Lyons, 185 Wash.2d at 734, 374 P.3d 1097 (quoting Dennis v. Dep't of Labor & Indus., 109 Wash.2d 467, 470, 745 P.2d 1295 (1987) ).

      Webster's Third New International Dictionary 2454 (2002).

      RCW 81.80.010(1).

      RCW 81.80.010(7) (emphasis added).

      See Filmore LLLP v. Unit Owners Ass'n of Centre Pointe Condo., 183 Wash. App. 328, 344, 333 P.3d 498 (2014) (undefined common statutory terms are given their common meaning unless there is strong evidence the legislature intended something else).

      See generally Stephen M. Rice, Indispensable Logic: Using the Logical Fallacy of the Undistributed Middle as a Litigation Tool, 43 Akron L. Rev. 79, 89-101 (2010).

      See Allied Erecting & Dismantling, Co. v. USX Corp., 249 F.3d 191, 202 n.1 (3d Cir. 2001).

      Aylett v. Sec'y of Hous. & Urban Dev., 54 F.3d 1560, 1569 & n.5 (10th Cir. 1995) ; see also Spencer v. Texas, 385 U.S. 554, 578-79 & n.9, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967) (Warren, C.J., dissenting and concurring).

      State v. Alvarado, 164 Wash.2d 556, 562, 192 P.3d 345 (2008).

      In addition, exhibits that were admitted for Syed-his Washington State vehicle registration and his certificate of liability insurance-both show a 2006 Mitsubishi Lancer, a passenger car.

      State v. Watson, 160 Wash.2d 1, 5, 154 P.3d 909 (2007).

      State v. Jacobson, 92 Wash. App. 958, 967, 965 P.2d 1140 (1998).

      Watson, 160 Wash.2d at 6, 154 P.3d 909 (quoting State v. Williams, 144 Wash.2d 197, 203, 26 P.3d 890 (2001) ).

      City of Spokane v. Douglass, 115 Wash.2d 171, 179, 795 P.2d 693 (1990).

      Id.

      City of Seattle v. Webster, 115 Wash.2d 635, 643, 802 P.2d 1333 (1990).

      89 Wash.2d 953, 577 P.2d 138 (1978).

      Id. at 956, 577 P.2d 138.

      Id.

      See Town of Clyde Hill v. Roisen, 111 Wash.2d 912, 919, 767 P.2d 1375 (1989) (distinguishing Bohne, concluding people do have a basis in common practice and understanding for knowing what a "fence" is).

      195 Wash. App. at 621, 381 P.3d 172.

      Id. at 623-24, 381 P.3d 172.