text:
    Donald and Kathleen MILLER, Appellants, v. The CITY OF SAMMAMISH, a Washington municipal corporation, Respondent.
    No. 78528-1-I
    Court of Appeals of Washington, Division 1.
    FILED: August 19, 2019
    Jane Ryan Koler, Land Use & Property Law, PLLC, 6659 Kimball Dr. Ste. B201, Gig Harbor, WA, 98335-5140, Mark Harris Adams, Attorney at Law, P.O. Box 2509, Gig Harbor, WA, 98335-4509, for Appellants.
    Hillary Evans Graber, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, Adam Rosenberg, Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, for Respondent.
   PUBLISHED OPINION

Mann, A.C.J.

¶1 After learning that Donald and Kathleen Miller systematically filled in and destroyed regulated wetlands on their property, the City of Sammamish (City) commenced a code enforcement action. Over the course of a year, the City issued a notice to comply, posted a stop work order on the property, and finally issued a notice and order to abate and imposed a penalty. The Millers appealed to the City's hearing examiner. The hearing examiner concluded that the Millers violated the Sammamish Municipal Code (SMC), and the superior court affirmed. The Millers appeal arguing that the hearing examiner violated their due process rights, that the penalty order was unconstitutionally vague, and that substantial evidence does not support the hearing examiner's conclusion that there were wetlands on their property.

¶2 We affirm.

I.

¶3 The Millers own 2.29 acres of residential property located within the Sammamish City limits. Two of the Millers' predecessors, Donald and Ira Morin purchased the property in 1975. Donald Morin testified that he purchased the property for his daughter's horses. He testified that he dug a pond for the horses on the lowest spot on the property and spread the spoils around the perimeter of the pond. Morin testified that the area was dry before he dug the pond and that he continually filled the pond with his garden hose.

¶4 The Morins sold the property three years later, in 1978, to Marvin and Vera Federman. The property was described in the 1978 sale as "residential, bare land." The Federmans sold the property to Judy Wendl in 1994. Bankers Trust Company of California foreclosed the property in 1998. The Millers purchased the property in 1999 from Bankers Trust.

¶5 In 2005, developer CamWest investigated developing a 38-lot residential subdivision on several parcels, including the Millers' property. The Millers and CamWest entered an agreement allowing CamWest to prepare a feasibility study of the property. CamWest commissioned Talasaea Consultants, Inc. to prepare a sensitive areas report of the Millers' property and adjacent parcels. The Talasaea report identified two areas of the Millers' property as class III wetlands-wetlands K and L. The report identified wetland L as 0.11 acres of palustrine, emergent, saturated wetland primarily composed of mowed lawn vegetation located on the eastern border of the Millers' property. To the southwest of wetland L, the report identified wetland K as 0.12 acres of palustrine, scrub shrub, unconsolidated bottom, permanently flooded, impounded wetland. The report determined that the farm pond excavated by Donald Morin was included within wetland K. The City's former wetland biologist reviewed and concurred in Talasaea's findings in 2006. CamWest did not buy the Millers' property or proceed with the proposed development.

¶6 In 2008, the landowner located to the south of the Millers commissioned Altmann Oliver Associates, LLC (AOA) to prepare a critical area study of their property in association with a potential residential development of that parcel. AOA determined that there were two wetlands present on the southern property. AOA also relied upon the Talasaea report to determine that there were three additional wetlands on the properties neighboring the study site, including wetland K on the Millers' property. Using the state wetland rating form, AOA concluded wetland K was a category III wetland. AOA advised its client that the wetland K regulatory buffer would extend onto the client's property. Summit Homes, LLC ultimately developed the property south of the Millers into a residential subdivision. The subdivision includes a native growth protection area along its north edge to encompass the portion of wetland K's required regulatory buffer.

¶7 On January 12, 2016, the City's wetland biologist, Kathy Curry, informed the City's code correction officer, Chris Hankins, that she received a complaint that the Millers had been filling and grading wetlands on their property. Curry reported "Wetland K, which encompassed a farm pond, has been entirely filled and that Wetland L, which included a shallow depression, has been graded and filled."

¶8 After investigating the complaint, on February 12, 2016, the City informed the Millers by mail that the City had reason to believe unpermitted filling and grading had taken place on the Millers' property. Donald Miller contacted Hankins a couple weeks later and said that over time there has been some filling and clearing activities on his property. Miller "was very terse in his response, saying that There are no wetlands on my property.' " Hankins informed Miller that he required permits to continue filling and clearing on his property and that Hankins could help him get into compliance. Miller did not obtain such permits.

¶9 The City issued a second letter on April 14, 2016. The letter described three things that, at a minimum, must be done for the Millers to avoid further action against them: (1) have a certified wetland professional complete a wetland delineation report and mitigation plan, (2) complete a critical area review and submit it with a clear and grade permit application, and (3) stop further work until such a permit is issued.

¶10 During this time, Summit Homes agreed to purchase the Millers' property. Summit Homes contacted Hankins to determine what Summit Homes had to do to make sure the property was in compliance. The City put its enforcement action against the Millers on hold, under the belief that Summit Homes would get the property into voluntary compliance. The Summit Homes deal ultimately fell through, however, due to the Millers' insistence that "he should not have a wetland on his site."

¶11 In September 2016, Hankins again attempted to contact the Millers to get the property into compliance but the Millers refused to comply. Subsequently, in February 2017, the City received another complaint that the Millers were "stockpiling dirt on his property and continuing to fill and spread dirt throughout the site." At that point, Hankins visited the property and observed "substantial fill-dirt piles on the property ... [and] evidence of tracks and exposed dirt in the areas that [the City was] concerned about previously."

¶12 On February 10, 2017, the City posted a stop work order on the Millers' property and mailed a letter to the Millers describing the city codes that the Millers were violating and how to bring their property into compliance. The City also issued the Millers a $500 fine for the stop work order and informed the Millers how they could appeal that decision.

¶13 After receiving the stop work order, "Mr. Miller did not follow through with any permit applications as required." Therefore, the City issued and recorded a notice and order to abate civil code violations (notice). The City determined that the Millers had committed "multiple code violations by authorizing clearing and grading, including the filling of wetlands and wetland buffers on the property, without obtaining the required permits from the City." The notice informed the Millers what they were required to do to correct the violations. The notice also assessed a $15,000 civil penalty for environmental damage and critical areas ordinance violations, plus daily penalties for every day the property remains noncompliant. The Millers appealed this notice to the City's hearing examiner.

¶14 Prior to the hearing, the Millers retained Sewall Wetland Consulting, Inc. to assess their property and review the prior wetland studies. The City retained Nell Lund of the Watershed Company to do the same. The City also asked the Washington State Department of Ecology (Ecology) to review all of the relevant information and determine whether wetlands had existed on the Millers' property. The Ecology assessment concluded:

Based on information obtained from the literature review it appears Wetlands K and L existed on this property prior to 2008. The fill material placed since then has eliminated both wetlands. None of the soil pits examined within this fill material by Sewall Wetland Consulting and The Watershed Company meet the three wetland criteria, which is not surprising. Although Ecology does not usually rely on wetland findings more than five years old, the Talasaea delineation is the only on-site description of the wetland conditions that preceded the fill material. Therefore, we concur with the Talasaea delineation of Wetlands K and L on the Miller property.

¶15 The hearing examiner held a two-day hearing. The first day of the hearing was held on August 24, 2017. The City presented expert testimony from Nell Lund, and Officer Hankins. The Millers' presented testimony from Don Morin, Don Miller, and expert testimony from Ed Sewall. Due to a scheduling conflict, there was a two-month gap between the two hearing dates. During the interim the Millers continued to fill and grade the property. After Summit Homes dumped 20 truckloads of fill dirt on the Millers' property, the Millers used the fill to create a driveway through wetland L.

¶16 The hearing examiner's November 15, 2017, decision concluded that regulated wetlands were present on the Millers' property. The hearing examiner further concluded "[t]here is compelling evidence and testimony that Miller either caused or allowed well in excess of 50 [cubic yards] of dirt to be dumped on [his property] and that he used that dirt to fill in the former pond and low areas where Wetlands K and L had been." The hearing examiner also concluded that the Millers were required to, but did not, have a permit for their filling and grading activities and that their activities were not exempt from permitting requirements.

¶17 The Millers petitioned for review of the hearing examiner's decision by the King County Superior Court, under the Land Use Petition Act (LUPA), ch. 36.70C RCW. The superior court denied the petition for review and affirmed the hearing examiner. After unsuccessfully seeking reconsideration, the Millers appeal.

II.

¶18 LUPA allows an individual to appeal the land use decision of a quasi-judicial body, such as the hearing examiner. RCW 36.70C.030, 36.70C.040. To succeed, the party seeking relief has the burden of establishing that one of standards set forth in RCW 36.70C.130(1)(a) through (f) has been met. RCW 36.70C.130(1). As relevant to this appeal, those standards are:

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts; ... or
(f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1).

¶19 RCW 36.70C.130(1)(b) and (f) address questions of law and are reviewed de novo. Families of Manito v. City of Spokane, 172 Wash. App. 727, 736, 291 P.3d 930 (2013). Under the substantial evidence standard in RCW 36.70C.130(1)(c), "there must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true." Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). To prevail under RCW 36.70C.130(1)(c) "requires the court to determine whether a fair-minded person would be persuaded by the evidence of the truth of the challenged finding." Lauer v. Pierce County, 173 Wash.2d 242, 252-53, 267 P.3d 988 (2011). A finding is clearly erroneous under RCW 36.70C.130(1)(d) "when, although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed." Wenatchee Sportsmen Ass'n, 141 Wash.2d at 176, 4 P.3d 123.

¶20 When reviewing a superior court's decision under LUPA, we "stand[ ] in the shoes of the superior court and [limit our] review to the record before the local jurisdiction's body or officer with the highest level of authority to make the determination." Mower v. King County, 130 Wash. App. 707, 712-13, 125 P.3d 148 (2005). "Facts and inferences from the evidence are to be viewed in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority." Families of Manito, 172 Wash. App. at 739-40, 291 P.3d 930. We "defer to the hearing examiner's assessment of the credibility of witnesses and the weight to be given reasonable but competing inferences." Friends of Cedar Park Neighborhood v. City of Seattle, 156 Wash. App. 633, 641-42, 234 P.3d 214 (2010) (internal citation omitted).

III.

¶21 The Millers first argue that the hearing examiner's decision violates their constitutional rights and is thus invalid under RCW 36.70C.130(1)(f). The Millers claim the hearing examiner violated their due process rights by refusing to consider "three constitutional defenses to the penalty order." The Millers then contend that, to the extent the hearing examiner did consider their constitutional defenses, it applied the wrong legal standard. We disagree.

A.

¶22 The Millers first assert that the hearing examiner deprived them of their due process rights by refusing to consider whether: (1) the Millers had a protected right to a nonconforming use of their property as pasture for grazing animals, (2) the City's failure to notify the Millers that there were regulated wetlands on their property was fundamentally unfair, and (3) the order was unconstitutionally vague and the penalty was assessed in an ad hoc manner. The Millers are wrong.

¶23 Conclusion 5 of the hearing examiner's decision addressed and rejected the Millers' claim that they had a nonconforming agricultural use. The examiner concluded that there was no evidence that the filling and grading had anything to do with agriculture; that the SMC did not exempt agricultural activities, and that "even if" the farm ponds were use that preexisted the SMC, "filling it would not constitute 'maintenance' in any normal meaning of the word."

¶24 Conclusion 7 of the hearing examiner's decision addressed and rejected the Millers' claim that the City's failure to notify them of wetlands on their property was fundamentally unfair. The examiner explained that the SMC warns that not all critical areas are fully mapped and that the code "places the responsibility on the applicant to disclose critical areas within a proposed development site."

¶25 Conclusions 9, 10, and 11 of the hearing examiner's decision addressed the Millers' argument that the order was unconstitutionally vague and the penalty was assessed in an ad hoc manner. The examiner first explained that the order contained each of the legal requirements of the SMC. The examiner then explained that "Miller criticizes the [order] for not providing sufficient guidance regarding required corrections ... The Examiner concurs with the City that it is unrealistic to mandate a specific solution in this case since so many variables are involved." Finally, the hearing examiner explained that the penalty assessment was not ad hoc, but was instead based on application of a longstanding set of City guidelines setting forth the methodology for calculating a fine. He explained that the SMC allowed a penalty of up to $25,000 plus restoration costs for critical area violations and that using the methodology the notice assessed a lower $15,000 penalty.

¶26 The fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings "as are adequate to safeguard the right for which the constitutional protecting is invoked. If that is preserved, the demands of due process are fulfilled." Anderson Nat. Bank v. Luckett, 321 U.S. 233, 246, 64 S. Ct. 599, 88 L. Ed. 692 (1944) ; see also Wash. Const. art. I, § 14 ; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The record before us demonstrates that the Millers were afforded due process including the opportunity to present witnesses, testimony, exhibits, and oral and written argument. The Millers do not point to any relevant evidence that was excluded or otherwise not reviewed and considered by the hearing examiner.

¶27 The Millers rely principally on Johnson v. City of Seattle, 184 Wash. App. 8, 21-22, 335 P.3d 1027 (2014). Johnson involved a claim of a nonconforming use related to illegally parked cars. This court was critical of a provision of Seattle's municipal code that prohibited the Seattle hearing examiner from making factual determinations as to whether the nonconforming use existed-instead requiring the claimant to first seek a determination from the Department of Planning and Development. Johnson, 184 Wash. App. at 21, 335 P.3d 1027. And because Johnson was not provided a stay of the hearing examiner's hearing in order to seek relief from the department, the court concluded that Johnson "had no opportunity to present his defense and was provided no procedural safeguards." Johnson, 184 Wash. App. at 22, 335 P.3d 1027.

¶28 Here, in contrast, the SMC does not prohibit the hearing examiner from making a factual determination. Indeed, the hearing examiner did just that: it heard the Millers' evidence and found that while the Millers' predecessor Morin used the property for his daughter's horse, the land was never designated or described as agricultural land. The examiner then concluded that the Millers' filling and grading was not related to an agricultural use.

¶29 Contrary to the Millers' claim, each of the three alleged constitutional defenses were addressed, and dismissed by the hearing examiner.

B.

¶30 The Millers next contend that even if the hearing examiner considered their claimed nonconforming use, the examiner erred in concluding that they did not have a valid nonconforming use.

¶31 "Generally, a nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the current zoning restrictions applicable to the district in which it is situated." McMilian v. King County, 161 Wash. App. 581, 591, 255 P.3d 739 (2011) (internal citation omitted).

¶32 "[T]he initial burden of proving the existence of a non-conforming use is on the land user making the assertion." Van Sant v. City of Everett, 69 Wash. App. 641, 647-48, 849 P.2d 1276 (1993). The landowner has the burden to prove that (1) the use existed prior to the contrary zoning ordinance, (2) the use was lawful at the time, and (3) the applicant did not abandon or discontinue the use for over a year prior to the relevant change. King County Dept. of Dev. & Envtl. Servs. v. King County, 177 Wash.2d 636, 643, 305 P.3d 240 (2013) (citing Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wash.2d 1, 6, 959 P.2d 1024 (1998) ). There is no constitutional right to "change, alter, extend or enlarge the existing use," and owners may not modify nonconforming uses without City approval and often a permit. Rhod-A-Zalea, 136 Wash.2d at 7, 959 P.2d 1024. See also SMC 21A.70.060-.080.

¶33 The Millers contend that before the City was incorporated, their predecessor Morin established the pasture and pond on the property for his horses and that the Millers continued to use the pasture and pond in the same way. The Millers further contend that the annual depositing of topsoil and grass seed was an indispensable part of this use, and that the City is prohibited from restricting this agricultural use.

¶34 As an initial manner, it is hard to see how filling wetlands is a continuation of using a pasture and a pond to graze and water animals. The Millers were not cited for adding small amounts of topsoil or reseeding the pasture, as they now claim, but for bringing large quantities of fill onto their land to fill in two regulated wetlands. Donald Miller admitted that when Summit dumped 20 truckloads of dirt on his property, he used that dirt to construe a driveway that runs through wetland L.

¶35 Further, the initial burden was on the Millers to prove the existence of a nonconforming use. But all the Millers showed was how the Morins used the property in the 1970s. The Millers did not demonstrate that the Morins' use of the property for a horse continued over the next 21 years before the Millers purchased the property. The Millers did not demonstrate that they or intervening owners actually kept animals, other than some ducks or chickens, or that they ever used the pond or pasture in the same manner as the Morins did in the 1970s.

¶36 Moreover, the Millers' desired use is not incompatible with the SMC. The SMC prohibits landowners from "clearing or grading without first having obtained a clearing and grading permit." SMC 16.15.050. The SMC does not prevent the Millers from using their property for grazing, as Morin did, it just requires them to obtain a permit before filling and grading their property and prohibits filling and grading inside the regulated wetlands and buffers. The hearing examiner aptly concluded that "there is no compelling evidence or testimony that the filling and grading had anything to do with agricultural activities, if, in fact, real agricultural activities occurred on Parcel 9070.

¶37 The Millers failed to demonstrate a valid nonconforming use that would excuse compliance with the SMC's restriction on filling wetlands and wetland buffers.

C.

¶38 The Millers next argue that the penalty order which requires them to restore the destroyed wetlands on their property is unconstitutionally vague and that the penalty assessed against them was calculated in a constitutionally infirm manner. We disagree.

1.

¶39 The Millers argue that the notice was unconstitutionally vague. This is so, they contend because the notice must specifically state what constituted the violation and what must be done to comply with the order.

¶40 Penalty orders must be specific about the asserted violations, about the government's authority, and about the requirements it imposes. See Mansour v. King County, 131 Wash. App. 255, 271-72, 128 P.3d 1241 (2006). Further, orders cannot leave enforcement officials with unfettered discretion when reviewing compliance. State v. Sansone, 127 Wash. App. 630, 639, 111 P.3d 1251 (2005).

¶41 Here, the notice was specific about the asserted violations and the City's authority. The notice precisely detailed all of the actions that Hankins and the City had taken up to that point. The notice detailed how the City came to believe that the Millers had violated the SMC, what investigation materials the City relied upon, and all of the efforts the City made to address these issues before assessing a penalty. The notice then specifically cited what sections of the SMC the Millers had violated.

¶42 The notice also specified what, precisely, the Millers were required to do to come into compliance. The notice required the Millers to: (1) prepare and submit a clear and grade permit application; (2) submit a wetland delineation report and mitigation plan with the permit application; (3) hire a wetland biologist to classify any wetlands remaining on the property, evaluate and map the wetlands and wetland buffers to determine the extent of restoration needed, and prepare a restoration plan; and (4) complete a Sammamish bond quantity worksheet to determine what bond, if any, the Millers are required to post.

¶43 Further, the notice did not leave enforcement officials with unfettered discretion. The notice requires the Millers to go through the normal process to obtain a clear and grade permit under the City's code. See SMC 16.15.060, 16.15.070. Therefore, SMC 16.15.070(4) expressly establishes the standards that the Director will use to evaluate the Millers' clear and grade permit application. Similarly, SMC 21A.50.130 sets forth what information must be included in the Millers' critical area study for it to be acceptable. While the notice does not precisely lay out what the actual restoration plan must say, that is so the Millers can maintain control over their own land. And the Millers' wetland biologist agreed that "restoration plan" was an industry term that he was familiar working with.

¶44 And, contrary to the Millers' contention, if the City rejects their proposed restoration plan they will have the ability to appeal that decision. The SMC provides that the City's hearing examiner has jurisdiction over "[a]ppeals of all Type 2 land use decisions[,]" SMC 20.10.070(1)(b), which is defined as discretionary decisions made by the Director. SMC 20.05.020. So the fact that the Director may reject the Millers' proposed plan does not afford the Director unfettered discretion when: (1) the Director's decision is guided by the SMC and (2) the Millers can appeal the Director's decision if they believe that it is erroneous.

¶45 The notice here is similar to this court's decision in Beatty v. Washington Fish & Wildlife Comm'n, 185 Wash. App. 426, 341 P.3d 291 (2015). Although, Beatty was an appeal of a permit decision, the court's reasoning is still persuasive here. There, the court disagreed that the Washington hydraulic mining permit statute was unconstitutionally vague because it failed to give the Department of Fish and Wildlife guidance on when to accept or deny permits. Beatty, 185 Wash. App. at 457, 341 P.3d 291. The court rejected the appellant's contention that "a precise standard is needed in the environmental context[,]" instead finding the statutory phrase "protection of fish life" sufficiently definite. Beatty, 185 Wash. App. at 457-58, 341 P.3d 291.

¶46 Similarly here, the City was not required to provide the Millers with a precise standard for how to complete their restoration project. First, the Millers would be guided by the standard application and critical area processes delineated in the SMC. Further, the Millers' wetland expert was familiar with the industry standard and had prepared such reports before. And finally, the order allowed the Millers the freedom to control their land without excessive City oversight, as long as they met the basic requirements set forth in the order and the SMC. The notice was not unconstitutionally vague.

2.

¶47 The Millers also argue that the penalty was set in an ad hoc manner. They assert that it was unacceptable for the City to rely on an unpublished, unadopted worksheet when setting their penalty. SMC 23.100.010 establishes a fee assessment schedule for violations of the Sammamish City code. It provides that the penalty for a stop work order is up to $500 and the penalty for Environmental Damage/Critical Areas Violations is up to $25,000 plus the cost of restoration. SMC 23.100.010. Further, SMC 23.100.010 sets the daily penalty for noncompliance at $100 up to $250 per day for days 1 to 15, $250 up to $500 per day for days 16 to 31, and $500 up to $1000 per day for days 31 and above.

¶48 In determining the precise penalty to impose in this case, Hankins used the City's standard "Guidelines for Determining Environmental Damage/Critical Area Violations" worksheet. The Millers assert that the City's use of this worksheet was constitutionally impermissible because the worksheet was unpublished. But all the worksheet does is limit the enforcement officer's discretion in setting penalties under SMC 23.100.010. The use of this worksheet actually benefitted the Millers in that the worksheet provides that for first time violators the maximum fine is $15,000 while SMC 23.100.010 has no such limitation.

¶49 The cases cited by the Millers in support of their argument are inapposite. See, e.g., Simpson Tacoma Kraft v. Dep't of Ecology, 119 Wash.2d 640, 835 P.2d 1030 (1992) (holding the Department of Ecology could not mandate compliance with unpublished standards relating to the discharge of dioxin into State waters). Each of these cases involved an unpublished city policy that the regulated entity itself had to comply with. Therefore, the fact that the policies in those cases were unpublished negatively impacted the regulated party's ability to comply. Here, however, the worksheet did not have any impact on the Millers' ability to comply with the SMC and the way in which the City went about determining precisely what penalty to assess within SMC 23.100.010 had no bearing on the Millers. Therefore, simply because the worksheet was not officially published or adopted by the City Council does not undermine the penalty.

IV.

¶50 The Millers next contend that the hearing examiner's conclusions that they filled regulated wetlands were not supported by substantial evidence and were a clearly erroneous application of facts to the law. We disagree.

A.

¶51 In concluding that the wetlands K and L on the Miller property were regulated wetlands, the hearing examiner considered: the 2005 sensitive area report prepared by Talasaea, the 2008 critical area study by AOA, testimony and the written report by Lund and The Watershed Company, and the review by Ecology. The totality of this evidence supports the hearing examiner's conclusion that wetlands K and L were regulated wetlands on the Millers' property. The City's expert witness Lund audited the Talasaea report and concluded with scientific probability that the Talasaea report correctly documented wetlands K and L as class III wetlands, in accordance with the scientific classification system in place at the time the report was prepared. While the Millers argue that the Talasaea report did not identify wetland hydrology-one of three primary wetland characteristics-Lund noted that the Talasaea report addressed the allegedly "missing" parameter in a manner consistent with the applicable wetland rating system and this in no way invalidated the conclusion that the wetlands existed. Ecology wetland scientist Gresham reviewed both parties' expert reports and concurred with Lund and the Talasaea report's delineation of both wetlands.

¶52 The Millers argue also that the City cannot rely on the Talasaea report because it is more than 10 years old. But the Millers cite no authority for this proposition. On cross-examination, Lund did agree that "the standard practice is that these studies are good for a five-year period." But, as Ecology's wetland specialist Gresham explained, "[a]lthough Ecology does not usually rely on wetland findings more than five years old, the Talasaea delineation is the only on-site description of wetland conditions that preceded the fill material. Therefore, we concur with the Talasaea delineation of Wetlands K and L on the Miller property." And further, the age of the report does not diminish its findings that in 2005 there were wetlands on the Millers' property. The City was not required to prove that wetlands exist on the Millers' property today, but that wetlands existed on the Millers' property before the Millers filled them in. Therefore, simply because the Talasaea report is from 2005 does not undercut that report's findings.

¶53 While the Millers offered contradictory testimony from lay witnesses Don Miller and Ira Morin and expert witness Sewall, "contrary testimony does not warrant reversal." Families of Manito, 172 Wash. App. at 741, 291 P.3d 930. Further, we must review the facts and inferences in the light most favorable to the prevailing party below. Families of Manito, 172 Wash. App. at 739-40, 291 P.3d 930. Review for substantial evidence is deferential and "necessarily entails acceptance of the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences." William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wash. App. 403, 411, 914 P.2d 750 (1996) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wash. App. 614, 618, 829 P.2d 217 (1992) ).

¶54 The hearing examiner concluded that there is "compelling evidence that wetlands K and L were regulated wetlands before they were filled." He determined that the Talasaea and AOA reports were credible because they "were working at the behest of land developers" who had much to lose if wetlands were found on the property, thus there was no incentive to identify wetlands. The hearing examiner also found that Miller, on the other hand, had a lot to lose if his property contains two regulated wetlands. We will not disturb the hearing examiner's findings.

¶55 Substantial evidence exists to convince a fair-minded person that the hearing examiner did not err in concluding that wetlands K and L were regulated wetlands before they were filled. RCW 36.70C. 130(1)(c); Lauer, 173 Wash.2d at 252-53, 267 P.3d 988.

B.

¶56 The Millers also contend that the hearing examiner lacked substantial evidence that they filled in the wetlands on their property in excess of 50 cubic yards of soil per year. Because the record establishes that there was in excess of 50 cubic yards of fill dirt added to the regulated wetlands, we disagree.

¶57 At the outset, it is irrelevant how much fill the Millers added in per year because even if they only dumped 49 cubic yards of soil in the wetlands, that would still be a violation of the SMC. The SMC exempts normal and routine maintenance of existing lawns and landscaping, it does not exempt serial filling in of regulated wetlands. See SMC 16.15.050(8)(a) (exempting "up to 50 cubic yards of top soil" but specifically limiting that exemption "subject to the limitations in critical areas and their buffers set out in Chapter 21A.50 SMC."). And further SMC 16.15.050(8)(a) exempts "up to 50 cubic yards of top soil" but does not say per year. The Millers add the phrase per year to the statute where it does not exist on its face.

¶58 Donald Miller admitted that he filled the entire pond area, including wetland K, and estimated the amount of fill needed at "900 square feet" of dirt. Miller also admitted that he received 20 loads of dirt in 2017 and that he used it to construct a dirt road through wetland L. While Miller attempted to assign blame to a third party (Summit) for unauthorized dumping of over 20 loads of fill on the property, Miller admitted that he requested fill from Summit. And when Summit dumped more than Miller asked for, instead of asking Summit to remove it, he used the dirt to build the roadway through wetland L. Photographic evidence confirmed that Miller constructed the road after the City issued the stop work order.

¶59 Second, testimony along with photographic and physical evidence established that unpermitted fill dirt was placed in wetlands K and L. Officer Hankins testified that he observed "stockpiles" of fill dirt on the Millers' property on multiple occasions in 2016 and 2017, and saw evidence that fill dirt had been spread and graded throughout the property during that time period. Hankins calculated the amount of fill over the course of the two years to be 380 cubic yards. Both parties' experts confirmed that a substantial amount of fill dirt was present in the 2017 test pits dug within the areas of wetlands L and K. The City's expert Lund dug to depths of two feet and found fill dirt all the way down. Using the wetland delineations, aerial photographs, and observations from excavations, the City's witnesses testified that both critical areas were now topped by more than two feet of fill, far exceeding the City's 50 cubic yard threshold to obtain an exemption.

¶60 The hearing examiner's conclusion that the Millers deposited more than 50 cubic yards of fill into the regulated wetlands is supported by substantial evidence.

V.

¶61 Finally, the Millers assert that it was fundamentally unfair for the City to assess a code violation against them without first providing them notice of the fact that their property contained regulated wetlands. This argument is meritless. First, the Millers provide no authority for the proposition that the City has an affirmative duty to inform landowners that their land includes wetlands. And the SMC implies just the opposite as it is the landowner who must identify wetlands on their property and inform the City of such. See SMC 16.15.070(1)(c) (the clearing and grading permit must "identify and describe those critical areas ... on or adjacent to the site."); SMC 21A.50.090 ("Not all of the critical areas in the City of Sammamish are fully mapped.").

¶62 And further, the record shows that the City did provide the Millers with notice that there were regulated wetlands on their property on February 12, 2016. Yet the Millers continued to fill and grade their property after receiving such notice and were adamant that wetlands were not present on their property.

¶63 We affirm.

WE CONCUR:

Dwyer, J.

Appelwick, C.J.

      The hearing examiner determined that the "pond was not a regulated wetland, but the area surrounding it was, as was Wetland L."

      Citing Exendine v. City of Sammamish, 127 Wash. App. 574, 113 P.3d 494 (2005), the hearing examiner concluded that constitutional arguments were beyond his scope of review. This is likely in response to a fourth constitutional claim raised by the Millers below-that the City's codified penalty provisions exceeded the City's delegated authority. In Exendine, this court explained:
      The Sammamish Municipal Code establishes the office of a hearing examiner. SMC 20.10.020 provides: "The examiner shall act on behalf of the City Council in considering and applying adopted City policies and regulations as provided herein." The city council is a legislative body, and it does not have the power to enforce, interpret, or rule on constitutional challenges. The City Council cannot delegate power it does not have.
      Exendine, 127 Wash. App. at 586-87, 113 P.3d 494. The hearing examiner correctly concluded that he did not have the authority to determine the constitutional validity of the City's penalty ordinance and the Millers have not advanced that argument to this court.

      See, e.g., Clerk's Papers at 207 (Hankins estimated that the Millers used more than 380 cubic yards of dirt to fill in wetlands).

      The Millers also argue that their activities were exempt under the SMC's exemption for maintenance and revision of landscaping. SMC 21A.50.060(4) allows landscape features to be revised or replaced with similar features, which the Millers argue includes the "revisions" they made. But the Millers ignore the next sentence of SMC 21A.50.060(4) which continues "such that remaining functions of the critical area and/or buffer are maintained or improved." There is no evidence in the record that the wetlands and wetland buffers present on the Millers property was maintained or improved. To the contrary, there was credible testimony that the Millers completely removed the wetlands and wetland buffers on their property.

      The order stated:
      Pursuant to Chapter 23.10.010 SMC ... you are hereby ordered to discontinue this illegal action and to take the proper corrective actions to abate all listed violation(s) above within 60 days ... as follows:
      A. Prepare and submit a Clear and Grade permit application as required with appropriate permit fees ... in accordance with SMC 16.20.195 ...
      B. A Wetland Delineation Report and Mitigation Plan is required to accompany the Clear and Grade Permit application in accordance with [SMC] section 21A.50.120. [That plan] shall be provided by a qualified wetland biologist and must propose to either move forward with the grading project, or restore the site to its previous condition as follows:
      (1) Delineate the wetland on the subject property ...
      (2) The wetland biologist must classify the wetland and associated buffers consistent with Sammamish wetland classification requirements (SMC 21A.50.290(1))...
      (3) The wetland biologist must also evaluate and map the extent wetland and buffer clearing, grading and pruning areas where located within wetland and buffer areas to determine the extent of the code violation and to define needed restoration.
      (4) The wetland biologist must prepare a restoration plan for the wetland, and buffer areas cleared in violation of wetland and buffer protections in SMC 21A.50.290. This restoration plan must be prepared consistent with SMC 21A.50.145, SMC 21A.50.310, and SMC 21A.50.350 ...
      (5) A Sammamish bond quantity worksheet must be prepared that is consistent with the restoration plan. After the City approves the critical areas study, critical areas restoration plan and bond quantity worksheet, the property owner will need to post a performance bond.
      C. The property owner shall guarantee the remediation of the damage in accordance with the restoration plan, in a manner acceptable to the [Director].

      See also Norco Constr. v. King County, 29 Wash. App. 179, 627 P.2d 988 (1981) (holding cities must analyze subdivision applications pursuant to adopted codes rather than unadopted policies); Anderson v. Issaquah, 70 Wash. App. 64, 851 P.2d 744 (1993) (holding building permits must be analyzed according to adopted standards).


source: Caselaw Access Project

author: Lee, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Jeremiah Allen TEAS, Appellant.
    No. 51098-7-II
    Court of Appeals of Washington, Division 2.
    Oral Argument Date: April 9, 2019 Filed August 20, 2019
    Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant(s)
    Rachael Rogers, Clark County Prosecuting Attorney's Offi., P.O. Box 5000, Vancouver, WA, 98666-5000, for Respondent(s)
    PUBLISHED OPINION
   Lee, J.

¶ 1 Jeremiah A. Teas appeals his conviction for first degree rape by forcible compulsion, arguing that (1) the prosecutor engaged in numerous instances of misconduct, (2) the trial court abused its discretion in refusing to give his requested consent instruction, and (3) his sentence under Washington's Persistent Offender Accountability Act (POAA) constitutes cruel punishment under article I, section 14 of the Washington Constitution. We disagree and affirm.

FACTS

A. THE RAPE AND INVESTIGATION

¶ 2 R.C. posted an advertisement offering massage services under the "Escorts" category of an online forum. 3 Verbatim Report of Proceedings (VRP) (Sept. 12, 2017) at 287. Teas, who was 39 years old at the time, responded to the advertisement and arranged for R.C. to give him a massage at R.C.'s apartment. When Teas arrived at R.C.'s apartment, she led him into her bedroom and closed the door behind them. R.C. bent over to place her cellphone on the bedside table, at which point, Teas jumped on her back, held a pocketknife blade to her throat, and said he was going to rape her.

¶ 3 R.C. told Teas that she would "do whatever he wanted" if he put the blade away. 3 VRP (Sept. 12, 2017) at 297. Teas put the blade away and had sexual intercourse with R.C. for a couple of minutes. Teas had difficulty maintaining an erection, so R.C. suggested that she get lubricant to help. Teas agreed, and R.C. walked toward the bedroom door. Teas intercepted R.C. at the bedroom door and instructed her not to leave the bedroom. R.C. struggled with Teas at the door, pushed the door open, and ran screaming toward her roommate's bedroom. R.C. hid in her roommate's bedroom until R.C. looked out the window and saw Teas exiting the front of her apartment building. R.C. contacted law enforcement.

¶ 4 Teas left his knife and hat in R.C.'s bedroom. The knife handle later tested positive for both R.C.'s and Teas's deoxyribonucleic acid (DNA) profiles. A sample swab of the hat also matched Teas's DNA profile. And samples taken from stains found on R.C.'s bedsheets matched Teas's DNA profile. The samples taken from R.C.'s bedsheets tested negative for the presence of blood. Law enforcement later detained Teas, and he claimed that he was nowhere near R.C.'s apartment but was only in the area visiting a friend.

B. RELEVANT PORTIONS OF TRIAL

1. Witness Testimony

¶ 5 The State charged Teas with one count of first degree rape by forcible compulsion. At trial, R.C., law enforcement, including Deputy Richard Osborne of the Clark County Sheriff's Office, and a forensic scientist with the Washington State crime laboratory testified to the facts discussed above.

¶ 6 R.C. testified that after Teas put his knife away, he asked her to kiss him and perform oral sex on him. R.C. said no to both requests. On cross-examination, R.C. admitted that she was not a licensed massage therapist.

¶ 7 The sexual assault examination nurse who examined R.C. testified that R.C. told her the same facts detailed above, except R.C. told her that Teas suggested the lubricant, not R.C.

¶ 8 Teas also testified and denied having sexual intercourse with R.C. According to Teas, he only expected to receive a "happy ending" massage from R.C. 5 VRP (Sept. 13, 2017) at 673. Teas stated that R.C. had asked him to take off his pants, and that he pulled them down to his mid-thigh. R.C. then "proceeded to take off her pants that she was wearing." 5 VRP (Sept. 13, 2017) at 657. Teas asked R.C. if she would kiss him or perform oral sex on him. R.C. said no to both requests. Teas "was trying-having some problems trying to become erect and she had said, 'Well, we need to have a condom on because I am not on any birth control.' " 5 VRP (Sept. 13, 2017) at 658. R.C. then gave Teas a condom that she had stored in the desk next to her bed. Teas still had difficulty maintaining an erection, and R.C. "proceeded to ask if she could get some lube, hence, ask for a penis pump to help [him] become erect because [he] was having trouble[ ] with it." 5 VRP (Sept. 13, 2017) at 658. At this point, he reached into his pocket to give R.C. money and accidentally displayed the knife he had kept in his pocket. R.C. ran away screaming at the sight of the knife, and Teas quickly left the apartment.

¶ 9 On cross-examination, Teas repeatedly denied that he expected to receive any service other than a massage from R.C. He also claimed that the two never had sexual intercourse because he was unable to maintain an erection.

2. Request for Consent Instruction

¶ 10 At the close of evidence, Teas proposed a jury instruction on consent. The trial court found that the evidence at trial did not support the instruction because Teas claimed that sexual intercourse never occurred, not that it was consensual and denied Teas's request to include a consent instruction.

3. Opening Statement and Closing Argument

¶ 11 During opening statement, the prosecutor stated, "The DNA from the blood stain on [R.C.]'s bed matched the defendant's DNA." 2 VRP (Sept. 11, 2017) at 196. In closing, the State argued that R.C.'s version of what happened between her and Teas had "been consistent from the very beginning" in what she told police, the sexual assault examination nurse, and defense counsel. 6 VRP (Sept. 14, 2017) at 724. And the State argued that the jury could conclude from this consistency that R.C. did not fabricate the details of what happened.

¶ 12 Later, in discussing Teas's knife, the prosecutor argued:

Now, it is not a gun. It's not a firearm. It's not a pistol, a revolver, because those are, per se, deadly weapons. Okay? But the manner in which this instrument, this implement was used, with either blade, and the proximity to a person's neck, constitutes a deadly weapon.
And we know that something like this has been used in the past. Okay? I'm not saying-what I'm about to say, and I will preface this by saying this is not a terrorist act. This is not even close to 9/11. Okay? But we all know what was reported about the people who meant to harm on-on those planes that crashed into the-the twin towers. What did they have? Box cutters.
This, ladies and gentleman, with this blade exposed, the manner in which it was used, is a deadly weapon.

6 VRP (Sept. 14, 2017) at 735-36.

¶ 13 The State also argued that all of the DNA evidenced placed Teas in R.C.'s bedroom. The State then argued that Teas's testimony "defie[d] logic" and "ma[de] no sense" because Teas told the police he was nowhere near R.C.'s apartment. 6 VRP (Sept. 14, 2017) at 733.

So that's another reason why, ladies and gentlemen, the defendant decided to testify. He saw the overwhelming evidence against him. Couldn't deny the DNA. Could not deny the DNA.
....
... Again, the estimated probability of selecting an unrelated individual at random in the U.S. population with a matching profile is 1 in 130 quintillion. These are things that the defendant cannot dispute, cannot rebut. And so that's why he got on the stand yesterday and came-came up with a story to try and explain away what happened. And he wrapped up some of the things that have been proved to be true. For example, his presence there, because he can't deny that he wasn't there because he was. But he had to explain why and how and then deny that he was able to engage in sexual intercourse.

6 VRP (Sept. 14, 2017) at 747-48.

¶ 14 Teas did not object to any portion of the State's closing argument. The jury found Teas guilty as charged.

C. SENTENCING

¶ 15 Teas had a prior conviction for first degree child molestation. The record shows that this crime was committed sometime between July 1994 and September 1996, when Teas was between the ages of 17 and 19. Based on his prior conviction of first degree child molestation, the court sentenced Teas to life in prison without the possibility of release under Washington's Persistent Offender Accountability Act (POAA).

¶ 16 Teas appeals.

ANALYSIS

A. PROSECUTORIAL MISCONDUCT

¶ 17 Teas argues that his conviction must be reversed because of prosecutorial misconduct. Teas asserts that the prosecutor committed misconduct by (1) directly commenting on Teas's exercise of his constitutional right to testify, (2) comparing Teas's knife to the weapon used in the 9/11 terrorist attacks, (3) referencing facts not in evidence, and (4) and vouching for R.C.'s credibility. We disagree that the prosecutor's conduct requires reversal.

1. Legal Principles

¶ 18 To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial. State v. Emery , 174 Wash.2d 741, 756, 278 P.3d 653 (2012). The effect of a prosecutor's conduct is viewed in " 'the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' " State v. Monday , 171 Wash.2d 667, 675, 257 P.3d 551 (2011) (internal quotations omitted) (quoting State v. McKenzie , 157 Wash.2d 44, 52, 134 P.3d 221 (2006) ).

¶ 19 We first determine whether the prosecutor's conduct was improper. Emery , 174 Wash.2d at 759, 278 P.3d 653. If the prosecutor's conduct was improper, then the question turns to whether the prosecutor's improper conducted resulted in prejudice. Id. at 760, 278 P.3d 653. Prejudice is established by showing a substantial likelihood that the prosecutor's misconduct affected the verdict. Id.

¶ 20 If the defendant fails to object to the prosecutor's remarks at trial, he or she "is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Id. at 760-61, 278 P.3d 653. Under this heightened standard of review, the defendant must show that "(1) 'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.' " Id. at 761, 278 P.3d 653 (quoting State v. Thorgerson , 172 Wash.2d 438, 455, 258 P.3d 43 (2011) ). In making this determination, we focus on whether the resulting prejudice could have been cured. Id. at 762, 278 P.3d 653.

2. Exercise of Constitutional Right to Testify

¶ 21 Teas argues that the prosecutor committed misconduct by creating an inference of guilt based on Teas's exercise of his right to testify during closing argument. Specifically, Teas asserts that the prosecutor improperly impugned guilt upon Teas, thus violating his constitutional right to testify on his own behalf under article I, section 22 of the Washington Constitution, when the prosecutor argued in closing argument that (1) Teas testified in order to explain the presence of DNA found in R.C.'s apartment and (2) Teas tailored his testimony to fit with the evidence presented at trial.

a. Standard of review

¶ 22 As an initial matter, the parties dispute whether the waiver standard articulated in Emery applies here because Teas did not object to the prosecutor's comments at trial. Teas contends that this assignment of error is not subject to the heightened waiver standard articulated in Emery because it directly violated a constitutional right. According to Teas, whenever a prosecutor's improper comments violate a constitutional right, we solely consider prejudice and apply the constitutional harmless error standard. The State argues that the waiver standard articulated in Emery is still applicable here. We agree with the State.

¶ 23 It is true that the constitutional harmless error standard applies when a prosecutor's improper comments directly violate a constitutional right. State v. Espey , 184 Wash. App. 360, 369, 336 P.3d 1178 (2014) ; Emery , 174 Wash.2d at 757, 278 P.3d 653. However, a prosecutorial misconduct claim of this nature does not render the framework articulated in Emery wholly inapplicable. Teas's argument ignores that we have previously assessed waiver in the context of direct constitutional claims involving prosecutors'

improper comments. See, e.g. , Espey , 184 Wash. App. at 366, 336 P.3d 1178 ; State v. Pinson , 183 Wash. App. 411, 419, 333 P.3d 528 (2014).

¶ 24 In Espey , we considered whether the prosecutor had improperly commented on the defendant's right to counsel by urging the jury to infer that the defendant was lying because he had consulted with an attorney prior to arrest. 184 Wash. App. at 368-69, 336 P.3d 1178. Before applying the constitutional harmless error standard in Espey , we employed the framework articulated in Emery to determine whether the defendant had waived the error by failing to object. Id. Similarly, in Pinson , we considered whether the defendant had waived his prosecutorial misconduct claim when he failed to object to the prosecutor's express and deliberate comments that his post arrest silence evidenced guilt. 183 Wash. App at 419, 333 P.3d 528.

¶ 25 Thus, contrary to Teas's argument, the framework articulated in Emery is still applicable. If we determine that the prosecutor's comments here were improper, Teas is deemed to have waived the error unless he can show that the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice. See Emery , 174 Wash.2d at 760-61, 278 P.3d 653.

b. Argument on why Teas testified

¶ 26 Teas argues that the prosecutor impermissibly commented on his exercise of the right to testify when the prosecutor argued that Teas testified in order to explain the DNA evidence in the case. We hold that Teas waived this error because he fails to show that the prosecutor's comments were so flagrant and ill intentioned that the resulting prejudice could not have been cured.

¶ 27 A criminal defendant's right to testify is expressly protected under article I, section 22 of the Washington Constitution. This right is fundamental, and it may not be impaired by counsel or the court. State v. Robinson , 138 Wash.2d 753, 758, 982 P.2d 590 (1999). When a defendant decides to testify, the State may not draw adverse inferences from the exercise of that right. State v. Rupe , 101 Wash.2d 664, 705, 683 P.2d 571 (1984). Therefore, it is improper for the State to speculate as to why a defendant testified to infer guilt.

¶ 28 Here, the State argued that Teas testified because "He saw the overwhelming evidence against him. Couldn't deny the DNA.... And so that's why he got on the stand ... and came-came up with a story to try and explain away what happened." 6 VRP (Sept. 14, 2017) at 747-48. By speculating as to the reason Teas testified, the State inferred that Teas knew he was guilty based on the evidence and testified so he could make up a story to try and explain away what happened. This was improper.

¶ 29 Nonetheless, we hold that the prosecutor's comments here was not so flagrant and ill intentioned that the resulting prejudice could not be cured with a jury instruction. As explained above, Teas failed to object to this line of argument. And Teas makes no effort to meet the heightened standard of review articulated in Emery . Instead, Teas argues that because his credibility was central to the case, "the prosecutor's comments undoubtedly prejudiced him." Br. of Appellant at 23. We also note that the prosecutor attempted to couch the argument around what the evidence at trial showed. Therefore, even if the prosecutor's remarks resulted in some prejudice, it cannot be said that the remarks were so flagrant and ill intentioned that the resulting prejudice could not have been cured through an instruction to disregard them. Thus, we hold that Teas waived this error by failing to object to the prosecutor's comments below.

c. Tailoring argument

¶ 30 Teas also contends that the prosecutor impermissibly suggested in closing argument that Teas had tailored his testimony to conform to the evidence presented at trial. Teas relies on State v. Martin , 171 Wash.2d 521, 252 P.3d 872 (2011), to argue that general tailoring arguments made during closing argument violate article I, section 22 of the Washington Constitution.

¶ 31 In Martin , our Supreme Court addressed whether a prosecutor may question a defendant during cross-examination in a way that suggests that the defendant tailored his testimony to conform to the evidence presented at trial. 171 Wash.2d at 533-34, 252 P.3d 872. The Martin court held that questions suggesting tailoring of testimony during cross-examination of a defendant were compatible with the Washington Constitution, based in part, on the view articulated by Justice Ginsburg's dissent in Portuondo v. Agard , 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). 171 Wash.2d at 535-36, 252 P.3d 872. The Martin court stated that "[i]t is during cross-examination, not closing argument, when the jury has the opportunity to determine whether the defendant is exhibiting untrustworthiness." Id. at 536, 252 P.3d 872. Teas relies on this language in Martin to argue that a prosecutor may not argue in closing-as opposed to raising the issue during cross-examination-that the defendant had tailored his testimony.

¶ 32 However, in Martin , the court did not decide whether tailoring arguments made during closing argument were compatible with the Washington Constitution. The court specifically noted that "the majority and dissent in Portuondo agreed that generic accusations of tailoring are permissible" although "there was disagreement about whether such accusations are permitted during closing argument." Martin , 171 Wash.2d at 536, n. 8, 252 P.3d 872. The court expressly declined to decide whether generic tailoring accusations were prohibited under article I, section 22 because the accusations of tailoring in that case were specific, not generic. Id.

¶ 33 Following Martin , Division One of this court rejected the same argument that Teas now makes based on Martin . State v. Berube , 171 Wash. App. 103, 116, 286 P.3d 402 (2012), review denied , 178 Wash.2d 1002, 308 P.3d 642 (2013). The court in Berube noted that Martin had expressly declined to address generic tailoring arguments. Id. The court further held that "the evil addressed in Martin is a closing argument that burdens the exercise of constitutional rights without an evidentiary basis and in a fashion preventing the defendant from meaningful response." Id. at 116-17, 286 P.3d 402. However, "[w]hen tailoring is alleged based on the defendant's testimony on direct examination, the argument is a logical attack on the defendant's credibility and does not burden the right to [ ] testify." Id. at 117, 286 P.3d 402. We agree with Berube .

¶ 34 Here, when viewed in the context of the entire closing, the prosecutor did not make a general tailoring argument. Teas's trial testimony differed substantially from the statement he made to law enforcement. He told law enforcement that he was nowhere near R.C.'s apartment, and instead was in the area visiting a friend. At trial, Teas made a different statement and admitted that he had arranged for a massage with R.C. and was in her apartment that afternoon. Thus, the prosecutor's argument was based on the change in Teas's testimony from his initial statements, which was the type of argument that the Berube court approved. See Id . at 116-17, 286 P.3d 402. Teas fails to establish prosecutorial misconduct on this basis.

3. 9/11 Weapon Argument

¶ 35 Teas argues that the prosecutor impermissibly appealed to the passions and prejudice of the jury when he likened Teas's knife to the weapon used during the terrorist attacks on September 11, 2001. We agree that the argument was improper, but we hold that it was not so flagrant and ill intentioned that it resulted in incurable prejudice.

¶ 36 An appeal to the passion and prejudice of the jury through use of inflammatory rhetoric is improper. In re the Pers. Restraint of Glasmann , 175 Wash.2d 696, 704, 286 P.3d 673 (2012). "A prosecutor is not barred from referring to the heinous nature of a crime but nevertheless retains the duty to ensure a verdict 'free of prejudice and based on reason.' " State v. Pierce , 169 Wash. App. 533, 553, 280 P.3d 1158 (2012) (quoting State v. Claflin , 38 Wash. App. 847, 849-50, 690 P.2d 1186 (1984), review denied , 103 Wash.2d 1014 (1985) ), review denied , 175 Wash.2d 1025, 291 P.3d 253 (2012). And though the State has wide latitude to argue reasonable inferences from the evidence, it is misconduct for a prosecutor to urge the jury to decide a case based on evidence outside the record. Id.

¶ 37 Teas argues that the prosecutor impermissibly appealed to the passion and prejudice of the jury and referenced facts not in evidence when he compared his pocketknife to the weapon used in the 9/11 terrorist attacks. We agree that this argument was improper.

¶ 38 Contrary to the State's argument, referencing the destruction of the World Trade Center in the deadliest terrorist act to ever occur on American soil is more than "potentially ill-advised." Br. of Resp't at 30. It is a blatant appeal to the passion and prejudice of the jury. However, when viewed in the context of the total argument, the evidence, issues in the case, and instructions provided to the jury, we hold that the prosecutor's remarks were not so flagrant and ill intentioned that the resulting prejudice could not have been cured with a jury instruction.

¶ 39 The prosecutor referenced the 9/11 terrorist attacks in the context of discussing the deadly weapon instruction and explaining that an item may constitute a deadly weapon depending on the manner in which it is used. The prosecutor did not use the 9/11 terrorist attacks as a central theme in closing argument and explicitly stated that he was not likening Teas's conduct to a terrorist attack. Viewed in context, the statements were not so flagrant and ill intentioned that the resulting prejudice could not have been cured with a curative instruction. Because Teas failed to object below and cannot meet this heightened standard, he has waived his prosecutorial misconduct claim on this basis.

4. Arguing Facts Not In Evidence

¶ 40 Teas also argues that the prosecutor engaged in flagrant misconduct by arguing facts not in evidence. Specifically, Teas argues that the prosecutor argued facts not in evidence when he (1) referenced a blood stain found on R.C.'s bedsheets during opening statement, (2) claimed during closing argument that R.C.'s version of events had been consistent in order to bolster her credibility, and (3) referenced a witness who never testified at trial.

¶ 41 Again, Teas did not object to any of these remarks at trial. Therefore, he has waived any error unless he can show that the prosecutor's misconduct was so flagrant and ill intentioned that the resulting prejudice could not have been cured with a jury instruction. See Emery , 174 Wash.2d at 760-61, 278 P.3d 653.

¶ 42 First, Teas argues that the prosecutor's reference to a bloodstain containing Teas's DNA during opening statement was improper because it was unsupported by the evidence at trial. It is true that the evidence at trial showed that the sample taken from R.C.'s bedsheets tested negative for the presence of blood. However, the prosecutor's reference to a bloodstain was made during opening statement. A witness's expected testimony is a permissible subject for opening statement. Thorgerson , 172 Wash.2d at 444, 258 P.3d 43. Because the prosecutor's opening statement only concerned evidence that the State anticipated presenting at trial, the prosecutor's reference to the bloodstain was not improper.

¶ 43 Next, Teas contends that the prosecutor improperly vouched for R.C.'s credibility during closing argument when the prosecutor argued that R.C.'s story had been consistent. We disagree.

¶ 44 "Improper vouching occurs when the prosecutor expresses a personal belief in the veracity of a witness or indicates that evidence not presented at trial supports the testimony of a witness." Id. at 443, 258 P.3d 43. And a prosecutor may not state a personal belief as to the credibility of a witness. State v. Ish , 170 Wash.2d 189, 196, 241 P.3d 389 (2010).

¶ 45 Teas asserts that the prosecutor's argument that R.C.'s story had been consistent was "patently false" because the detail of who suggested the lubricant had changed with each retelling, as did the detail of whether Teas jumped on R.C.'s back or shoved her onto the bed. Br. of Appellant at 29. However, Teas acknowledges that in each retelling, R.C. claimed that Teas held a knife to her throat, said he was going to rape her, and had sexual intercourse with her. We find that the details as to who suggested lubricant and whether Teas jumped on or pushed R.C. do not render the prosecutor's statement that R.C.'s version of events was consistent "patently false."

¶ 46 Finally, Teas asserts that the prosecutor argued facts not in evidence when he referenced Deputy Osborne's testimony because Deputy Osborne never testified at trial. We disagree.

¶ 47 A prosecutor commits misconduct by encouraging the jury to decide a case based on evidence outside the record. Pierce , 169 Wash. App. at 553, 280 P.3d 1158. However, contrary to Teas's assertion, Deputy Osborne testified in detail regarding his involvement in R.C.'s case. Therefore, the prosecutor did not commit misconduct by referencing Deputy Osborne's testimony during closing argument.

B. CONSENT INSTRUCTION

¶ 48 Next, Teas argues that the trial court erred when it refused to provide his proposed jury instruction on consent because there was evidence that the sexual intercourse was consensual. We disagree.

1. Legal Principles

¶ 49 A criminal defendant is entitled to have the trial court instruct the jury upon the theory of his or her case so long as there is evidence in the record that supports the theory. State v. Fisher , 185 Wash.2d 836, 848, 374 P.3d 1185 (2016). Refusal to give a requested jury instruction constitutes reversible error when the absence of the instruction prevented the defendant from arguing his or her theory of the case. State v. Buzzell , 148 Wash. App. 592, 598, 200 P.3d 287, review denied , 166 Wash.2d 1036, 218 P.3d 921 (2009).

¶ 50 We review de novo the trial court's refusal to give a proposed jury instruction when the refusal is based on a ruling of law. State v. Ayala Ponce , 166 Wash. App. 409, 416, 269 P.3d 408 (2012). We review the refusal for an abuse of discretion where refusal is based on lack of evidentiary support. State v. Harvill , 169 Wash.2d 254, 259, 234 P.3d 1166 (2010). Under this standard of review, we will not reverse the trial court's ruling "unless it was manifestly unreasonable or based on untenable grounds or reasons." State v. Robinson , 193 Wash. App. 215, 217-18, 374 P.3d 175 (2016). A trial court necessarily abuses its discretion when its ruling is based on an erroneous view of the law. Harvill , 169 Wash.2d at 259, 234 P.3d 1166.

2. Consent Instruction Not Required for First Degree Rape

¶ 51 Teas argues that the trial court's refusal to give his proposed consent instruction was manifestly unreasonable because it prevented him from arguing his theory of the case and there was "more than enough evidence" of consent here. Br. of Appellant at 34. We disagree.

¶ 52 A person is guilty of first degree rape when that person "engages in sexual intercourse with another person by forcible compulsion." RCW 9A.44.040(1). " 'Consent' means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact." RCW 9A.44.010(7). Consent negates the element of forcible compulsion. State v. W.R. , 181 Wash.2d 757, 763, 336 P.3d 1134 (2014).

¶ 53 Once a defendant asserts consent as a defense and provides sufficient evidence to support the defense, the State must prove lack of consent as part of its burden of proof on the element of forcible compulsion. Id. This is because "[a]s defined, forcible compulsion contemplates force that overcomes actual resistance or threats that place a person in actual fear. There can be no forcible compulsion when the victim consents, as there is no resistance to overcome." Id. at 765, 336 P.3d 1134. In W.R. , our Supreme Court specifically noted that "[b]ecause the focus is on forcible compulsion, jury instructions need only require the State to prove the elements of the crime. It is not necessary to add a new instruction on consent simply because evidence of consent is produced." Id. at 767, n. 3, 336 P.3d 1134.

¶ 54 Thus, under W.R. , the trial court was not required to provide a consent instruction here because the State was already required to prove lack of consent as part of its burden of proof on the element of forcible compulsion. Moreover, even without the proposed instruction, Teas was still able to argue his theory that there was consent to engage in sexual intercourse. Therefore, we hold that the trial court did not err in refusing to give Teas's proposed consent instruction.

C. CUMULATIVE ERROR

¶ 55 Teas argues that the cumulative effect of the prosecutorial misconduct and the refusal to give his consent instruction resulted in a trial that was fundamentally unfair. We disagree.

¶ 56 "Under the cumulative error doctrine, a defendant may be entitled to a new trial when cumulative errors produce a trial that is fundamentally unfair." Emery , 174 Wash.2d at 766, 278 P.3d 653. This doctrine does not apply when the defendant fails to establish how the claimed instances of prosecutorial misconduct affected the outcome of the trial or how combined claims of misconduct affected the outcome of the trial. Thorgerson , 172 Wash.2d at 454, 258 P.3d 43.

¶ 57 Here, although the prosecutor made improper comments, Teas fails to show how either, or both, instances of misconduct affected the outcome of the trial. Teas also fails to show that the errors rendered his trial fundamentally unfair. Thus, we hold that Teas is not entitled to a new trial based on the cumulative error doctrine.

D. CRUEL AND UNUSUAL PUNISHMENT

¶ 58 Finally, Teas argues that his mandatory sentence under the POAA of life without possibility of release violates Washington's Constitution; specifically, article I, section 14's prohibition against cruel punishment. He argues that this provision of the Washington Constitution categorically bars imposition of a sentence to life without possibility of parole on adult offenders who committed a predicate offense under the POAA as a youth. We disagree.

1. Standard of Review

¶ 59 Whether a statute is constitutional is a question of law that we review de novo. State v. Moen , 4 Wash. App. 2d 589, 598, 422 P.3d 930 (2018), review denied , 192 Wash.2d 1030, 439 P.3d 1063 (2019). We presume that a statute is constitutional, and the party challenging the statute bears the burden of proving it is unconstitutional beyond a reasonable doubt. Id.

2. Teas's Sentence Does Not Violate Article I, Section 14

¶ 60 Article I, section 14 of the Washington Constitution bars " 'cruel punishment.' " Id. (quoting State v. Witherspoon , 180 Wash.2d 875, 887, 329 P.3d 888 (2014) ). Its federal counterpart, the Eighth Amendment to the United States Constitution, prohibits cruel and unusual punishment. Id. In the context of juvenile sentencing, Washington's constitutional provision provides greater protection than the Eighth Amendment. State v. Bassett , 192 Wash.2d 67, 82, 428 P.3d 343 (2018).

¶ 61 Our Supreme Court recently held that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment in violation of article I, section 14 of the Washington Constitution. Id. at 91, 428 P.3d 343. This holding was based on the national trend toward "abandoning juvenile life without parole sentences," and the considerable scientific research showing that "the characteristics of youth do not support the penological goals of a life without parole sentence." Id. at 90, 428 P.3d 343.

¶ 62 Teas argues that the framework articulated in Bassett compels us to hold that it is cruel to sentence an adult as a persistent offender under the POAA when that adult committed one of his predicate offenses as a youth. We disagree.

¶ 63 As an initial matter, Teas's argument confuses categorical bar challenges and as applied challenges. He asks us to conduct categorical bar analysis, but he simultaneously characterizes his challenge as an "as-applied challenge" to individuals like him as a "category." Br. of Appellant at 48.

¶ 64 The standard for assessing an as-applied challenge to a defendant's sentence is articulated in State v. Fain , 94 Wash.2d 387, 617 P.2d 720 (1980). In Fain , the defendant argued that his sentence under the habitual criminal statute was disproportionate to the nature of his crimes. Id. at 390-91, 617 P.2d 720. Fain outlined four factors that courts are to consider when determining whether a defendant's sentence is proportional to the nature of his crimes: "(1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment [the] defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction." Id. at 397, 617 P.2d 720.

¶ 65 Teas does not challenge the proportionality of his sentence given the particular circumstances of his crime. Instead, he argues that it is unconstitutional to sentence a class of defendants, adults who committed a predicate offense under the POAA as a "youth," to mandatory life imprisonment. Br. of Appellant at 48. Therefore, even though Teas frames his challenge as "an as-applied challenge" to individuals like him, Teas raises a categorical bar challenge here. Br. of Appellant at 48.

¶ 66 In assessing a categorical bar challenge, we consider "(1) objective indicia of society's standards to determine whether there is national consensus against sentencing those [of a particular class] to mandatory life imprisonment and (2) our own understanding of the prohibition of cruel punishment." Moen , 4 Wash. App.2d at 601, 422 P.3d 930. This second step requires this court to consider " 'the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question' and 'whether the challenged sentencing practice serves legitimate penological goals.' " Bassett , 192 Wash.2d at 87, 428 P.3d 343 (quoting Graham v. Florida , 560 U.S. 48, 67, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) ).

¶ 67 Teas does not provide any legislative enactments or state practices regarding use of "youthful crimes" as predicate offenses under habitual offender statutes. Br. of Appellant at 50. Recently, our Supreme Court held that " Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes a young adults." State v. Moretti , No. 95263-9 slip op. at 2, --- Wash.2d ----, ----, 446 P.3d 609, 2019 WL 3819733, at *1 (Wash. Aug. 15, 2019) . And review of other jurisdictions' statutes and case law does not show a national consensus against sentencing adults as persistent offenders when their predicate offenses were "youthful." Rather, several jurisdictions have rejected this very argument. Wilson v. State , 2017 Ark. 217, 521 S.W.3d 123 ; Commonwealth. v. Bonner , 135 A.3d 592 (Pa. Super. Ct. 2016) ; Vickers v. State , 117 A.3d 516 (Del. 2015) ; Counts v. State , 2014 WY 151, 338 P.3d 902.

¶ 68 Moreover, we hold that punishing an adult as a persistent offender when a predicate offense was youthful does not contradict the penological goals of the POAA. The POAA requires superior court judges to sentence persistent offenders to life in prison without the possibility of release. RCW 9.94A.570. A "persistent offender" includes someone who has been convicted of first degree rape, and has on at least one occasion been convicted of first degree child molestation. RCW 9.94A.030(38)(b)(i), (ii) . An "offender" means a person who has committed a felony and is eighteen years of age or older. RCW 9.94A.030(35).

¶ 69 "The purpose of the POAA is the segregation of persistent offenders from the rest of society, generally deterring others." State v. Hart , 188 Wash. App. 453, 461, 353 P.3d 253 (2015). As the Tenth Circuit has explained, "Unlike defendants who receive severe penalties for juvenile offenses ... recidivists have been given an opportunity to demonstrate rehabilitation, but have elected to continue a course of illegal conduct." United States v. Orona , 724 F.3d 1297, 1308 (10th Cir.), cert. denied , 571 U.S. 1034, 134 S.Ct. 662, 187 L.Ed.2d 438 (2013). Punishing an adult for continuing to commit violent crimes after being given the chance for rehabilitation supports the penological goal of separating repeat offenders from the rest of society.

¶ 70 Our courts have recognized that "children are less criminally culpable than adults, and the characteristics of youth do not support the penological goals of a life without parole sentence." Bassett , 192 Wash.2d at 90, 428 P.3d 343. However, Teas is not a juvenile being punished for a crime he committed as a juvenile. He was 39 years old when he raped R.C. by forcible compulsion. Therefore, the mitigating factors of youth were not applicable when he was sentenced for this crime. Teas's constitutional challenge to his sentence fails.

CONCLUSION

¶ 71 We hold that Teas's prosecutorial misconduct challenges fail, the trial court did not err when it refused to provide his proposed jury instruction on consent, there was no cumulative error necessitating reversal, and his constitutional challenge to his mandatory sentence to life without possibility of parole fails. Accordingly, we affirm.

We concur:

Worswick, J.

Maxa, C.J.

      We use the victim's initials to protect her privacy.

      RCW 9.94A.570.

      Teas also argues in the alternative, that if we do not apply categorical bar analysis, we should adopt a new "Fain +" standard that accounts for a defendant's youth. Br. of Appellant at 53. He argues that this new test is necessary because the traditional Fain test fails to account for a youthful offender's diminished culpability. We decline to adopt Teas's proposed test.
      Teas's proposal is a misguided attempt to blur the frameworks for analyzing categorical bar and as-applied challenges. And it fails to appreciate the nature and purpose of the Fain framework. The Fain framework weighs the nature of a particular offense with its resulting punishment. Bassett , 192 Wash.2d at 83, 428 P.3d 343. This analysis informs whether the punishment is disproportionate to the particular circumstances of a defendant's crime. Moen , 4 Wash. App.2d at 600, 422 P.3d 930. Thus, the Fain framework is "ill suited" to analyze "a categorical challenge based on the characteristics of the offender class." Bassett , 192 Wash.2d at 83, 428 P.3d 343. Indeed, the very policy Teas hopes to advance through his proposed test-considering the characteristics of the offender class-is the precise reason the categorical bar analysis applies here.

      http://www.courts.wa.gov/opinions/pdf/952639.pdf

      RCW 9.94A.030 has been amended since the events of this case transpired. Because the amendments do not materially affect the statutory language relied on by this court, we refrain from including the word "former" before RCW 9.94A.030.