Volume 122 — Washington Reports, Second Series

<bold>[1] Criminal Law — Statutes — Vagueness — Test.</bold> The due process vagueness doctrine requires that fair warning be given of proscribed conduct and protects the public from arbitrary, ad hoc, or discriminatory enforcement. <bold>[2] Criminal Law — Statutes — Vagueness — Facial Invalidity — No</bold> <bold>First Amendment Issue.</bold> The facial validity of a statute may be challenged as unconstitutionally vague only when the statute implicates rights protected by the First Amendment. <bold>[3] Criminal Law — Statutes — Vagueness — Particular Conduct —</bold> <bold>In General.</bold> A statute challenged as being unconstitutionally vague, and which does not implicate any First Amendment rights, is evaluated in light of the particular facts of the case.<page_number>Page 110</page_number> <bold>[4] Statutes — Validity — Burden and Degree of Proof — In</bold> <bold>General.</bold> A statute's presumption of constitutionality is overcome only by proof by the party challenging the statute that it is unconstitutional beyond a reasonable doubt. <bold>[5] Criminal Law — Statutes — Vagueness — Ascertainable</bold> <bold>Standards.</bold> Statutory language does not have to meet impossible standards of specificity to overcome a challenge of being unconstitutionally vague. The exact point at which conduct becomes criminal does not have to be predictable with complete certainty in order to meet constitutional standards. <bold>[6] Juveniles — Juvenile Justice — Disposition — Outside</bold> <bold>Standard Range — Sexual Motivation — "Purposes of Sexual</bold> <bold>Gratification".</bold> The term "sexual motivation" as used in RCW <cross_reference>13.40.135</cross_reference>, the juvenile sexual motivation statute, defined by RCW <cross_reference>13.40.020</cross_reference>(25) as meaning "for the purpose of . . . sexual gratification", is not unconstitutionally vague. <bold>[7] Juveniles — Juvenile Justice — Disposition — Outside</bold> <bold>Standard Range — Sexual Motivation — Proof.</bold> An allegation under RCW <cross_reference>13.40.135</cross_reference> that a juvenile offense was sexually motivated is proved by identifiable conduct which demonstrates beyond a reasonable doubt that the juvenile committed the offense for the purpose of sexual gratification. Proof of criminal sexual contact is not required. <bold>[8] Criminal Law — Statutes — Overbreadth — Constitutionally</bold> <bold>Protected Conduct.</bold> A statute that criminalizes certain behavior is not unconstitutionally overbroad on its face unless, even when given a limiting construction, it prohibits a real and substantial amount of constitutionally protected conduct. <bold>[9] Criminal Law — Punishment — Sentence — Enhanced Penalty —</bold> <bold>Motive.</bold> Enhancing the punishment for an offense on the basis of the offender's motive in committing the offense is not unconstitutional. <bold>[10] Criminal Law — Statutes — Overbreadth — Speech — Motive.</bold> A statute which permits the use of an offender's speech or expressive conduct as evidence of motive or intent in committing an offense is not unconstitutionally overbroad under the First Amendment. <bold>[11] Juveniles — Juvenile Justice — Disposition — Outside</bold> <bold>Standard Range — Sexual Motivation — Effect on Speech.</bold> The juvenile sexual motivation statute, RCW <cross_reference>13.40.135</cross_reference>, does not implicate constitutionally protected speech or expressive conduct.<page_number>Page 111</page_number> <bold>[12] Criminal Law — Evidence — Other Offenses or Acts —</bold> <bold>Noncriminal Act — Balancing Test.</bold> Before admitting evidence under ER 404(b) of a defendant's prior acts, the trial court must balance the prejudicial effect of the evidence, whether criminal or noncriminal in nature, against its probative value. <bold>[13] Criminal Law — Evidence — Other Offenses or Acts —</bold> <bold>Noncriminal Act — Relevance — In General.</bold> For purposes of ER 404(b), which permits the admission of evidence of other crimes, wrongs, or acts to prove motive or intent, an act which is relevant to motive or intent is admissible regardless of whether that act itself is of a "bad" or criminal nature. <bold>[14] Appeal — Harmless Error — Effect on Outcome of Trial.</bold> Trial error not of constitutional magnitude is harmless if it did not substantially affect the outcome of the trial. <bold>[15] Evidence — Opinion Evidence — Lay Testimony — Weight.</bold> Once the trial court has determined that lay testimony is admissible under ER 701, the weight to be given the testimony is for the trier of fact to decide. <bold>[16] Appeal — Findings of Fact — Review — Substantial Evidence —</bold> <bold>What Constitutes.</bold> Trial court findings of fact are reviewed under the substantial evidence standard. This standard is met when the record contains a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the allegations. <bold>[17] Appeal — Review — Issues Not Raised in Lower Appellate</bold> <bold>Court — In General.</bold> The Supreme Court will not address an issue the aggrieved party failed to raise or brief in the Court of Appeals. DOLLIVER, J., did not participate in the disposition of this case.

<bold>[1] Unemployment Compensation — Judicial Review — Commissioner's</bold> <bold>Decision — Appellate Review.</bold> Judicial review of a decision of the Commissioner of the Employment Security Department is conducted under the provisions of RCW 34.05, the Administrative Procedure Act. An appellate court reviewing a trial court's determination on review of the Commissioner's decision sits in the same position as the trial court and applies the standards of the APA directly to the record that was before the administrative decisionmaker. <bold>[2] Unemployment Compensation — Misconduct Resulting in</bold> <bold>Discharge — Misconduct — What Constitutes — Question of Law</bold> <bold>or Fact.</bold> Whether the behavior of a discharged employee constituted work-related misconduct disqualifying the person from receiving unemployment benefits under RCW Title 50 is a mixed question of law and fact requiring the application of legal precepts to the factual circumstances. Reviewing courts are required to give<page_number>Page 398</page_number> the administrative factual findings deference, but application of the law to the facts is, as a question of law, subject to de novo review. <bold>[3] Unemployment Compensation — Administrative Appeal — Findings</bold> <bold>of Fact — Commissioner's Authority.</bold> The Commissioner of the Employment Security Department, acting under RCW <cross_reference>50.32.080</cross_reference>, is the final authority in determining the facts involved in an unemployment compensation case, has the authority to set aside or modify findings of fact made by the administrative law judge who conducted the hearing, and qualifies as a reviewing officer under RCW <cross_reference>34.05.464</cross_reference>(4). <bold>[4] Statutes — Construction — Federal Statutes — Similar Federal</bold> <bold>Statute — Effect.</bold> The construction given a federal statute which is similar to a state statute may be examined and accepted as persuasive when no state construction of the state statute is available. <bold>[5] Appeal — Findings of Fact — Review — Failure To Identify.</bold> When findings of fact are not explicitly delineated or are mixed within conclusions of law, a reviewing court is permitted to determine, on its own authority, just what facts have been found. <bold>[6] Appeal — Findings of Fact — Failure To Assign Error —</bold> <bold>Effect.</bold> An unchallenged finding of fact is accepted as a verity on appeal. <bold>[7] Unemployment Compensation — Misconduct Resulting in</bold> <bold>Discharge — Misconduct — What Constitutes — Violation of</bold> <bold>Employer Rule.</bold> For purposes of disqualifying a discharged employee from receiving unemployment benefits on the basis of misconduct, an on-duty violation of an employer rule constitutes misconduct when: (1) the rule is reasonable under the circumstances of the employment, (2) the conduct violating the rule is connected with the employee's own work, (3) the conduct violates the rule, and (4) the violation is intentional, grossly negligent, or continues to take place after notice or warnings are given — inability, inefficiency, and ordinary negligence are not misconduct for these purposes. <bold>[8] Unemployment Compensation — Misconduct Resulting in</bold> <bold>Discharge — Misconduct — What Constitutes — Ignoring</bold> <bold>Directions.</bold> Affirmatively ignoring reasonable directions from a superior on a work-related matter qualifies as employee misconduct.<page_number>Page 399</page_number> ANDERSEN, C.J., concurs in the result only.

<bold>[1] Appeal — Decisions Reviewable — Moot Questions — What</bold> <bold>Constitutes.</bold> An appeal is moot only if it presents purely academic issues and the court cannot possibly provide effective relief. <bold>[2] Environment — SEPA — Impact Statement — Adequacy — Question</bold> <bold>of Law or Fact.</bold> The adequacy of an environmental impact statement is an issue of law.<page_number>Page 620</page_number> <bold>[3] Environment — SEPA — Impact Statement — Adequacy — Judicial</bold> <bold>Review — Administrative Determination.</bold> The adequacy of an environmental impact statement is subject to de novo review. A reviewing court must give substantial weight to the governmental agency's determination that an environmental impact statement is adequate under the State Environmental Policy Act of 1971 (RCW 43.21C). <bold>[4] Environment — SEPA — Impact Statement — Adequacy — Judicial</bold> <bold>Review — Appellate Review.</bold> An appellate court reviews the governmental agency's determination of the adequacy of an environmental impact statement, not the trial court's determination of adequacy. <bold>[5] Environment — SEPA — Impact Statement — Adequacy — What</bold> <bold>Constitutes.</bold> The adequacy of an environmental impact statement depends on the legal sufficiency of the environmental data contained in the impact statement. <bold>[6] Environment — SEPA — Impact Statement — Adequacy —</bold> <bold>Determination — Rule of Reason — Test.</bold> An environmental impact statement is adequate under the rule of reason if it presents decisionmakers with a reasonably thorough discussion of the significant aspects of the probable environmental consequences of the agency's decision. Under the rule of reason, a court reviews the adequacy of an impact statement on a case-by-case basis, guided by the policy and factual considerations reasonably related to the requirements of the State Environmental Policy Act of 1971 (RCW 43.21C). <bold>[7] Environment — SEPA — Impact Statement — Content —</bold> <bold>Incorporation by Reference — Statutory Policy.</bold> The State Environmental Policy Act of 1971 (RCW 43.21C) encourages the incorporation by reference of relevant documents into environmental impact statements. <bold>[8] Environment — SEPA — Impact Statement — Content —</bold> <bold>Incorporation by Reference — Effect — Review and Comment.</bold> A document that is incorporated by reference into an environmental impact statement is subject to the entire review and comment process required under the State Environmental Policy Act of 1971 (RCW 43.21C). <bold>[9] Environment — SEPA — Impact Statement — Adequacy —</bold> <bold>Procedural Errors — Harmless Error — Rule of Reason.</bold> Inconsequential procedural errors made in the process of preparing and approving an environmental impact statement do not,<page_number>Page 621</page_number> under the rule of reason, render the impact statement inadequate. <bold>[10] Environment — SEPA — Impact Statement — Content — Future</bold> <bold>Site-Specific Proposal — Consideration With General Plan.</bold> The fact that a site-specific proposal is subject to environmental review and approval in the future does not prevent its incorporation by reference into a broad nonproject plan if the proposal is specific enough to allow some evaluation of its probable environmental impacts. <bold>[11] Environment — SEPA — Impact Statement — Adequacy — Degree</bold> <bold>of Detail.</bold> The degree of detail in an environmental impact statement must be commensurate with the importance of the environmental impacts and the plausibility of alternatives. Significant impacts on both the natural and built environments must be analyzed, including historic and cultural preservation. <bold>[12] Environment — SEPA — Impact Statement — Adequacy —</bold> <bold>Determination — Rule of Reason — Identification of Impacts.</bold> The adequacy of a particular discussion of environmental effects in an environmental impact statement under the rule of reason depends on whether the environmental effects are sufficiently disclosed, discussed, and substantiated by supporting data and opinion. <bold>[13] Environment — SEPA — Governmental Action — Judicial Review</bold> <bold>— Standard of Review.</bold> A claim that a governmental body did not comply with process requirements for environmental impact statement preparation and use is evaluated under the rule of reason. <bold>[14] Environment — SEPA — Purpose — Early Environmental</bold> <bold>Consideration.</bold> The State Environmental Policy Act of 1971 (RCW 43.21C) encourages starting environmental review at the earliest possible time to ensure that planning decisions reflect environmental values.

ANDERSEN, C.J., and DOLLIVER and JOHNSON, JJ., dissent in part by separate opinion.