Volume 19 — Washington Appellate Reports

<bold>[1] Criminal Law — Alibi — Burden of Proof — In General.</bold> The prosecution's ultimate burden of proving beyond a reasonable doubt that an accused committed the charged crime is not reduced by a defendant's assertion of an alibi. <bold>[2] Criminal Law — Alibi — Burden of Proof — Instructions.</bold> Although it is error to instruct that alibi is a "defense" and that the defendant has the burden of proving an alibi, such an instruction does not constitute reversible error unless it results in prejudice to the defendant.

<bold>[1] Criminal Law — Insanity — Competency Hearing — Necessity —</bold> <bold>Test.</bold> A criminal defendant has a due process right not to be tried or sentenced while he is incompetent, and a trial court must hold a competency hearing whenever there is a substantial question of possible doubt as to competency. <bold>[2] Criminal Law — Insanity — Competency Hearing — Necessity —</bold> <bold>Review — Scope.</bold> In reviewing a trial court's determination not to hold a competency hearing, on a defendant's application for post-conviction relief under former CrR 7.7 or personal restraint petition under RAP 16.4, all relevant information relating to competency and not simply those facts which were presented to the trial court should be considered. <bold>[3] Criminal Law — Insanity — Competency Hearing — Necessity —</bold> <bold>Review — Remand.</bold> An appellate court may properly remand for a hearing to determine a defendant's competency at the time of an event that occurred a substantial number of years previously if there is sufficient psychiatric information relevant to that time to permit a determination.<page_number>Page 382</page_number>

<bold>[1] Criminal Law — Statutes — Certainty — Test.</bold> A criminal statute is not unconstitutionally vague when a man of reasonable understanding need not guess at the conduct being prohibited. <bold>[2] Crimes — Criminal Attempt — Statutory Provisions — Validity</bold> <bold>— Certainty.</bold> The provisions of RCW <cross_reference>9A.28.020</cross_reference> which define a criminal "attempt" are not unconstitutionally vague. <bold>[3] Criminal Law — Lesser Included Offense — Instructions —</bold> <bold>Necessity.</bold> An instruction regarding a lesser included offense need not be given when such offense is inconsistent with the parties' theories and not supported by any evidence. <bold>[4] Criminal Law — Trial — Instructions — Right to Particular</bold> <bold>Instruction — In General.</bold> The refusal to give a particular instruction requested by a criminal defendant is not improper when the instructions given adequately allowed him to argue his theory of the case. <bold>[5] Criminal Law — Evidence — Other Offenses — In General.</bold> Evidence of other, uncharged offenses which were committed by a criminal defendant may be admitted when relevant to show an element of the crime charged or to establish a common scheme or plan. <bold>[6] Criminal Law — Review — Issues Not Raised in Trial Court —</bold> <bold>Prosecutor's Closing Argument.</bold> An appellate court<page_number>Page 624</page_number> will not consider alleged error in the State's closing argument when the defendant neither moved for a mistrial nor requested a curative instruction. <bold>[7] Criminal Law — Trial — Prosecutor's Closing Argument —</bold> <bold>Defendant's Failure To Call Witness.</bold> A prosecutor may properly refer in closing argument to the defendant's failure to call a particular witness to corroborate his defense where the witness is peculiarly available to the defendant, had knowledge of the events in question, had been prosecuted in connection with related conduct, and was blamed by the defendant for the crime.

<bold>[1] Appeal and Error — Decisions Reviewable — Partial Judgment —</bold> <bold>Multiple Claims — Various Legal Theories.</bold> For purposes of CR 54(b), which permits a final appealable judgment as to less than all of the claims or parties, a single claim for relief based upon one set of facts is not converted into multiple claims by the assertion of various legal theories in support of recovery. <bold>[2] Appeal and Error — Decisions Reviewable — Partial Judgment —</bold> <bold>Basis for Immediate Appeal — Necessity.</bold> A trial court's express determination that there is no just reason for delay in appealing a ruling, for purposes of an immediate appeal of a partial judgment under CR 54(b), must be based on some danger of hardship or injustice through delay which would be alleviated by an immediate appeal. <bold>[3] Courts — Rules of Court — Construction — Local Rules.</bold> A trial court's use and interpretation of its own rules will not be disturbed by an appellate court unless the construction is clearly wrong or an injustice has been done. Local rules may be relaxed or suspended at the discretion of a trial court.

<bold>[1] Gaming — Classifications — Social Evil — Effect.</bold> Gambling is an activity involving a social evil and may be legislatively regulated without constitutional restriction; any gambling classification or activity permitted is a matter of legislative privilege and does not present a justiciable matter in which the courts may become involved. <bold>[2] Criminal Law — Statutes — Vagueness — In General.</bold> Due process requires that criminal statutes give fair notice of prohibited conduct so that persons of reasonable understanding comprehend them and that they provide ascertainable standards for consistent enforcement by police and courts.<page_number>Page 827</page_number> <bold>[3] Gaming — Professional Gambling — Standards — Vagueness.</bold> The statutory distinction between engaging in a professional gambling activity (RCW 9.46.020(15)) and merely gambling as a player (RCW 9.46.020(14)) is not vague to a person of reasonable understanding and it provides ascertainable standards for enforcement. <bold>[4] Criminal Law — Former Jeopardy — Same Event — Multiple</bold> <bold>Offenses.</bold> More than one criminal charge may arise from the same event so long as the elements of each are mutually exclusive. <bold>[5] Gaming — Punishment — Civil or Criminal Sanction — Effect.</bold> The control of gambling activity is a legitimate exercise of the State's police power and may be effected by either injunctive relief or the imposition of criminal sanctions without offending due process.