Volume 35 — Washington Appellate Reports

<bold>[1] Evidence — Relevance — Determination — In General.</bold> To be relevant to an issue, evidence must tend to prove, qualify, or disprove the issue. Whether evidence is relevant or not is a question addressed to the discretion of the trial court. <bold>[2] Indecent Liberties — Complainant — Prior Sexual Abuse — Rape</bold> <bold>Shield Statute.</bold> Neither the rape shield statute (RCW <cross_reference>9A.44.020</cross_reference>(2)) nor the rule excluding evidence more prejudicial than probative (ER 403) provides a basis for automatically excluding evidence of prior sexual abuse of the complaining witness in an indecent liberties prosecution. <bold>[3] Criminal Law — Trial — Instructions — Standard of Proof.</bold> Jury instructions which, when read in their entirety, properly inform the jury of the State's burden of proving each element of a crime beyond a reasonable doubt are adequate. <bold>[4] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> A challenge to the sufficiency of the State's evidence by a criminal defendant concedes the truth of the evidence and any inferences that can be reasonably drawn from it. The reviewing court then views the evidence most favorably to the State and determines whether any rational trier of fact could have found the essential elements of the crime to have been proven beyond a reasonable doubt.

<bold>[1] Criminal Law — Dismissal of Charge — Governmental</bold> <bold>Misconduct — What Constitutes.</bold> A trial court's dismissal of a criminal charge under CrR 8.3(b) "in the furtherance of justice"<page_number>Page 561</page_number> must be based on governmental misconduct or arbitrary action. The fact that the court does not agree with a prosecutor's decision to institute criminal proceedings in a particular circumstance does not support a dismissal under the rule. <bold>[2] Theft — Appropriation of Misdelivered Property — Elements —</bold> <bold>Intent — Nature.</bold> The intent element of the offense of appropriation of misdelivered property (RCW <cross_reference>9A.56.020</cross_reference>(1)(c)) is one of depriving the owner of the property at the time of appropriation. Such intent need not coincide with the wrongful receipt of the property, and there is no requirement of an intent to permanently deprive.

<bold>[1] Searches and Seizures — Consent — Scope — Search of House.</bold> An authorization by the occupant of a residence to "look around the house" is broad enough to authorize entry into all parts of the house that are apparently open and accessible. <bold>[2] Searches and Seizures — Consent — Authority — Rented</bold><page_number>Page 573</page_number> <bold>Bedroom.</bold> Whether an owner-occupant of premises has authority to give consent to search a rented bedroom depends on whether the tenant has a subjective expectation of privacy and whether that expectation is reasonable in the circumstances. In determining reasonableness, the court will consider whether there were any restrictions on access to the rented portion of the premises as well as the relationship of the occupants of the rented portion to the owner and the foreseeability that the owner would enter or permit others to enter the rented area. <bold>[3] Criminal Law — Weapon — Deadly Weapon — Double Jeopardy —</bold> <bold>Element of Offense.</bold> Application of the deadly weapon or firearm statutes to punishment for an offense which includes possession of a weapon as an element does not constitute double jeopardy. <bold>[4] Criminal Law — Weapon — Evidence — Sufficiency.</bold> Circumstantial evidence of an operable firearm is sufficient to support a special verdict that a defendant was armed with such a weapon if a rational trier of fact considering the evidence most favorably to the prosecution could have found the existence of the weapon. <bold>[5] Criminal Law — Trial — Misconduct of Prosecutor — Prejudice</bold> <bold>— In General.</bold> Argument of counsel must be considered in the light of the total argument, the issues in the case, the evidence, and the instructions. Improper remarks will not justify a new trial unless prejudice to the defendant results.

<bold>[1] Evidence — Prior Consistent Statements — Relevance — In</bold> <bold>General.</bold> When a witness' testimony is impeached by evidence of his motive to falsify, prior consistent statements made by the witness after his motive to falsify arose are not relevant to show that his testimony was not the product of the motive. The fact that such prior consistent statements do not constitute hearsay under ER 801(d)(1) does not necessarily render them admissible. <bold>[2] Criminal Law — Evidence — Character Evidence — Reputation</bold> <bold>for Truthfulness.</bold> A criminal defendant who testifies on his own behalf may not introduce evidence of his reputation for truthfulness unless that character trait is directly pertinent to the crime charged (ER 404(a)(1)) or the State has attacked his character for truthfulness (ER 608(a)).