Volume 40 — Washington Appellate Reports

<bold>[1] Industrial Insurance — Judicial Review — Findings of Board —</bold> <bold>Burden of Proof.</bold> Under RCW <cross_reference>51.52.115</cross_reference>, which makes the factual findings of the Board of Industrial Insurance Appeals prima facie correct, a party challenging the findings on review must show that they are incorrect by a preponderance of the evidence. <bold>[2] Industrial Insurance — Judicial Review — Findings of Fact —</bold> <bold>Scope of Appellate Review.</bold> In an appeal of a trial court review of a decision of the Board of Industrial Insurance Appeals, the appellate court reviews the trial court findings to determine if they are supported by substantial evidence from the record of the Board's proceedings and whether the findings, in turn, support the court's conclusions of law. <bold>[3] Industrial Insurance — Disability — Improvement — Medical</bold> <bold>Release — What Constitutes.</bold> Agreement by an injured worker's physician to the worker's commencing alternate work on a trial basis constitutes a release for purposes of RCW<page_number>Page 111</page_number> <cross_reference>51.32.090</cross_reference>(4), which requires the physician to determine if the worker is capable of doing such work subject to reevaluation as to its effect once the worker has commenced the new work.

<bold>[1] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Standing — Nonparticipant.</bold> A criminal defendant has standing to object to the use of evidence obtained in violation of the privacy act (RCW 9.73), even though he did not participate in the conversation. <bold>[2] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Notification — Violation — Independent Recollection.</bold> Noncompliance with the notification requirements of the privacy act (RCW 9.73) before recording a conversation does not prevent the person whose conversation was recorded from testifying as to his independent recollection of facts obtained through personal knowledge before the recording was made. <bold>[3] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Notification — Factors.</bold> A failure to precede a recording of a statement of a person in custody with a formal announcement pursuant to RCW <cross_reference>9.73.030</cross_reference>(3) that the conversation is to be recorded does not render the recording inadmissible if the circumstances surrounding the recording indicate that the person received effective notice of the recording of the conversation. <bold>[4] Witnesses — Impeachment — Prior Inconsistent Statements —</bold> <bold>Cautionary Instruction — Necessity.</bold> The admission of prior inconsistent statements for impeachment purposes necessitates the giving of an instruction limiting the jury's use of the evidence to its determination of the witness' credibility. <bold>[5] Criminal Law — Evidence — Accomplice Testimony — Cautionary</bold> <bold>Instruction — Necessity.</bold> The absence of an accomplice instruction when accomplice testimony has been introduced does not constitute reversible error if the testimony was substantially corroborated by other evidence. <bold>[6] Trial — Argument of Counsel — Inferences From Evidence —</bold> <bold>Credibility.</bold> Counsel are permitted to exhort the jury to make reasonable inferences from the evidence in assessing a witness' credibility. <bold>[7] Trial — Instructions — Adherence by Jury — Presumption.</bold> Jurors are presumed to follow the trial court's instructions. <bold>[8] Evidence — Physical Evidence — Identification — Discretion</bold> <bold>of Court.</bold> The admission of physical evidence is a discretionary<page_number>Page 372</page_number> decision for the trial court. Positive identification of the evidence is not a prerequisite to its admission. <bold>[9] Searches and Seizures — Consent — Scope — Unexpected</bold> <bold>Discovery.</bold> A consensual search is not invalidated by its resulting in the discovery of evidence which the consenting party did not expect. <bold>[10] Criminal Law — Evidence — Other Offenses — Inseparable Part</bold> <bold>of Whole Deed.</bold> Evidence of uncharged crimes is admissible if it is necessary to give the jury a complete picture of the sequence of events surrounding the crime charged. <bold>[11] Appeal and Error — Review — Issues Not Raised in Trial</bold> <bold>Court — In General.</bold> An appellate court will not consider an issue not properly raised before the trial court. <bold>[12] Criminal Law — Evidence — Preservation — Potentially</bold> <bold>Exculpatory Evidence — Duty of State.</bold> The State is not required to investigate every way in which evidence might benefit the defendant.

<bold>[1] Intoxicating Liquors — Automobiles — Implied Consent —</bold> <bold>Negligent Homicide — Blood Alcohol Test — Probable Cause.</bold> Probable cause to arrest for negligent homicide does not have to include probable cause to demand a blood sample under RCW <cross_reference>46.20.308</cross_reference>(1). Probable cause to administer such a test may arise from actions of the individual after the arrest. <bold>[2] Searches and Seizures — Consent — Voluntariness —</bold> <bold>Determination — In General.</bold> The voluntariness of a consent to search is a question of fact which must be resolved by considering all the circumstances involved including the giving of warnings and advisement of rights, including the right to not consent, and the education and intelligence of the person consenting to the search. The trial court's determination in this regard will be given great weight upon review. <bold>[3] Automobiles — Homicide — Negligent Homicide — Alternate</bold> <bold>Means — Unanimity.</bold> The offense of negligent homicide (RCW <cross_reference>46.61.520</cross_reference>) may be committed by alternate means. The trier of fact is not required to unanimously find any specific means so long as each means charged is supported by substantial evidence. <bold>[4] Automobiles — Homicide — Negligent Homicide — Drug Use —</bold> <bold>Relevance.</bold> Evidence of recent drug use is relevant to whether a defendant was under the influence of drugs at the time of a traffic accident which resulted in a charge of negligent homicide. <bold>[5] Evidence — Opinion Evidence — Expert Testimony —</bold> <bold>Qualification of Expert — Discretion of Court.</bold> A determination as to whether a witness is qualified to express an expert opinion is within the discretion of the trial court. The trier of fact may resolve any doubts as to the witness' qualification by according the testimony such weight as it deems fit. <bold>[6] Controlled Substances — Searches and Seizures — Warrant —</bold> <bold>Probable Cause — Use of Drugs — Possession in Residence.</bold> A police officer's personal belief that habitual drug users keep drugs and drug paraphernalia in their residences is mere speculation and is not sufficient grounds to establish probable cause to search a known drug user's residence. <bold>[7] Criminal Law — Venue — Motion for Change — Determination —</bold> <bold>Discretion of Court.</bold> The trial court's exercise of its<page_number>Page 772</page_number> discretion in denying a motion for a change of venue will be reviewed only for a manifest abuse of discretion. <bold>[8] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> Evidence is sufficient to support a guilty verdict if, after viewing the evidence most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. <bold>[9] Witnesses — Exclusion From Courtroom — Violation of Order —</bold> <bold>Effect.</bold> Permitting a witness to testify after violating an order excluding witnesses from the courtroom is a determination within the discretion of the trial court and will be reviewed only for a manifest abuse of discretion.