Volume 73 — Washington Appellate Reports

<bold>[1] Waiver — What Constitutes — In General.</bold> A waiver is a voluntary relinquishment of a specific right. <bold>[2] Criminal Law — Omnibus Hearing — Waiver by Stipulation —</bold> <bold>Impeachment Evidence.</bold> A prosecutor's assertion at a pretrial CrR 4.5 omnibus hearing that the State would not try to introduce a statement of the defendant at trial followed by a later clarification that the State reserved the right to elicit the statement if the defendant were to testify does not waive the State's right to use the statement to impeach the defendant. <bold>[3] Criminal Law — Confessions — Voluntariness — Hearing —</bold> <bold>Timing — Interruption of Trial.</bold> A trial court may hold a CrR 3.5 hearing after the criminal trial commences to determine the admissibility of the defendant's inculpatory statement unless the timing of the hearing prejudices the defendant. <bold>[4] Criminal Law — Evidence — Suppression — Findings and</bold> <bold>Conclusions — Delay — Effect.</bold> A trial court's delayed entry of findings of fact and conclusions of law following a CrR 3.5 hearing constitutes harmless error if the court's oral findings are<page_number>Page 123</page_number> sufficient to allow appellate review and the delay did not prejudice the defendant. <bold>[5] Criminal Law — Confessions — Invalid Confession — Use for</bold> <bold>Impeachment.</bold> A statement obtained in violation of <italic>Miranda</italic> <italic>v. Arizona,</italic> <cross_reference>384 U.S. 436</cross_reference>, is admissible for impeachment purposes so long as the statement was not the product of coercion and satisfies due process standards of voluntariness. <bold>[6] Criminal Law — Confessions — Voluntariness — Test.</bold> A confession is voluntary if it is the product of an essentially free and unconstrained choice. <bold>[7] Criminal Law — Confessions — Voluntariness — Determination —</bold> <bold>Factors.</bold> In determining whether a confession was made voluntarily, a court examines the totality of the circumstances, including the presence of threats or violence, direct or indirect promises, and the use of improper influence or police trickery.

<bold>[1] Searches and Seizures — Warrant — Probable Cause — Review —</bold> <bold>Standard of Review.</bold> A judge's determination that sufficient probable cause exists to justify issuing a search warrant is reviewed under the abuse of discretion standard. <bold>[2] Searches and Seizures — Warrant — Probable Cause — Review —</bold> <bold>Scope.</bold> Only that information which was before the issuing judge is reviewed when determining whether probable cause exists to justify issuing the search warrant. <bold>[3] Searches and Seizures — Warrant — Affidavit — Sufficiency —</bold> <bold>Factual Basis.</bold> An affidavit in support of a search warrant does not establish probable cause unless it sets forth facts sufficient for a reasonable person to conclude that evidence of criminal activity can be found at the place to be searched. More than suspicion and mere personal belief is required. <bold>[4] Searches and Seizures — Warrant — Informant — Deficiencies —</bold> <bold>Additional Police Investigation.</bold> If informant information is not sufficient to establish probable cause for the issuance of a search warrant, the deficiency may be overcome by independent police investigation pointing to suspicious activities or indications of criminal activity along the lines suggested by the informant. <bold>[5] Searches and Seizures — Warrant — Affidavit — Sufficiency —</bold> <bold>Unconfirmed Information — Lack of Corroboration.</bold> Probable cause to issue a search warrant does not exist when the only information before the issuing judge is unconfirmed<page_number>Page 133</page_number> statements by unidentified informants which additional police investigation fails to corroborate. <bold>[6] Searches and Seizures — Warrant — Probable Cause —</bold> <bold>Determination — Suspicions of Criminal Acts.</bold> A suspicion that an individual is engaged in criminal acts is not sufficient to establish probable cause to search that individual's residence.

<bold>[1] Goodwill — Professional Practice — Valuation — Factors.</bold> The existence and value of professional goodwill are determined by considering the professional's age; health; past earning power; reputation in the community for judgment, skill, and knowledge; and comparative professional success and by applying an acceptable method of valuation. <bold>[2] Goodwill — Professional Practice — Valuation — Question of</bold> <bold>Law or Fact.</bold> The valuation of professional goodwill is an issue of fact. <bold>[3] Goodwill — Professional Practice — Valuation — Accounting</bold> <bold>Methods — Effect.</bold> A court must achieve a just and fair evaluation of the existence and value of professional goodwill regardless of the accounting method used. <bold>[4] Goodwill — Professional Practice — Valuation — Review —</bold> <bold>Record — Sufficiency.</bold> The accounting method or methods used and factors the trial court considered in determining the presence and value of professional goodwill must be made a matter of record in order for a reviewing court to determine if the valuation is supported by substantial evidence. <bold>[5] Appeal — Findings of Fact — Review — Substantial Evidence —</bold> <bold>In General.</bold> A trial court's findings of fact which are supported by substantial evidence will be upheld on review. <bold>[6] Divorce — Child Custody — Review — Standard of Review.</bold> A trial court's child custody determinations are reviewed under the abuse of discretion standard. The determinations will be upheld unless the trial court exercised its discretion on untenable grounds or for untenable reasons. <bold>[7] Divorce — Child Custody — Factors — Sexual Offender</bold> <bold>Profile.</bold> Sexual offender profile evidence is unfairly prejudicial and should not be admitted when determining child custody and visitation rights. <bold>[8] Divorce — Maintenance — Review — Standard of Review.</bold> An award of spousal maintenance under RCW <cross_reference>26.09.090</cross_reference> is reviewed under the abuse of discretion standard. <bold>[9] Divorce — Attorney Fees — On Appeal — Factors — Merits —</bold> <bold>Ability To Pay.</bold> In determining whether to award attorney<page_number>Page 202</page_number> fees to a spouse seeking review of a divorce decree, the appellate court examines the arguable merit of the issues appealed and the financial resources of each of the parties.

<bold>[1] Evidence — Review — Standard of Review.</bold> The admissibility of evidence is reviewed under the abuse of discretion standard. <bold>[2] Controlled Substances — Possession — Intent To Deliver —</bold> <bold>Proof — Packaging — Profit Margin.</bold> In a prosecution for possession of a controlled substance with intent to deliver, evidence of the manner of packaging the controlled substance and the profits that can be made from its sale is not relevant absent some evidence, beyond bare possession of a quantity of the controlled substance, of the defendant's intent to sell the substance. <bold>[3] Criminal Law — Review — Harmless Error — Admission of</bold> <bold>Evidence — Sufficiency of Admissible Evidence.</bold> An error in admitting evidence in a criminal trial is prejudicial if the evidence remaining after the erroneously admitted evidence is excluded is insufficient to support the guilty verdict. <bold>[4] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> To support a criminal conviction, the evidence when viewed most favorably toward the State must be sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt. <bold>[5] Controlled Substances — Delivery — Intent To Deliver —</bold> <bold>Inference — Possession — In General.</bold> In a prosecution for possession of a controlled substance with intent to deliver, the mere fact of the defendant's possession of a controlled substance is insufficient to prove an intent to deliver. <bold>[6] Controlled Substances — Delivery — Intent To Deliver —</bold> <bold>Inference — Quantity of Drug.</bold> An experienced law enforcement officer's belief that the amount of a controlled substance possessed by a criminal defendant is greater than is "usual" or "customary" for personal use is insufficient, by itself, to prove an intent to deliver. <bold>[7] Controlled Substances — Possession — Intent To Deliver —</bold> <bold>Included Offenses — Simple Possession.</bold> The crime of possession of more than 40 grams of a controlled substance is not a lesser included offense of the crime of felonious possession of a controlled substance with intent to deliver.<page_number>Page 212</page_number>

<bold>[1] Criminal Law — Confessions — Corroboration — Corpus Delicti</bold> <bold>— Proof — Degree of Proof — In General.</bold> A conviction can be based on a confession that is corroborated by independent proof that supports a logical and reasonable inference that the crime occurred. The independent proof need not establish the corpus delicti of the crime beyond a reasonable doubt or by a preponderance of the evidence. <bold>[2] Sexual Offenses — Confessions — Corroboration — Corpus</bold> <bold>Delicti — Proof — Genital Pain.</bold> A victim's complaint of genital pain during sexual contact is sufficient independent proof to corroborate a confession of a sexual crime. <bold>[3] Criminal Law — Punishment — Sentence — Within Standard Range</bold> <bold>— No Right of Appeal — Scope — Duration of Sentence.</bold> The duration of a sentence within the standard range is not subject to appeal under RCW 9.94A.210(1).

<bold>[1] Adoption — Termination of Parental Relationship — Parent's</bold> <bold>Standing To Adopt.</bold> Under RCW <cross_reference>13.34.200</cross_reference>, a parent whose parental rights respecting a child have been terminated has no standing to petition to adopt the child. <bold>[2] Appeal — Disposition of Cause — Grounds Not Raised on Appeal</bold> <bold>— Dispositive Statute.</bold> An appellate court has the duty to apply a dispositive statute to the undisputed facts of a case even though the parties have not brought the statute to the court's attention. <bold>[3] Juveniles — Parental Relationship — Termination — Scope.</bold> A valid termination order completely severs the relationship between a parent and child and is a final determination that permanent termination is in the best interest of the child. The terminated parent may not relitigate the issue in any future legal proceeding of any nature whatsoever. <bold>[4] Adoption — Petition — Petitioner's Spouse — Unqualified To</bold> <bold>Adopt — Effect.</bold> Under RCW <cross_reference>26.33.150</cross_reference>(4), which requires the spouse of a married person who petitions to adopt a child to join in the petition, the petition must be dismissed if the petitioner's spouse does not qualify to adopt the child. <bold>[5] Adoption — Postplacement Report — Mandatory Placement.</bold> A person petitioning to adopt a child does not have an automatic right, under RCW <cross_reference>26.33.200</cross_reference>, to have the child placed with the petitioner in order to obtain a postplacement report. <bold>[6] Adoption — Petition — Prospective Adoptive Parent —</bold> <bold>Qualification and Supervision — Authority.</bold> The agency having legal custody of a child has the authority and the responsibility, under RCW 26.33, to determine if a person petitioning to adopt a child is initially qualified as a prospective adoptive parent of that child and if the person continues to meet the agency's parental qualifications throughout the adoption process. Throughout the adoption process, the best interests of the child are paramount.

<bold>[1] Juveniles — Juvenile Court — Jurisdiction — Adult or</bold> <bold>Juvenile — Critical Date.</bold> Adult or juvenile court jurisdiction over a crime committed when the perpetrator was under 18 years of age is determined as of the date criminal proceedings are initiated against the perpetrator. <bold>[2] Juveniles — Juvenile Court — Jurisdiction — Declination —</bold> <bold>Postdeclination Dismissal — Jurisdiction Over Dismissed</bold> <bold>Charge.</bold> When multiple charges are filed in juvenile court and the court declines jurisdiction over some and dismisses<page_number>Page 869</page_number> others after the declination order, the postdeclination dismissal divests the juvenile court of jurisdiction over the dismissed charges absent a showing of prosecutorial misconduct. <bold>[3] Juveniles — Juvenile Court — Jurisdiction — Adult or</bold> <bold>Juvenile — Right To Be Tried as Juvenile — In General.</bold> There is no constitutional right to be tried in juvenile court. <bold>[4] Juveniles — Juvenile Court — Jurisdiction — Adult or</bold> <bold>Juvenile — Dismissal in Juvenile Court — Refiling in Superior</bold> <bold>Court — Due Process.</bold> Whether the filing in superior court of charges previously dismissed in juvenile court violates the accused's right of due process depends on fundamental fairness and fundamental concepts of justice.