Volume 96 — Washington Reports, Second Series

<bold>[1] Appeal and Error — Assignments of Error — Findings of Fact —</bold> <bold>Lack of Reference — Effect.</bold> Even though assignments of error do not specifically refer to the challenged findings of fact as required by RAP 10.3(g), an appellate court may review the findings if the nature of the challenge is clear and the findings are set forth in the briefs before the court. <bold>[2] Appeal and Error — Review — Conclusions Denominated as</bold> <bold>Findings — Effect.</bold> Trial court determinations of the legal effect of certain facts constitute conclusions of law which are reviewed as such even though labeled "findings of fact" by the trial court. <bold>[3] Criminal Law — New Trial — Discretion of Court — Basis.</bold> A trial court abuses its discretion in granting a new criminal trial unless a substantial right of the defendant is materially affected by one of the causes set forth in CrR 7.6(a). <bold>[4] New Trial — Newly Discovered Evidence — Cumulative</bold> <bold>Evidence.</bold> A new trial may not be granted on the basis of newly discovered evidence which is merely cumulative, <italic>i.e.</italic>, evidence of the same kind and to the same point as evidence admitted at trial.<page_number>Page 216</page_number> <bold>[5] Criminal Law — New Trial — Delay in Disclosing Evidence —</bold> <bold>Knowledge of State — Prejudicial Effect.</bold> A new trial cannot be predicated upon the State's late disclosure of evidence to the defendant in the absence of a showing that the State knew of the evidence at an earlier time or that its earlier revelation would have aided the defense. <bold>[6] Criminal Law — Review — Issues Not Raised in Trial Court —</bold> <bold>In General.</bold> A criminal defendant who makes a tactical decision not to bring an alleged error to the trial court's attention prior to the return of the jury's verdict may not later assert the error if the verdict is guilty. <bold>[7] Appeal and Error — Assignments of Error — Argument —</bold> <bold>Necessity.</bold> An issue on appeal which is neither argued nor supported in the record is considered abandoned. <bold>[8] New Trial — Verdict Contrary to Evidence — Test.</bold> A trial court may not grant a new trial based upon the verdict being contrary to the evidence if the record includes substantial evidence supporting the verdict. <bold>[9] New Trial — Failure of Substantial Justice — Basis in</bold> <bold>Record.</bold> An order granting a new trial based upon a failure of substantial justice under CrR 7.6(a)(8) must include reasons or facts which can be objectively evaluated. <bold>[10] Criminal Law — Evidence — Nondisclosure — Effect.</bold> The State's failure to disclose exculpatory evidence does not warrant a new trial unless the evidence would have created a reasonable doubt which did not otherwise exist as to the guilt of the accused. DORE, J., did not participate in the disposition of this case.

<bold>[1] Criminal Law — Crimes — Elements — Intent.</bold> Whether intent is an element of a crime to be proven by the State is generally a matter of legislative determination. <bold>[2] Controlled Substances — Possession — Elements — Intent —</bold> <bold>Guilty Knowledge.</bold> Intent or guilty knowledge is not an element of unlawful possession of a controlled substance under RCW <cross_reference>69.50.401</cross_reference>(d). <bold>[3] Controlled Substances — Possession — Unwitting Possession —</bold> <bold>Burden of Proof.</bold> The burden of proving that controlled substances were unwittingly possessed is upon a defendant. <bold>[4] Criminal Law — Identity of Informant — Disclosure —</bold> <bold>Necessity.</bold> The State must disclose the identity of an informant when the trial court determines, preferably by means of an in camera hearing, that disclosure is relevant and helpful to the defense and that it is essential to a fair trial. In making such a determination the court must balance the public interest in protecting the flow of information against the right of an accused to prepare his defense. Consideration must be given to the crime charged, the possible defenses, the possible significance of the informant's testimony,<page_number>Page 374</page_number> and any other relevant factor. DORE, J., did not participate in the disposition of this case.