FILED MARCH 21, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34035-0-111 Respondent, ) ) V. ) ) UNPUBLISHED OPINION CARRIE LEE AENK, ) ) Appellant. )
FEARING, C.J. - Carrie Aenk appeals convictions for attempted second degree
theft and third degree theft. She argues that the trial court denied her the constitutional
right to present a defense when the court excluded hearsay testimony. She also argues
the State presented insufficient evidence on which to convict her. We disagree and
affirm the convictions.
FACTS
Carrie and Allan Aenk, wife and husband, operate Shepherd's Way Animal No. 34035-0-111 State v. Aenk
Rescue (Shepherd's Way), a dog and horse rescue ranch in Springdale. On July 6, 2013,
Elle Hatfield, of Post Falls, Idaho, called Shepherd's Way to discuss an advertisement for
the adoption of a rescue horse. Hatfield's husband, Dustin, then labored in Afghanistan.
Hatfield spoke with Carrie Aenk, owner and manager of Shepherd's Way. Hatfield
mentioned that she desired a horse for her autistic daughter to ride. Aenk responded that
she works with autistic children on her ranch and the advertised horse, Duke, suited
Hatfield's needs. Aenk also volunteered that other potential buyers had showed interest
in Duke and that Aenk would sell to the first acceptable offeror.
The day following the phone call, Elle Hatfield and her daughter visited
Shepherd's Way, where Hatfield examined Duke. The daughter fell in love with Duke.
Because of other potential buyers, Hatfield signed a contract on July 7 for Duke's
adoption. The contract required a $500.00 nonrefundable adoption fee. Hatfield
tendered a check for $520.00, $500.00 for the adoption fee and $20.00 for a book written
by Carrie Aenk. On August 9, 2013, Carrie Aenk cashed the $520.00 check at Global
Credit Union in Spokane.
Elle and Dustin Hatfield recently had purchased a home with acreage, and the
property lacked a fence for a horse. On July 7, Elle Hatfield mentioned to Carrie Aenk
that Hatfield must board Duke until she erected a fence on her property. Aenk agreed to
board Duke temporarily. Aenk also insisted on teaching the Hatfield daughter in riding
2 No. 34035-0-III State v. Aenk
Duke before the Hatfields took Duke home. During the visit to Shepherd's Way, Elle
Hatfield inquired about other adoptable horses.
During this first visit, Elle Hatfield asked Carrie Aenk for a copy of the signed
Duke purchase agreement. Because the two stood in the field, Aenk stated she would
later e-mail Hatfield a copy. Hatfield never received a copy.
A week later, Elle Hatfield and her daughter returned to Shepherd's Way so that
the teenager could ride Duke. Carrie Aenk instructed the daughter on riding Duke.
During this second visit, Elle Hatfield again expressed interest in adopting other
horses. Aenk mentioned Quinn and Baron as her only adoption horses, yet claimed they
were her favorite horses. · Still, Aenk asserted that she would not sell either horse for less
than $5,000. Hatfield assumed that Aenk joked about a price since Aenk earlier stated
she would not sell either equine. Hatfield jested that she would not pay $5,000 for a
horse. Aenk then grew friendlier and talkier. Hatfield remarked that she would pay
$2,500. Aenk replied: "Yeah, a piece." Report of Proceedings (RP) at 139. Hatfield
exclaimed that her husband would not approve of paying $2,500 per horse, after which
Aenk labeled Hatfield a "trophy wife." RP at 139. Carrie Aenk then escorted Elle
Hatfield to the location of Quinn and Baron. Hatfield adored the loveable Tennessee
Walkers, stated she wanted the two horses, but repeated that she would not pay Aenk's
pnce. Carrie Aenk stated she would speak to her husband about a sale of the horses, and
3 No. 34035-0-III State v. Aenk
the conversation and visit ended.
At some unidentified time, Elle Hatfield called Carrie Aenk to schedule a time for
Hatfield's daughter to again ride Duke. Hatfield asked Aenk if Aenk had spoken to her
husband about the sale of Quinn and Baron. According to Hatfield, Aenk responded that
she had spoken to her husband, the two were reluctant to sell the two horses for $2,500,
but, since no one else rode the horses, they would sell the Tennessee Walkers for $2,500.
Hatfield ended the conversation by stating she wanted her husband to see the horses.
Upon Dustin Hatfield's return from Afghanistan, Dustin, Elle, and their daughter
traveled to Shepherd's Way to see Quinn and Baron. During this August 18, 2013 visit,
the daughter rode Duke. Elle Hatfield met Carrie Aenk's husband, Allan, and Dustin
Hatfield met both Aenks. Carrie showed the Hatfields Quinn and Baron. Dustin Hatfield
sought to reaffirm that the total price for the two horses was $2,500, and, according to
Dustin, Carrie Aenk expressed agreement to the figure.
Elle Hatfield commenced to complete one form contract for the purchase of Quinn
and Baron. Carrie Aenk interrupted Elle, presented Elle with a second contract, and
directed Elle to complete a contract for each horse. Hatfield then crossed out Baron's
name from the first contract. Elle asked her husband for the answer to $2,500 divided by
two. Dustin Hatfield responded $1,250, but then checked his head math with his
cellphone's calculator. According to Elle Hatfield, she then completed both contracts by
4 No. 34035-0-III State v. Aenk
inserting $1,250 as the nonrefundable adoption fee for the respective horses. Dustin
Hatfield wrote a check to Carrie Aenk for $2,500. Dustin postdated the check to August
24, 2013.
On August 18, the Hatfields left Shepherd's Way without a copy of the two
contracts. Carrie Aenk told the couple she would later e-mail them copies. Aenk added
that she and her husband held the right to inspect the Hatfields' property at any time to
determine the property's suitability to house a horse. The Aenks kept possession of
Quinn and Baron until the Hatfields erected a suitable fence to keep the horses.
Carrie Aenk claims Elle and Dustin Hatfield agreed, on August 18, to pay $2,500
per horse. Copies of each contract later in the possession of Carrie Aenk state the
purchase price for each horse to be $2,500. Nevertheless, the copies show some
doctoring of the nonrefundable price. According to Allan Aenk, Elle Hatfield wrote a
check for $2,500. The Hatfields would pay the remaining $2,500 on delivery of the
horses.
Between August 18 and 24, 2013, Carrie and Allan Aenk visited the Hatfields'
property at least three times. On the first visit, the Aenks told the Hatfields that the
Hatfields needed to purchase other fence posts and alter the configuration of the fence.
The Hatfields obeyed. The alterations cost $1,000. On the second visit, the Aenks
demanded one more change in the fence.
5 No. 34035-0-III ·State v. Aenk
On Saturday, August 24, 2013, Carrie Aenk telephoned Elle Hatfield. Aenk
reported that the Hatfields' postdated check would not clear the banking system. Hatfield
called her bank, which informed her that her account held sufficient funds to pay the
check. Hatfield called Aenk and informed Aenk that she should encounter no difficulty
in cashing the check. The two then dialogued:
[AENK:] "Well, I need the money or you guys can't get the horses delivered." [HATFIELD:] "Okay, well, you know, we can meet you at the bank." [AENK:] "No, I just need cash." [HATFIELD:] "Okay, if you bring us the check, we'll get you cash." [AENK:] "Okay, well, Allan and I are already in town; so we can just meet you at the property."
RP at 154-55.
The Hatfields went to their bank and withdrew $2,500 in cash. The Hatfields and
the Aenks then met at the Hatfields' property. According to Elle Hatfield, her husband
exited the family car and handed the cash to one of the Aenks, who remained in their
vehicle. The Aenks did not return the $2,500 check and did not provide Dustin Hatfield a
receipt for the cash.
According to Allan Aenk, he discussed with Elle and Dustin Hatfield, during the
August 24 visit, a time for the delivery of the horses and access to water for the horses at
the Hatfields' land. The record does not show Carrie Aenk to be present during the
6 No. 34035-0-111 State v. Aenk
discussion. Allan Aenk insisted that the Hatfields had yet to prepare the property to care
for horses. He also stated that he and his wife agreed to delivery of the horses on
Monday, August 26.
Upon Dustin Hatfield's return to the car, Elle Hatfield learned that Dustin received
no receipt nor the $2,500 check. From the car, Elle Hatfield called Carrie Aenk, and the
two conversed by speaker phone:
[HATFIELD:] "So, Carrie, um, you forgot to bring us the check." [AENK:] "Yeah. Oh, darn it. It's at my house." [HATFIELD:] "Yeah, and you were going to bring that receipt, too." [AENK:] "Yeah, I'll bring it when I bring the horses."
RP at 155.
Elle and Dustin Hatfield anticipated delivery of Quinn and Baron on August 25,
2013, the day following the tender of the $2,500 in cash. The Aenks appeared on August
25 without the horses. The Aenks announced that, because of other commitments, they
were unable to deliver the Tennessee Walkers for another two weeks. The Aenks also
had yet to deliver Duke to the dismay of the Hatfield daughter.
On August 26, 2013, Elle Hatfield texted Carrie Aenk and wrote that, if the Aenks
did not deliver Quinn and Baron by August 27, the Hatfields would cancel the contract to
purchase the two horses. Elle Hatfield volunteered to retrieve the horses from Shepherd's
Way. Carrie Aenk responded that the Aenks already had a commitment and would not
7 No. 34035-0-III State v. Aenk
engage in two commitments at one time. Eventually Aenk texted Hatfield:
If the unreasonableness continues, I will abide by the contract and determine that the horses will be unsafe in that environment and cancel all three contracts.
Ex. 13. Elle Hatfield reminded Carrie Aenk that Aenk had never mailed a copy of the
contracts to Hatfield. Aenk ended the texting with a threat and a prophecy:
If you come to the ranch, you will be trespassing. See you in court.
Ex. P-15.
During the morning of August 27, 2013, Dustin Hatfield and Carrie Aenk spoke
by phone. Aenk stated that the Board of Directors of Shepherd's Way voted to preclude
the Hatfields from adopting the three horses because of a hostile environment at the
Hatfields' property. Aenk declared, however, that Shepherd's Way would refund the
Hatfields the purchase prices.
Later on August 27, 2013, Carrie Aenk visited ACE check cashing service and
attempted to cash the $2,500 check. ACE called Dustin Hatfield. Dustin directed ACE
not to cash the check. Aenk later claimed that she was just trying to see if the check
remained valid. She also declared that she was entitled to the check. Dustin Hatfield
called his bank and placed a stop payment order on the check. He then called Crime
Check and reported the conduct of Elle Hatfield.
8 No. 34035-0-111 State v. Aenk
The Hatfields still pursued obtaining possession of the horses. The couple rented a
trailer to ferry the horses from Shepherd's Way to the Hatfields' land. Carrie Aenk
responded that she would shoot the Hatfields if the couple came near her ranch. The
Aenks never delivered any of the three horses to the Hatfields.
PROCEDURE
The State of Washington charged Carrie Aenk with attempted second degree theft
and third degree theft. The attempted second degree theft charge arose from the receipt
of at least $2,500 for the purchase of Quinn and Baron without an intention to deliver the
horses to the Hatfields. The third degree theft charge stems from the receipt of $500 for
the acquisition of Duke without an intent to deliver the horse to the Hatfields.
During trial, Elle Hatfield testified that she eventually concluded that the Aenks
would not deliver any of the three horses. Dustin Hatfield testified that Carrie Aenk stole
$3,000, that he concluded that the Hatfields would never see the horses again, and that
the Hatfields would lack recourse to rectify the theft.
During Allan Aenk' s testimony, defense counsel asked Allan questions about
comments made by Elle and Dustin Hatfield to him and discussions between the three, on
August 24, as to the date of delivery of the horses. The State repeatedly objected to the
questions on hearsay grounds. The crux of the questioning follows:
9 No. 34035-0-111 State v. Aenk
Q .... On that Saturday [August 24, 2013], did you have discussions with either Mr. or Mrs. Hatfield about when the horses could be delivered? A. Yes. Q. Okay. And what was the substance of those discussions? MS. ZAPPONE: Objection, hearsay. THE COURT: So Counsel, he can testify to what he said; but if you're asking for the substance of the discussions, you're asking him to testify to what other people said. MR. WALL [Defense Counsel]: Well, Your Honor, I don't know how the jury can understand what happened if he can't testify as to what was talked about in terms of when the horses would be delivered.
RP at 374-75.
After excusing the jury, Allan Aenk and the trial court discoursed:
[ALLAN AENK]: So ifl base my actions and my language or my discussion with Elle and Dustin, if I base that off of what they've told me, I can't say that they told me this and that's why I did this. Is that what you're saying? THE COURT: I'm telling you you can't testify to what they told you. I will let you testify to what you did. You just can't say, "They told me this." It's hearsay.
RP at 377-78.
Defense counsel argued that he did not offer Allan Aenk's testimony for the truth
of the matter asserted. Counsel asserted that he would use the testimony to explain Elle
Hatfield's state of mind concerning the horse transactions. Counsel also argued that the
comments made by the Hatfields to Allan Aenk helped to establish the agreement
reached between the parties as to the timing of delivery of the horses. Nevertheless,
10 No. 34035-0-111 State v. Aenk
Carrie Aenk presented no offer of proof that Allan Aenk later told Carrie Aenk what the
Hatfields said such that Carrie Aenk relied on the Hatfields' statements when reflecting
on the agreed time for delivery. Carrie Aenk presented no testimony that she was present
and overheard the conversation between her husband and the Hatfields. Her counsel
never asked her if she had a conversation with the Hatfields concerning timing of
delivery.
Carrie Aenk testified to the following:
Q. Okay. We talked about these contracts, okay, and that each of them says $2,500 for Quinn and [Baron], correct? A. Correct. Q. Was that what was written on those contracts when you first received them? A. Yes. Q. Okay. Did you alter that in any way? A. No. Q. Did you ever scratch out a different number and replace it? A. No. Q. Was it your understanding that the Hatfields had agreed to pay a $2,500 adoption fee for each of the horses Quinn and [Baron]? A. Correct. Q. Okay. And did you receive payment for Quinn? A. Yes. Q. Okay. And did you have an understanding that you were supposed to wait any period of time before negotiating that check? A. Yes.
RP at 451.
Q. Okay. Were you anticipating when you got to the property that you were going to collect cash from Mr.- A. Yes.
11 No. 34035-0-III State v. Aenk
Q. -Hatfield? Okay. And did you collect cash? A. Yes. Q. And how much? A. $2,600. Q. And what was your understanding of what that money was for? A. It was for Quinn's adoption fee.
RP at 455.
Q. And did you ultimately end up keeping the check? A. Yes. Q. Okay. What was your understanding of why you were keeping the check? A. Because we were-I can't give hearsay. Q. No. I'm just asking you what your understanding was. A. My understanding of being allowed to keep the check was for the second payment for [Baron]. Q. Okay. And did you then intend at some point to negotiate that check for the contract for [Baron]? A. We didn't try to negotiate it. Q. No, no. Did you intend at some time to cash that check? Not on that day. A. Not on that day. We went to verify it, but we did not try to cash it. Q. I'm asking if you intended to cash that check at some point. A. At some point. Q. Okay. And at what point did you intend to actually cash the check? A. When we delivered [Baron].
RP at 458-59.
Q .... Did Mrs. Hatfield ask you something in that phone call? A. Yes. Q. What did she ask you? A. Why haven't we cashed the check yet? Q. Okay. And what did you tell her?
12 No. 34035-0-III State v. Aenk
A. I told her because we weren't supposed to cash it until after [Baron] was delivered.
RP at 460. Carrie Aenk did not testify that her husband mentioned to her statements
made by Elle and Dustin Hatfield about an agreed time for delivery of any of the three
The jury found Carrie Aenk guilty of both attempted second degree theft and third
degree theft. Aenk filed a motion for a new trial based on the trial court's decision to
sustain the hearsay objections during Allan Aenk's testimony. The trial court denied the
motion.
LAW AND ANALYSIS
Issue 1: Whether the proposed testimony ofAllan Aenk constituted
inadmissible hearsay?
Answer 1: Yes.
Carrie Aenk argues that the trial court erred when sustaining a series of hearsay
objections during Allan Aenk's testimony. The objections followed questioning of Allan
Aenk concerning statements made by Elle and Dustin Hatfield to Allan on August 24,
2013, at the Hatfields' property.
This court reviews evidentiary rulings for manifest abuse of discretion. State v.
Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when no
13 No. 34035-0-III State v. Aenk
reasonable person would have decided the issue as the trial court did. State v. Rice, 110
Wn.2d 577,600, 757 P.2d 889 (1988).
Hearsay is defined as an out of court statement "offered in evidence to prove the
truth of the matter asserted." ER 801(c). A statement is not hearsay if it is used only to
show the effect on the listener without regard to the truth of the statement. State v.
Gonzalez-Gonzalez, 193 Wn. App. 683,690,370 P.3d 989 (2016); State v. Edwards, 131
Wn. App. 611,614, 128 P.3d 631 (2006).
According to Carrie Aenk, statements uttered by the Hatfields to Allan Aenk
helped to establish Carrie Aenk's belief as to the agreement between the parties,
particularly concerning a date for delivery of the horses. Carrie Aenk may also argue that
the trial court should have admitted Allan Aenk's testimony concerning purported
comments of the Hatfields in order to show the impact of the statements on Allan.
Nevertheless, the effect on Allan is not directly relevant to criminal charges against
Carrie Aenk. Also, Carrie Aenk presented no testimony that her husband relayed to her
· any comments uttered to him by the Hatfields. Thus, the Hatfield comments would lack
any impact on Carrie Aenk's understanding of any agreement. The trial court did not
abuse its discretion in excluding the testimony.
Carrie Aenk contends that the trial court also precluded her from testifying as to
comments uttered by the Hatfields to Carrie about the timing of delivery of the horses.
14 No. 34035-0-III State v. Aenk
The only citation to the record given by Aenk for this purported preclusion is a section of
a brief in support of a motion for reconsideration. The brief, in tum, contains no citation
to the transcript. Therefore, we conclude the trial court precluded no such testimony
from Carrie Aenk. RAP 10.3(a)(6) requires an appellant to cite to the relevant portions of
the record in the argument section of her brief. A party must cite to the record for
assigned error. Glazer v. Adams, 64 Wn.2d 144, 149, 391 P.2d 195 (1964).
Carrie Aenk further assigns error to the trial court's purported refusal to allow her
to testify that Dustin Hatfield directed her to keep the $2,500 check as the second
payment for the adoption of Quinn and Baron. Again, the only citation in the brief to this
alleged error is the brief in support of the motion for reconsideration. The motion for
reconsideration lacks any citation to the trial record.
Issue 2: Whether the trial court precluded Carrie Aenkfrom presenting a
defense when the court sustained a series of hearsay objections during Allan
Aenk's testimony.
Answer 2: No.
Carrie Aenk contends the hearsay rulings also violated her right, under the
Sixth Amendment to the United States Constitution, to present a defense. We
discern no error.
15 No. 34035-0-III State v. Aenk
When addressing her constitutional argument, Carrie Aenk argues that the
standard of review for evidentiary rulings is de novo. The State responds that this
reviewing court should employ an abuse of discretion criterion, the familiar review
for evidentiary issues.
The standard of review under these circumstances is unclear. In State v.
Jones, the Washington Supreme Court wrote: "[s]ince Jones argues that his Sixth
Amendment right to present a defense has been violated, we review his claim de
novo." 168 Wn.2d 713,719,230 P.3d 576 (2010). However, in State v. Aguirre,
the state high court declared:
Although Aguirre does have a constitutional right to present a defense, the scope of that right does not extend to the introduction of otherwise inadmissible evidence. The admissibility of evidence under the rape shield statute, in tum, "is within the sound discretion of the trial court." State v. Hudlow, 99 Wn.2d 1, 17,659 P.2d 514 (1983).
168 Wn.2d 350, 362-63, 229 P.3d 669 (2010) (internal citations omitted). We do not
need to resolve this conflict because under either standard we affirm the trial court.
The right of an accused in a criminal trial to due process is, in essence, the right to
a fair opportunity to defend against the State's accusations. Chambers v. Mississippi, 410
U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A defendant's right to an
opportunity to be heard in his defense, including the right to examine witnesses against
him and to offer testimony, is basic in our system of jurisprudence. Chambers v.
16 No. 34035-0-111 State v. Aenk
Mississippi, 410 U.S. at 294. Nevertheless, an accused does not have a right to offer
incompetent, privileged, or otherwise inadmissible evidence under standard rules of
evidence. Taylor v. Illinois, 484 U.S. 400,410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988);
State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015), review denied, 185
Wn.2d 1022, 369 P.3d 501 (2016).
We previously held that the proffered testimony did not violate evidentiary rules.
Therefore, the trial court committed no constitutional error.
Issue 3: Whether sufficient evidence supports the element of "deception" for
Carrie Aenk 's theft in the third degree conviction.
Answer 3: Yes.
Carrie Aenk argues that the State failed to produce evidence that she deceived the
Hatfields when she accepted payment of the $500 nonrefundable adoption fee for Duke.
We disagree.
Evidence is sufficient if a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)
(plurality opinion). Both direct and indirect evidence may support the jury's verdict.
State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all
reasonable inferences in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567
P.2d 1136 (1977). In claiming insufficient evidence, the defendant necessarily admits the
17 No. 34035-0-111 State v. Aenk
truth of the State's evidence and all reasonable inferences that can be drawn from it.
State v. Homan, 181 Wn.2d 102,106,330 P.3d 182 (2014). Only the trier of fact weighs
the evidence and judges the credibility of witnesses. State v. Carver, 113 Wn.2d 591,
604, 781 P.2d 1308, 789 P.2d 306 (1989).
The statute governing theft in the third degree provides:
A person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed seven hundred fifty dollars in value.
RCW 9A.56.050(1 ). In this context, "theft" means:
[b ]y color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.
RCW 9A.56.020(1)(b) (emphasis added). RCW 9A.56.010 defines additional
terms:
(4) "By color or aid of deception" means that the deception operated to bring about the obtaining of the property or services; it is not necessary that deception be the sole means of obtaining the property or services; (5) "Deception" occurs when an actor knowingly:
( e) Promises performance which the actor does not intend to perform or knows will not be performed.
In her briefing, Carrie Aenk emphasizes her testimony regarding a lack of intent to
deceive. She focuses on her and her husband's testimony that the Hatfields had never
adequately prepared the Hatfields' property to care for horses and that the Aenks never
18 No. 34035-0-111 State v. Aenk
abridged an agreement to deliver the horses. Nevertheless, we determine sufficiency of
evidence by construing the evidence in favor of the State. The State presented evidence,
which the jury found credible, that Aenk never intended to deliver Duke, valued at $500,
to the Hatfields. Exhibits showed alterations by Carrie Aenk of the contract price for the
horses. Text messages showed hostile threats from Carrie Aenk to prevent the Hatfields
from gaining access to the horses. Elle Hatfield testified to the delays and false promises
of the Aenks. Dustin Hatfield testified to Carrie Aenk's attempt to cash a check despite a
promise to the contrary. Both Hatfields averred concerning the constant delays in
delivering the horses. Under the contract, the Hatfields paid a $500 nonrefundable price.
The jury could have concluded that Carrie Aenk proffered illegitimate excuses to deliver
Duke so that she could pocket the $500 without forgoing possession of Duke.
Issue 4: Whether this court should award appellate costs in favor of the State?
Answer 4: No.
Carrie Aenk asks this court to deny the State an award of costs on appeal in the
event the State prevails. Generally "the party that substantially prevails on review" will
be awarded appellate costs, unless the court directs otherwise in its decision terminating
review. RAP 14.2. An appellate court's authority to award costs is "permissive," and a
court may, pursuant to RAP 14.2, decline to award costs at all. State v. Nolan, 141
Wn.2d 620, 628, 8 P.3d 300 (2000). An appellate court has discretion to require a
19 No. 34035-0-III State v. Aenk
convicted defendant to pay appellate costs to the State. RCW 10.73.160(1); RAP 14.2.
Carrie Aenk submitted a report of continued indigency that shows her persisting
penury. Therefore, we deny the State appellate costs.
STATEMENT OF ADDITIONAL GROUNDS
Carrie Aenk lists seven arguments in her statement of additional grounds. Each
fails.
A criminal defendant can submit a pro se statement of additional grounds for
review "to identify and discuss those matters related to the decision under review that the
defendant believes have not been adequately addressed by the brief filed by the
defendant's counsel." RAP 10.lO(a). The rule additionally provides in part:
Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant's statement of additional grounds for review. Only documents that are contained in the record on review should be attached or referred to in the statement.
RAP 10.lO(c); see also State v. Alvarado, 164 Wn.2d 556,569, 192 P.3d 345 (2008).
Carrie Aenk's statements 1, 6, and 7 reference information beyond the trial court
record. Statements 2, 3, 4, and 5 rely on documents attached to Aenk's statement but
20 No. 34035-0-111 State v. Aenk
outside the trial court record. Therefore, we decline to address the merits of the
statements of additional grounds.
CONCLUSION
We affirm Carrie Aenk's convictions for attempted second degree theft and third
degree theft. We deny the State costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, C .J.
WE CONCUR:
Lawrence-Berrey, J. j