FILED OCTOBER 25, 2018 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STATE OF WASHINGTON, ) ) No. 35410-5-III Respondent, ) ) v. ) ) CURTIS C. ANDERSON, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Curtis Anderson appeals his conviction of one count of violation
of a no-contact order, committed against a family or household member. The State
concedes that evidence at a CrR 3.5 hearing was insufficient to support the trial court’s
finding that incriminating statements Mr. Anderson made to police while in custody were
voluntarily and knowingly made. Although the State argues that the error was harmless,
we disagree and hold that a new trial is required. While that issue is dispositive, we
address one other of Mr. Anderson’s assignments of error, alleged prosecutorial
misconduct, that we fear might otherwise be repeated on retrial. No. 35410-5-III State v. Anderson
FACTS AND PROCEDURAL BACKGROUND
Early one morning in February 2017, Robert Delp, who lived at 1616 North Cedar
Street in Spokane, called the county’s Crime Check hotline after seeing a man looking
into parked cars on the street. Mr. Delp later testified that he confronted the man, who
pulled out a “hunting knife” and then walked north on Cedar Street. Report of
Proceedings (RP) at 93. He described the man as wearing blue jeans, a dark jacket, and a
black baseball cap with an orange symbol on it. The man was wearing a bandana across
his face so, as Mr. Delp later testified, he could not see his face. Officer Trevor Winters
responded to Mr. Delp’s call at approximately 7:00 a.m. but was unable to locate anyone
in the vicinity who met Mr. Delp’s description.
Around 8:30 the same morning, police received another call reporting a person
rummaging through a car a couple of blocks from Mr. Delp’s home. Officer Winters
returned to the area and this time sighted Curtis Anderson on Walnut Street, just south of
an alleyway between Augusta and Nora Streets. Mr. Anderson was wearing clothing
consistent with Mr. Delp’s description. Officer Winters asked to speak with Mr.
Anderson and then, when he saw that he had a knife in a sheath on his belt, asked him to
sit on a nearby porch, knowing that other officers were responding. Mr. Anderson was
compliant.
Mr. Anderson gave his name and date of birth when asked, and Officer Winters
used the information to do a record and warrant check. He learned that a court order
2 No. 35410-5-III State v. Anderson
prohibited Mr. Anderson from being within two blocks of the home of Mr. Anderson’s
mother, Kary Curtis, who lived at 1322 West Spofford Avenue. Based on the officer’s
conclusion that he and Mr. Anderson were then “[a]pproximately two blocks” from Ms.
Curtis’s home and that Mr. Anderson would have been even closer to her home if he was
the person sighted by Mr. Delp, he questioned Mr. Anderson about the possible no-
contact violation. RP at 110. According to Officer Winters, Mr. Anderson denied being
at his mother’s home the night before or that day, but when asked if he had been involved
in an altercation with someone at 1616 North Cedar, he admitted he had exchanged
words with someone while walking by that location.
Coincidentally, as Officer Winters spoke with Mr. Anderson, David Curtis, Kary
Curtis’s husband, called police to report a possible burglary the night before at their
Spofford Avenue home. Mr. Curtis had discovered an open gate and that a bathroom
window on the ground floor was open and its screen was cut. A large overturned bucket
was on the ground outside the window and footprints in the snow led to the bucket.
Officer Nicholas Spolski responded to Mr. Curtis’s call. He notified Officer Winters of
what he learned from Mr. Curtis.
The officers decided to take Mr. Anderson to Mr. Delp’s home for a field showup.
As Mr. Delp described the showup at trial, he stood on his porch with Officer Winters
while Officer Spolski had Mr. Anderson, who was handcuffed, step out of a patrol car
located about a half a block away. Mr. Delp testified that he told officers he could not
3 No. 35410-5-III State v. Anderson
make a facial identification, but that Mr. Anderson’s clothes and backpack matched those
of the man he had seen. By the time Mr. Anderson was presented to Mr. Delp, Officer
Winters had relieved Mr. Anderson of his knife and he was not wearing the sheath, so
Mr. Delp made no identification of those items. The knife taken from Mr. Anderson was
not admitted into evidence or identified at trial.
The officers did not have Mr. Anderson speak, so Mr. Delp made no voice
identification. When cross-examined at trial, Mr. Delp acknowledged that it was just
beginning to get light when he had the encounter with the suspected vehicle prowler, that
the encounter lasted about 10 seconds, and that he could not describe the suspect’s height,
weight, or hair color.
Following the showup, Officer Spolski told Mr. Anderson that his shoe prints
matched those seen in the snow at the Curtis home and that Mr. Delp placed him in the
area. Officer Spolski claims that in response, Mr. Anderson told the officer that he “had
gone to his mom’s house because he was cold and hungry.” RP at 138.
Mr. Anderson was charged with one count of felony violation of a no-contact
order, domestic violence. The prohibition language from the order, which was admitted
as an exhibit at trial, stated:
4 No. 35410-5-III State v. Anderson
Ex. 1.
The trial court conducted a CrR 3.5 hearing on the admissibility of Mr.
Anderson’s statements to police on the first day of trial. Officer Winters was called by
the State and provided the following testimony about advising Mr. Anderson of his rights
after stopping him on Walnut Street:
A. He was detained at that time. He was not placed under arrest. Q. Did you speak to him? A. Yes, I did. Q. Did he appear to want to speak to you? A. I advised him of his Miranda[1] rights, which he stated he understood. And then he waived his rights and was willing to talk to me. Q. So you did advise him of his rights at that time? A. Sorry. Prior to advising him of his rights, I asked him what he was doing. He said he was checking on that vehicle. He said he believed it was abandoned and was just making sure no one else had broken into it.
RP at 40.
During cross-examination, defense counsel presented and Officer Winters
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5 No. 35410-5-III State v. Anderson
identified a department issued card printed with a warning of constitutional rights. The
card was not offered or admitted into evidence. Officer Winters reiterated that he
“personally read [Mr. Anderson] his rights” but then stated, “I do not recall if I used a
card or if I said the rights from memory.” RP at 58. He acknowledged that Mr.
Anderson had not signed a constitutional rights card and had not been presented with one.
The officer later testified that the cards might not even have been printed and available at
the time of Mr. Anderson’s detention, adding, “I gave him a verbal admonishment.”
RP at 63.
Mr. Anderson testified at the hearing that the officer who stopped him was not
Officer Winters. He denied that any officer advised him of his Miranda rights and denied
that he was within two blocks of his mother’s home as charged.
The trial court suppressed only the statements made by Mr. Anderson before the
point at which Officer Winters claims to have read or recited Miranda warnings. The
court found that the officer provided Miranda warnings early in the men’s encounter. It
ruled all of Mr. Anderson’s post-Miranda statements admissible, stating, in part:
The officer testified that he read those—he recited those rights or read them. He wasn’t certain that he recited them from memory, and there was no questioning about that. There was no question that this court is aware of that those rights were incorrectly or improperly provided.
RP at 74.
6 No. 35410-5-III State v. Anderson
At trial, the defense focused on weaknesses in Mr. Delp’s identification of Mr.
Anderson and whether—if Mr. Anderson was not the man seen by Mr. Delp—the State
had proved that Mr. Anderson was ever within two blocks of his mother’s home.
Officer Winters testified that the location where he stopped Mr. Anderson was
within two blocks of Ms. Curtis’s home. But Mr. Curtis testified that a person would
have to travel three blocks to arrive at the location. Defense counsel questioned
witnesses with a map that was referred to as “Defendant’s Exhibit No. 1,” but she never
offered it in evidence.2 RP at 127.
During closing argument, the prosecutor argued that Mr. Anderson knowingly
violated the provisions of the no-contact order, relying on Mr. Delp’s identification of
2 We take judicial notice that had a map been admitted, it would have revealed the following locations of the relevant homes and detention:
7 No. 35410-5-III State v. Anderson
Mr. Anderson as the suspected prowler, Officer Winters’s detention of Mr. Anderson on
Walnut Street, Mr. Anderson’s admission to Officer Spolski that he went to his mother’s
home, and the footprints in the snow in the Curtises’ yard. The prosecutor pointed jurors
to an instruction that knowingly performing an act is established if the person performs
the act intentionally and told the jury, “whatever we do, we do intentionally.” RP at 164.
He offered as an example the jurors’ “intentional” appearance in response to their jury
summonses. The defense did not object.
The jury found Mr. Anderson guilty of the sole count of felony violation of a no-
contact order and that the crime was committed against a family or household member.
The trial court sentenced Mr. Anderson to 60 months’ confinement and at the request of
Mr. Anderson’s mother, modified the no-contact order to permit them to communicate.
Mr. Anderson appeals.
ANALYSIS
Mr. Anderson makes 10 assignments of error. Four relate to the trial court’s ruling
that Mr. Anderson’s statements to police were admissible, including an assignment of
error to the trial court’s failure to enter findings of fact and conclusions of law following
the CrR 3.5 hearing. Because we conclude that a new trial is required in light of the
nonharmless error in admitting Mr. Anderson’s statements, we address only (1) that
issue, (2) the challenge to the no-contact order on constitutional vagueness grounds, and
8 No. 35410-5-III State v. Anderson
(3) a contention of prosecutorial misconduct for conflating intentional action with
knowing action that we fear might otherwise be repeated on retrial.
We first address the vagueness challenge, then address our conclusion that the
admission of Mr. Anderson’s statements to police was not harmless, and turn last to the
confusion over the required element that the violation of a no-contact order be
“knowing.”
A vagueness challenge to the no-contact order was not preserved
If Mr. Anderson’s vagueness challenge to the no-contact order was successful, we
would direct the trial court to dismiss the charge against him, so we address that asserted
error first. Mr. Anderson argues the order is unconstitutionally vague because the
handwritten “2 blk” in the order is illegible and “two blocks” is not a sufficiently definite
description of the area he was prohibited from entering. Clerk’s Papers (CP) at 3.
RAP 2.5(a) states the general rule that appellate courts will not entertain issues not
raised in the trial court. State v. Guzman Nunez, 160 Wn. App. 150, 157, 248 P.3d 103
(2011) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988), aff’d, 174 Wn.2d
707, 285 P.3d 21 (2012)). The reason for this rule is to afford the trial court an
opportunity to correct errors as they are raised, thereby preserving the use of judicial
resources. Scott, 110 Wn.2d at 685. Mr. Anderson did not testify at trial. His lawyer did
not challenge the no-contact order as unconstitutionally vague.
9 No. 35410-5-III State v. Anderson
RAP 2.5(a)(3) permits a party to raise an unpreserved claim of “manifest error
affecting a constitutional right.” To establish manifest constitutional error, a criminal
defendant must identify a constitutional error and make a showing that the error
negatively affected his rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d
125 (2007). “It is this showing of actual prejudice that makes the error ‘manifest,’
allowing appellate review.” Id. at 927 (citing State v. McFarland, 127 Wn.2d 322, 333,
899 P.2d 1251 (1995)). “If the facts necessary to adjudicate the claimed error are not in
the record on appeal, no actual prejudice is shown and the error is not manifest.”
McFarland, 127 Wn.2d at 333.
The due process vagueness doctrine under the Fourteenth Amendment to the
United States Constitution and article I, section 3 of the state constitution requires that
citizens have fair warning of proscribed conduct. State v. Bahl, 164 Wn.2d 739, 752, 193
P.3d 678 (2008). The same vagueness doctrine that applies to statutes applies to
protection or no-contact orders whose violation could result in criminal penalties. E.g.,
City of Seattle v. May, 171 Wn.2d 847, 855-56, 256 P.3d 1161 (2011). Such an order is
unconstitutionally vague if it is either insufficiently definite such that ordinary people
cannot understand what conduct is proscribed, or if it does not provide ascertainable
standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wn.2d at 752-53.
Mr. Anderson relies on the former infirmity: he argues that his no-contact order was
unconstitutionally indefinite.
10 No. 35410-5-III State v. Anderson
In a case addressing an allegedly vague statute, the United States Supreme Court
has held that the degree of vagueness that the Constitution tolerates, as well as the
relative importance of fair notice and fair enforcement, depends in part on the nature of
the enactment. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). We find that the distinctions identified
in Hoffman Estates also have relevance where a court order imposed against a particular
defendant is alleged to be unconstitutionally vague. The Court explained that economic
regulations are subject to a less strict vagueness test because their subject matter is often
more narrow and a regulated enterprise may have the ability to clarify the meaning of the
regulation by its own inquiry.3 Here, the no-contact order had a very narrow subject
matter and was completed in the presence of Mr. Anderson, who signed it. The
handwritten two block prohibited zone might even have been requested by Mr. Anderson
or his lawyer as easier to comply with than the default prohibited zone of 1,000 feet
provided by the standard no-contact order form. See Ex. 1. The meaning of the two
3 This court has likewise held that when a court order applicable to a particular defendant is challenged as unconstitutionally vague, the fact that the defendant actually understands what is prohibited is a sufficient response to the challenge. In State v. Weatherwax, for instance, this court cited United States v. Soltero, 510 F.3d 858 (9th Cir. 2007), for the proposition that a condition forbidding a defendant from wearing or possessing items connoting affiliation with a particular gang was not insufficiently definite for that defendant, who was an admitted member of the gang and presumably familiar with its paraphernalia. Weatherwax, 193 Wn. App. 667, 678, 376 P.3d 1150 (2016), rev’d on other grounds, 188 Wn.2d 139, 392 P.3d 1054 (2017).
11 No. 35410-5-III State v. Anderson
block zone might well have been discussed at the hearing at which the no-contact order
was entered.
Hoffman Estates also observes that the Court “has recognized that a scienter
requirement may mitigate a law’s vagueness, especially with respect to the adequacy of
notice to the complainant that his conduct is proscribed.” 455 U.S. at 499. As observed
in Screws v. United States, “The requirement that the act must be willful or purposeful
may not render certain, for all purposes, a statutory definition of the crime which is in
some respects uncertain. But it does relieve the statute of the objection that it punishes
without warning an offense of which the accused was unaware.” 325 U.S. 91, 102, 65 S.
Ct. 1031, 89 L. Ed. 1495 (1945) (plurality opinion) (emphasis added). In Mr. Anderson’s
case, the State would not meet its burden of proving the essential element of a “knowing
violation” without satisfying jurors beyond a reasonable doubt that Mr. Anderson knew
what the no-contact order prohibited.
Mr. Anderson’s first vagueness challenge to the no-contact order—that the
handwritten “2 blk” is illegible—does not qualify as manifest constitutional error because
the trial court heard Mr. Anderson’s testimony at the CrR 3.5 hearing that he knew the
no-contact order prohibited him from coming within two blocks of his mother’s home.
His second objection to the order—that “two blocks” is not a sufficiently definite
description of the prohibited area—fails because facts necessary to adjudicate the claimed
error are not in the record on appeal. At trial, Mr. Anderson did not challenge the no-
12 No. 35410-5-III State v. Anderson
contact order as unconstitutionally vague. He argued, principally, that it described the
number of linear blocks that someone traveling on public streets or walkways must travel,
which he contended was three.4 As defense counsel argued in closing, “what we heard is
that, to get from the Spofford address, you had to go up one block to the intersection of
Augusta, cross the street, go up another block to get to the intersection of Nora and
Cedar, and then head one block west to get to the intersection of Walnut and Nora.”
RP at 171.
The no-contact order was in evidence but no evidence was presented of what
transpired at the hearing at which the order was entered, which Mr. Anderson attended.
Because facts necessary to determine what Mr. Anderson actually understood about the
two block zone are not in the record, no actual prejudice is shown and the error is not
manifest.
Admitting Mr. Anderson’s incriminating admissions was not harmless error
The State concedes that Mr. Anderson’s statements were admitted in violation of
his constitutional rights. We are not required to accept a concession we determine is
4 The field of mathematics has names for describing this method for measuring distance. See, e.g., “Taxicab geometry,” WIKIPEDIA, https://en.wikipedia.org/wiki /Taxicab_geometry (last visited on Oct. 24, 2018). Notably, among the names for this type of distance measurement are the “taxicab metric,” “city block distance,” or “Manhattan distance.” Id. “City block distance” is distinguished from Euclidean geometry, which appears to have been Officer Winters’s basis for estimating that the location where he stopped Mr. Anderson was within two spatial blocks of Ms. Curtis’s home.
13 No. 35410-5-III State v. Anderson
erroneous, however. State v. Nysta, 168 Wn. App. 30, 44, 275 P.3d 1162 (2012).
Miranda warnings are designed to protect a defendant’s right not to make
incriminating statements while in the potentially coercive environment of custodial police
interrogation. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986), cert. denied,
480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987). Unless a defendant has been
given Miranda warnings, his statements during police interrogation are presumed to be
involuntary. State v. Sargent, 111 Wn.2d 641, 647-48, 762 P.2d 1127 (1988). Unwarned
statements must therefore be excluded from evidence under Miranda. Oregon v. Elstad,
470 U.S. 298, 307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). We review the adequacy of
Miranda warnings de novo. State v. Hopkins, 134 Wn. App. 780, 785, 142 P.3d 1104
(2006).
Mr. Anderson was not presented with a written Miranda warning admitted into
evidence, so the adequacy of the warnings depends on what Officer Winters said to Mr.
Anderson. If the officer read from a card, the record does not reveal what the card said.
The officer’s testimony suggests it was more likely he recited the rights from memory,
but he was never asked to repeat his memorized recital at trial. In short, no evidence was
presented from which to determine the adequacy of any warnings that were given. We
therefore accept the State’s concession that it was error for the trial court to admit Mr.
Anderson’s statements to police.
14 No. 35410-5-III State v. Anderson
The State argues that the error was harmless. Admission of an involuntary
confession obtained in violation of Miranda is subject to treatment as harmless error.
State v. Reuben, 62 Wn. App. 620, 626-27, 814 P.2d 1177 (1991) (citing Arizona v.
Fulminante, 499 U.S. 279, 292 & n.6, 111 S. Ct. 1246, 113 L. Ed. 2d 302, reh’g denied,
500 U.S. 938, 111 S. Ct. 2067, 114 L. Ed. 2d 472 (1991)). To find an error affecting a
constitutional right harmless, we must find it harmless beyond a reasonable doubt.
Fulminante, 499 U.S. at 295; State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985),
cert. denied, 475 U.S. 1020, 106 S. Ct. 1208, 89 L. Ed. 2d 321 (1986).
Mr. Anderson’s alleged statements to police that he went to his mother’s house
because he was cold and hungry and was involved in an exchange with a person at 1616
North Cedar were the only clearly sufficient evidence of a violation of the no-contact
order. Had those statements been excluded (as they should have been), the next strongest
evidence that he violated the no-contact order was Mr. Delp’s identification.
Mr. Delp’s testimony did not establish guilt beyond a reasonable doubt. He
“couldn’t be for sure” that Mr. Anderson was the prowler he confronted, because the
prowler had a hat and bandana obscuring his features. RP at 94. Mr. Delp identified Mr.
Anderson by his clothing, but the clothing he described—blue jeans, a dark jacket, a
black baseball cap with an orange insignia, and a backpack—was not unusual male attire
for a winter morning. It would not be surprising to have several or even more individuals
in similar attire in an urban location on a given day. Mr. Delp also acknowledged that he
15 No. 35410-5-III State v. Anderson
viewed the suspected prowler for only 10 seconds in early morning light, and that during
the showup, Mr. Anderson was presented a half block away as Mr. Delp stood on his
porch. He did not identify Mr. Anderson’s knife.
Officer Winters’s testimony that he located Mr. Anderson within the area
prohibited by the no-contact order also fell short of proof beyond a reasonable doubt.
Mr. Anderson’s presence in the general vicinity of his mother’s home was not itself
suspicious, since the defense presented evidence that Mr. Anderson grew up in the
neighborhood, where his mother had lived for 30 years. It presented evidence that he had
friends in the neighborhood. It was unclear that the location where Officer Winters
stopped Mr. Anderson was within two blocks of the Curtis home and, given Mr.
Anderson’s possible understanding of “two blocks” as measured not by trespassing, but
by traveling on sidewalks or streets, it was even less clear that he was “knowingly”
within two blocks of his mother’s home.
Least probative was the limited extent to which Officer Spolski was able to match
Mr. Anderson’s shoes to footprints in the snow at the Curtis home. All the officer was
able to do was compare the size of Mr. Anderson’s shoe with photographs of the
footprints taken by another officer. He did not testify that Mr. Anderson wore an unusual
size shoe. No shoe tread was visible in the crusty snow. And defense counsel obtained
the officer’s concession that the Curtis home was located in what could be a high crime
area.
16 No. 35410-5-III State v. Anderson
Because the error was not harmless, retrial is required.5
The State’s misleading argument that “whatever we do, we do intentionally” should not be repeated on retrial
Given our remand for retrial, it is unnecessary to address Mr. Anderson’s
remaining assignments of error. We choose to address the prosecutor’s misleading
argument about the relationship between intentional conduct and knowledge to avoid any
recurrence of that error on retrial.
The jury was instructed that it is an element of the crime of violating a no-contact
order that the defendant “knowingly violated” the order. CP at 24 (Jury Instruction 9). It
was given the following instruction on acting “knowingly”:
A person knows or acts knowingly or with knowledge with respect to a fact, circumstance, or result when he or she is aware of that fact, circumstance, or result. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime.
If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.
When acting knowingly as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally as to that fact.
5 The State suggests that the remedy should be remand for a new CrR 3.5 hearing. It provides no authority that its failure to present sufficient evidence of adequate Miranda warnings in the CrR 3.5 hearing should be remedied by giving it a second CrR 3.5 hearing.
17 No. 35410-5-III State v. Anderson
CP at 22 (Jury Instruction 7).
The instruction on acting “knowingly” is based on a pattern instruction, WPIC
10.02. 11 WASHINGTON PRACTICE JURY INSTRUCTIONS: CRIMINAL 10.02 at 222 (4th ed.
2016) (WPIC). The comment to WPIC 10.02 highlights the very problem that was
presented by the prosecutor’s argument in the trial below that “whatever we do, we do
intentionally.” RP at 164.
An earlier version of WPIC 10.02 stated, “Acting knowingly or with knowledge
also is established if a person acts intentionally.” 11 WPIC 10.02 at 223. In State v.
Goble, 131 Wn. App. 194, 126 P.3d 821 (2005), this court found error in the earlier
language because inferring knowledge from intent is valid only if required mental states
are being evaluated with respect to the same fact. Following Goble, the last paragraph of
the pattern instruction was revised to include the “knowledge as to a particular fact . . .
intentionally as to that fact” qualifier.
Goble held that one could not infer the essential element of a defendant’s
knowledge that his assault victim was a law enforcement officer from the intentional
nature of the assault. In this case, jurors could not infer the essential element of a
“knowing” violation of the no-contact order from the fact that walking is an intentional
act. They could only infer Mr. Anderson’s “knowing” violation of the no-contact order if
he intentionally violated the no-contact order.
18 No. 35410-5-III State v. Anderson
The prosecutor's argument that "whatever we do, we do intentionally" with the
example of responding to a jury summons, was misleading and constituted prosecutorial
misconduct. The erroneous argument should not be made in any retrial.
We reverse the conviction and remand for proceedings consistent with this
opinion. 6
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.
WE CONCUR:
Ln.-n....... \- ~~\-, c.) Lawrence-Berrey, C.J. ,.
Feari~ •
Mr. Anderson asks this court not to impose appellate costs on him if the State, 6
substantially prevails. It has not substantially prevailed.