           IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )
                                               )
               Petitioner,                     )                No. 90479-1
                                               )
      v.                                       )                  EnBanc
                                               )
BRIAN K. BRUSH,                                )
                                               )     Filed        JUL 0 2 2015
               Respondent.                     )
                                               )

      OWENS, J. -       Brian Brush was convicted of first degree murder for killing

his ex-fiancee. The trial court imposed an exceptional sentence based on the jury's

finding that the murder was an aggravated domestic violence offense. Brush appeals

the domestic violence finding on two grounds. First, he challenges a jury instruction

defining "prolonged period of time" in the context of the domestic violence

aggravating factor. He contends that this instruction violated the constitutional rule

against judges commenting on the evidence. CONST. art. IV,§ 16. The Court of

Appeals agreed, and we affirm. The instruction defining "prolonged period of time"

essentially resolved a factual question for the jury and thereby constituted an improper

comment on the evidence. Accordingly, we reverse Brush's exceptional sentence and
State v. Brush
No. 90479-1

remand to the trial court with instructions that, if requested, it may impanel a jury to

consider evidence of a prolonged pattern of abuse.

       Second, Brush challenges the trial court's decision to admit certain hearsay

statements made by the victim's daughter during the sentencing phase of his trial.

Although we reverse his exceptional sentence on another ground, we address this

issue because it is likely to come up on remand. We hold that the trial court did not

abuse its discretion when it allowed the victim's daughter to testify because her

testimony related to an incident where Brush stalked her and her mother. The judge

properly ruled that her mother's statements made at the time of the incident fell under

the excited utterance and present sense impression exceptions to the rule against

hearsay.

                                         FACTS

        On September 11,2009, Brush shot his ex-fiancee four times with a shotgun.

The shooting occurred on a beach in view of several witnesses, including three police

officers who were patrolling an event on the beach. The officers arrested Brush

immediately at the scene. The State charged him with first degree murder and alleged

multiple aggravating factors, including-at issue here-that the offense involved

 aggravated domestic violence. The trial was bifurcated into a guilt phase and a

penalty phase. At the end of the guilt phase, the jury found Brush guilty of first

 degree murder. The jury also found multiple aggravating factors, including that

                                             2
State v. Brush
No. 90479-1

Brush's conduct manifested deliberate cruelty to the victim, that the victim's injuries

substantially exceeded the level of bodily harm necessary to satisfy the elements of

the offense, and that the crime was an aggravated domestic violence offense.

       The two issues in this case both involve the penalty phase-specifically, the

testimony of the victim's daughter and the jury instruction on the domestic violence

aggravating factor.

Testimony by the Victim's Daughter

       The only evidence presented during the penalty phase was testimony by the

victim's daughter. She testified about an incident that had occurred in August 2009,

when she and her mother went for a walk outside her mother's house and Brush began

following them in his truck. She testified that her mother was very scared and that as

Brush revved the engine near them, her mother realized that he was not going to

simply drive by and said, '"He's not stopping. Run."' 11 Verbatim Report of

Proceedings (VRP) (Dec. 6, 2011) at 179 (formatting omitted). They ended up hiding

behind some cars in a nearby parking lot. Her mother was bawling, shaking, and

throwing up. Her mother stated that a similar stalking incident had happened earlier

that same day. The victim's daughter then described a number of phone calls and text

messages she had received from Brush that day about her mother cheating on him.

                                            3
State v. Brush
No. 90479-1

       The defense challenged all of the victim's daughter's statements as hearsay,

and the judge ruled that the statements fell within the excited utterance exception to

the hearsay rule.

Domestic Violence Aggravating Factor

       During the penalty phase, the trial court instructed the jury to determine

whether the crime was an aggravated domestic violence offense. To find that Brush's

crime was an aggravated domestic violence offense, the jury had to find two elements:

(1) that the victim and the defendant were family or household members and (2) that

the offense was part of an ongoing pattern of psychological abuse of the victim

"manifested by multiple incidents over a prolonged period of time." RCW

9 .94A.535(3)(h)(i).

        The instruction at issue in this case explained, "An 'ongoing pattern of abuse'

means multiple incidents of abuse over a prolonged period of time. The term

'prolonged period of time' means more than a few weeks." Clerk's Papers (CP) at

229.

        The evidence at trial showed that the other incidents of abuse occurred during a

two-month period prior to the September 11, 2009 murder. Brush hit the victim's car

with a hammer after an argument occurred in July 2009, and the stalking described by

the victim's daughter occurred in August 2009. A defense expert acknowledged, "I

know he was following [the victim] around and calling her and dogging her

                                             4
State v. Brush
No. 90479-1

throughout this period of time after [the July 2009 incident]." 9 VRP (Dec. 5, 2011)

at 139. The defense expert also referenced statements made by Brush that he would

financially ruin the victim. Brush made those statements at couples counseling

around that same time period.

       The jury found that Brush's offense was an aggravated domestic violence

offense.

Exceptional Sentence and Appeal

       The standard range sentence was 240-320 months. The trial judge imposed an

exceptional sentence of 1,000 months and a 60-month firearm enhancement. The trial

judge explained that the exceptional sentence was justified by the aggravating factors

found by the jury and that those factors "taken together or considered individually

constitute[ d] sufficient cause to impose the exceptional sentence." CP at 54. He

stated, "This Court would impose the same sentence if only one of the [aggravating

factors] is valid." !d.

        Brush appealed, and the Court of Appeals affirmed his conviction but reversed

his exceptional sentence. State v. Brush, noted at 181 Wn. App. 1009,2014 WL

1912009, at *8. The Court of Appeals ruled that not one of the aggravating factors

could be sustained based on the record. 2014 WL 1912009, at *8. On the issue now

in front of this court, the Court of Appeals held that the jury instruction on "prolonged

period of time" constituted an improper comment on the evidence. !d. at *7. The

                                            5
State v. Brush
No. 90479-1

Court of Appeals remanded to the superior court "for resentencing with instructions

that the trial court may, if requested, impanel a jury to consider evidence of a

prolonged pattern of abuse." !d. at *8.

       The State petitioned this court for review solely on the issue of the "prolonged

period of time" jury instruction. Brush filed an answer and cross petition raising a

number of additional issues. We granted the State's petition and review of one issue

raised by Brush: whether the trial court abused its discretion when it admitted the

victim's daughter's testimony regarding statements made by her mother. State v.

Brush, 181 Wn.2d 1007, 335 P.3d 940 (2014).

                                          ISSUES

        1. Did the pattern jury instruction defining "prolonged period of time"

constitute an improper comment on the evidence?

        2. Did the trial court abuse its discretion when it ruled that the victim's

daughter's testimony regarding her mother's statements qualified as excited

utterances?

                                        ANALYSIS

    1. The Pattern Jury Instruction on /(Prolonged Period of Time" Constituted an
       Improper Comment on the Evidence in This Case

        The Washington State Constitution does not allow judges to "charge juries with

respect to matters of fact, nor comment thereon." CONST. art. IV,§ 16. Instead, they

"shall declare the law." !d. "A jury instruction that does no more than accurately

                                              6
State v. Brush
No. 90479-1

state the law pertaining to an issue, however, does not constitute an impermissible

comment on the evidence by the trial judge." State v. Woods, 143 Wn.2d 561, 591, 23

P.3d 1046 (2001). But, as described below, the jury instruction regarding "prolonged

period of time" in this case did not accurately state the law. Since the definition

essentially resolved a contested factual issue (whether the abuse occurred over a

"prolonged period of time"), it constituted an improper comment on the evidence and

effectively relieved the prosecution of its burden of establishing an element of the

domestic violence aggravating factor. As a result, we reverse Brush's exceptional

sentence, which was based on that aggravating factor.

       A. The Jury Instruction Incorrectly Interpreted Case Law and Resulted in an
          Improper Comment on the Evidence

        The jury instruction used in this case reflected the pattern jury instruction,

which states, "The term 'prolonged period of time' means more than a few weeks."

11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 300.17 (3d ed. 2008) (WPIC). This pattern jury instruction is based on

State v. Barnett, 104 Wn. App. 191,203, 16 P.3d 74 (2001). In Barnett, a trialjudge

imposed an exceptional sentence based on four factors, including that the offenses

were part of a pattern of abuse over a "'prolonged two week period of time."' !d. at

202. The Court of Appeals reversed the exceptional sentence, finding that "[t]wo

weeks is not a prolonged period of time." !d. at 203. The Court of Appeals reviewed

three prior Court of Appeals cases and concluded that they "suggest[ ed] that years are

                                              7
State v. Brush
No. 90479-1

required" in order to find a "prolonged period of time." Id. (citing State v. Schmeck,

98 Wn. App. 647, 651, 990 P.2d 472 (1999); State v. Duvall, 86 Wn. App. 871, 877,

940 P.2d 671 (1997); State v. Quigg, 72 Wn. App. 828, 841, 866 P.2d 655 (1994)).

       Thus, the Barnett holding that two weeks was not a "prolonged period of time"

resulted in the pattern jury instruction: "[t]he term 'prolonged period of time' means

more than a few weeks," WPIC 300.17. That language is an inaccurate interpretation

of the holding of Barnett because it implies that any abuse that occurs for more than a

few weeks is a "prolonged period of time." However, Barnett did not provide a legal

definition of"prolonged period of time." It held only that two weeks was not legally

sufficient to be a "prolonged period of time"-not that abuse occurring longer than

two weeks would be legally sufficient.

        Furthermore, the question faced by the court in Barnett was whether the

specific facts in that case were legally sufficient for the court to uphold an exceptional

sentence based on abuse occurring over a "prolonged period of time." This is not an

appropriate basis on which to create a jury instruction defining "prolonged period of

time." Thus, we clarify that legal definitions should not be fashioned out of courts'

findings regarding legal sufficiency.

        Perhaps more importantly, we question the propriety of instructing the jury

based on case law that did not take into account the jury's role in determining facts

that increase the penalty for a crime. Barnett was published prior to the United States

                                            8
State v. Brush
No. 90479-1

Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004). In Blakely, the Court held that a defendant has the right for

a jury to determine any fact that increases the penalty for a crime. Id. at 301, 313-14.

The Court of Appeals has explained that after Blakely, the jury must determine

whether a particular pattern of abuse occurred over a "prolonged period of time"-not

the trial court. See State v. Epefanio, 156 Wn. App. 378, 392,234 P.3d 253 (2010).

Given this change, we are hard pressed to see why a jury should be instructed on pre-

Blakely case law involving a trial court's judgment regarding whether abuse occurred

over a "prolonged period of time."

       Having concluded that the jury instruction incorrectly interpreted the law, we

must now determine whether the instruction constituted an improper comment on the

evidence. We hold that the instruction constituted an improper comment on the

evidence because it resolved a contested factual issue for the jury. The instruction

essentially stated that if the abuse occurred over a time period that was longer than a

few weeks, it met the definition of a "prolonged period of time." This is similar to

State v. Levy, 156 Wn.2d 709, 721-22, 132 P.3d 1076 (2006), where the jury

instructions referred to a crowbar as an example of a deadly weapon. We held that

those instructions were an improper judicial comment on the evidence because they

relieved the State of its burden to prove the crowbar was used in a way that met the

definition of a "deadly weapon." In the same way, the instruction here relieved the

                                            9
State v. Brush
No. 90479-1

State of its burden to show that the pattern of abuse occurred over a "prolonged period

of time." As long as the State showed that the abuse lasted longer than a few weeks,

the jury was instructed to find that the abuse occurred over a "prolonged period of

time."

         B. A Judicial Comment on the Evidence Is Presumed To Be Prejudicial, and
            the Record in This Case Does Not Rebut That Presumption

         "Judicial comments are presumed to be prejudicial, and the burden is on the

State to show that the defendant was not prejudiced, unless the record affirmatively

shows that no prejudice could have resulted." !d. at 723.

         In this case, the evidence showed that incidents of abuse occurred during a two-

month period prior to the murder. As a result, defining a "prolonged period of time"

as "more than a few weeks" likely affected the jury's finding on this issue. The abuse

occurred over a time period just longer than a few weeks, and a straightforward

application of the jury instruction would likely lead a jury to conclude that the abuse

in this case met the given definition of a "prolonged period of time." Most certainly,

the State does not meet the high burden of showing from the record that "no prejudice

could have resulted." !d. As a result, the Court of Appeals correctly reversed Brush's

exceptional sentence on this basis.

                                             10
State v. Brush
No. 90479-1

   2. The Trial Court Did Not Abuse Its Discretion by Admitting the Victim's
      Daughter's Testimony Regarding Statements Made by Her Mother during a
      Stalking Incident

       During the penalty phase of trial, the judge allowed the victim's daughter to

testify about statements her mother made. The defense objected to the statements as

hearsay, but the judge ruled that the statements fell under the "excited utterance"

exception to the hearsay rule. 11 VRP (Dec. 6, 2011) at 166.

       Although hearsay is generally not admissible, ER 802, there are two exceptions

that apply in this case. First, under the excited utterance exception, "[a] statement

relating to a startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition" is not excluded as hearsay. ER

803(a)(2). Second, under the present sense impression exception, "[a] statement

describing or explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter" is not excluded as

hearsay. ER 803(a)(1).

        The trial judge was largely correct that the victim's daughter's statements fell

under exceptions to the hearsay rule. The victim's daughter's testimony mostly

related to her experiences and observations during the stalking incident. This

included describing statements made by her mother about the events as they were

happening (as they were realizing that Brush was not slowing his truck and that they

needed to run away and hide from him). For example, she described her mother's

                                             11
State v. Brush
No. 90479-1

statements regarding where they should hide and whether to call the police. Most of

her mother's statements fell directly under the present sense impression and excited

utterance exceptions to the hearsay rule because they either ( 1) related to a startling

event or condition and were made while under the stress of excitement caused by the

event or condition or (2) were describing or explaining an event or condition made

while her mother was perceiving the event or condition.

       The only testimony that might not have fit within a hearsay exception was the

victim's daughter's testimony relating her mother's brief description of an event that

happened earlier that same day as the stalking incident, when Brush similarly drove

by in his truck. The victim's statements about that earlier incident included only the

fact that he had driven by and that the victim had been '"really, really scared."' 11

VRP (Dec. 6, 2011) at 185-87 (formatting omitted). Even if admitting those two

statements was error, it was harmless in light of the victim's daughter's testimony

about Brush following them in his car later that evening and her observations of her

mother's fear during that time.

                                     CONCLUSION

        We affirm the Court of Appeals and hold that the pattern jury instruction

incorrectly stated the law on what constitutes a "prolonged period of time." The

instruction resulted in an improper comment on the evidence in this case. We reverse

                                             12
State v. Brush
No. 90479-1

Brush's exceptional sentence and remand to the trial court with instructions that, if

requested, it may impanel a jury to consider evidence of a prolonged pattern of abuse.

                                            13
State v. Brush
No. 90479-1

WE CONCUR:

                 14
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

                                         No. 90479-1

       WIGGINS, J. (concurring in part and concurring in result)-1 fully join Part 2 of

the majority's opinion, rejecting the defendant's hearsay challenge. I also agree with

the majority that the trial court's "prolonged period of time" instruction inaccurately

states the law, that the erroneous instruction prejudiced the defendant, and that his

conviction therefore should be reversed. Nevertheless, I write separately because I

cannot agree with the majority's holding that the instruction's misstatement of the law

constitutes a comment on the evidence under article IV, section 16 of our state

constitution. Instead, I view the trial court's erroneous instruction as just that-an

erroneous instruction of law-and would analyze it under our jurisprudence regarding

instructional errors.

       The purpose of article IV, section 16 "is to prevent the jury from being influenced

by knowledge conveyed to it by the trial judge as to his opinion of the evidence

submitted." State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). A trial court

does not violate article IV, section 16 unless it conveys or allows the jury to infer a

personal opinion of the judge regarding the credibility, weight, or sufficiency of some

evidence introduced at trial. See, e.g., id. These principles have been reaffirmed time

and again in our article IV, section 16 jurisprudence throughout the 126-year history
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

of that provision. 1 The majority does not examine these fundamental principles.

Instead, it relies heavily on narrowly selected portions of two relatively recent opinions

and presents its explication of those cases as an adequate representation of the

standards for determining whether an instruction violates article IV, section 16. As a

result, the majority holds that the trial court's "prolonged period of time" instruction

was a comment on the evidence even though the instruction cannot plausibly be

viewed as communicating the trial judge's personal attitude toward the merits of the

case.

        The instruction in this case neither stated nor suggested anything whatsoever

about the specific facts of the case at bar. Consequently, the instruction, though legally

erroneous, did not violate article IV, section 16. But because the instruction was

erroneous and prejudicial, the defendant is nevertheless entitled to a new trial.

1 See, e.g., Patten v. Town of Auburn, 41 Wash. 644, 647, 84 P. 594 (1906) (intent of article IV, section 16
was not to "impose any undue restraint upon a trial judge in passing upon the competency or admissibility
of evidence, or in instructing the jury as to the law," but rather "to provide against any undue influence being
exerted upon the jury by the judge communicating to them his opinion as to facts proven or not proven by
the evidence"); Haaga v. Saginaw Logging Co., 169 Wash. 547, 556-57, 14 P.2d 55 (1932) (Haaga II)
(purpose of article IV, section 16 "is simply to prevent the judge from influencing the jury in their findings
upon questions of fact"); Heitfeld v. Benevolent &Protective Order of Keglers, 36 Wn.2d 685, 699, 220 P.2d
655 (1950) ("The object of this constitutional provision is to prevent the jury from being influenced by
knowledge conveyed to it by the court as to the court's opinion of the evidence submitted."); Hamilton v.
Dep't of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988) ("An impermissible comment is one
which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to
infer from what the judge said or did not say that the judge personally believed or disbelieved the particular
testimony in question."); State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) ("The touchstone of error
in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the
testimony of a witness has been communicated to the jury.").

                                                        2
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

                                               ANALYSIS

    I.   The "prolonged period of time" instruction misstated the law and thus
         constituted reversible error

         I agree with the majority that the "prolonged period of time" instruction was

erroneous because it provided an incorrect and prejudicial rule of law. As the majority

correctly notes, the most natural reading of the instruction is that it provides a definition

of "prolonged period of time" under which periods of more than a few weeks are

considered "prolonged." 2 This is both contrary to the law and prejudicial to the

defendant for the reasons the majority states.

         "Where the error is not of constitutional magnitude, we apply the rule that 'error

is not prejudicial unless, within reasonable probabilities, had the error not occurred,

the outcome of the trial would have been materially affected."' State v. Smith, 106

Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State                   v. Cunningham, 93 Wn.2d 823,
831, 613 P.2d 1139 (1980)). 3 The disputed instruction in Brush's case easily meets

that standard for prejudice. The State presented evidence showing that the abuse

occurred over a period of approximately two months prior to the murder. As the

2 The comment to the pattern instruction notes that "cases construing the 'prolonged period of time'
requirement have not set a minimum length of time." 11A WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 300.17 cmt. (3d ed. 2008) (WPIC) (emphasis added). This suggests that the
WPIC committee did not intend this instruction to be construed as providing a legal definition of "prolonged."
But because the more natural reading of the instruction is as a legal definition-and one that does not
accurately state the law-reading it in Brush's case was error.
3 Had the instruction omitted the "prolonged period of time" element altogether, the error would be

constitutional in nature and per se prejudicial, thus requiring reversal without the defendant having to
establish prejudice. See State v. McHenry, 13 Wn. App. 421, 535 P.2d 843 (1975), aff'd, 88 Wn.2d 211, 558
P.2d 188 (1977). We also would presume prejudice had the instruction been given on behalf of the prevailing
party. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). Here, however, it appears that the court
simply included the standard WPIC for the aggravating factor; the record does not indicate that the
instruction was given on behalf of the State.

                                                      3
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

majority correctly notes, "[A] straightforward application of the jury instruction would

likely lead a jury to conclude that the abuse in this case met the given definition of a

'prolonged period of time."' Majority at 10. We cannot say that the jury would have

returned a guilty verdict without this instruction because our law is silent on the

meaning of "prolonged" under the relevant statute. There thus is a reasonable

probability that the error prejudiced the defendant. For these reasons, I concur in the

majority's result reversing Brush's exceptional sentence.

 II.      The trial court's instruction did not violate article IV, section 16

       A. Background on article IV, section 16

          Article IV, section 16 provides:

          Judges shall not charge juries with respect to matters of fact, nor
          comment thereon, but shall declare the law.

CONST. art. IV, § 16 (emphasis added). As the above-emphasized text indicates,

article IV, section 16 contains two separate prohibitions. The first prohibition is that

judges must not charge the jury regarding matters of fact. The second prohibition in

article IV, section 16 prohibits courts from commenting on matters of fact. Obviously,

these prohibitions overlap considerably. See, e.g., State v. Lane, 125 Wn.2d 825, 839,

889 P.2d 929 (1995) (court's reading of a statement regarding the reason for a

prosecution witness's early release from prison "charged the jury with a fact and

expressly conveyed his opinion regarding the evidence" (emphasis added)).

Consequently, our courts often refer to both prohibitions collectively as "comment[ing]

on the evidence." /d.

                                                 4
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

        A trial court violates article IV, section 16 when it "conveys to the jury a judge's

personal attitudes toward the merits of the case or allows the jury to infer from what

the judge said or did not say that the judge personally believed or disbelieved the

particular testimony in question." Hamilton v. Oep't of Labor & Indus., 111 Wn.2d 569,

571, 761 P.2d 618 (1988). "The purpose of prohibiting judicial comments on the

evidence is to prevent the trial judge's opinion from influencing the jury." Lane, 125

Wn.2d at 838.

        The element of conveying the judge's personal opinion is essential for a judge's

words or actions to constitute a comment on the evidence:

               The purpose of Con st. art. 4, § 16 is to prevent the jury from being
        influenced by knowledge conveyed to it by the trial judge as to his opinion
        of the evidence submitted. In keeping with this purpose, we have
        consistently held that this constitutional prohibition forbids only those
        words or actions which have the effect of conveying to the jury a personal
        opinion of the trial judge regarding the credibility, weight or sufficiency of
        some evidence introduced at the trial.

State   v.   Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970) (emphasis added). Put

another way, "[t]he touchstone of error in a trial court's comment on the evidence is

whether the feeling of the trial court as to the truth value of the testimony of a witness

has been communicated to the jury." Lane, 125 Wn.2d at 838.

        Thus, our courts have held that a trial court violates article IV, section 16 when

a judge gives an instruction that tells the jury what weight it should assign to certain

                                                5
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

evidence. 4 We have also struck down instructions that expressed the judge's opinion

on how the jury should evaluate evidence of a certain type, such as alibi evidence or

eyewitness testimony, if evidence of that type had been presented during trial. 5 These

rules are logical applications of the general rule prohibiting instructions that allow the

jury to infer the judge's personal beliefs regarding the credibility, weight, or sufficiency

of specific trial evidence.

        On the other hand, our jurisprudence establishes that a jury instruction does

not become a comment on the evidence merely because the instruction incorrectly

states the applicable law. See Haaga             v.   Saginaw Logging Co., 169 Wash. 547, 554-

55, 14 P.2d 55 (1932) (Haaga 11). 6 In Haaga II, we held that a jury instruction was

"contrary to law" but did not constitute a comment on the evidence because the judge

made no reference to any fact "in his instructions either directly or in such a way as to

lead, or tend to lead, the jury to infer that such fact was an established one." /d. at

554-57.

4 See, e.g., In re Det. of R. W, 98 Wn. App. 140, 144, 988 P.2d 1034 (1999) (judge instructed jury that '"great
weight"' should be given to evidence regarding a defendant's "'prior history of decompensation leading to
repeated hospitalizations or law enforcement interventions"' (emphasis omitted)).
5 See, e.g., State v. Thompson, 132 Wash. 124, 231 P. 461 (1924) (instruction stating that "the defense of
an alibi is one easily fabricated, easy to prove, and hard to disprove"); State v. Faucett, 22 Wn. App. 869,
875, 593 P.2d 559 (1979) (instruction stating, "'You will be slow to believe that any witness has testified
falsely in the case.") (emphasis added).
6 The cited opinion was issued by this court sitting en bane. The departmental opinion that preceded it

discusses the underlying facts in greater detail. See Haaga v. Saginaw Logging Co., 165 Wash. 367, 368-
73, 5 P.2d 505 (1931) (Haaga 1). In Haaga, the plaintiff suffered injury after a train struck an automobile in
which he was a passenger. /d. at 368-70. The plaintiff brought a suit for negligence against the train operator
and presented witnesses who testified that the train had not sounded any warning signal (i.e., the train's
whistle) as it approached the crossing. /d. at 372-73. The trial court gave an instruction that stated,
incorrectly, that a train's right-of-way at a railroad crossing is conditioned on the train operator's sounding
such a warning as it approaches the crossing. Haaga II, 169 Wash. at 553-54.

                                                       6
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

   B. Application of our article IV, section 16 jurisprudence principles to Brush's
      case

       With this overview of the relevant constitutional jurisprudence in mind, we may

assess the propriety of the disputed instruction read in Brush's case. The "prolonged

period of time" instruction stated nothing about the specific facts of the case at hand.

Instead, the instruction purported to provide the legal meaning of a legal term. The

instruction is erroneous because it misinformed the jury regarding the law, not

because it instead charged the jury regarding a matter of fact or commented on the

merits of the case. Consequently, it was not a comment on the evidence.

       Had the trial court modified the pattern instruction so that it somehow

referenced the particular facts of Brush's case-for example, by stating that the

evidence showed that the defendant had committed acts of abuse over a two-month

period-this result would be different. But here the instruction was copied word for

word from a pattern jury instruction. The pattern jury instructions are, of course, not

written with the facts of any particular case in mind, and this instruction was not

modified in any way from its decidedly generic form. It is not plausible to view the

instruction as an expression of the trial judge's personal views on the evidence in

Brush's particular case, and it is difficult to see how the jury could possibly have

viewed the instruction as conveying the judge's personal opinion about the sufficiency

of the state's evidence. Cf. id. at 557 ("It is only by a refined, technical reasoning and

analysis that one could arrive at appellants' interpretation of the instruction [as a

comment on the evidence]; it is difficult to see how the jury would ever place such

                                                7
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

construction upon it."). For these reasons, the instruction does not violate article IV,

section 16. 7

         The two article IV, section 16 cases that the majority cites do not support its

holding-a holding that, if followed, would effectively overturn our long-standing

jurisprudence tying article IV, section 16 to comments and instructions that would

permit the jury to infer the judge's personal views on specific evidence presented at

trial.

         The majority first quotes State          v.   Woods, 143 Wn.2d 561, 23 P.3d 1046 (2001 ),

for the proposition that '"[a] jury instruction that does no more than accurately state

the law pertaining to an issue ... does not constitute an impermissible comment on

the evidence by the trial judge."' Majority at 6-7 (quoting Woods, 143 Wn.2d at 591).

But this quote from Woods does not convert all instructions that are legally erroneous

into comments on the evidence. 8 As Woods recognized in the sentence immediately

7  Having reached this conclusion, I would not address whether the instruction violates Brush's right to have
each element against him proved by the State beyond a reasonable doubt or Brush's right to have a jury
decide each element of the offense. If the instruction did violate either of those rights, we would be facing
a far more serious error than a comment on the evidence because relieving the State of its burden to prove
each element beyond a reasonable doubt violates the defendant's fundamental due process rights, see In
re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and removing an element from the
jury's consideration violates a defendant's fundamental right to a jury trial under article I, section 22 of our
constitution, State v. Ring, 52 Wn.2d 423, 424, 325 P.2d 730 (1958). Such violations would trigger the
constitutional harmlessness standard, which is far more stringent than the standard of review used for
article IV, section 16 violations. Consequently, treating such errors as comments on the evidence is not
merely incorrect under our article IV, section 16 jurisprudence, it actually trivializes the nature of such errors.
8 Drawing such an inference from the Woods quote would constitute the exact same error-denying the
antecedent-that the majority correctly perceives in the disputed WPIC. See majority at 8 ("[Barnett] held
 only that two weeks was not legally sufficient to be a 'prolonged period of time'-not that abuse occurring
 longer than two weeks would be legally sufficient."). Under the rules of formal logic, conditional statements
take the form, "If P, then Q." Pis termed the antecedent and Q the consequent. The fallacy of denying the
 antecedent occurs when one takes a true statement presented in this form and concludes that "if not P,
 then not Q" must also be true. That conclusion is not valid because negating the truth of the antecedent
 (i.e., denying the truth of P) does not necessitate the denial of its consequent. Thus, one cannot infer that

                                                         8
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

preceding the one that the majority quotes, "'[a]n impermissible comment is one which

conveys to the jury a judge's personal attitudes toward the merits of the case."' Woods,

143 Wn.2d at 591 (quoting State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990)).

Furthermore, our prior jurisprudence establishes that even an instruction that is

contrary to law does not constitute a comment on the evidence unless the instruction

somehow reveals the judge's personal views regarding some of the evidence

presented. See Haaga II, 169 Wash. at 556-57. Viewed in its proper context, then, the

quote from Woods regarding an instruction's legal accuracy merely presents a

corollary to the general rule regarding judicial comments-specifically, that a jury

cannot glean the judge's personal view of the facts from an instruction that does no

more than correctly state the law.

        Moreover, tying article IV, section 16 to an instruction's legal accuracy would

result in a rule that would be both overinclusive and underinclusive. Such a rule would

be overinclusive because some inaccurate statements of the law, like the erroneous

instruction in this case, could not plausibly be interpreted by the jury as reflecting the

judge's personal opinion of the evidence. 9 A legal-correctness rule would also be

"legally inaccurate instructions are comments on the evidence" from the principle that "legally accurate
instructions are not comments on the evidence." See Agri Processor Co. v. Nat'/ Labor Relations Bd., 379
U.S. App. D.C. 318, 514 F. 3d 1, 6 (2008} (citing PATRICK J. HURLEY, A CONCISE INTRODUCTION TO LOGIC 323
(9th ed. 2005)). Consider the following argument, which uses "snowing" as the antecedent and "cold" as
the consequent: "Premise 1: If it is snowing, then it is cold outside. Premise 2: It is not snowing. Conclusion:
It is not cold outside." Plainly, the above conclusion does not follow from its premises; it can be cold without
snow falling, even though snowfall requires a cold outside temperature.
9 Another example would be if a court instructed the jury that it may find the defendant guilty if it finds each
element proved by a preponderance of the evidence rather than beyond a reasonable doubt. Such an
instruction would violate a defendant's fundamental due process rights, see In re Winship, 397 U.S. at 364,
but it could not plausibly be deemed a comment on the evidence.

                                                       9
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

underinclusive because there may be circumstances under which accurate

statements of the law may nevertheless be comments on the evidence.

       Rather than adopting such a rule, we should adhere to our long-standing

jurisprudence and reaffirm that an instruction violates article IV, section 16 when (and

only when) it "conveys to the jury a judge's personal attitudes toward the merits of the

case or allows the jury to infer from what the judge said or did not say that the judge

personally believed or disbelieved" some evidence at trial. Hamilton, 111 Wn.2d at

571.

       The majority also concludes, relying on State         v.   Levy, 156 Wn.2d 709, 132 P.3d

1076 (2006), that the trial court's instruction was a comment on the evidence because

it "relieved the State of its burden to show that the pattern of abuse occurred over a

'prolonged period oftime."' Majority at 9-10. As with the quote from Woods, presenting

this statement from Levy as a stand-alone rule for determining article IV, section 16

violations ignores our firmly established jurisprudence.

        Levy, like all cases in which we have found article IV, section 16 violations,

addressed a judicial instruction that referenced specific evidence that had been

introduced at trial. See Levy, 156 Wn.2d at 721. In Levy, the defendants were charged

with first degree burglary, two elements of which are that the defendants (1) entered

a '"building"' while (2) '"armed with a deadly weapon."' /d. at 716. The disputed

instructions included "to-wit" statements that specifically named the address where

the offense occurred and called it a "building" and referred to the two types of weapons

that the defendants allegedly carried (a .38 caliber revolver and a crowbar) as "'deadly

                                                10
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

weapons."' /d. Similarly, in State v. Becker, the primary case on which Levy relied, the

disputed special verdict form specifically named the educational institution where the

crime occurred and referred to it as "'school grounds"' in a case where the offense

had to occur '"within 1000 feet of the perimeter of school grounds"' under one of the

aggravating factors that the jury was asked to consider. 132 Wn.2d 54, 64, 935 P.2d

1321 (1997).

       Again, viewing these holdings in light of our prior jurisprudence rather than in

isolation, our holdings in Becker and Levy are simply applications of the general

principle that instructions cannot permit a jury to infer the judge's personal opinion on

the truth, weight, or sufficiency of specific evidence introduced at trial. Jacobsen, 78

Wn.2d at 495. Here, in contrast to Becker and Levy, the disputed instruction makes

no reference whatsoever to any facts or evidence presented at trial. Had the jury

instruction stated, "A prolonged period of time, to wit: two months," then the analogy

to Levy would hold. But Levy and Becker do not require that we find comments on the

evidence in cases where the instructions make no reference whatsoever to the merits

of the case at hand.

                                                11
State v. Brush (Brian K.)
(Wiggins, J., concurring in part and concurring in result)

                                       CONCLUSION

       For the reasons stated above, I concur in result.

                                               ~ tL~U/{)6 ·(   .   q   1

                                          ~-7

                                               12


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CAVALRY SPVI, LLC,
                                             )    No. 70747-7-1                c__    m

                       Respondent,                                                        5 *

                                             )    DIVISION ONE                 CD

                                                                                './'
                                                                               T1*

                                                                                o
JAMES SWALWELL and DOE I and their           )    UNPUBLISHED OPINION
                                                                                en        ---

marital community composed thereof,                                             c

                       Appellant.            )    FILED: July 28,   2014

       Trickey, J. — The "prevailing party" in a lawsuit alleging damages of

$10,000 or less is statutorily entitled to an award of attorney fees. But there can

be no prevailing party under RCW 4.84.250 and .270 without entry of a judgment.
Because a voluntary dismissal without prejudice under CR 41 does not result in
the entry of a judgment, the trial court properly denied James Swalwell's request
for attorney fees. We affirm.

                                      FACTS

       Beneficial Financial I Inc. filed this collection action against James

Swalwell on December 12, 2011. Cavalry SPVI, LLC (Cavalry), purchased the

account in November 2012, and the trial court later granted Cavalry's motion to

be substituted as the plaintiff.

       On May 14, 2013, the trial court granted Cavalry's motion for a dismissal
without prejudice under CR 41(a)(1)(B).          Swalwell requested an award of
attorney fees, asserting that he was the "prevailing party" under RCW 4.84.250
and .270. Following a hearing on July 19, 2013, the trial court denied the motion,
No. 70747-7-1 / 2

ruling that RCW 4.84.250 does not authorize an attorney fee award following a

voluntary dismissal under CR 41. Swalwell appeals.

                                        ANALYSIS

      Swalwell contends that the trial court erred in denying his request for

attorney fees. Citing Allahvari v. Carter Subaru, 78 Wn. App. 518, 897 P.2d 413

(1995), he argues that he was the prevailing party because Cavalry recovered
nothing after voluntarily dismissing its case. In Allahvari. the court concluded that
when the plaintiff voluntarily dismisses the case, the plaintiff recovers nothing

and the defendant is therefore a prevailing party under RCW 4.84.270

"regardless of whether [a] voluntary dismissal constitutes a final judgment."
Allahvari, 78 Wn. App. at 524.

       In Washington, the prevailing party is not entitled to an award of attorney
fees as a cost of litigation absent a contract, statute, or recognized ground of
equity. Rettkowski v. Department of Ecology. 128 Wn.2d 508, 514, 910 P.2d 462
(1996). RCW 4.84.250 provides that in actions in which "the amount pleaded" is
$10,000 or less, "there shall be taxed and allowed to the prevailing party ... a

reasonable amount to be fixed by the court as attorneys' fees." A defendant is
the "prevailing party" under RCW 4.84.250 if the plaintiff "recovers nothing, or if
the recovery, exclusive of costs, is the same or less than the amount offered in
settlement by the defendant, or the party resisting relief." RCW 4.84.270.
       After the parties submitted their briefs in this case, our Supreme Court
held that "there must be a final judgment before attorney fees can be made
No. 70747-7-1 / 3

available to the prevailing party under RCW 4.84.250 and .270." AllianceOne

Receivables Mqmt.. Inc. v. Lewis.          Wn.2d       , 325 P.3d 904, 905 (2014).

The court further concluded that because a voluntary dismissal without prejudice

does not result in the entry of a judgment, the defendant cannot be a "prevailing

party" following a CR 41 dismissal and is not entitled to attorney fees under RCW

4.84.250 and .270. AllianceOne. 325 P.3d at 909.

       In reaching its decision, the majority in AllianceOne rejected the analysis

in Allahvari v. Carter Subaru, upon which Swalwell relies. Instead, the majority

adopted the three-part test from Cork Insulation Sales Co. v. Torqeson. 54 Wn.
App. 702, 775 P.2d 970 (1989). Consequently, in order to be entitled to attorney

fees under RCW 4.84.250, the defendant must demonstrate (1) that the

damages pleaded were equal to or less than $10,000, (2) that the defendant is
the prevailing party, and (3) that there was an entry of judgment. AllianceOne.
325 P.3d at 905, 909.

       Because there was no entry of judgment after Cavalry voluntarily

dismissed its action, Swalwell cannot be the prevailing party.         The trial court

properly denied his request for attorney fees under RCW 4.84.250 and .270.1

1Because there is no prevailing party, we need not address Cavalry's contention that
Swalwell also failed to demonstrate that the damages requested were equal to or less
than $10,000.
No. 70747-7-1 / 4

      Swalwell has also requested an award of attorney fees on appeal. See

RCW 4.84.290. Because he is not a prevailing party, the request is denied. See

AllianceOne. 325 P.3d at 909-10.

      Affirmed.

                                                 ) ^, o^e vf *J"
WE CONCUR:

                                                   6&tA-


201 F.2d 584
36 A.L.R.2d 969, 53-1 USTC  P 9195
UNITED STATES,v.ELY & WALKER DRY GOODS CO.
No. 14677.
United States Court of Appeals Eighth Circuit.
Feb. 5, 1953.

Harry Marselli, Sp. Asst. to Atty. Gen.  (Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack, A. F. Prescott, and Fred E. Youngman, Sp. Assts. to Atty. Gen., George L. Robertson, U.S. Atty., and William J. Costello, Asst. U.S. Atty., St. Louis, Mo., on the brief), for appellant.
George W. Simpkins, St. Louis, Mo.  (William H. Charles, William C. Connett, IV, and Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., on the brief), for appellee.
Before SANBORN, WOODROUGH and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.

1
On December 31, 1947, at a regular meeting of the Board of Directors of Ely & Walker Dry Goods Company, a Missouri corporation, the directors resolved that the company make a loan from the Chase National Bank of New York and the First National Bank in St. Louis in the sum of $7,500,000, to be evidenced by the company's note for $6,500,000 to the Chase National Bank, payable in eight annual installments, each installment bearing interest from the date of the note at stated rates per annum, and by its note for $1,000,000 to the First National Bank in St. Louis of like tenor and effect.  The resolution authorized the president and treasurer of the company to execute the two notes described in the resolution and to incorporate in them 'such additional provisions with reference to the restrictions and covenants on the part of this Company to be kept and performed by it as to said officers may seem meet and proper.'

2
The loan was made and the notes executed and delivered as authorized by the resolution.  They were identical in terms except as to the names and addresses of payees, principal amounts, and amounts of installments.  In each note the company reserved the right to prepay on any interest payment date all or any part of the then unpaid principal of the note upon certain conditions, among which was that if a prepayment was made on one note a ratable prepayment would be made on the other.

3
The notes contain identical covenants to be kept and performed by the company until payment in full of principal and interest as follows:

4
1.  To furnish the bank in each year a consolidated balance statement and a consolidated income and surplus account of the company and its consolidated subsidiaries and such other information regarding the financial condition of the company and its subsidiaries as the bank might reasonably request;

5
2.  To maintain consolidated current assets in excess of the consolidated liabilities of the company and its subsidiaries of not less than $15,000,000;

6
3.  To pay and cause each consolidated subsidiary to pay all taxes, assessments, and governmental charges upon or against the company, its subsidiaries, or its properties.

7
The company also agreed that until payment of the principal and interest of the notes, neither it nor any consolidated subsidiary would without the prior written consent of the bank (1) mortgage or voluntarily subject to any lien any of its property or assets 'now owned or hereafter acquired;' (2) incur any obligation for moneys borrowed, or issue any notes, debentures, bonds, or other obligations having a maturity in excess of 12 months from date; (3) merge with any corporation except with a consolidated subsidiary; (4) sell or dispose of subsidiaries or its assets; (5) assume, guarantee, or otherwise become liable upon the obligation of any person, firm, or corporation other than a consolidated subsidiary, except upon endorsement of negotiable instruments for deposit or collection in the normal course of business.

8
Each note contains provisions whereby upon default by the company in the performance of any of its obligations or covenants contained in the note the bank might declare the note due and payable 'without presentment, demand, notice or protest of any kind.'The facts material to decision are not disputed.  In addition to those stated, it appears that the company had done a regular banking business with the First National Bank in St. Louis and with the Chase National Bank of New York for many years, with the latter bank for more than 30 years.  Before borrowing from the banks and executing and delivering the notes, the officials of the company had decided that because of increasing business and inflationary trends the company needed the loans to carry a larger inventory and larger accounts receivable.  To procure the funds needed the company decided to apply to the banks with which it had done business for many years.  It did not intend to and did not sell its obligations.  At the time the loan was made the charter of the corporation prohibited it from selling any bonds or from mortgaging any of its properties without the consent in writing of the holders of 90 per cent of its preferred stock.  The loan from the banks was not negotiated with the officers of the investment departments of the banks.  An officer of the First National Bank in St. Louis testified that the lending and investment departments of that bank were entirely separate and that the note of the company to the First National Bank was treated by the bank as a promissory note, was carried in the discount or lending department of the bank, and had been so classified by the National Bank Examiners as well as by the bank; that in the past the First National Bank had extended to the company a line of credit in excess of $1,000,000, but at the time of the loan involved in this action the amount had been reduced to $1,000,000 in order to comply with the national banking laws.  The notes were printed on plain paper, were not engraved or lithographed, were not in registered form, and did not have interest coupons attached.

9
The Commissioner of Internal Revenue ruled that the notes given by the company to the banks for the loan were debentures within the meaning of section 1801 of the Internal Revenue Code, 26 U.S.C.A. § 1801, and subject to the stamp tax provided in that section.  The company paid the tax under protest and, refund being denied, brought this action in the District Court to recover.  The United States was made a defendant in the action because the claim involved less than $10,000 and the collector of internal revenue at the time of the payment of the tax no longer was in office.  The District Court held that the instruments were promissory notes, were not bonds, debentures, or corporate securities within the meaning of section 1801 and were not subject to tax.  The United States appeals from the judgment in favor of the company.

10
We agree with the District Court.  The legislative history of stamp taxes in the United States shows that Congress has always placed bonds, debentures, and certificates of indebtedness on the one hand, and promissory notes on the other, in different categories, taxed at different rates.  For example, the Act of June 13, 1898, 30 Stat. 448, in section 6 entitled 'Adhesive Stamps', p. 451, provided for a stamp tax 'in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this Act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written or printed * * * .'  Schedule A, p. 458, entitled 'Stamp Taxes' provided for a tax of five cents on each hundred dollars of face value or fraction thereof of bonds, debentures, or certificates of indebtedness of any association, company, or corporation.  The fourth paragraph of the schedule, p. 459, provided for a tax of two cents on any promissory note except bank notes issued for circulation, and for each renewal of the same, for a sum not exceeding one hundred dollars; and for each additional one hundred dollars or fractional part thereof in excess of one hundred dollars, two cents.  By the Act of March 2, 1901, 31 Stat. 938, the stamp tax of five cents on each one hundred dollars of face value or fraction thereof on bonds, debentures, or certificates of indebtedness was continued.  This Act, as its title shows, was passed to amend the Act of June 13, 1898, and to reduce taxation thereunder.  The stamp tax on promissory notes was repealed.  By the Act of October 22, 1914, 38 Stat. 745, promissory notes were again subjected to a stamp tax.  Section 5 of the Act entitled 'Adhesive Stamps'.  p. 753, reenacted the tax in respect of bonds, debentures, or certificates of stock and of indebtedness, and other documents and instruments described in Schedule A.  The first paragraph of Schedule A provided a tax of five cents on each one hundred dollars of face value or fraction thereof of bonds, debentures, or certificates of indebtedness.  The fourth paragraph of the schedule, p. 760, renewed the tax of two cents upon promissory notes for a sum not exceeding one hundred dollars, and at the same rate for each additional one hundred dollars or fractional part thereof.

11
The Revenue Act of 1917, 40 Stat. 300, reenacted in substance the provisions of the Act of.1914.  Section 800 of Title VIII, 'War Stamp Taxes', p. 319, levied a tax in respect of bonds, debentures or certificates of stock and of indebtedness and other documents described in Schedule A of the title.  Significantly, bonds, debentures, or certificates of indebtedness were classified in subdivision 1 of Schedule A, while drafts or checks payable otherwise than at sight or on demand, and promissory notes were classified in subdivision 6 of the schedule.  Schedule A of section 1100, Title XI, of the Revenue Act of 1919, 40 Stat. 1135, 1137, is as follows:

12
'1. Bonds of indebtedness: On all bonds, debentures, or certificates of indebtedness issued by any person, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 5 cents * * * .

13
'6. Drafts or checks (payable otherwise than at sight or on demand) upon their acceptance or delivery within the United States whichever is prior. promissory notes, except bank notes issued for circulation, and for each renewal of the same, for a sum not exceeding $100, 2 cents; and for each additional $100 or fractional part thereof, 2 cents.'

14
By the Revenue Act of 1924 the tax on promissory notes was repealed.  The Act as now in effect appears in sections 1800 to 1807 of the Internal Revenue Code, 26 U.S.C.A. §§ 1800-1807.  We are concerned here with sections 1800 and 1801 which are as follows:

15
'Sec. 1800.  Imposition of tax.

16
'There shall be levied, collected, and paid, for and in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in sections 1801 to 1807, inclusive, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, are written or printed, the several taxes specified in such sections.

17
'Sec. 1801.  Corporate securities

18
'On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 11 cents * * * .'

19
In none of the acts levying stamp taxes has Congress attempted to define debentures, bonds, certificates of indebtedness, corporate securities, or promissory notes for the purposes of taxation.  But since the rate of taxation applicable to promissory notes on the one hand, and to bonds, debentures, certificates of indebtedness, and other documents subject to taxation on the other, have been different in all the acts taxing all of them, the problem of definition has always existed.  The problem is the same under acts which tax promissory notes and under acts which do not.  Its solution is found in the rule that taxation is concerned with substance and not with formalities.  The substance of the transaction which a document or instrument evidences and not the label of the instrument controls.  The form and content of the instrument as well as the circumstances and conditions of its issue are to be considered.  The rule is recognized by the Treasury Department1 and applied by the courts.2  When it is kept in mind that the taxability of an instrument depends on the substance of the transaction of which it is a part, any supposed conflict between General Motors Acceptance Corp. v. Higgins, 2 Cir., 161 F.2d 593, and Commercial Credit Co. v. Hofferbert, D.C., 93 F.Supp. 562, affirmed per curiam 4 Cir., 188 F.2d 574, relied on by the United States, and Belden Mfg. Co. v. Jarecki, 7 Cir.,192 F.2d 211, and Atlanta Metallic Casket Co. v. Allen, 99 F.Supp. 104, affirmed 5 Cir.,  197 F.2d 460, relied on by the company, disappears.

20
In General Motors Acceptance Corp. v. Higgins, long-term obligations of the corporation denominated 'notes' were classified as corporate debentures within the meaning of section 1801.  In Belden Mfg. Co. v. Jarecki, a long-term note of the corporation was held to be a promissory note not taxable.  The cases are clearly distinguished on the facts in the opinion in the Belden Mfg. Co. case.

21
In General Motors Acceptance Corp. v. Higgins the directors of the corporation adopted a resolution authorizing the officers to offer for sale to private investors approximately $30,000,000 of long-term promissory notes, on the finding that a few large investors were in the market for the purchase of such securities for investment.  Pursuant to this resolution the officers of the corporation began negotiations for the sale of the so-called promissory notes, resulting in separate agreements with different investors, in which the corporation agreed to sell and the purchaser agreed to purchase notes in various amounts.  As issued the notes were printed on tinted paper with steel engraved borders, were issued in series, and each bore a serial number.  They were sold to different purchasers at negotiated prices, and, in order to insure their ready marketability, the corporation agreed without charge to the purchasers to exchange the notes for others of lesser denomination.  The transaction in which the instruments were issued was clearly one for the sale and purchase of corporate securities.  As the Second Circuit in sustaining the taxability of the instruments said, 'They obviously were not merely ordinary promissory notes evidencing debts arising in the ordinary course of business.'  161 F.2d at page 595.

22
In the Belden case the company applied to a bank with which it had an established credit rating for a loan of $1,000,000 to secure funds with which to carry a larger inventory needed in its manufacturing operations.  The note was payable in annual installments over a period of five years at a stated rate of interest.  At the time of its execution the company delivered to the bank an agreement containing covenants and conditions essentially the same as those incorporated in each of the notes involved in the present case.  The transaction in this case was obviously one intended to create the relation of debtor and creditor, and the note was held to be exempt from taxation under section 1801.

23
The transaction involved in Commercial Credit Co. v. Hofferbert was in its controlling features like that involved in the General Motors Acceptance Corp., case.  In December 1940 the Commercial Credit Co. entered into an elaborate agreement with the Prudential Life Ins. Co. for long-term financing in the amount of $50,000,000.  In the execution of the contract the Commercial Credit Co. delivered to the Prudential Ins. Co. a long-term instrument entitled 'promissory note' for $50,000,000 and a written agreement embodying various conditions and covenants binding on the Commercial Credit Co.  The agreement recited that the insurance company acquired the note for the purpose of investment.  It also provided that on demand of the insurance company and surrender of the note the Commercial Credit Co. would deliver to a bank or trust company satisfactory to the insurance company an indenture providing for the issuance and delivery of debentures in such denomination and form as the insurance company specified.  The Commissioner's determination that the note was subject to taxation under section 1801 was sustained on the authority of the General Motors Acceptance Corp. case.

24
In Atlanta Metallic Casket Co. v. Allen the taxpayer delivered to an insurance company its promissory note in return for a loan of $600,000 payable over a term of years and secured by a mortgage.  The note was held to be not taxable.

25
The notes in the present case fall within the same classification as the instruments involved in the Belden Mfg. Co. and Atlanta Metallic Casket Co. cases.  The notes were given in ordinary commercial banking transactions to secure loans of funds needed by the Ely & Walker Company in the conduct of its business.  They were not sold for investment purposes.  The relation created between the company and the banks was that of debtor and creditor and nothing more.  The notes were not registered or numbered or issued serially.  They did not bear interest coupons and were printed on plain paper.  The fact that they contained agreements for prepayment, for acceleration of maturity, as well as restrictions concerning the financial and corporate operations of the borrower, designed for the protection of the lenders, is not sufficient alone to subject them to stamp taxes provided by section 1801 of the Internal Revenue Code.  It is reasonable to assume that Congress in exempting promissory notes from taxation was aware that such provisions were customary in ordinary banking transactions of the character involved here.

26
The judgment of the District Court is affirmed.

1
 Regulations 71, Sec. 113.55.  Issues Subject to Tax.- Ordinarily, a corporate instrument styled a bond, debenture, or certificate of indebtedness is subject to the tax.  However, the taxability of an instrument is not determined by the name alone but depends upon all the circumstances, such as the name, form, and terms of the instrument, etc.  Hence, an instrument, however designated, having all the essential characteristics of a bond, debenture, or certificate of indebtedness is taxable as such.  Similarly, an instrument issued with interest coupons, or with provision for registration, and coming within the class known generally as corporate securities will be held subject to the tax regardless of the name by which it may be called

2
 Royal Loan Co. v. United States, 8 Cir., 154 F.2d 556, 558; Motter v. Bankers Mortgage Co., 10 Cir., 93 F.2d 778; General Motors Acceptance Corp. v. Higgins, 2 Cir., 161 F.2d 593; Belden Mfg. Co. v. Jarecki, 7 Cir., 192 F.2d 211


361 So.2d 128 (1978)
CENTURY VILLAGE, INC., Appellant,
v.
WELLINGTON, E, F, K, L, H, J, M, & G, CONDOMINIUM ASSOCIATION, Appellee.
No. 52528.
Supreme Court of Florida.
July 13, 1978.
*129 John B. McCracken of Jones, Paine & Foster, West Palm Beach, for appellant.
Rod Tennyson of Ombres, Powell, Tennyson & St. John, West Palm Beach, for appellee.
Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for intervenor.
Jeffrey E. Streitfeld and Mark B. Schorr of Becker, Poliakoff & Sachs, Curtin R. Coleman of Coleman, Leonard & Morrison, and Davis W. Duke, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for amicus curiae.
HATCHETT, Justice.
We have for review an order upholding the constitutionality of Section 711.63(4), Florida Statutes (Supp. 1974), which requires condominium unit owners to deposit *130 into the court registry pending litigation involving recreational leases. Jurisdiction vests pursuant to Article V, Section 3(b)(1), Florida Constitution. The order of the trial court is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

FACTS
In March, 1975, appellee condominium associations filed suit against Century Village, Inc., the appellant herein, challenging the validity of certain recreation leases and the rent escalation clauses contained therein. Pursuant to Section 711.63(4), as amended by Chapter 75-224, Section 10, Laws of Florida [renumbered Section 718.401(4)] the escalated portion of the disputed rents was deposited by the associations into the registry of the court to be held pending litigation. By stipulation, the parties later agreed to deposit the rents into an interest bearing account at a commercial bank to be distributed upon termination of the lawsuit to the prevailing party. The unescalated portion of the rents was remitted directly to appellant. Approximately one year later appellant challenged, by various motions and in several hearings, the rent deposit procedure. In an order denying appellant's motion to dissolve the escrow account, the trial court upheld the constitutionality of Section 711.63(4), determined that as amended by Chapter 75-224, Section 10, Laws of Florida, it was applicable to suits by condominium associations, and held that it applied retroactively. In a subsequent order, the trial court denied a motion to enter immediate defaults against the appellee associations for failure to make timely payments. These orders are consolidated for appeal.
The issues presented for our consideration are: (1) whether Section 711.63(4) applies retroactively; (2) whether, applied retroactively, it impairs vested contractual rights in violation of Article I, Section 10, Florida Constitution, and Article I, Section 10, United States Constitution; and (3) whether a condominium association may avail itself of the deposit provisions of Section 711.63(4), when it is bringing the action. In addition, appellant challenges the validity of the statute on due process grounds. We need not reach this issue, however, since it was raised for the first time on appeal. South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla. 1958).

I
Section 711.63(4), Florida Statutes (1975) provides a procedure whereby a condominium unit owner bringing or defending an action on a recreational facilities lease pays rent accruing during the pendency of litigation into the court registry. It states:
(4) The lease shall provide, and if it does not so provide shall be deemed to provide, that in any action by the lessor to enforce a lien for rent payable with respect to leases under this section or any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor's obligations under the lease. If the unit owner initiates any such action or interposes any defense other than payment of rent under the lease, the unit owner shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. Failure of the unit owner to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the unit owner's defenses other than payment, and the lessor shall be entitled to an immediate default. When the unit owner has deposited funds into the registry of the court as provided herein, the lessor may apply to the court for disbursement of all or part of the funds as may be shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may *131 award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution.
The leases sued upon antedate the passage of Section 711.63(4)[1] by the 1974 Legislature, its amendment by the 1975 Legislature, and its renumbering by the 1976 Legislature.[2] Therefore, the statute must be applied retroactively if it is to apply in this case. The presumption is that legislation is effective prospectively and will be given retroactive effect only when the act clearly and explicitly provides for such application. In Trustees of Tufts College v. Triple R. Ranch, Inc. 275 So.2d 521 (Fla. 1973) we stated:
The bias against retroactive legislation is deeply rooted in the Anglo-American law... . A statute will be construed as prospective only unless the intention of the Legislature to give it a retroactive effect is expressed in language to [sic] clear and explicit to admit of reasonable doubt. (footnotes omitted) At 524.
This principle was recently applied by this court to prohibit the retroactive application of Section 711.231, Florida Statutes (1975) (the escalation clause statute) in Fleeman v. Case, 342 So.2d 815 (Fla. 1976) and Section 711.66(5)(e), Florida Statutes, (1975), in Avila South Condominium Assn. Inc. v. Kappa Corp., 347 So.2d 599 (Fla. 1977).
The effective date of Section 711.63(4) is found in Section 19 of Chapter 74-104, Laws of Florida, which provides as follows:
Section 19. This act shall take effect October 1, 1974; provided however that nothing contained in sections 711.63 other than 711.63(4), and 711.64, Florida Statutes, shall affect:

(a) Rights established by contract for sale of a unit by a developer to a prospective unit owner prior to July 1, 1974.
(b) A condominium or a cooperative as to which rights are established by contract for sale of a unit in the condominium *132 or cooperative by the developer to a prospective unit owner prior to July 1, 1974.
(c) The form of a lease that would be otherwise subject to the requirements of section 711.63, Florida Statutes, if the lease from is established by contract for sale of a unit in any condominium or any cooperative by the developer to a prospective unit owner prior to July 1, 1974, which lease form may be used in the making of all leases of the leased property and as to such other property that may be added to the leased property in accordance with the terms of the lease;
(d) And provided further that if on October 1, 1974 there are less than six remaining unsold units in a condominium or cooperative in which there have been binding contracts for the sale of other units executed prior to October 1, 1974, then the requirements of 711.69, Florida Statutes, shall not be applicable to the sale or offering of such remaining unsold units; and provided further that nothing contained in section 711.65, Florida Statutes, shall affect a condominium or a cooperative as to which rights are established by contracts for sale of ten percent (10%) or more of the units in the condominium or cooperative by the developer to prospective unit owners prior to July 1, 1974, or as to condominium or cooperative buildings on which construction has been commenced prior to July 1, 1974. (emphasis added)
This section clearly and explicitly exempts Section 711.63(4) from the October 1, 1974 effective date and expressly provides for application to pre-existing contracts. As appellant points out, in Avila South we relied upon the same portion of Chapter 74-104 to hold that Section 711.66(5)(e) was not intended to apply retroactively. In that case we stated:
In support of the contention that Section 711.66(5)(e) was intended to have retroactive effect, appellants-petitioners rely on certain language in Ch. 74-104, § 19, Laws of Florida, creating Section 711.66 et seq., etc. Appellants-petitioners argue that Section 711.66(5)(e) "was not among those sections specifically deemed not to apply to pre-existing condominium contracts, thereby manifesting a legislative intent that it should apply." Brief for Appellants, page 9. But a statute "is not to be given retrospective application unless it is required by the terms of the Statute or it is unequivocally implied," Keystone Water Co. v. Bevis, 278 So.2d 606, 608 (Fla. 1973). The title of the enactment did not give notice of retroactivity, see Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, 645 (1944), and the language on which appellants-petitioners rely does not "unequivocally imply" a legislative intent that Section 711.66(5)(e) operate retroactively. (footnotes omitted) At 604.
From a reading of Section 19 it is clear that Section 711.66(5)(e) was not specifically excluded from the operative date. It is just as clear that Section 711.63(4) is excluded. We therefore hold that the provisions of Section 711.63(4) were intended by the Legislature to apply retroactively.

II
Next, we are asked to decide whether retroactive application of Section 711.63(4) may be accomplished without unconstitutionally abridging vested contractual rights. Because we find that appellant in this case, by specific language contained in its Declaration of Condominium, expressly agreed to be bound by all future amendments to the Condominium Act, including, but not limited to Section 711.63(4), we need not reach this constitutional question.[3]
*133 The submission statement contained in Century Village's Declaration of Condominium provides:
... [the developer] hereby states and declares that said realty, together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 Et. Seq. (hereinafter referred to as the "Condominium Act"), and the provisions of said Act are hereby incorporated by reference and included herein thereby ... . (emphasis added)
The "Condominium Act" referred to above is defined in Section I(G) as follows:
Condominium Act means and refers to the condominium act of the State of Florida (Florida Statute 711, et seq.) as the same may be amended from time to time. (emphasis added)
By express language, the declaration provided for the adoption of future legislative acts as amendments to the original declaration. Thus, the provisions of Section 711.63(4) were specifically incorporated by reference. This holding is consistent with that reached by the Third District Court of Appeal in Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. den., 355 So.2d 517 (Fla. 1978). In that case, the Third District Court interpreted a similar provision, also contained in a declaration of condominium[4] and held:
The contested clause unequivocally states that provisions of the Condominium Act are adopted "as it may be amended from time to time." (Emphasis added.) We perceive no ambiguity in this language, and thus find that it was the express intention of all parties concerned that the provisions of the Condominium Act were to become a part of the controlling document of Fifth Moorings whenever they were enacted. Even if we were to find an ambiguity, we would be forced to construe it against the defendant developer/lessors as authors of the Declaration of Condominium. See Bouden v. Walker, 266 So.2d 353 (2d DCA 1972); see generally 49 Am.Jur.2d, Landlord and Tenant, § 143. (footnotes omitted) At 628.
We therefore hold that because Section 711.63(4) is incorporated by reference as part of the controlling document of Century Village, no constitutional question of impairment of contract is raised.

III
Finally, we must determine whether a condominium association, suing on behalf of its unit owners, may avail itself of the deposit provisions of Section 711.63(4). Appellant argues that since the plaintiffs/appellees in this case are condominium associations, the deposit provisions of the statute are inapplicable. We agree. The language in Section 711.63(4) is clear and explicit. Only where a unit owner initiates an action or interposes a defense are the deposit provisions applicable. In cases where an association brings the action the unit owners must continue to pay accrued rent in accordance with the terms of the lease agreement. We reject the argument advanced by appellees that under the new class action rule adopted in Avila South, an association is identical to and standing in the place of the unit owner. In Avila, we extended a class action to an association under certain defined circumstances, but in no way attempted to equate an association with a unit owner for all purposes or for the purpose of the statute here under review. The terms "association" and "unit owner" are not interchangeable in this statutory context.
In Florida, condominiums are creatures of statute and as such are subject to the control and regulation of the Legislature. That body has broad discretion to fashion such remedies as it deems necessary to protect the interests of the parties involved. *134 Section 711.63(4) requires a unit owner to deposit rents with the court, and in the event he prevails, the return of any excessive rents paid is guaranteed without delay. It was within the discretionary power of the Legislature to extend this protection to cases where an association initiated suit. They did not and we cannot.[5]
However, under Fla.R.Civ.P. 1.600,[6] in any action in which part of the relief sought is judgment for a sum of money or the disposition of a sum of money, a party may deposit all or any part of such sum with the court upon notice to each party and with permission of the court. Thus, by rule, if not by statute, deposit of rents is authorized.
In addition, a trial judge may, in his discretion, fashion suitable remedies based upon the facts of particular cases to carry out the purposes of the rule and statute.
We hold that Section 711.63(4) was intended by the Legislature to be applied retroactively; that the Declaration of Condominium incorporated the Condominium Act as amended; that a condominium association bringing suit on behalf of its unit owners may not avail itself of the deposit provisions of the statute; and that trial judges are free to use Fla.R.Civ.P. 1.600, or other equitable deposit plans, to hold rent payments during litigation.
Accordingly, the order of the trial court is affirmed in part and reversed in part and remanded for proceedings consistent with the opinions expressed herein.
It is so ordered.
ENGLAND, C.J., and ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.
BOYD, J., dissents with an opinion.
BOYD, Justice, dissenting.
It has long been constitutional law that temporary deprivation of payment under contract is impairment of the obligation of contract. Louisiana ex rel. Ranger v. New Orleans, 102 U.S. 203, 26 L.Ed. 132 (1880). At no time could it be more true than today, when rampant inflation is the norm.
The majority avoids this constitutional issue by ascribing to the landlord at the time it entered the Declaration of Condominium the intent to be bound by any amendment to the Condominium Act. I concede that the declaration contained an agreement to be bound by future amendments to the Act. But, in finding intent and construing contracts there is always room for common sense. To my mind, it defies reason to say that the landlord intended when it entered the declaration that it could be deprived of rental payment, even temporarily, by what it thought was an innocuous reference to the Condominium Act, a reference that is undoubtedly condominium contract boilerplate. If the Condominium Act were amended to take the full rental payments away from condominium landlords permanently I doubt the majority would so easily dismiss the constitutional issue. And I cannot dismiss the issue here since the deprivation suffered by the landlord so obviously is an impairment of his constitutional right to timely receipt of rental payments.
NOTES
[1]  Section 711.63(4), Florida Statutes (Supp. 1974), provides:

The lease shall provide, and if it does not so provide, shall be deemed to provide, that in any action by the lessor to enforce a lien for rent payable with respect to leases under this section or any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may interpose any defenses, legal or equitable, that he may have with respect to the lessor's obligations under the lease. If the unit owner interposes any defense other than payment of rent under the lease, the unit owner shall pay into the registry of the court the accrued rent as alleged in the complaint, or as determined by the court, and the rent which accrues during the pendency of the proceeding, when due. Failure of the unit owner to pay the rent into the registry of the court as provided herein constitutes an absolute waiver of the unit owner's defenses other than payment and the lessor shall be entitled to an immediate default. When the unit owner has deposited funds into the registry of the court as provided herein, the lessor may apply to the court for disbursement of all or part of the funds as may be shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or any part of the funds on deposit to the lessor or may advance the cause on the calendar and to a final resolution of the cause.
[2]  Section 718.401(4), Florida Statutes (Supp. 1976) provides:

In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor's obligations under the lease. If the unit owner initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner fails to pay the rent into the registry of the court, it shall constitute an absolute waiver of the unit owner's defenses other than payment, and the lessor shall be entitled to default. When the unit owner has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement for all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or part of the funds on deposit to the lessor for such purpose.
[3]  The decision not to reach the constitutional question is not suggestive of how that issue will be determined if squarely presented. The principle that courts will not determine constitutional questions where the case may be decided on other grounds is so central and elementary in the jurisprudence of this state and nation as not to be open to argument. State v. Dye, 346 So.2d 538 (Fla. 1977); Fleeman v. Case, 342 So.2d 815 (Fla. 1976); Division of Beverage v. Foremost-McKesson, Inc., 330 So.2d 143 (Fla. 1976); McKibben v. Mallory, 293 So.2d 48 (Fla. 1974).
[4]  Except where variances permitted by law appear in this Declaration or in the annexed By-Laws or in the annexed charter of Fifth Moorings Condominium, Inc., or in lawful amendments thereto, the provisions of the Condominium Act as presently existing or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference.
[5]  In light of this determination, we need not reach the issue of whether or not the deposit provisions were available to a unit owner/plaintiff when this action was commenced.
[6]  In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party may deposit all or any part of such sum or thing with the court upon notice to every other party and by leave of court. Money paid into court under this rule shall be deposited and withdrawn by order of court.


535 U.S. 1042
RITCHIEv.UNITED STATES.
No. 01-9312.
Supreme Court of the United States.
April 29, 2002.

1
C. A. 9th Cir. Certiorari denied. Reported below: 18 Fed. Appx. 621.


           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 8, 2008
                                     No. 08-50200
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ISIDRO PADILLA-VELA, also known as Cesar Padilla, also known as Juan
Antonio Padilla

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:07-CR-453-ALL

Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appealing the Judgment in a Criminal Case, Isidro Padilla-Vela
raises arguments that are foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty
provision and not a separate criminal offense.                United States v. Pineda-
Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.