Washington State Courts - Supreme Court Issue Summaries
Supreme Court Issues
September Term 2006
Arbitration—Mandatory Arbitration—Trial de Novo—Notice—Service—Timeliness
Whether the 20-day period for requesting a trial de novo following an arbitrator’s award (see MAR 7.1) commences when the arbitrator files the award and proof that the award has been mailed to the parties, or when the arbitrator files the award and proof that copies have been served on (received) by the parties. See MAR 6.2 (requiring filing of the award and “proof of service of a copy on each party”).
No. 77751-9, Seto (petitioner) v. American Elevator, Inc. (respondent). (9/21/06)
129 Wn. App. 146 (2005)
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Credit—Truth in Lending—Applicability—Hybrid Loans
Whether the Court of Appeals properly adopted the quantitative method of determining whether a hybrid loan (one made for both commercial and consumer purposes) was primarily for business purposes and thus not subject to the federal Truth in Lending Act.
No. 77708-0, Cashmere Valley Bank (respondent) v. Brender (petitioner). (9/12/06)
128 Wn. App. 497 (2005)
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Criminal Law—Evidence—Hearsay—Right of Confrontation—Harmless Error
Whether the defendant was harmed by the erroneous admission at her criminal trial of her nontestifying spouse’s statement to police and guilty plea statement.
No. 77281-9, State (respondent) v. Watt (petitioner). (10/19/06)
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Criminal Law—Evidence—Hearsay—Right of Confrontation—Records Custodian’s Certification of No Record
Whether a records custodian’s written certification that his agency has no records regarding a defendant amounts to a testimonial statement triggering that defendant’s right to confront and cross-examine the custodian under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
No. 77719-5, State (respondent) v. Kirkpatrick (petitioner) (see also Criminal Law—Search & Seizure—Arrest—Detention for Questioning—). (10/17/06)
129 Wn. App. 155 (2005)
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Whether a records custodian’s written certification, stating conclusions about a defendant’s legal status based on the absence of certain public records, amounts to a testimonial statement triggering the defendant’s right to confront and cross-examine the custodian under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
No. 78428-1, State (respondent) v. Kronich (petitioner). (10/17/06)
131 Wn. App. 537 (2006)
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Criminal Law—Evidence—Hearsay—Right of Confrontation—Unavailability of Declarant—Testimonial or Nontestimonial Statement—Declarant-Initiated Contact With Police
Whether the admission in a murder prosecution of the victim’s prior statements to police describing an assault by the defendant violated the defendant’s right of confrontation under. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
No. 77507-9, State (respondent) v. Mason (petitioner) (see also Criminal Law—Homicide—Jury—Selection—Sentencing Consequences—Noncapital Crime—Effect). (10/26/06)
127 Wn. App. 554 (2005) — published in part
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Criminal Law—Evidence—Multiple Illegal Acts—Jury Unanimity—Instructions—Harmless Error
Whether the failure to give a jury unanimity instruction in this case was harmless, where the State presented evidence of multiple incidents of molestation and did not elect one incident to rely upon, and evidence of one incident is controverted.
No. 77706-3, State (respondent) v. Coleman (petitioner) (see also Criminal Law—Exceptional Sentence—Aggravating Factors—Jury Determination on Retrial). (10/17/06)
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Criminal Law—Exceptional Sentence—Aggravating Factors—Jury Determination on Retrial
Whether the State should be permitted on retrial to have a jury determine the existence of aggravating circumstances for sentencing purposes, pursuant to legislation enacted after the defendant’s initial conviction. See Laws of 2005, ch. 68, §§ 1, 4, 7.
No. 77706-3, State (respondent) v. Coleman (petitioner) (see also Criminal Law—Evidence—Multiple Illegal Acts—Jury Unanimity—Instructions—Harmless Error). (10/17/06)
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Criminal Law—False Instruments—False Political Contribution Reports—Civil Remedies—Exclusivity
Whether the trial court properly dismissed this criminal prosecution under RCW 40.16.030 (“Offering false instrument for filing or record”) on the ground that the defendants’ alleged conduct (causing the false reporting of political contributions) is subject exclusively to RCW 42.17.390, the civil penalty provisions of the public disclosure and fair campaign practices law.
No. 78995-9, State (appellant) v. Conte (respondent). (11/28/06)
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Criminal Law—Former Jeopardy—Multiple Convictions—Alternative Crimes—Conditional Dismissal of Lesser Crime
Whether, to avoid a double jeopardy violation for multiple convictions, the trial court may dismiss the lesser conviction on the condition that it be reinstated if the greater conviction is later set aside.
No. 78166-4, State (respondent) v. Womac (petitioner) (see also Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—). (10/26/06)
130 Wn. App. 450 (2005)
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Criminal Law—Former Jeopardy—Retrial on Greater Offense
Whether, following vacation of the defendant’s conviction of second degree felony murder predicated on assault, see In re Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), the State is barred on double jeopardy grounds from retrying him on the original charges of aggravated first degree murder and attempted first degree murder. See State v. Linton, 156 Wn.2d 777, 132 P.3d 127 (2006).
No. 78062-5, State (petitioner) v. Ervin (respondent). (9/21/06)
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Criminal Law—Homicide—First Degree Murder—Aggravated First Degree Murder—Aggravating Circumstances—Arson—Relationship
Whether a murder was committed “in the course of” or “in furtherance of” the crime of first degree arson, thus constituting aggravated first degree murder, when the killing was accomplished before the fire was started.
No. 77767-5, State (respondent) v. Hacheney (petitioner) (see also Criminal Law—Witnesses—Depositions—Availability of Witnesses). (10/24/06)
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Criminal Law—Homicide—Jury—Selection—Sentencing Consequences—Noncapital Crime—Effect
Whether the trial court in this aggravated first degree murder prosecution erroneously informed potential jurors during voir dire that the State was not seeking the death penalty. See State v. Townsend, 142 Wn.2d 838, 15 P.3d 145 (2001).
No. 77507-9, State (respondent) v. Mason (petitioner) (see also Criminal Law—Evidence—Hearsay—Right of Confrontation—Unavailability of Declarant—Testimonial or Nontestimonial Statement—). (10/26/06)
127 Wn. App. 554 (2005) — published in part
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Criminal Law—Intimidating Witness—Elements—Charging Document—Proof
Whether the defendant’s conviction of intimidating a witness must be reversed because the information charged the defendant with threatening a witness in an official proceeding but no such proceeding had begun.
No. 77885-0, State (respondent) v. Brown, Mickey (petitioner) (see also Criminal Law—Weapon—Enhanced Punishment—Sufficiency of Evidence). (9/14/06)
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Criminal Law—Personal Restraint Petition—Timeliness—Statutory Limits—Commencement of Period—Resentencing
Whether the one-year time limit for collaterally challenging petitioner’s criminal conviction ran from the date of finality of petitioner’s first appeal from the judgment and sentence or from the date of finality of a subsequent appeal after resentencing.
No. 78156-7, In re Pers. Restraint of Skylstad, Scott Skylstad (petitioner); State (respondent). (11/28/06)
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Criminal Law—Punishment—Credit for Detention Pending Appeal—Home Detention
Whether the defendant was entitled to credit against his sentence for time served on home detention during appeal.
No. 78097-8, State (respondent) v. Swiger (petitioner). (11/9/06)
130 Wn. App. 222 (2005)
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Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Determination—By Court—Harmless Error
Whether a violation of the defendant’s right to a jury determination of aggravating sentencing factors under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), was harmless.
No. 78166-4, State (respondent) v. Womac (petitioner) (see also Criminal Law—Former Jeopardy—Multiple Convictions—Alternative Crimes—). (10/26/06)
130 Wn. App. 450 (2005)
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Criminal Law—Right to Counsel—Effective Assistance of Counsel—Failure to Object to Comparability of Prior Convictions
Whether, in proceedings culminating in the defendant’s sentence as a persistent offender, defense counsel’s failure to challenge the comparability of the defendant’s prior out-of-state conviction constituted ineffective assistance.
No. 77753-5, State (respondent) v. Thiefault (petitioner). (9/21/06)
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Criminal Law—Search & Seizure—Arrest—Detention for Questioning—Seizure—Request for Identification
Whether a police officer’s request for identification from a car’s occupant in the course of investigating a reckless driving complaint violated the occupant’s state constitutional right to privacy.
No. 77719-5, State (respondent) v. Kirkpatrick (petitioner) (see also Criminal Law—Evidence—Records Custodian’s Certification of No Record—Testimonial Statement—). (10/17/06)
129 Wn. App. 155 (2005)
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Criminal Law—Search & Seizure—Bank Records—Administrative Subpoena
Whether, under article I, section 7 of the Washington Constitution, evidence gained from a person’s banking records, obtained by a subpoena issued to the bank by the securities division of the state Department of Financial Institutions, should be suppressed in a subsequent criminal prosecution.
No. 78656-9, State (respondent) v. Miles (petitioner). (11/9/06)
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Criminal Law—Search & Seizure—Expectation of Privacy—Abandoned Item—Disavowal of Ownership—Item in Area Protected by Privacy Interest
Whether a defendant who disclaimed ownership of a briefcase but not the truck it was found in could challenge the seizure and search of the briefcase.
No. 77700-4, State (respondent) v. Evans (petitioner). (10/19/06)
129 Wn. App. 211 (2005)
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Criminal Law—Search & Seizure—Warrant—Affidavit—Misstatements or Omissions
Whether the omission of material facts from search warrant affidavits was reckless, thereby invalidating the warrants, and if not, whether a negligence standard should apply to such omissions under the Washington Constitution.
No. 77615-6, State (respondent) v. Chenoweth (petitioner); State (respondent) v. Wood (petitioner). (9/21/06)
127 Wn. App. 444 (2005)
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Criminal Law—Sex Offenses—Registration of Sex Offenders—Scope—Re-Registration of Offender Following Incarceration for Probation Violation
Whether RCW 9A.44.130(4)(a)(i) requires a sex offender to re-register after his release from incarceration for a probation violation if he has not changed his address.
No. 78052-8, State (respondent) v. Watson (petitioner). (11/14/06)
130 Wn. App. 376 (2005)
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Criminal Law—Trial—Fair Trial—Spectators Wearing Buttons With Victim’s Picture
Whether the defendant in this murder trial was denied a fair trial because, during the first few days of trial, courtroom spectators were allowed to wear buttons picturing the victim.
No. 77472-2, State (respondent) v. Lord (petitioner) (see also Criminal Law—Witnesses—Right to Call—Scope of Right). (10/26/06)
128 Wn. App. 216 (2005) — published in part
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Criminal Law—Weapon—Enhanced Punishment—Sufficiency of Evidence
Whether evidence that burglars found a firearm in a closet but left it on a bed when they aborted the burglary is sufficient to support a finding that the burglars were armed when they committed the crime.
No. 77885-0, State (respondent) v. Brown, Mickey (petitioner) (see also Criminal Law—Intimidating Witness—Elements—Charging Document—Proof). (9/14/06)
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Criminal Law—Witnesses—Depositions—Availability of Witnesses
Whether the trial court in this criminal prosecution properly admitted the depositions of witnesses who were out of the country at the time of the trial.
No. 77767-5, State (respondent) v. Hacheney (petitioner) (see also Criminal Law—Homicide—First Degree Murder—Aggravated First Degree Murder—Aggravating Circumstances—). (10/24/06)
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Criminal Law—Witnesses—Right to Call—Scope of Right
Whether the trial court erred by refusing to allow testimony of a tracking-dog handler that the defendant claimed to be exculpatory.
No. 77472-2, State (respondent) v. Lord (petitioner) (see also Criminal Law—Trial—Fair Trial—Spectators Wearing Buttons With Victim’s Picture). (10/26/06)
128 Wn. App. 216 (2005) — published in part
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Divorce—Child Support—Child Support Schedule—Income Exceeding Schedule—Higher Support Obligation
Whether, in determining child support for parents with combined monthly incomes greater than $7,000, the trial court may “extrapolate” from the amounts set forth in the child support schedule. See RCW 26.19.020.
No. 77890-6, In re Marriage of McCausland, Angela McCausland (petitioner); Robert McCausland (respondent). (10/24/06)
129 Wn. App. 390 (2005)
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No. 77858-2, State ex rel. M.M.G. (respondent) v. Graham (petitioner); Cunliffe (respondent) (see also Divorce—Child Support—Child Support Schedule—Shared Residential Arrangement—Apportionment—). (10/24/06)
123 Wn. App. 931 (2004)
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Divorce—Child Support—Child Support Schedule—Shared Residential Arrangement—Apportionment—Split-Custody Support Calculation Method—Applicability
Whether the method for determining child support for parents in split custody arrangements, established in In re Marriage of Arvey, 77 Wn. App. 817, 894 P.2d 1346 (1995), applies to parents who equally share custody of all their children.
No. 77858-2, State ex rel. M.M.G. (respondent) v. Graham (petitioner); Cunliffe (respondent) (see also Divorce—Child Support—Child Support Schedule—Income Exceeding Schedule—). (10/24/06)
123 Wn. App. 931 (2004)
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Employment—Termination—Violation of Public Policy
Whether discharge of an at-will employee “because she experienced domestic violence and took actions to protect herself [and] her family and to hold her abuser accountable” contravenes a clear mandate of public policy.
No. 78421-3, Danny (plaintiff) v. Laidlaw Transit Servs., Inc. (defendant). (9/14/06)
Certified Question from U.S. District Court, Western District of Wash.
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Industrial Insurance—Disability—Time-Loss Compensation—Basis—Wages—Employee—Contributions—Health Care Fund—Employee Eligibility
Whether employer payments made into a trust fund that provides health coverage to union members are wages under RCW 51.08.178 if the injured union member is not yet eligible to receive health care benefits.
No. 78139-7, Dep’t of L&I (petitioner) v. Granger (respondent). (11/9/06)
130 Wn. App. 489 (2005)
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Insurance—Duty to Defend—Malpractice Insurance—Medical Services—What Constitutes—Acts Against Anesthetized Patient Unrelated to Treatment
Whether an insurer has a duty to defend its insured dentist in a damages suit brought by an employee patient, where the claim is based on a “practical joke” that the dentist played on the employee while the employee was unconscious for purposes of a legitimate dental procedure.
No. 77684-9, Woo (petitioner) v. Fireman’s Fund Ins. Co. (respondent). (9/12/06)
128 Wn. App. 95 (2005)
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Judgment—Enforcement—Statutory Time Limitation—Extension
Whether the trial court erred in 1996 by granting an assignee’s motion to extend a 1986 judgment for ten years, and whether 2002 legislation granting assignees the right to extend judgments, which purports to apply to judgments extended after June 9, 1994, see RCW 6.17.020(8), retroactively approved the extension here.
No. 77974-1, American Discount Corp. (plaintiff); United Collection Service, Inc. (petitioner) v. Shepherd (respondent). (10/24/06)
129 Wn. App. 345 (2005)
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Land Use Regulations—Tree Removal—Ordinance—Construction
Whether a city’s tree removal ordinance, which requires a permit for land clearing on any developed or partially developed lot, is unconstitutionally vague or was misapplied in this case.
No. 77590-7, Sleasman (petitioner) v. City of Lacey (respondent). (9/12/06)
128 Wn. App. 617 (2005) — published in part
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Limitation of Actions—Accounts Receivable—What Constitutes—Invoices—Attorney Billings
Whether the six-year statute of limitations for accounts receivable (RCW 4.16.040(2)) applies to an attorney’s collection action against a former client based on unpaid invoice billings for legal services.
No. 77689-0, Tingey (petitioner) v. Haisch (respondent). (9/19/06)
129 Wn. App. 109 (2005)
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Municipal Corporations—Franchise Fees—Utilities
Whether cities (other than Seattle) imposed improper franchise fees under RCW 35.21.860 by contracting with Seattle City Light to receive a portion of its revenues in exchange for the promise by the cities not to enter into the electric utility business.
No. 78449-3, Burns (appellant) v. City of Seattle (respondent). (11/14/06)
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Prisons—Financial Assessments on Inmate Funds—Statutory Provisions
Whether the Department of Corrections may deduct a portion of certain funds received by inmates sentenced to life without the possibility of parole to pay legal financial obligations. See RCW 72.09.480(2)(d) and (7); 72.11.020.
No. 78715-8, Anderson (appellant) v. DOC (respondent). (11/28/06)
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Property—Cohabitants—Distribution of Property—Meretricious Relationship
Whether the trial court erred in making a monetary award to one partner in a meretricious relationship in recognition of services rendered “as a cohabitating, committed long-term companion” during the relationship.
No. 77548-6, Soltero (respondent) v. Wimer (petitioner). (9/12/06)
128 Wn. App. 364 (2005)
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Public Assistance—Persons With Disabilities—In-Home Services—Regulations—“Shared Living Rule”—Validity
Whether the “shared living rule” of WAC 388-106-0130(3)(b), which reduces benefits paid to some recipients under a long-term care program, violates Medicaid requirements, the Americans With Disabilities Act, or the federal or state constitutions.
No. 78652-6 (consol. w/78931-2), Jenkins (respondent) v. DSHS (appellant); Gasper (respondent) v. DSHS (petitioner). (11/9/06)
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Public Employment—Pensions—Benefits
Whether a union welfare trust fund providing medical benefits to a municipal corporation’s retirees is subject to the Employment Retirement Income Security Act (ERISA), and, if not, whether under state law the benefits are a form of deferred compensation that the municipal employer must continue to fund.
No. 78866-9, Navlet (appellant) v. Port of Seattle (respondent). (9/14/06)
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Securities Regulation—Security—“Sale”—What Constitutes
Whether payment of a promissory note on a loan used to purchase securities constituted a “sale” of securities subject to the Washington Securities Act, chapter 21.20 RCW.
No. 78128-1, Kinney (petitioner) v. Cook (respondent). (11/14/06)
130 Wn. App. 436 (2005)
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Taxation—Business & Occupation Tax—Collection & Payment—Itemization & Collection from Purchasers or Customers—Validity
Whether a business’s practice of itemizing and collecting business and occupation taxes directly from purchasers and customers is lawful under RCW 82.04.500.
No. 77985-6, Nelson (respondent) v. Appleway Chevrolet, Inc. (petitioner). (10/19/06)
129 Wn. App. 927 (2005)
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Taxation—Excise Tax—“Other Tobacco Products”—Wholesale Sales Price—Fair Market Value—What Constitutes
Whether, in this action seeking a refund of excise taxes paid on the wholesale sales price of tobacco products sold by a manufacturer to an affiliated in-state distributor, the distributor adequately established the fair market value of the products by reference to the “residual profit split” measure of value codified by the Internal Revenue Service in 26 C.F.R. § 1.482-1.
No. 77690-3, U.S. Tobacco Sales & Mktg. Co. (petitioner) v. Dep’t of Revenue (respondent). (9/19/06)
128 Wn. App. 426 (2005)
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Taxation—Statutes—State Expenditure Limits
Whether revenue increases enacted by the 2005 Legislature to fund expenditures for the 2006 fiscal year were in excess of the state expenditure limit and thus were invalid without voter approval.
No. 78637-2, State Farm Bureau Fed’n (respondent) v. Gregoire (appellant). (11/28/06)
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Tort—Continuing Trespass—Damages—Period of Recovery
Whether, in a continuing trespass action, damages may be awarded for the period of time between the filing of suit and the entry of judgment.
No. 77707-1, Woldson (petitioner) v. Woodhead (respondent). (10/17/06)
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Torts—Wrongful Prolongation of Life—Right of Action
Whether medical personnel acted negligently in continuing resuscitation efforts on a newborn infant, or in failing to obtain informed consent for those efforts, which resulted in the infant’s survival but with multiple severe disabling conditions.
No. 78383-7, Stewart-Graves (appellant) v. Vaughn (respondent) (stricken; will be reset in Winter term).
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