Monthly Archives: November 2017

Character Evidence

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In State v. Wilson the WA Court of Appeals held that the trial court mistakenly admitted into evidence a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
BACKGROUND FACTS
Claudine Wilson has cared for her granddaughter, B.E., since she was born on January 29, 2006. In 2010, when B.E. was four years old, Claudine married the defendant Leslie Wilson. Wilson moved into Claudine’s home in Auburn, Washington which Claudine shared with several other family members. Claudine, Wilson, and B.E. shared a bedroom. Claudine and Wilson slept in a king size bed. B.E. had her own bed in the same room, but sometimes slept with Claudine and Wilson.
Wilson and B.E. appeared to get along well. However, the marriage between Wilson and Claudine eventually deteriorated, in part due to Wilson’s alcohol use. Wilson left the household in July 2012. About five months later, in December 2012, just after Claudine spoke to Wilson on the telephone, B.E. told Claudine that Wilson had touched her.
Wilson was charged with two counts of Rape of a Child in the First Degree and one count of Attempted Rape of a Child in the First Degree.
Before trial, the State informed the trial court of its intent to present evidence of a sexual remark Wilson allegedly made to B.E.’s older cousin, S.H. Specifically, S.H. claimed that when she was 11 or 12 years old and wearing a bathing suit, Wilson remarked that she should not “wear that stuff around [him] because it gets—[him] so excited.” The State argued that this evidence showed that Wilson had a common scheme or plan to sexually assault young girls. The defense argued that the evidence showed only propensity and was inadmissible. The court ruled that S.H.’s testimony demonstrated a common scheme or plan and was admissible under ER 404(b).
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Wilson that the trial court erred in admitting a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
The Court reasoned that ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. The same evidence may be admissible for other purposes, however, depending on its relevance and the balancing of the probative value and danger of unfair prejudiceState v. Gresham. One accepted “other purpose” under ER 404(b) is to show the existence of a common scheme or plan.
The Court further reasoned that prior misconduct and the charged crime must share a sufficient number of “markedly and substantially similar” features so that the similarities can naturally be explained as individual manifestations of a general plan. The prior misconduct must be sufficiently similar to the charged crime, or else the evidence of misconduct is not probative of whether the alleged act occurred. Similarity of results is insufficient and the evidence must show more than a general “plan” to molest children. Ultimately, in doubtful cases, the evidence should be excluded.
Against that backdrop, the Court decided that the incidents described by B.E. and S.H. did not share “markedly and substantially similar” features that can naturally be explained as individual manifestations of a general plan:
“B.E. reported recurring incidents of sexual abuse. S.H. reported an isolated, sexually-oriented remark. There was a significant difference in the victims’ ages when the incidents occurred. The evidence was similar only in the respect that it tended to show Wilson’s sexual attraction to minors. S.H.’s testimony did not demonstrate the existence of a common scheme or plan. In view of the limited evidence presented to the jury, we cannot say that the admission of the ER 404(b) evidence did not materially affect the trial within reasonable probabilities.”
With that, the Court of Appeals reverse Wilson’s conviction of Rape of a Child.

Poll: 6 In 10 Black Americans Say Police Unfairly Stopped Them Or A Relative

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News article by Joe Neel  of NPR says that a new poll out this week finds that 60 percent of black Americans say they or a family member have been stopped or treated unfairly by police because they are black. In addition, 45 percent say they or a family member have been treated unfairly by the courts because they are black. The poll is a collaboration between NPR, the Robert Wood Johnson Foundation and the Harvard T.H. Chan School of Public Health.

The poll reveals the consequences of these stops for black Americans personally and across society — 31 percent of poll respondents say that fear of discrimination has led them to avoid calling the police when in need. And 61 percent say that where they live, police are more likely to use unnecessary force on a person who is black than on a white person in the same situation.

Previous polls have asked similar questions, but ours is unique in that it’s the first to ask about lifetime experiences with policing. It’s part of NPR’s ongoing series “You, Me and Them: Experiencing Discrimination in America.”

Pew Research poll in 2016 asked whether people had been unfairly stopped by police because of race or ethnicity in the previous 12 months and found that 18 percent of black people said yes. A 2015 CBS News/New York Times poll asked whether this had ever happened and found 41 percent of black people said yes.

Neel reports that the NPR poll differs from Pew in that NPR asked not only about a much longer period but also whether people had been unfairly stopped or treated because of their race or ethnicity. Also the NPR poll differ from CBS in that NPR included the word “unfairly.” Finally, the NPR poll differs from both the Pew and CBS polls because NPR asked whether a person or a family member had had this experience, which gives a better sense of the presence of these experiences in respondents’ life and surroundings.

Neel also reports that the black American data from our poll, released Tuesday, were compiled from 802 black Americans as part of a large national representative probability survey of 3,453 adults from Jan. 26 to April 9. The margin of error for the full black American sample is plus or minus 4.1 percentage points.

It is imperative to contact a competent attorney if you, a friend or family member were pulled over, searched and/or seized by police under suspicious circumstances. Please contact my office for a free consultation.

Defense of Property

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In State v. Yelovich, the WA Court of Appeals held that an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.

BACKGROUND FACTS

Assault & Arrest

Defendant Yelovich and his ex-girlfriend De Armond dated for several years before breaking up. A domestic violence no-contact order was in place that prevented Yelovich from contacting De Armond. According to Yelovich, on the morning of June 7, 2015, he was at his son’s house packing boxes in the garage and moving them to his car. While he was working, Yelovich left several items unattended in his car, which had a broken passenger-side window. One of the items was a cell phone. As Yelovich was taking a box to his car, he caught a glimpse of someone walking down the street. At that time, he could not tell who the person was.

When he reached his car, he noticed that his cell phone and other items were missing.
Yelovich walked to the middle of the street and saw that the person in the street was De
Armond. De Armond was repeatedly turning around and looking back toward Yelovich.
Yelovich immediately believed that she had taken his cell phone.

Yelovich got into his car and chased after De Armond. He drove to the end of the road a
few blocks away and turned the corner before encountering De Armond. He parked his car, got out, and demanded that she return his phone. Yelovich knew at that point that he was violating the no-contact order. But he believed that the action was necessary before De Armond disappeared with his phone.

Yelovich grabbed De Armond’s purse strap and attempted to pull the purse from her, believing that the cell phone was in the purse. De Armond resisted, holding tightly to her purse. In the struggle, De Armond fell to the ground. After a bystander intervened, law enforcement officers arrived and arrested Yelovich.

The State charged Yelovich with violating the no-contact order. The information alleged
that Yelovich had assaulted De Armond, making the violation a felony under RCW
26.50.110(4).

Trial and Conviction

At trial, the witnesses testified to the facts recited above. Yelovich proposed a jury instruction that included both defense of property and self-defense components. The trial court ruled as a matter of law that a defense of property instruction did not apply because Yelovich was not using force to prevent the cell phone from being taken; he was trying to recover the cell phone that was no longer in his possession.

A jury convicted Yelovich of the felony contact order violation. Yelovich appeals his
conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals disagreed with Yelovich’s argument that the trial court erred by refusing to give a defense of property jury instruction.

“Yelovich asserted as a defense that he was justified in using force against De Armond because she had taken his cell phone,” said the Court. It reasoned, however, that Yelovich’s own testimony established that he used force in an attempt to recover the cell phone after De Armond allegedly had taken it and had left the immediate area, not to prevent De Armond from taking the cell phone in the first instance. “The issue here is to what extent a defendant can rely on the defense of property as a defense when he or she uses force to recover property that already has been taken and is no longer in his or her possession,” said the Court.

The Court further reasoned that the plain language of the “Use of Force” Statute RCW 9A.16.020(3) establishes that an owner of property cannot use force to defend that property after the interference with the property has been completed.

First, the property owner can use force only if he or she is about to be injured. “Once the interference with the property has been completed, the owner no longer is about to be injured; he or she has been injured,” said the Court.

Second, the property owner can use force only in preventing or attempting to prevent
the interference. An action taken to prevent interference must occur before the interference has been completed. Defense of property by definition is defensive rather than offensive. “Once the interference with the property has been completed, the owner’s use of force is to recover the property, not to prevent the interference,” said the Court.

Third, the property owner can use force only if the property is lawfully in his or her
possession. “Once the interference with the property has been completed, another person has obtained possession of the property and the owner necessarily no longer has possession,” said the Court.

“Based on the language of RCW 9A.16.020(3) and relevant case law, we hold that an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.”

The Court reasoned that here, application of this three part test and the statutory language show that a defense of property instruction was not appropriate. First, Yelovich was not present at his car when De Armond allegedly removed the cell phone. He discovered that the cell phone was gone only after it already had been taken. Second, at that point De Armond had completed the alleged taking and had possession of the phone. Third, De Armond had left the area of Yelovich’s control – his car – and was a few blocks away. Therefore, the undisputed evidence shows that De Armond’s theft of Yelovich’s cell phone, if it occurred, already had been completed when Yelovich chased after De Armond and accosted her. Yelovich was attempting to recover the cell phone, not to prevent its theft.

The Court furthe rreasoned that Yelovich was not about to be injured when he accosted De Armond; he already had been injured through the loss of his cell phone. He was not attempting to prevent a theft; the theft already had occurred. And Yelovich no longer had possession of the cell phone; the phone allegedly was in De Armond’s possession.

“Therefore, defense of property under RCW 9A.16.020(3) cannot apply and there was no evidence to support Yelovich’s other proposed instruction,” said the Court.