Category Archives: Harassment

9th Circuit: Harassment is a Crime of Violence

Immigration Courts Further Limit Legal Help Available to People Facing Deportation

In Rodriguez-Hernandez v. Garland, the Ninth Circuit Court of Appeals held that a Washington conviction for Harassment is a crime of violence. This is because the statute requires the “threatened use of physical force against the person or property of another.” As such, being convicted of Harassment risks deportatation for non-citizens.

BACKGROUND FACTS

In 2015, Rodriguez-Hernandez was an immigrant living in the United States. He served with a notice to appear alleging removability on the basis that he was not admitted or paroled into the United States (U.S.). Apparently, he faced persecution in Mexico due to threats made against his family. Rodriguez-Hernandez applied for cancellation of removal and sought asylum in the U.S.

Among other things, the 9th Circuit addressed whether Rodriguez-Hernandez’s Harassment conviction was for a crime of violence under federal law.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit began by saying that a noncitizen convicted of an aggravated felony is a deportable offense. It also discussed Washington’s Harassment statute in depth as follows:

RCW § 9A.46.020(1) provides that: (1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or (iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out (emphasis supplied).

Next, the 9th Circuit addressed whether Harassment was a violent offense:

“A crime of violence requires physical force against the person or property of another . . . However, a crime of violence “does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality. The standard is force capable of causing physical pain or injury. . . .”  ~9th Circuit Court of Appeals

With that reasoning, the 9th Circuit held that Rodriguez-Hernandez’ threats against his family were, in fact, crimes of violence. Therefore, because Rodriguez-Hernandez was convicted of a crime of violence, he was ineligible for cancellation of removal or asylum.

My opinion?

The 9th Circuit’s Rodriguez-Hernandez v. Garland, certainly makes Washington’s Harassment statute far more egrigious for citizens and non-citizens alike. It could possibly have the following impacts and consequences on current charges:

  • Misdemeanor harassment with a DV tag is now a deportable “crime of domestic violence,” regardless of sentence.
  • Felony harassment, under any subsection, with a sentence imposed of one year or more will be an aggravated felony “crime of violence.” [Previously only the “threaten to kill” subsection had been held to be a “crime of violence.”]
  • Felony harassment-DV will be a deportable “crime of domestic violence” regardless of sentence imposed.

Even worse, the decision could have terribly negative impacts on non-citizens with prior convictions:

  • Misdemeanor harassment-DV convictions:
    • If conviction occurred prior to July 22, 2011 and the sentence imposed (regardless of time suspended) was 365 days it will be an aggravated felony “crime of violence.” Aggravated felonies carry the most severe immigration consequences and bar eligibility for any discretionary relief from removal.
    • Regardless of date of conviction, it may now be deemed a deportable crime of domestic violence.
  • Felony harassment convictions:
    • Any felony harassment conviction with a sentence imposed (regardless of time suspended) of one year or more may be deemed an aggravated felony crime of violence. Previously, only felony harassment “threat to kill” was considered an aggravated felony crime of violence.
    • Any felony harassment-DV conviction may now be deemed a deportable crime of domestic violence, regardless of sentence.

How this decision impacts individual non-citizen defendants will depend on their current immigration status, their immigration and criminal history, and other individual circumstances. For case-specific information please consult with other immigration counsel knowledgeable in the interplay between criminal and immigration law.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Addresses “True Threats”

Supreme Court: Your Facebook Threats Aren't Necessarily Real Threats

In Counterman v. Colorado, No. 22-138 (June 27, 2023)., the U.S. Supreme Court held that Facebook threats aren’t necessarily real threats. In order to constitute a “true threat,” the prosecution must prove that the defendant had some subjective understanding of the threatening nature of his or her statements.

FACTUAL BACKGROUND

From 2014 to 2016, the defendant Mr. Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her.

Counterman’s messages put C. W. in fear and upended her daily existence. C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities.

The State charged Mr. Counterman under Colorado’s Stalking Statutue. This crime makes it unlawful to repeatedly make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person to suffer serious emotional distress.”

Mr. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening.

Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review. Instead, the U.S. Supreme Court stepped in to handle the appeal.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delived the opinion of the majority court. Preliminarily, she began by saying the First Amendment permits restrictions upon the content of speech in a few limited areas. Among these historic and traditional categories of unprotected expression is true threats.

“True threats are serious expressions conveying that a speaker means to commit an act of unlawful violence,” said Justice Kagan. “The existence of a threat depends not on the mental state of the author, but on what the statement conveys to the person on the receiving end.”

Justice Kagan elaborated that the State is required to show the defendant had the mental state to make a true threat. She explained that with regard to defamation, a public figure cannot recover for the injury that someone’sstatement causes unless the speaker acted with knowledge that it was false or with reckless disregard of whether it was false or not. The same idea arises in the law respecting obscenity and incitement to unlawful conduct.

“And that same reasoning counsels in favor of requiring a subjective element in a true-threats case. A speaker’s fear of mistaking whether a statement is a threat, fear of the legal system getting that judgment wrong, and fear of incurring legal costs all may lead a speaker to swallow words that are in fact not true threats. Insistence on a subjective element in unprotected-speech cases, no doubt, has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder. But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-threatening expression.” ~Justice Kagain, U.S. Supreme Court.

Justice Kagan held that a Reckless Standard is the correct approach in determining the proper mens rea for these cases. A recklessness standard shows that a person “consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another.”

“Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago.” ~Justice Kagain, U.S. Supreme Court.

Justice Kagan concluded by saying the State of Colorado wrongfully prosecuted Counterman in accordance with an objective standard and not a “reckless standard.” This was a violation of the First Amendment. With that, the U.S. Supreme Court reversed Mr. Counterman’s Stalking conviction.

My opinion? Justice Kagan’s “Recklessness Approach” to stalking cases is certainly creative. And it seems to be upheld by caselaw.  I agree with her reasoning that recklessness strikes the right balance. It offers enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws against true threats.

Please contact my office if you, a friend or family member are charged with Stalking, Harassment or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

When Rap Lyrics Are Used Against You In Court.

Why Are Rap Lyrics Being Used As Evidence in Court?

Journalist Sam Levins reports that California could soon limit the admissibility of rap lyric evidence at trial.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US. Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

THE HISTORY BEHIND ADMITTING RAP LYRICS AS EVIDENCE AT TRIAL.

According to the article, more than 500 reported cases of prosecutors using rap music as evidence against defendants. The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats. The strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Professor Jack Lerner, a University of California, Irvine Law School professor, is an expert on the subject. He says the tactic is used across the nation. Apparently, the American Prosecutors Research Institute released a 2004 manual encouraging the use of lyrics in search warrants and trials.

RAP MUSIC ON TRIAL.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors. People are significantly more likely to perceive lyrics as violent, offensive, dangerous and literal if they are from rap, compared to other genres.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” ~Dr. Erik Nielson, University of Richmond Professor

CALIFORNIA’S PROPOSED LAW BANNING THE ADMISSION OF RAP LYRIC EVIDENCE AT TRIAL.

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice. Reggie Jones-Sawyer is the California state representative behind the bill.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

WASHINGTON LAW ON CHARACTER EVIDENCE.

Under Evidence Rule 404, evidence of any other crime, wrong, or act is generally not admissible as character evidence. However, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Judges typically apply a balancing test  to determine whether character evidence is relevant, probative or prejudicial.

My opinion? Let’s hope California’s legislation passes. This is a viable way to stop overzealous prosecutors from using creative expression, which should never be prohibited.

Please contact my office if you, a friend or family member are charged with Harassment or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Twitch Cracks Down on Hate Speech & Harassment

Hard Questions: Where Do We Draw the Line on Free Expression? - About Facebook

Great article by reporter of the New York Times reports that Livestreaming platform Twitch stops hate speech by releasing updates to its Hateful Conduct and Harassment Policy aimed at better protecting its community of gamers and users from hate speech, sexual harassment and other harmful online attacks.

“We know that many people on Twitch — particularly women, members of the LGBTQIA+ community, Black, Indigenous, and people of color — unfortunately continue to experience a disproportionate amount of harassment and abuse online, including on our service. . . Not only is this blatantly unacceptable, it also undermines the community we’re building on Twitch and threatens the long term viability of streaming as a career for everyone who wishes to pursue it.” ~Twitch Post Regarding Updates to Its Hateful Conduct and Harassment Policies

The changes make several aspects of Twitch’s current policy clearer and more explicit, banning actions like encouraging people to doxx another user, repeatedly commenting on someone’s physical appearance if you’ve been asked to stop, or displaying the Confederate flag.

The new policy will take effect on Jan. 22, 2021. Until then, Twitch’s team will continue to moderate content using its existing guidelines, the post said.

Interesting.

Apparently, Twitch is responding to the call for more and better moderation/management of its online platforms. In all likelihood, the recent presidential elections ushered an increase in all types of harassment, including Hate Crimes and Felony Harassment. These crimes are felonies in the State of Washington.

Please contact my office if you, a friend or family are charged with Hate Crimes and Felony Harassment. Not all commentary is abusive, bullying and/or hate speech. Indeed, most content is protected by the First Amendment. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

True Threats

P Emojis and Emoticons in Court – The Air Force JAG Corps Reporter

In State v. D.R.C., the WA Court of Appeals held that a 17-year-old girl’s text messages to friends which aired her grievances about her mother after they verbally argued did not constitute “true threats” for purposes of proving Harassment.

BACKGROUND FACTS

The case against 17-year-old juvenile defendant D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.

During the argument with her mother, D.R.C. was on her phone and texting with several friends, indicating she wanted to kill her mother. The texts were vaguely worded and peppered with smiling emojis and the initialism “LOL.”

After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise. D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the police. The police arrived and talked to D.R.C. and her mother, but did not take further action. Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the text messages.

D.R.C.’s mother shared the text messages with the police. The State charged D.R.C. with felony harassment in juvenile court. The case proceeded to trial. The juvenile court found D.R.C. guilty of harassment.

D.R.C. appealed under arguments that the State failed to meet the additional burden of proving a true threat.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that in order to penalize a defendant for harassment, the State must prove not only the elements of the offense but also that the defendant’s words were not the type of speech protected by the First Amendment.

“A true threat is a serious threat,” said the Court. “It is not an idle statement, a joke, or even a hyperbolic expression of frustration.” The court further reasoned that when analyzing whether a statement is a “true threat” it looks carefully at the context of the inflammatory statement in order to avoid infringement on the precious right to free speech.

“The focus of the true threat analysis is on the speaker. But we do not look at the speaker’s actual intent . . . Instead, the test is objective . . . We ask whether a reasonable person in the speaker’s position would foresee their statement would be interpreted as a serious expression of intent to cause physical harm.” ~WA Court of Appeals

Next, the Court of Appeals examined whether D.R.C.’s friends thought the threats were “true threats.” It reasoned that D.R.C.’s past conversation with one friend supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. “In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji, ; a shrug emoji, ; a smiling face with horns emoji, ; a zany face emoji, ; and a heart emoji,” said the Court of Appeals. “The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”

“The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections.” ~WA Court of Appeals

The Court of Appeals reversed D.R.C.’s conviction – but not without warning:

“While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language . . . We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.” ~WA Court of Appeals

My opinion? I’ve gained jury acquittals in similar cases. In proving harassment charges, the State must prove that a reasonable person would have felt the threats were true threats under the circumstances. That’s a high burden to prove. Many people – indeed, most people – are guilty of making threats during or after an emotional situation. However, simply uttering threats does not logically mean that the threat is intended to be carried out out.

Please contact my office if you, a friend or family member are charged with Harassment. Hiring an experienced criminal defense attorney like myself is the first and best step towards justice.

Imprisoned At 7-11

Why going to 7-Eleven has become a political act - Los Angeles Times

In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Felony Harassment (DV)

Image result for toxic relationship

In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with Felony Harassment (DV) based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

DV & Cohabitating Parties

Image result for dv and parents with kids

In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Unlawful Property Seizure

Image result for forfeit your property

In State v. Rivera, the WA Court of Appeals Div. II decided a trial court lacks authority to order defendants to forfeit their property as a condition of their felony sentencing.

BACKGROUND & FACTS

On September 20, 2014, Alicia Clements arrived at defendant Kevin Rivera’s home to serve him papers concerning a civil matter. Ms. Clements exited her vehicle to tape the documents to a post near Mr. Rivera’s driveway. While Clements was posting the paperwork, Rivera and his wife came out the front door and into the driveway. Rivera yelled at Clements that she was trespassing and needed to leave.

As Clements was getting back into her car, Rivera took down the documents she posted and approached her car to return them. In the process of returning the documents, Rivera shattered the driver’s side window on Clements’s car, causing glass to cascade into the car and onto the street.

Ms. Clements claimed that her window was completely rolled up and that Rivera had deliberately punched through the window with the documents in hand, striking her twice with his fist in the process. However, Rivera stated that Clements’s window was still open when he returned the documents, but that because Clements was attempting to roll up her windows, his fingers caught the edge of the window causing it to shatter.

Both Rivera and Clements called 911. Pierce County Sheriff’s Deputies responded to the incident. Mr. Rivera for assault. The State charged Rivera with second degree assault by battery under RCW 9A.36.021(1)(a), felony harassment, and third degree malicious mischief.

At trial, Rivera conceded that he had broken Clements’s window, but argued he did so accidentally rather than intentionally. The jury convicted Rivera of second degree assault and third degree malicious mischief. As part of his sentence, Rivera was required to forfeit “all property.”

CONCLUSION & ANALYSIS.

The Court of Appeals held that the trial court lacked authority to order property forfeiture as a sentencing condition.

It reasoned that under State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014), the authority to order forfeiture of property as part of a judgment and sentence is purely statutory.. In other words, a trial court has no inherent power to order forfeiture of property in connection with a criminal conviction.

With that, the Court of Appeals held that the trial court erred by ordering forfeiture of seized property as a sentencing condition.

My opinion? Good decision. I’ve never heard of courts seizing a defendant’s property as a condition of sentencing. Indeed, the Fifth Amendment states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. Typically, if property is an issue, then courts can lawfully order a defendant to pay restitution to the victim for the loss or damage to victim’s property. This makes sense. But to actually take a defendant’s property as a sentencing condition? No.

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