Category Archives: Property Crimes

Search Within Curtilage

Image result for officer search under tarp

In Collins v. Virginia, the United States Supreme Court held that officers may not enter the curtilage of a house without a search warrant in order to remove the tarp from a motorcycle in order to confirm that the motorcycle was stolen.

BACKGROUND FACTS

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.

Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle on the grounds that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search. The trial court denied Collins’ motion to suppress the evidence. Collins was convicted as charged. The Virginia Court of Appeals affirmed. The Virginia State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception to the warrant requirement.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held the automobile exception to the warrant requirement does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

“This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.”

Justice Sotomayor delivered the opinion of the Court. First, the court discussed the automobile exception to the warrant requirement. Basically, under the exception, a vehicle may be searched without a warrant when the evidence or contraband may possibly be removed from the scene due to the mobility of a vehicle and it is not practical to secure a warrant without jeopardizing the potential evidence.  For instance, the automobile exception allows an officer to make a warrantless traffic stop and search a truck of a vehicle when gun parts were observed in plain view on the front seat of the vehicle.

Here, the Supreme Court emphasized that the automobile exception rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. “When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause,” said the Court.

The court also discussed “curtilage.” In short, curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches. “Curtilage—the area immediately surrounding and associated with the home—is considered part of the home itself for Fourth Amendment purposes,” said the Court. Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.

Consequently, the court reasoned that the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage:

“When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area outside the front window, that enclosure constitutes an area adjacent to the home and to which the activity of home life extends.” Jardines, 569 U. S., at 6, 7.”

The Court also reasoned because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. “Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant,” said the Court. “Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the exception from the justifications underlying it.”

This Court also reasoned that just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. “To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,” said the Court.

Furthermore, the Court disagreed with Virginia’s proposed bright line rule for an automobile exception that would not permit warrantless entry only of the house itself or another fixed structure, e.g., a garage, inside the curtilage. “This Court has long been clear that curtilage is afforded constitutional protection, and creating a carve-out for certain types of curtilage seems more likely to create confusion than does uniform application of the Court’s doctrine,” said the Court. “Virginia’s rule also rests on a mistaken premise, for the ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant to search for information not otherwise accessible.”

Finally, the Court held that Virginia’s rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.

With that, the Supreme Court reversed and remanded Collins’ conviction for receiving stolen property.

Justice Roberts, Kennedy, Thomas, Ginsberg, Breyer, Kagan and Gorsuch joined the majority opinion.  Justice Thomas also filed a concurring opinion. Justice Alito filed a dissenting opinion.

Please contact my office if you, a friend or family member’s house is searched by law enforcement officers who don’t have a search warrant. It’s quite possible to suppress evidence based on an unlawful search and get any criminal charges dismissed.

A Vehicle is a “Premises”

Image result for sleeping in a suv

In State v. Joseph, the WA Supreme Court held that a vehicle is a “premises” for the purpose of the second degree criminal trespass statute because a vehicle is a type of “building” and “premises” includes “any building.”

BACKGROUND FACTS

On October 4, 2014, police responded to a report of vehicle prowling. The responding officer found defendant Anthony Joseph asleep in an unlocked Chevy Blazer on a public street in Ellensburg. The officer recognized Joseph and knew that he was homeless. The officer contacted Joseph and told him to exit the vehicle.

Initially, Joseph said that he had the owner’s permission; however, he then admitted he did not, and was arrested for vehicle prowling. The State filed charges of third degree assault and second degree vehicle prowling.’ The matter proceeded to a jury trial. The State sought jury instructions on first and second degree criminal trespass as lesser included offenses of the vehicle prowling charge. The trial court refused to instruct the jury on first degree trespass, but instructed the jury on second degree trespass, over Joseph’s objection. The State asked the court to define the term “premises” used in the second degree criminal trespass statute, but did not submit a definitional instruction. The trial court did not define “premises,” but allowed the parties to argue whether this term included a motor vehicle.

The jury acquitted Joseph of vehicle prowling, but found him guilty of second degree criminal trespass. Joseph appealed, and the Court of Appeals, Division Three affirmed his conviction, holding that a motor vehicle constitutes premises for purposes of second degree criminal trespass.

ISSUE

Whether second degree criminal trespass is a lesser included offense of second degree vehicle prowling.

COURT’S ANALYSIS & CONCLUSIONS

“This case presents a challenging question of statutory interpretation because of the overlapping and intersecting definitions of ‘building’ and ‘premises’ in Title 9A RCW,” said the Court. It reasoned that although no definition of the word “building” is available in the criminal statutes, a definition of “building” is found in RCW 9A.04.110(5), which states the following:

“(5) ‘Building,’ in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale, or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.”

Next, the Court engaged a lengthy discussion about overlapping definitions of “premises” and “building” as they applied to legislative amendments to the criminal trespass statute and the Washington Pattern Jury Instructions.

Also, the court said that the legislature plainly intended second degree criminal trespass to encompass trespass into any “building” as defined in the criminal code, RCW 9A.04.110(5), save for trespass into a building in its ordinary sense. “This interpretation properly restricts first degree trespass to unlawful entries into ordinary ‘buildings,’ a descriptor that needs no further definition,” said the Court.

The more severe charge (a gross misdemeanor) is justified by the increased likelihood of trespass into a home or business.

“All other trespasses fall under the term “premises” and are treated as simple misdemeanors. RCW 9A.52.080. This includes trespasses into premises that are “buildings” broadly conceived, but are not ordinarily thought of as buildings—as relevant here, vehicles.”

The Court reasoned that under this interpretation, the trial court properly instructed the jury on second degree criminal trespass as a lesser included offense of second degree vehicle prowling. “Because the evidence supports the jury’s verdict, we affirm Joseph’s
conviction.”

My opinion? Clearly, legal definitions can be broadly interpreted; sometimes to the point of absurdity. However, it is not unreasonable to accept the notion that vehicles can actually be a premises. Many impoverished people live and sleep in their vehicles. If a man’s home is his castle, and the castle is a vehicle, then the vehicle is his castle, no?

Please contact my office if you, a friend or family member face criminal charges.

Defense of Property

Image result for couple fight over cell phone

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.

Join Offenses = Bad Results

Image result for years in prison

In State v. Linville, the WA Court of Appeals held that the defendant’s numerous criminal charges cannot be “joined” to a charge of leading organized crime.

BACKGROUND FACTS

Following an increase in residential burglaries in Thurston County, law enforcement
officers noticed similarities among several burglaries. Officers ultimately recovered numerous items taken during the burglaries from Linville’s home.

The State charged Linville with 1 count of leading organized crime, 35 counts of
residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of possession of a controlled substance, for a total of 138 charges with numerous deadly weapon sentencing enhancements. The State alleged that Linville was armed with a firearm during the commission of the four first degree burglaries.

At no point did Linville argue that joinder of any offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ testimony was corroborated by law enforcement officers and victims who described the common characteristics among the burglaries and identified stolen goods recovered from the homes of Linville and his co-defendants. The jury found Linville guilty of 137 offenses, and he was sentenced to 914 months in prison, which included 240 months for four firearm sentencing enhancements.

Linville appealed on the argument that his defense counsel gave ineffective assistance of counsel by failing to move for severance of offenses that were not part of the pattern of criminal profiteering activity from the charge of leading organized crime under RCW 9A.82.085.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court agreed with Linville. It reasoned that the Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. To show deficient performance, Linville must show that defense counsel’s performance fell below an objective standard of reasonableness. To show prejudice, Linville must show a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed.

  1. Counsel Rendered Deficient Performance.

First, the Court reasoned that RCW 9A.82.085 states the following, in relevant part:

“In a criminal prosecution alleging a violation of leading organized crime, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity.”

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least three acts of criminal profiteering.” RCW 9A.82.010(4) defines “criminal profiteering” as:

“any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: . . . .”

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second degree theft, trafficking in stolen property, leading organized crime, and identity theft are included in the list. However, residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property are NOT included in the list. 

Consequently, the Court reasoned that a plain reading of the statutes made it clear that the State was barred from joining charges of residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for leading organized crime.

“The unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Here, defense counsel’s failure to object to the State’s improper joinder of charges was unreasonable and constitutes deficient performance.”

2. Counsel’s Deficient Performance Resulted in Prejudice to the Defendant’s Case.

The Court said that in order to succeed on his claim of ineffective assistance of counsel, Linville must also show that but for his attorney’s deficient performance the outcome of the trial would have differed, and therefore the deficient performance was prejudicial.

To this end, the Court reasoned that this issue is somewhat different than the related issue of discretionary joinder or severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever offenses if it determines that “severance will promote a fair determination of the defendant’s guilt or innocence of each offense.” A defendant seeking such a severance under CrR 4.4(b) must show that a trial involving all counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.

In contrast, the Court explained that RCW 9A.82.085 leaves no room for the trial court’s discretion. Under that statute, the State is barred from joining offenses other than those alleged to be part of the criminal profiteering activity in a prosecution for leading organized crime.

“Because of defense counsel’s failure to object, Linville was improperly tried for 138 total charges and convicted of 137 offenses,” said the Court. “Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different.”

The Court extrapolated the prejudicial consequences of the joinder. It explained that each of the four firearm enhancements – which resulted in a mandatory minimum sentence of 240 months – were associated with the four counts of first degree burglary. The firearm enhancements would not have been considered but for defense counsel’s deficient performance.

“The improper joinder had additional prejudicial consequences,” stated the Court. For example, by improperly joining four charges of unlawful possession of a firearm, the State was permitted to introduce evidence of Linville’s prior felony for possession of a controlled substance without a prescription. This prior conviction evidence was highly prejudicial given that the State’s theory was that Linville’s crime ring was motivated by drugs. Also, the State relied heavily on the burglaries as evidence of Linville’s guilt for leading organized crime. A jury separately considering the burglary charges would not necessarily have heard testimony of Linville’s accomplices accusing him of orchestrating a broad scheme.

Consequently, the Court held that Linville’s defense counsel rendered ineffective assistance of counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. The Court therefore reversed Linville’s convictions and remanded them back to the trial court for separate trials.

My opinion? Good decision. A defense attorney’s failure to sever “joined” offenses into separate trials can have profoundly devastating effects. Put simply, juries are more biased against the defendant in a joinder trial versus a trial with a single charge. Consequently, they are more likely to convict on a particular charge in a joinder trial with multiple charges than in a trial on the same single charge. It’s imperative that competent defense attorneys sever counts whenever possible.

“Rough Estimates” Can’t Support a Conviction for Property Crimes.

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In State v. Williams, the WA Court of Appeals decided that a victim’s “rough estimate” regarding the value of stolen property of “roughly $800” will not support a conviction for possession of property in the second degree. While the owner of a chattel may testify to its market value without being qualified as an expert on valuation, the owner must testify to an adequate basis of his opinion of value to support a conviction.

FACTS & BACKGROUND

In May 2014, the Spokane Police Department received calls complaining of a man stalking through backyards in a west Spokane neighborhood. On May 6, 2014, one caller, Brad Dawson, observed the man carrying two sports duffel bags and possibly a screwdriver. Also on May 6, 2014, someone burglarized the home of David and Joan Nelson.

Joan Nelson’s brother, John Johnston, drove through the neighborhood in an attempt to apprehend the burglar. After inspecting five homes, Johnston espied a kneeling gentleman, with two duffels bags astride, employing a screwdriver to pry open a lock on a storage facility. The man fled when Johnston yelled.

Johnston called 911 and tracked the fleer as the fleer scattered from yard to yard and hid in changing locations. Johnston kept contact on his cellphone with Spokane police. Spokane police officers arrived and apprehended the burglar, Leibert Williams. Law enforcement officers found a duffel bag, a Bluetooth speaker, a laptop, running shoes, a jacket, and two rings belonging to Adam Macomber in the possession of Williams. Days earlier, Macomber had discovered the property missing from his apartment.

The State of Washington charged Leibert Williams with five crimes: (1) residential burglary, (2) second degree burglary, (3) attempted second degree burglary, (4) attempted theft of a motor vehicle, and (5) possession of stolen property in the second degree. The State added the final charge near the date of trial.

During trial, Macomber identified those items missing from his apartment. However, he only gave “rough estimates” of $800 for the value of his items.

The State presented no other testimony of the value of stolen goods. And the trial court denied a request by Leibert Williams for a lesser included offense instruction with regard to second degree possession of stolen property.

The jury found Williams guilty of first degree criminal trespass, attempted second degree burglary, vehicle prowling, and second degree possession of stolen property. The jury acquitted Williams of residential burglary.

Williams’ appeal concerns the possession of stolen property conviction.

ANALYSIS & CONCLUSION

The Court reasoned that Macomber’s testimony failed to show beyond a reasonable doubt that the value of his stolen property exceeded $750 when Macomber said, “I could give a rough estimate . . .  I would say roughly $800.”

It further reasoned that “value” for the purposes of theft means the market value of the property at the time and in the approximate area of the theft. “Market value” is the price which a well-informed buyer would pay to a well-informed seller, when neither is obliged to enter into the transaction. In a prosecution, value need not be proved by direct evidence. Rather, the jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value.

Here, Adam Macomber testified to a “rough estimate” value of the stolen goods to be $800, a figure close to the minimum amount required to convict of $750. He listed the property taken from him, but did not describe the condition of the property when stolen. He also failed to disclose the purchase date or the purchase price of each item.

“Macomber did not testify to the basis of his opinion of value. For all we know, he used the purchase price of the goods, the replacement cost of the goods, or some intrinsic value to himself.”

With that, the Court decided that the proper remedy for the insufficiency of evidence was to dismiss the charge for possession of stolen property in the second degree. This somewhat extreme measure was partially based on the trial court’s refused to instruct the jury on the lesser included offense of third degree possession: “This court lacks authority to direct the entry of judgment of the lesser included offense if the jury was not instructed on that offense.”

My opinion? Good decision. My heart goes out to the victim, however, courts need more than mere “rough estimates” when it comes to assigning a value to property. Indeed, property crimes are assigned a seriousness level – from simple misdemeanors through Class A felonies – by identifying the value of the property which was stolen or destroyed. These are not small matters. There’s a big difference between felonies and misdemeanors. Therefore, it’s extremely important to be specific and correct on these matters.

 

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.

Lawnmowers Aren’t Vehicles.

Image result for steal riding lawnmower

In State v. Barnes, the WA Court of Appeals Division III held that a riding lawnmower is not a “motor vehicle” for the the crime of Theft of a Motor Vehicle, RCW 9A.56.065.

On June 22, 2015, defendant Joshua Barnes and a female companion, Danielle Goodman, drove a white pickup to Judy Fraker’s property near Leavenworth. Fraker was home. Barnes exited the pickup, mounted Fraker’s riding lawnmower, and started the mower’s motor. The mower was a Craftsman, gas-powered, self-propelled riding lawnmower, with a twenty-six horse power engine. Barnes drove the lawnmower up a ramp and into the bed of his pickup.

Fraker exited her home, confronted Barnes, ordered him to remove her lawnmower from his pickup and leave her premises. Barnes obeyed. Two days later, Barnes admitted to law enforcement that he attempted to steal the riding lawnmower.

The State of Washington charged Barnes with Theft of a Motor Vehicle, Driving With License Suspended in the Third Degree, and Criminal Trespass in the Second Degree. Barnes argued a Knapstad Motion to dismiss the allegation of Theft of a Motor Vehicle under arguments that the evidence was insufficient because a lawnmower is not a “motor vehicle.” The trial court agreed and dismissed the charge of theft of a motor vehicle without prejudice. The State pursued appealed.

The Court began by saying that Washington follows the “Plain Meaning” rule. In other words, to determine legislative intent, this court looks first to the language of the statute. If the statute’s meaning is plain on its face, the court will give effect to that plain meaning as the expression of what was intended. Here, the Court reasoned that a riding lawnmower meets the elements· of ‘motor vehicle’ if we read RCW 46.04.320 and .670 literally.

Nevertheless – and in a surprising twist – the Court questioned whether we should always follow the Plain Meaning principle. First, “The legislature sometimes uses inept language in expressing its intent,” reasoned the Court. Second, courts should interpret statutes to affect their purpose. “Therefore, any unlikely, absurd, or strained consequences resulting from a plain and literal reading of the statute should be avoided and a literal reading of RCW 46.04.320 and its definition of “motor vehicle” would lead to unintended and silly results,” reasoned the Court:

“As argued by Joshua Barnes, a literal reading ofRCW 46.04.320 and its definition of ‘motor vehicle’ would lead to unintended and silly results. An iRobot Roomba, a self-propelled vacuum, would be a motor vehicle, since one could transport small property on the Roomba. A jokester could place her cat on top of the vacuum and send the iRobot Roomba down her neighborhood street. Theft of a child’s remote control car that includes a doll in the driver’s seat would also qualify for theft of a motor vehicle if we literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065 should assist in limiting a literal meaning of the ‘motor vehicle’ definition.”

With that, the Court of Appeals affirmed the superior court’s dismissal of charges against Joshua Barnes for theft of a motor vehicle. “A riding lawnmower is not a motor vehicle for purposes of theft.”

My opinion? Good decision. I’ve argued many pretrial motions where my opponent’s statutory interpretations lead to absurd results. Sometimes, we must point out the obvious.

Gift Cards Are “Access Devices”

In State v. Nelson, the WA Court of Appeals Division II reversed the dismissal of the defendant’s case and decided a gift card is, in fact, an access device.

Defendant Angel Rose Marie Nelson was a Kmart employee. A surveillance video showed that Nelson left her cash register three times to retrieve an empty gift card, then activated each card by adding funds to it without adding cash to the cash register.

She activated an Amazon.com gift card for $100, a MasterCard gift card for roughly $205, and a JoAnn’s Fabric & Craft Store gift card for $25. She later used at least two of these cards.

The State charged Nelson with one count of second degree theft of an access device and one count of second degree possession of a stolen access device. Nelson moved to dismiss the charges under CrR 8.3(c) and Knapstad motion. She argued that the term “access device” could not include gift cards. The superior court granted Nelson’s motion, ruling that, as a matter of law, a gift card is not an access device. The State appealed.

Ultimately, the Court of Appeals reversed the dismissal of Nelson’s case.

First, the Court reasoned that, under MERRIAM-WEBSTER UNABRIDGED DICTIONARY, gift cards can access an account because the plain meaning of the word “account” is broad enough to cover a gift card’s balance:

“Under this definition, a gift card can access an account as described above. It is a card that can be used to receive goods or services of a specified value. A gift card thus shows a resulting balance. It is a device that can be used to access a record of a business relationship with outstanding credits, debits, or obligations, and a sum of money—that is, an account.”

In conclusion, the Court held that the definition of “access device” can include gift cards so long as they are a means of account access. The word “account” is not limited to a bank account because the plain language of the statute includes no such limitation. The funds to which a gift card provides access can be an account under this statute.

Jury Acquits Mr. Ransom’s Client of Assault Fourth Degree (DV) & Malicious Mischief Third Degree (DV)

Client was charged with Assault Fourth Degree Domestic Violence (DV) under RCW 9A.36.041 and Malicious Mischief Third Degree (DV) under RCW 9A.48.090. Here, Client allegedly destroyed her ex-boyfriend’s laptop and struck him in the face while they argued. Both crimes are gross misdemeanors punishable up to 1 year jail and a $5,000 fine each. Making matters worse, a conviction for DV crimes brings enhanced jail penalties, mandatory DV evaluations and treatment, mandatory probation, a court-imposed No-Contact Order with the alleged victim and loss of firearms rights.

The Prosecutor refused to negotiate or resolve the charges in light of client’s prior criminal history. Also, the alleged victim insisted he was victimized throughout his relationship with Client. Nevertheless, and at trial, Mr. Ransom successfully suppressed evidence of Client’s prior bad acts and criminal convictions under Evidence Rule (ER) 404(b) and ER 609. Although the judge denied Mr. Ransom’s self-defense jury instruction, Mr. Ransom successfully prevailed at trial by raising reasonable doubt to the State’s lack of evidence and the alleged victim’s lack of credibility. The jury acquitted Client under 1 hour.

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totalled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and nonconvicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward opinion.