Category Archives: Washington Court of Appeals

Unlawful Imprisonment Evidence

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In  State v. Scanlan, the WA Court of Appeals upheld the defendant’s conviction for Unlawful Imprisonment because there was evidence that  the victim told his doctor that he had been imprisoned in his home for two days against his will by the Defendant.


In 2013, Bagnell, an 82-year-old widower, was living independently in the Federal Way home that he had shared with his wife of more than 50 years. Sometime in 2013, Bagnell met Scanlan, a woman 30 years his junior. They quickly became friends and about two months later, Scanlan moved in with Bagnell.

On October 16, 2014, the Federal Way Police Department responded to Bagnell’s home after receiving a 911 hang-up call. The officers found Bagnell and Scanlan inside the home. Scanlan was uninjured, but Bagnell, who was dressed in a t-shirt and underwear, had wounds on his head, arms, and legs. After questioning Scanlan, the officers arrested her. As a result of the incident, a court order was issued prohibiting Scanlan from contacting Bagnell.

A few weeks later, on November 6, 2014, Bagnell’s adult children grew concerned after Bagnell missed a scheduled meeting with them. After trying and failing to reach him on his cell phone and home phone, Bagnell’s children went to Bagnell’s house to check on him.

When Bagnell’s children arrived at his house, they found it dark. Its blinds were
drawn and all of the interior and exterior lights were out. The children thought this was
odd and moved up to the front porch to try to see inside. From the porch they could see the glow of the television and shadowy movements. They rang the doorbell and
knocked but received no answer. Bagnell’s children were alarmed and opened the door
with an emergency key.

Inside, they found Bagnell’s home in disarray. Trails of blood ran across the carpet and up the stairs, gouges marked the walls, and broken household items and debris lay on the floor. A golf club leaned against a wall, and a hammer lay on a coffee table. A crowbar was on the dining room table, and a broken broom handle stood in a garbage bucket in the middle of the family room’s floor. Bagnell sat alone in a chair in the family room, dazed, bleeding from several wounds, and severely bruised such that “His face was black.” Bagnell at first appeared to be unconscious, but he began to respond to their attempts to rouse him as they called 911.

Roughly 15 minutes later, Federal Way Police Officer Brian Bassage arrived at Bagnell’s home. Just as Officer Bassage arrived, Scanlan was found hiding under a blanket in the front seat of a car in the garage. As Officer Bassage removed her from the car, Bagnell’s daughter yelled out at her that she had “just beat her father half to death, that there was blood everywhere.” Scanlan shouted back, “It’s not that bad.” At the police station, Scanlan claimed to be injured. The police took pictures, but did not detect any significant injuries. Scanlan did not receive medical treatment.

Bagnell was transported to the hospital where he was treated in the emergency room for his injuries which included: extensive bruising all over his body, four large open wounds on his legs, wounds on his arms, and fractures on both hands. Bagnell was treated in the emergency room by emergency room Nurse Catherine Gay and Dr. Robert Britt. Bagnell also met with social worker Jemina Skjonsby.

After treatment, but prior to his release, Bagnell met with Federal Way Police Department Detective Adrienne Purcella from about midnight to 1:00 a.m. Bagnell signed a form medical records waiver at 12:55 a.m.

Bagnell did not testify at trial. However, the trial court admitted statements that Bagnell made to medical providers in the emergency room, as well as subsequent statements made to his primary care physician and wound care medical team.

In November 2015, the State charged Scanlan with assault in the second degree (count 1), felony violation of a court order (count 2), unlawful imprisonment (count 3), and assault in the fourth degree (count 4). All counts contained a domestic violence allegation. The jury found Scanlan guilty of assault in the second degree, felony violation of a court order, and unlawful imprisonment.

Scanlon appealed her convictions She contends that, among other issues, there was insufficient evidence to support the charge of unlawful imprisonment.


The Court of Appeals held there is sufficient evidence of unlawful imprisonment.

The Court reasoned that when reviewing a claim for the sufficiency of the evidence, it considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom. Finally, circumstantial evidence is as reliable as direct evidence. However, inferences based on circumstantial evidence must be reasonable and cannot be based on speculation.

In this case, the State charged Scanlan with unlawful imprisonment under RCW 9A.40.040 which states: “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” To prove restraint, the State had to prove that Scanlan restricted Bagnell’s movements (a) without consent and (b) without legal authority, in a manner which interfered substantially with his liberty. Restraint is without consent if it is accomplished by physical force, intimidation, or deception.

The Court reasoned that first, Bagnell told his physician Dr. Britt that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will. Also the physician’s assistant testified that Bagnell told her that Scanlan locked him in a room: “He was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom and a hammer over multiple areas,” said the physician’s assistant, who also testified at trial.

Second, circumstantial evidence supports the inference that Scanlan used force or the threat of force to restrain Bagnell. Bagnell’s children found the front door locked, their father in a stupor, the house in disarray, and a broken broom, hammer, golf club, and crowbar. Bagnell’s children were also unable to contact their father by phone. Additionally, Bagnell’s cell phone was found broken, a battery was found to have been removed from a cordless phone in the home, and another phone was found to have no dial tone.

“Viewed in the light most favorable to the State, this is sufficient evidence of unlawful imprisonment.”

With that, the Court of Appeals affirmed Scanlan’s conviction for unlawful imprisonment.

Drive-By Shooting Conviction Reversed

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In State v. Vasquez, the WA Court of Appeals held that the drive-by sentence aggravator is not met where a perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim.


Mr. Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated in the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake, Washington. Mr. Garcia’s girlfriend was in the front driver’s seat and her five-year-old child was in the back seat, behind Mr. Garcia. Neither Mr. Garcia’s girlfriend nor her child were physically injured during the shooting.

At the crux of this case is the route Mr. Vasquez took to shoot Mr. Garcia.

For several minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front entrance. Mr. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked on the side of the grocery, next to a fenced utility area, approximately 63 feet away from the Envoy.

Once the Toyota was parked, Mr. Vasquez ran from the pickup and hid behind the utility fence for nearly a minute. Mr. Vasquez then rushed around the corner of the grocery, across the front-side of the Envoy, and over to the area of the front passenger window of the Envoy. The front window was partially rolled down, exposing Mr. Garcia to Mr. Vasquez.

Mr. Vasquez shot and killed Mr. Garcia from point-blank range. Mr. Vasquez then retreated to the Toyota and it sped away. The entire shooting was captured on video by the grocery’s surveillance system. Approximately one minute and 16 seconds elapsed between the Toyota’s initial arrival and ultimate departure.

A jury convicted Mr. Vasquez of first degree murder with a drive-by shooting aggravator, along with several counts of drive-by shooting. Mr. Vasquez was sentenced to life imprisonment without parole for the aggravated first degree murder conviction. He also received a 60-month firearm enhancement. Mr. Vasquez appealed on arguments that the evidence was insufficient to prove a drive-by shooting.


Washington’s drive-by shooting statute states, in pertinent part:

A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.

The legal question was whether the State’s evidence showed Mr. Vasquez was in the “immediate area” of the Toyota pickup truck at the time of the shooting. Viewing the evidence in the light most favorable to the State, the Court of Appeals held the “immediate area” requirement was not met.

The Court of Appeals explained that a drive-by shooting is commonly understood to involve shots fired from inside a vehicle, or from “within a few feet or yards” of the vehicle. In other words, the crime contemplates a shooter who is either inside a vehicle or within easy reach of the vehicle.

“Mr. Vasquez’s offense did not fall within either circumstance,” reasoned the Court of Appeals. It further reasoned that Mr. Vasquez was far from reach of the Toyota at the time he shot Mr. Garcia. “In fact, Mr. Vasquez had to traverse several intervening obstacles in order to get a clear shot at his victim,” said the Court. “Although Mr. Vasquez was in the immediate area of Mr. Garcia’s Envoy at the time of the shooting, he was not in the immediate area of the Toyota that had transported him to the scene. Mr. Vasquez’s offense therefore does not qualify as a drive-by shooting.”

The Court concluded that because Mr. Vasquez was neither inside the Toyota nor within immediate reach of the Toyota at the time of the shooting, the State failed to present sufficient evidence justifying Mr. Vasquez’s convictions for drive-by shooting as well as the drive-by shooting aggravator to Mr. Vasquez’s first degree murder conviction.

Consequently, the Court reversed Vasquez’s drive-by shooting convictions and aggravator.

My opinion? The circumstances of this case are certainly tragic. However, it’s not uncommon for Prosecutors to charge people for crimes which don’t fit the facts and circumstances. That’s why it’s extremely important to hire a qualified and competent defense attorney who knows and understands the law. Defense counsel must question the evidence and, when necessary, argue pretrial motions to dismiss charges where evidence is lacking. Please contact my office if you, a family member or friend faces serious criminal charges similar to those in this case.

Emergency Blood Draws

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In State v. Inman, the WA Court of Appeals held that a warrantless blood draw was proper under exigent circumstances where: (a) the injury collision occurred in a rural area; (b) there is spotty phone service; (c) a search warrant takes 30-45 minutes to create; and (d) helicopters airlifted the DUI suspect to a hospital. A search warrant is not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.


In May 2015, Inman and Margie Vanderhoof were injured in a motorcycle accident on a
rural road. Inman was the driver of the motorcycle and Vanderhoof was his passenger. Captain Tim Manly, the first paramedic on the scene, observed a motorcycle in a ditch and two people lying down in a driveway approximately 20 to 25 feet away. Captain Manly observed that Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet. Based on Inman’s injuries, Captain Manly believed that the accident was a high-trauma incident.

Captain Manly learned from a bystander that Inman had been unconscious for approximately five minutes after the collision before regaining consciousness. Manly
administered emergency treatment to Inman, which included placing Inman in a C-Spine, a device designed to immobilize the spine to prevent paralysis.

While Captain Manly provided Inman with treatment, Sergeant Galin Hester of the Washington State Patrol contacted Vanderhoof, who complained of pelvic pain. Sergeant Hester spoke with Inman and smelled intoxicants on him.

Later, Jefferson County Sheriff’s Deputy Brandon Przygocki arrived on the scene and observed a motorcycle in a ditch with significant front-end damage.  He contacted Inman in the ambulance and, smelling alcohol, asked whether Inman had been drinking and driving. Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

Deputy Przygocki believed he had probable cause to believe Inman was driving under the influence. Helicopters came to airlift Inman and Vanderhoof to the nearest trauma center. Deputy Przygocki knew that preparation of a search warrant affidavit takes 30-45 minutes. There was no reliable cell phone coverage in the rural area. Deputy Przygocki conducted a warrantless blood draw after reading a special evidence warning to Inman informing him that he was under arrest and that a blood sample was being seized to determine the concentration of alcohol in his blood.

There is a process by which a search warrant for a blood draw may be obtained
telephonically and executed by an officer at the hospital to which Inman was being transported. However, this process is problematic and, in the experience of Officer Hester, had never worked in the past.


Inman was charged with vehicular assault while under the influence and filed a motion to
suppress evidence of the warrantless blood draw. He argued that the implied consent statute authorized a warrantless blood draw but that the implied consent statute was not constitutional, so there was no valid authority for the blood draw. He also argued that the exigent circumstances exception to the warrant requirement did not justify a warrantless blood draw in this case.

In response, the State argued that Inman’s blood was lawfully drawn pursuant to the exigent circumstances exception to the warrant requirement.

The trial court heard testimony from six witnesses, who testified consistently with the
factual findings summarized above. The trial court orally ruled that exigent circumstances justified the blood draw and later entered written findings of fact and conclusions of law.

Inman filed a reconsideration motion. He argued that there was no probable cause for DUI. He also argued that, even assuming that exigent circumstances justified the warrantless blood draw, a warrant was needed to test the blood. The State disagreed.

The trial court denied Inman’s reconsideration motion. The trial court concluded that Deputy Przygocki had probable cause to believe Inman had committed a DUI. In addition, the trial court concluded that the warrantless blood draw was justified under the exigent circumstances exception to the warrant requirement. Finally, the trial court concluded that because the blood was lawfully seized under exigent circumstances, no warrant was required to test the blood. After a stipulated facts trial, the trial court found Inman guilty of vehicular assault. Inman appealed.


  1. The Arrest Was Supported by Probable Cause.

The Court of Appeals reasoned that under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, an arrest is lawful only when supported by probable cause. Probable cause exists when the arresting officer, at the time of the arrest, has knowledge of facts sufficient to cause a reasonable officer to believe that an offense has been committed. Whether probable cause exists depends on the totality of the circumstances.

Here, Deputy Przygocki had probable cause to believe Inman had committed a DUI. When Deputy Przygocki arrived on the scene, he observed a motorcycle in a ditch with significant front-end damage and, after running the license plates, knew the vehicle belonged to Inman. Deputy Przygocki learned from Sergeant Hester that Inman was in the ambulance and smelled of alcohol. Deputy Przygocki then contacted Inman in the ambulance, and Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

“Based on these facts, Deputy Przygocki knew that Inman was driving the motorcycle after drinking alcohol when he crashed. This knowledge is sufficient to cause a reasonable officer to believe that Inman was driving a motor vehicle under the influence of alcohol,” said the Court of Appeals.

2. Exigent Circumstances Supported a Warrantless Blood Draw.

The Court of Appeals reasoned that a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution, unless an exception to the warrant requirement authorizes the search. Drawing a person’s blood for alcohol testing is a search triggering these constitutional protections. A warrantless search is allowed if exigent circumstances exist.  The exigent circumstances exception to the warrant requirement applies where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.

“The natural dissipation of an intoxicating substance in a suspect’s blood may be a factor in determining whether exigent circumstances justify a warrantless blood search, but courts determine exigency under the totality of the circumstances on a case-by-case basis.”

The Court of Appeals held that under the circumstances, obtaining a warrant was not practical. Inman and Vanderhoof were both injured from a motorcycle accident that resulted in significant front-end damage to the motorcycle, which was found in a ditch. Both Inman and Vanderhoof received emergency medical services, and Inman was receiving treatment for possible spine injuries. At the time of the blood draw, helicopters were coming to airlift Inman and Vanderhoof to the nearest hospital. It would have taken at least 45 minutes to prepare and obtain judicial approval for a search warrant. Deputy Przygocki lacked reliable cell phone coverage in the rural area, so obtaining a telephonic warrant may have been a challenge.


The Court of Appeals concluded that the trial court did not err in denying Inman’s suppression motion. First, there was probable cause to arrest Inman for DUI. Second, exigent circumstances existed to authorize a warrantless blood draw. Third, the implied consent statute does not bar a warrantless search under exigent circumstances. Finally, a legal blood draw under the exigent circumstances exception allows testing of the blood without a warrant when there is probable cause to arrest for DUI.

My opinion? Exigent circumstances are one of many arguments that the government uses to get around search warrant requirements. Contact my office if you, a friend or family member face criminal charges involving DUI, blood draws, or exigent circumstances which arguably circumvent the need for officers to obtain search warrants. In difficult cases like the one described above, competent legal counsel is definitely needed to protect constitutional rights against unlawful search and seizure.

Burglary of Inmate’s Cell?

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In State v. Dunleavy, the WA Court of Appeals held that a jail cell is a separate building for purposes of supporting a burglary charge/conviction, and the that the victim’s jail cell need not be secured or occupied at the time of the crime in order to support the charge.


Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there are eight cells capable of housing two inmates per cell. The cells open into a day room. In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is permitted to close his cell door, but if he does, the door will remain locked until opened the next morning.

Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla. LaMunyon responded that he did not have enough to share, but would buy more later and share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to “smash out.” Soon after, inmate John Owen attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and took some of LaMunyon’s food. LaMunyon was seriously injured by Owen. Jail security investigated the fight and the theft, and concluded that the two were related. Security believed that Dunleavy staged the fight between Owen and LaMunyon to give him an opportunity to take LaMunyon’s food.

Because of the seriousness of LaMunyon’s injuries, and because security concluded that the fight and the theft were related, the jail referred charges to the local prosecuting authority. The State charged Dunleavy with second degree burglary, third degree theft, and second degree assault. After the State presented its case, Dunleavy moved to dismiss the second degree burglary charge on the basis that an inmate’s cell is a separate building. The trial court considered the parties’ arguments, denied Dunleavy’s motion to dismiss, and the case continued forward.

Dunleavy called one witness who testified that Dunleavy did not conspire with Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury. The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail policies legally binding? Are they considered law? What if we are not unanimous on a certain count?” The trial court, counsel, and Dunleavy discussed how the trial court should respond. The trial court’s response read, “You are to review the evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a verdict.” No party objected to this response.

Less than one hour later, the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and third degree theft but not guilty of second degree assault.


Dunleavy appealed on the issues of whether (1) jail cells are separate buildings for purposes of proving burglary, and (2) whether there is an  implied license for unlawful entry.


1. Jail cells are separate buildings for purposes of proving burglary.

The Court of Appeals reasoned that under statute, a person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling. Furthermore, Washington law defines “building” in relevant part as any structure used for lodging of persons; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

With these legal definitions in mind, the court noted that that a jail is a building used for lodging of persons, specifically inmates. Each cell is secured at night and an inmate can secure his cell from others. Furthermore, each cell is separately occupied by two inmates. “We discern no ambiguity,” said the Court of Appeals. “A jail cell is a separate building for purposes of proving burglary.”

2. No implied license for unlawful entry.

The Court of Appeals raised and dismissed Dunleavy’s arguments that he did not commit burglary when he entered LaMunyon’s cell because his entry was lawful from an implied license to enter the cell.

Contrary to Dunleavy’s argument, the Court explained that under Washington law, a person ‘enters or remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.”

The Court of Appeals explained that the victim, LaMunyon, did not give Dunleavy permission to enter his cell. Furthermore, the Jail Sergeant testified that inmates are told when they are first booked into jail that they may not enter another inmate’s jail cell.

“Inmates are subject to punishment for breaking these rules, including criminal charges,” said the Court of Appeals. “A rational jury could find beyond a reasonable doubt that Dunleavy entered LaMunyon’s cell unlawfully.”

Consequently, the Court of Appeals affirmed Dunleavy’s conviction, yet remanded for resentencing on the separate issue that his offender score was incorrectly calculated.

Driving With Wheels Off the Roadway

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In State v. Brooks, the WA Court of Appeals held that the neutral area separating a highway on-ramp from an adjacent lane of travel does not meet the definition of “roadway.” A driver who crosses this area is properly stopped for a violation of Driving with Wheels Off Roadway under RCW 46.61.670.


While merging onto westbound U.S. Route 97 from U.S. Route 2 in Chelan County, Jena Brooks’s car crossed over a portion of the highway designated as a “neutral area.” A neutral area is a paved triangular space separating an entrance or exit ramp from an adjacent lane of highway. The neutral area between Route 97 and its merger with westbound Route 2 is marked on each side by thick white channelizing lines. The drawing below is a depiction of a neutral area similar to the one crossed by Ms. Brooks:

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A Washington State Patrol trooper observed Ms. Brooks’s vehicular activity and performed a traffic stop. Ms. Brooks was ultimately arrested for driving on a suspended license and other misdemeanor offenses.

During proceedings in district court, Ms. Brooks filed a motion to suppress, arguing her vehicle had been stopped without probable cause. The motion was denied. Pertinent to this appeal, the district court ruled Ms. Brooks’s merger over the highway’s neutral area constituted “driving with wheels off roadway,” in violation of RCW 46.61.670. 2

Ms. Brooks was subsequently convicted of several misdemeanor offenses after a jury trial. Later, she successfully appealed the suppression ruling to the superior court. It found Washington’s definition of a roadway ambiguous in the context of a highway’s neutral area. The superior court then invoked the rule of lenity and determined Ms. Brooks should not have been stopped for driving with wheels off the roadway in violation of RCW 46.61.670.


The Court of Appeals addressed (1) whether the term roadway is ambiguous in the current context, and (2) if the term is ambiguous, whether the rule of lenity is an available tool of statutory construction that might benefit a defendant such as Ms. Brooks.


“A highway’s neutral area is not a vehicle lane. It is too short to facilitate meaningful travel. And its triangular shape cannot consistently accommodate the size of a vehicle. Rather than being designed for vehicular travel, it is apparent the neutral area is designed as a buffer zone. It keeps vehicles separate so as to facilitate speed adjustment and, in the context of a highway on-ramp, safe vehicle merging.”

The Court further reasoned that National standards set by the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) confirmed its observations about the apparent design purpose of a highway’s neutral area. In short, the Court reasoned the MUTCD refers to the neutral area as an “island.” As such, it is an area intended for vehicle “separation.”

“Although a neutral area may be designated either by a wide or double solid white channelizing line, the two options carry no substantive significance” said the Court of Appeals. “Like a double white line, a solid white line can serve as an indicator that crossing is prohibited. The whole point of a neutral area is to exclude vehicles and promote orderly and efficient traffic flow,” said the Court of Appeals.

The Court concluded that Ms. Brooks failed to maintain her vehicle wheels on an area of the highway meeting the statutory definition of a roadway. A vehicle stop was therefore permitted under Washington’s wheels off roadway statute. Consequently, the superior court’s order on appeal from the district court is reversed.

Surprisingly, there’s quite a bit of caselaw on what constitutes “Driving With Wheels Off the Roadway.” Please contact my office if you, a friend or family member face criminal charges following after a police officer pullover where this citation led to arrest. It’s quite possible to suppress the fruits of a search based on unlawful stop, search and/or seizure.

Witness Tampering

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In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.


The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.


Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this opinion.

Silver Platter Doctrine

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In State v. Martinez, the WA Court of Appeals held that the defendant’s computer hard drive which Texas police seized in Texas pursuant to a search warrant was lawfully searched by the Washington State Patrol without a Washington search warrant under the silver platter doctrine.


Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor. While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez’s two young children.  A.K. also came to the Martinezes’ house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house. At the time, Martinez was married to his then-wife Julie West.

Apparently, Martinez began touching A.K. in a sexual manner when she was 14. He also set up a video camera in the bathroom and digitally recorded her when she used the facilities.

Ms. West went on vacation. During that time, A.K. stayed at the family home. When Ms. West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was “nice to look at.”

Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well. A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. Later, she contacted WSP.

The Texas police obtained a warrant to search Martinez’s home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a “no bill.” The case was dismissed. Texas police made a mirror image of Martinez’s computer hard drive and, at WSP’s request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.


The Court of Appeals accepted review on the issues of (1) whether the warrantless search of Martinez’s computer hard drive was lawful when Texas police – and not WA law enforcement – searched the computer, and (2) whether spousal privilege applies to suppress the testimony of his ex-wife at trial.


The Court of Appeals held that (1) the silver platter doctrine allowed the Washington State Patrol to later examine the hard drive without a warrant, and (2) because Martinez acted
as a guardian to the victim, the spousal privilege does not apply here.


The Court of Appeals reasoned that Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  If a government action intrudes upon an individual’s “reasonable expectation of privacy,” a search occurs under the Fourth Amendment. Furthermore, the Washington Constitution provides greater protection of a person’s privacy rights than does the Fourth Amendment. Article 1, section 7 of the Washington Constitution focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

Silver Platter Doctrine

Under the Silver Platter Doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence and (2) the forum state’s officers did not act as agents or cooperate or assist the foreign jurisdiction.

“Martinez does not dispute that Texas lawfully obtained the hard drive,” reasoned the Court of Appeals. “And he does not challenge the trial court’s findings that Washington State Patrol (WSP) had no involvement in obtaining or serving the Texas warrant and that Texas police did not act as agents of WSP when they obtained or served the warrant.” Thus, under the silver platter doctrine, the evidence was admissible.

Next, the Court of Appeals rejected Martinez’ arguments that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington. “The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way,” said the Court. “Because the State proved this, the doctrine applies.”

Search Warrant

Next, Martinez argued that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad. In response, the Court of Appeals reasoned that the Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Furthermore, the search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate’s authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.

“When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test,” said the Court. “While the First Amendment presumptively protects obscene books and films, it does not protect child pornography involving actual minors.” Also, the Court of Appeals raised and dismissed Martinez’ arguments that the warrant was invalid for other reasons as well.

Spousal Privilege

The Court of Appeals addressed Martinez’ arguments that the trial court mistakenly admitted the testimony of his ex-wife regarding a conversation she shared with Mr. Martinez’ video of A.K. as being “nice to look at.” The Court reasoned that generally, a current or former spouse cannot be examined about confidential communications made during the marriage without the consent of the other spouse. It also explained that the marital privilege rule tries to encourage the free interchange of confidences between husband and wife that are necessary for mutual understanding and trust. “But in some situations the policies that underlie the right to invoke a testimonial privilege are outweighed by the suppression of truth that may result,” said the Court. “Thus, this spousal privilege does not apply in a criminal proceeding for a crime committed against a child for whom the spouse is a parent or guardian.”

The Court reasoned that here, West merely repeated statements by Martinez and did not comment about her belief in Martinez’s guilt. “We agree that these facts are sufficient for the jury to conclude that Martinez kept the recording for the purpose of sexual stimulation and that West’s testimony that Martinez said the recording was ‘nice to look at’ could not have materially affected the outcome of the trial,” said the Court.

Finally, the Court of Appeals raised and dismissed Martinez’ arguments that there was prosecutorial misconduct and ineffective assistance of counsel. “The Prosecutor’s general references were unlikely to have affected the jury’s verdict in light of the other incriminating evidence,” said the Court. Furthermore, Martinez does not show that his counsel’s failure to object to the Prosecutor’s case presentation was unreasonable and/or was not strategic.

With that, the Court of Appeals upheld Martinez’ conviction and sentence.

ER 404(B) and “Lustful Disposition”

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In State v. Gonzales, the WA Court of Appeals held that a trial court did not commit error in admitting evidence that, after the charged conduct, the victim observed the defendant masturbating while holding the victim’s bra.


When J.G. was six years old, she and her younger brother moved in with their grandfather, defendant Eddy Gonzales and his wife. This sexual abuse ended when J.G. was ten or eleven years old. But after the molestation stopped, J.G. once encountered Gonzales masturbating in his room while holding her bra.

When J.G. was eleven years old, she moved out of the house. She informed family members of the molestation. They, in turn, contacted police; who later arrested Mr. Gonzales.

Gonzales was charged with first degree rape of a child and first degree child molestation. The State later added a second count of first degree child rape and charged him with tampering with a witness.

At trial, the Court admitted testimony that he masturbated while holding J.G.’s bra.

The jury acquitted Gonzales of one count of first degree child rape, but found him guilty of the remaining charges. Among other issues not discussed here, Gonzales appealed on the issue of whether the trial court wrongfully admitted that evidence. He argued this uncharged misconduct goes to propensity and should be excluded under ER 404(b). He argues the trial court wrongfully admitted this testimony to show his “lustful disposition” toward J.G., particularly because it occurred after the charged conduct.


First, the Court of Appeals described the rules of evidence which allow or disallow the evidence from getting to the jury. In short, (ER) 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for “other purposes.”

Consequently, the Court reasoned that Washington courts have consistently held one such other purpose is evidence of collateral sexual misconduct when it shows the defendant’s lustful disposition toward the victim. This is because a lustful disposition makes it more likely that the defendant committed the crime charged. Evidence of uncharged sexual misconduct occurring before or after the charged acts is admissible. In an ER 404(b) analysis, the trial court must balance and weigh probative value against the potential for unfair prejudice.

Second, the Court of Appeals applied the law to its reasoning. It said that here, the trial court admitted J.G.’s testimony that she saw Gonzales masturbating while holding her bra. The trial court reasoned that Gonzales’s behavior was sexual conduct that showed lustful disposition toward J.G. The trial court also found that the probative value of the evidence was not outweighed by unfair prejudice.

“The trial court did not abuse its discretion,” said the Court of Appeals. “Gonzales’s action shows a sexual desire for J.G. Thus, it goes toward an ‘other purpose’ as provided under ER 404(b).”

Third, the Court of Appeals rejected Gonzales’s arguments that any uncharged sexual misconduct is unfairly prejudicial in a sex abuse prosecution. It reasoned that the admitted evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and J.G. was only indirectly victimized by it.

Finally, the Court of Appeals rejected Gonzales’s arguments that the admitted testimony had diminished probative value because the incident occurred after the alleged abuse. The Court of Appeals reasoned that an act occurring after the charged abuse is relevant to lustful disposition. It was not an abuse of discretion to conclude that the probative value of this testimony was not outweighed by unfair prejudice.

With that, the Court of appeals affirm the admission of the “lustful disposition” testimony under ER 404(b) and upheld Mr. Gonzalez’s conviction.

My opinion?

It’s tricky to predict whether judges will admit or deny evidence when the evidence is offered for “other purposes” under ER 404(b). Judges have lots of discretion an how and where the rule applies. Still, judges must follow the doctrine of stare decisis and make rulings which are consistent existing case law when rendering decisions.

Fortunately, I’m quite familiar with the case law on this subject. Please contact my office if you, a friend or family member faces charges and the State wants to offer evidence of the offender’s behavior which falls outside the scope of the immediate facts that are alleged. Perhaps a well-argued pretrial motion to suppress evidence could change the complexion of the case and result in reducing or dismissing the charges.

Bla Bla Bla

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In State v. Boyd, the WA Court of Appeals held that a prosecutor improperly disrespects defense counsel by using “bla, bla, bla” to describe opposing counsel’s argument. This phrase is both disrespectful and dismissive.


In February 1998, when he was 23 years old, Jayson Boyd had sex with a 15 year old. In 1999, he pleaded guilty to rape of a child in the third degree. He was required to register as a sex offender under RCW 9A.44.130 and RCW 9A.44.140. Since his conviction in 1999, Boyd has been convicted of failure to register as a sex offender three times.

Boyd is homeless, has a ninth or tenth grade education, and is mentally ill. At the time of his crime in 1998, homeless sex offenders were not required to register as sex offenders because they did not have addresses. The legislature subsequently amended the statute to require homeless sex offenders who lacked a fixed address to update the county sheriff weekly, in person, of their whereabouts.

Boyd largely complied with the registration requirement but pleaded guilty to
crimes of failure to register in 2009, 2010, and 2013.

In March 2015, the State charged Boyd with failure to register as a sex offender between January 27, 2015 and February 10, 2015.  The court ordered a competency evaluation after Boyd rambled incoherently during a pretrial hearing. A month later, after Boyd was found competent to stand trial, the court held another hearing. At that hearing, the court issued a scheduling order, which Boyd signed, setting the next hearing date for November 6, 2015. While explaining the order to Boyd, however, the court misspoke—it told Boyd that he needed to appear on December 6, 2015. After Boyd failed to appear on November 6, 2015, the Prosecutor added a charge for bail jumping.

During closing arguments, the Prosecutor appeared to have given a mocking and deragatory tone. After the jury retired to deliberate, Boyd’s defense attorney  moved for a mistrial based on prosecutorial misconduct:

“During the prosecutor’s first closing argument, it was normal in tone, very even and level. And the rebuttal closing argument after I had given my closing, she started out and then repeatedly throughout that closing argument, either pretending she was me or Mr. Boyd, but was kind of in a sing-song tone, a complaining child-like type tone of voice when mentioning the barriers that my client faces as a homeless person and saying “bla, bla, bla,” and this was something that was repeated throughout the closing argument. And so I’d be making a motion for a mistrial based on—based on the prosecutor’s tone of
voice during the closing argument.”

The trial court denied the motion, explaining: “I did not hear what I consider to be a mocking or derogatory tone.” While the trial court agreed that the prosecutor used a different tone than her normal speech tone, it concluded that “having listened to many, many, many closing arguments, there was nothing in the tone that I heard that was derogatory or mocking or anything that grabbed my attention as being out of line, inappropriate or unprofessional.”

Boyd was convicted by a jury as charged and sentenced to 45 months in prison.


On appeal, one of the issues was whether the trial court abused its discretion by denying Boyd’s motion for a mistrial based on prosecutorial misconduct.


The Court of Appeals said that the inquiry on prosecutorial misconduct consists of two prongs: (1) whether the prosecutor’s comments were improper and (2) if so, whether the improper comments caused prejudice. To show prejudice, the defendant must show a substantial likelihood that the prosecutor’s statements affected the jury’s verdict. The defendant bears the burden of showing that the comments were improper or prejudicial.

Here, the prosecutor’s references to Boyd’s “barriers” and chaotic life are not improper remarks about his homelessness, poverty, or mental illness because they rebut the very defense advanced by Boyd’s counsel—that complying with the law was “too much” for him because of his “barriers.” But we find that the prosecutor impugned defense counsel by stating “And again, Boyd’s Defense Counsel talks about chaos in his life, barriers, bla, bla, bla. No evidence of that.”

“Using ‘bla, bla, bla’ to refer to an opposing counsel’s argument is both disrespectful and dismissive. Although the statement does not imply deception or dishonesty like ‘crock,’ it implies that the arguments are unworthy of consideration and may be dismissed offhand. We find the statement was improper.”

Nevertheless, the Court of Appeals was not convinced that the Prosecutor’s statements during trial affected the jury’s verdict. “The court did not abuse its discretion by denying Boyd’s motion for a mistrial,” said the Court, and upheld Boyd’s conviction and sentence.


Justice Becker’s dissent focused on how poverty issues negatively impact justice as homelessness applies to offenders who have a duty to register:

“Our (failure to register) statute has grown steadily harsher, especially as applied to homeless offenders. I believe it is time to reconsider the ex post facto analysis of the statute in light of the changes since State v. Ward. I would join the jurisdictions holding that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. I would reverse Boyd’s conviction and remand for dismissal with prejudice.”

My opinion? “Bl bla bla” issues aside, I agree with the dissenting Justice Becker when she says that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. Being homeless is difficult enough by itself. Requiring homeless people to register under Washington’s rigorous “Duty to Register” statute is incredibly difficult, if not nearly impossible, for homeless people to follow and obey. As a a result, the law unequally punishes sex offenders for being homeless. That’s simply not fair.

Glaring During Trial

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In State v. Sagethe WA Court of Appeals held that a trial court did not abuse its discretion by denying the defendant’s motion for a mistrial based upon the victim’s behavior – glaring at the defendant – when called to the stand.


Jonathan Sage faced four counts of second degree rape of a child. He was alleged to have engaged in sexual acts with minors J.M. and E.M., and came into contact with the two brothers because he owned a company at which J.M. and E.M.’s mother worked.

The case proceeded to trial. During proceedings, the victim E.M. glared at Sage as he entered the courtroom. Sage’s defense attorney objected and requested an immediate mistrial. He described the interaction as follows:

“E.M. walked past defense counsel and hissed at the Defendant, bent down, and made an aggressive stare. As best as I could tell, the jurors looked horrified. Their reaction is clear that the stance or that moment is going to live in their minds as opposed to what he
testifies to. My client has a right to a fair trial, to be presumed innocent, and I don’t know that he can get a fair trial with this jury after that behavior.”

Although the trial judge sustained defense counsel’s objection, the court denied the motion for mistrial and instructed the jury to disregard E.M.’s behavior.

The jury convicted Sage on all four counts and, by special verdict, found the alleged aggravating circumstances had been established. The court concluded the aggravating circumstances were substantial and compelling reasons to impose an exceptional sentence.

Sage appealed his conviction and his exceptional sentence under the argument that his motion for a mistrial should have been granted because E.M.’s courtroom behavior prejudiced the jury.


The Court of Appeals reasoned that a trial court should only grant a mistrial when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried. To determine the effect of the irregularity leading to the request for a mistrial, the court examines: (i) its seriousness; (ii) whether it involved cumulative evidence; and (iii) whether the trial court properly instructed the jury to disregard it.

“Here, E.M. entered the courtroom and glared at Sage,” said the Court of Appeals. “The trial court denied Sage’s motion for mistrial and entered a detailed ruling on the record. Unlike a verbal outburst or threatening gesture, E.M. glared at Sage. The court gave a curative instruction. E.M. did not repeat the behavior after the trial court instructed the jury to disregard the behavior,” said the Court of Appeals. “We conclude the trial court did not abuse its discretion.” Also, the Court of Appeals upheld Sage’s exceptional sentence based on aggravating factors.

With that, the Court upheld Sage’s conviction and exceptional sentence.