Category Archives: felony

New Bill Strengthens Prosecution of Hate Crimes

Bellingham Defense Attorney, felony, Hate Crimes, Legislation, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Say No To Hate Crimes - City of Renton

A bill passed in Washington is expanding the state’s definition of a hate crime and strengthens the ability to prosecute those crimes. Governor Jay Inslee signed Senate Bill 5623 into law on April 6 after it was passed with overwhelming support in the House and Senate earlier this year.

“This bill takes the common sense step of recategorizing hate crimes as crimes against a person and also provides our communities with the justice they deserve in the wake of these traumatic crimes.” ~ King County Prosecuting Attorney Leesa Manion

Senator Manka Dhingra sponsored the legislation. She states that Hate Crime offenses are reclassified as crimes against persons. The bill also replaces the phrase “physical injury” with “assault” in the definition of Hate Crime to account for more situations. Assaults that are meant to intimidate and demean, like spitting on someone, will now be grounds for prosecution as a Hate Crime.

ESB 5623 modifies the conduct that constitutes a Hate Crime offense to include when a person maliciously and intentionally assaults a victim because of the person’s perception of certain characteristics about the victim. Including the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or disability.

SB 5623 will allow courts to impose therapeutic treatment for offenders meant to rehabilitate them. This is something that the victims of hate crimes often ask for in court. The bill also expands the definition of a hate crime. Right now, assaults have to result in a physical injury for it to be considered a hate crime.

Under the new bill, assaults that are meant to intimidate or demean but don’t result in injury can be considered a hate crime. An example of that would be spitting on someone. Supporters of the bill say hate crimes are corrosive to society and make communities feel unwelcome.

In Washington state, there were more than 500 hate crimes committed against a person in 2021, according to the Department of Justice. Their data shows the biggest motivators of hate crimes are largely race and ethnicity, followed by sexual orientation and then religion.

If prosecuted for a Hate Crime offense, the trier of fact may infer that a person intended to threaten a victim if the person committed one of the following acts:

  • Burns a cross on the property of a victim who is or whom the person perceives to be of African American heritage.
  • Defaces the property of a victim who is or whom the person perceives to be of Jewish heritage by defacing the property with a swastika.
  • Defaces religious real property with words, symbols, or items that are derogatory to persons of the faith associated with the property.
  • Places a vandalized or defaced religious item or scripture on the property of a victim who is or whom the person perceives to be of the faith with which that item or scripture is associated.
  • Damages, destroys or defaces religious garb or other faith-based attire belonging to the victim or attempts to or successfully removes religious garb or other faith-based attire from the victim’s person without the victim’s authorization.
  • Places a noose on the property of a victim who is or whom the person perceives to be of a racial or ethnic minority group.

Words alone do not constitute a Hate Crime offense unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute a Hate Crime offense if it is apparent to the victim that the person does not have the ability to carry out the threat.

A Hate Crime offense is a class C felony and is punishable by a maximum sentence of five years of imprisonment, a $10,000 fine, or both. In addition, the victim of a Hate Crime offense may bring a civil cause of action against the perpetrator. Claims can include actual damages, punitive damages of up to $100,000, and reasonable attorneys’ fees and costs.

The bill will go into effect this summer, on July 23.

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

Hotel Room Hosts Can’t Consent To Police Searching Other Guest’s Bags

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Single-use plastic bags will be banned in Colorado by 2024 with bag fees set to start in 2023 under new law

In State v. Giberson, No. 56081-0-II (April 4, 2023), the WA Court of Appeals held that the host of a hotel room lacks authority allowing police to search a guest’s grocery bags located inside the room.  A person has a reasonable privacy interest in grocery bags, which are are “traditional repositories of personal belongings.”

FACTUAL BACKGROUND

In May of 2020, police received a tip from a confidential informant that Mr. Giberson planned a drug deal at a nearby motel. Police journeyed to the motel. They conducted surveillance of room #106. Police contacted a person named Mr. Goedker after Goedker departed room #106.

Goedker stated that he was the sole occupant of motel room #106. He said he had been residing there for approximately 10 days. He stated that the defendant Mr. Giberson had stopped by earlier that day. Giberson and a person named Ms. Hopkins remained in the room. Goedker said that there were bags in the motel room belonging to Giberson.

Police opened the door to Room #106. They saw Giberson and an associate sitting at a table. Both Giberson and the associate were detained and removed from the room.

The detectives then searched two plastic grocery bags on the floor next to the door. Inside one of the grocery bags they found a digital scale and two baggies containing heroin.  After searching the bags, police asked Goedker if they belonged to him. Goedker denied ownership and stated that the bags belonged to Giberson.

The State charged Giberson with possession of heroin with the intent to deliver. Before trial, Giberson moved to suppress the evidence found in the warrantless search of the plastic grocery bags. The trial court denied the suppression motion. It reasoned that Gibson lacked standing to challenge the search of his bags. Ultimately, the court also found Giberson guilty as charged. Giberson appealed his conviction. He argued that the search of his grocery bags was unlawful because Goedker could not give consent to search his possessions.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals addressed the issue of whether Giberson had standing to challenge the search of his bags.

“A defendant has automatic standing under article I, section 7 of the Washington State Constitution to challenge a search when (1) possession is an essential element of the charged offense and (2) the defendant was in possession of the item searched at the time of the challenged search,” said the Court. Here, Giberson has automatic standing to challenge the search. Consequently, the trial court erred in concluding that Giberson did not have standing.

Next, the Court of Appeals addressed the issue of whether the search of Gibson’s bags was lawful.

The Court reasoned that warrantless searches are unlawful under the Washington Constitution and the Fourth Amendment to the United States Constitution. Valid consent is an exception allowing for a warrantless search. However, consent to search an area does not necessarily provide authorization to search belongings of a third person inside the area. Here, Goedker did not own, possess, or control Giberson’s grocery bags. Therefore, Goedker did not have authority to consent to the search of Giberson’s bags.

The Court of Appeals further reasoned that a search is unconstitutional if the defendant had a reasonable expectation of privacy in the item searched.  Here, Giberson clearly sought to preserve as private the drugs and digital scale by placing them in his grocery bag. The Court addressed whether Giberson had a privacy interest in storing his belongngs in plastic bags:

“Grocery bags can be characterized as ‘traditional repositories of personal belongings.” People certainly put personal grocery items and other personal items obtained in a grocery store like prescription medications in such bags. And common experience tells us that people also use grocery bags to carry other personal items. For example, this may be true for people such as those experiencing homelessness who may not have space for their personal items. Giberson reasonably could expect that others would not search his grocery bags without his consent. Therefore, we conclude that Giberson had a reasonable expectation of privacy in his grocery bags.” ~WA Court of Appeals.

With that, the Court of Appeals concluded that Goedker’s authority to give consent to search his hotel room did not extend to the search of Giberson’s grocery bags. Furthermore, Giberson had a reasonable expectation of privacy in those bags. Therefore, the trial court erred in failing to suppress the heroin and digital scale found in the search of the grocery bags. Giberson’s conviction was reversed.

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

Hands Are Not An “Instrument or Thing” Used to Prove Assault Third Degree

Assault, Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Fold Your Hands — Coffee + Crumbs

In State v. Altman, the WA Court of Appeals reversed the Defendant’s conviction for Assault Third Degree because there was no evidence that the defendant used anything other than his hands to assault the victim.

FACTUAL BACKGROUND

The victim A.W. alleged that she was sexually assaulted by Mr. Altman. The State charged Altman with second degree assault with sexual motivation, alleging he intentionally assaulted A.W. by strangulation or suffocation. Alternatively, the State charged Altman with third degree assault with sexual motivation for causing bodily harm to A.W. by means of a weapon or other instrument or thing likely to produce bodily harm. The State also charged Altman with second degree rape and unlawful imprisonment with sexual motivation

During closing arguments, the State argued that Altman’s hands were a “thing” used to
support a lesser alternative charge of third degree assault:

“I submit to you the State is not saying that there was a weapon used in this case. I submit to you that we’re not saying there was an instrument that was used in this case. However, it also says it can be from a thing likely to produce bodily harm. And I submit to you, ladies and gentlemen, a thing can be anything.” State Prosecutor.

The jury found Altman not guilty of second degree rape, second degree assault by
strangulation with sexual motivation, and unlawful imprisonment with sexual motivation.
However, the jury found Altman guilty of a lesser alternative charge of third degree assault. Mr. Altman appealed on arguments that the evidence was insufficient to show that he assaulted A.W. with an “instrument or thing.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began with a discussion of the elements required to prove Assault Third Degree. In short, a person is guilty if he “causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.”

“The issue here is whether a hand meets the statutory requirement of “other instrument or thing likely to produce bodily harm,” said the Court. The Court reviewed State v. Marohl, as reliable caselaw precedent. In Marohl, the court suggested that a casino floor could fall within the statute if it was used to smash someone’s head. Also, the Marohl court applied the dictionary definition to “instrument” and “thing,” describing both as:

“Here, in light of Marohl’s definition of “instrument or thing likely to produce bodily harm, hands do not qualify. The State relied solely on Altman’s hands to support the lesser alternative charge of third degree assault. Hands are not a “utensil” or “implement.” Nor are hands “an inanimate object.” Instead, hands are an extension of a person.” ~WA Court of Appeals.

The Court further reasoned that there is no other evidence that Altman used anything other than his hands when grabbing and squeezing A.W.’s neck. Therefore, the State failed to present sufficient evidence to support the essential element of “a weapon or other instrument or thing likely to produce bodily harm” for third degree assault.

With that, the Court of Appeals reversed and vacated Altman’s conviction for third degree assault with prejudice.

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

Locked Out 2022: Estimates of People Denied Voting Rights

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Prison, Race & Law, Skagit County Criminal Defense, Voting Rights, Whatcom County Criminal Defense, , , , ,

The state of ex-felons' voting rights, explained - Vox

An insightful report from The Sentencing Project describes how an estimated 4.6 million Americans are barred from voting due to a felony conviction.

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era. In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002). As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

AMONG THE REPORT’S KEY FINDINGS:

  • An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.
  • One out of 50 adult citizens – 2 percent of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
  • Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.
  • In three states – Alabama, Mississippi, and Tennessee – more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.
  • Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
  • One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.
  • More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia.
  • Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.
  • Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

My opinion? Many states restore voting rights to individuals automatically after they exit jail or prison. Others continue the bar on voting even while on probation or parole. A few permanently disenfranchise people with a past conviction or require they petition the government to have their voting right restored. Fortunately, In 2021, Governor Inslee signed legislation restoring voting rights to people convicted of felonies automatically after release from prison.

Losing your right to vote is a terrible consequence of a criminal conviction. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

At Trial, Police Can’t Comment on a Defendant’s Post-Arrest Silence

Assault, Bellingham Defense Attorney, Constitutional Rights, felony, Fifth Amendment, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Van Dyke trial: Breaking down all 44 witnesses – Chicago Tribune

In State v. Palmer, the WA Court of Appeals held that the defendant’s Fifth Amendment Right Against Self-Incrimination was violated when the detective commented about the defendant’s post-arrest silence.

BACKGROUND FACTS

Palmer and his girlfriend, DD, moved in together in 2013. They lived together with DD’s two biological children from a prior marriage, her son AD, and her daughter PD. Palmer and DD also had a baby together, LP. Sometime in 2014, the family moved to Washington. Palmer served as caregiver to the children and in that role disciplined both PD and AD.

During a family car trip in 2016, Palmer grabbed AD by the neck, leaving a scratch. At
some point after the car trip incident, Palmer told DD that PD had touched his penis. Thereafter, PD disclosed to DD that Palmer had touched her vagina. Approximately four months after PD’s disclosure, DD contacted law enforcement. Law enforcement authorities interviewed the children on two separate occasions. Detective Ramirez participated in PD’s interview during which he learned of the accusations against Palmer.

Eventually, Detective Ramirez took Palmer into custody, read him Miranda rights, and questioned him. Ramirez ended the questioning after Palmer repeatedly refused to admit to any wrongdoing. Ramirez returned the next morning for additional questioning, but Palmer refused to talk. The State charged Palmer with one count of child molestation in the first degree and two counts of assault of a child in the second degree.

At trial, the Prosecutor questioned DSetective Ramirez and asked if he had spoken to Palmer after his initial interview. In the presence of the jury, Ramirez testified that he “went back the next morning, thinking that, you know, a day sitting in the county jail, you know, there’s some time to think, and maybe Mr. Palmer would want to do the right thing here.” Ramirez further testified that he told Palmer, “You’ve had some time to think. Do you want to talk?” and that Palmer responded that he did not want to talk.

The jury convicted Palmer of all charges.

On appeal, Palmer argued his right against self-incrimination was violated when Detective Ramirez discussed Palmer’s decision to remain silent.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with an engaging discussion of the Fifth Amendment. In short, a defendant’s right against self-incrimination prohibits the State from eliciting comments from witnesses about the defendant’s pre- or post-arrest silence. The State may also not suggest the defendant is guilty because they chose to remain silent, because the assurance of Miranda is that remaining silent will not be penalized.

Here, the State unequivocally elicited a comment from Ramirez about Palmer’s decision
to remain silent.

“Ramirez’s testimony was a comment on Palmer’s right to remain silent. More pointedly, contrary to State v. Easter, the State suggested that Palmer was guilty due to his silence. Indeed, Ramirez testified that Palmer remained silent after being given a chance to “do the right thing” by admitting criminal conduct. This statement presupposed Palmer’s guilt and created an impossible choice: Palmer could either do right by confessing to molesting a child or do wrong by remaining silent.”

“Implicit in the ‘silence equals wrongfulness’ notion is that silence withholds the ‘truth’—that ‘truth’ being one’s criminal conduct, even if there was no criminal conduct. In this context, a defendant cannot maintain their presumption of innocence by remaining silent. A detective’s belief on this front may assist with their investigative duty, but established authority prohibits using a defendant’s right to remain silent to suggest guilt to the jury.” ~WA Court of Appeals.

The Court of Appeals concluded by saying that alone, this violation may warrant reversal and a new trial. “However, because we reverse on other grounds, we remind the State that it is forbidden from eliciting comments about Palmer’s silence during his new trial.” With that, the Court of Appeals reverse the convictions and remanded to the trial court for a new trial.

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

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Race & Law, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

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

The Limits of Expert Witness Testimony

Bellingham Defense Attorney, Diminished Capacity, Expert Testimony, felony, Hearsay, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Expert Witness - Dr. Elisabeth "Eli" Sheff

In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

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

Rainbow Fentanyl

Bellingham Defense Attorney, Drug Offenses, felony, Fentanyl, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

DEA Warns of Brightly-Colored Fentanyl Used to Target Young Americans

The Drug Enforcement Administration is advising the public of an alarming emerging trend of colorful fentanyl available across the United States.  In August 2022, DEA and other police agencies seized brightly-colored fentanyl and fentanyl pills in 18 states.  Dubbed “rainbow fentanyl” in the media, this trend appears to be a new method used by drug cartels to sell highly addictive and potentially deadly fentanyl made to look like candy to children and young people.

“Rainbow fentanyl—fentanyl pills and powder that come in a variety of bright colors, shapes, and sizes—is a deliberate effort by drug traffickers to drive addiction amongst kids and young adults . . . The men and women of the DEA are relentlessly working to stop the trafficking of rainbow fentanyl and defeat the Mexican drug cartels that are responsible for the vast majority of the fentanyl that is being trafficked in the United States.” ~DEA Administrator Anne Milgram

Brightly-colored fentanyl is being seized in multiple forms, including pills, powder, and blocks that resembles sidewalk chalk. Despite claims that certain colors may be more potent than others, there is no indication through DEA’s laboratory testing that this is the case.  Every color, shape, and size of fentanyl should be considered extremely dangerous.

Fentanyl is a synthetic opioid that is 50 times more potent than heroin and 100 times more potent than morphine.  Just two milligrams of fentanyl, which is equal to 10-15 grains of table salt, is considered a lethal dose.  Without laboratory testing, there is no way to know how much fentanyl is concentrated in a pill or powder.

Fentanyl remains the deadliest drug threat facing this country.  According to the CDC, 107,622 Americans died of drug overdoses in 2021, with 66 percent of those deaths related to synthetic opioids like fentanyl.  Drug poisonings are the leading killer of Americans between the ages of 18 and 45.  Fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG).

In September 2021, DEA launched the One Pill Can Kill Public Awareness Campaign to educate Americans about the dangers of fake pills.  Additional resources for parents and the community can be found on DEA’s Fentanyl Awareness page.

The DEA advises that if you encounter fentanyl in any form, do not handle it and call 911 immediately.

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

Low-Level Robbery Won’t Get A Reduced Sentence

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Race & Law, Robbery, Sentencing, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Why Grocery Stores are adding Supplemental Security during the Coronavirus Outbreak | CITIGUARD

In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

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

Proposed Federal Law Prohibits “Stealthing,” Non-Consensual Condom Removal

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Is stealthing sexual assault? | WHP

Excellent article by journalist  Anne Branigin reports that “Stealthing,” the act of removing a condom during intercourse without the other partner’s consent, is gaining attention among lawmakers.

Fair warning: the following subject matter discusses sexual offenses. Sexual assault is both a common and a very serious crime. It is investigated by the police with an intensity second only to that of homicide and manslaughter.

Yes, there are defenses to these charges that are discussed later in this blog. However, sexual consent should always be clearly communicated. There should be no question or mystery. Silence is not consent. And it’s not just important the first time you’re with someone. Couples who’ve had sex before also must to consent before engaging the act every time.

“Stealthing” Defined.

“Stealthing,” is the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. While victims of stealthing tend to be clear about its harms, what has been less clear is how to define it. Is it assault? And could — or rather, would — the law do anything about it?

Fedeal Legislation is Proposed to Outlaw “Stealthing.”

This month, federal legislation was introduced offering clarity and a legal remedy for survivors of stealthing. One bill introduced last month would explicitly name stealthing as a form of sexual violence and create a legal pathway for victims to sue perpetrators for damages and relief. A separate bill, called the Consent Is Key Act, would encourage states to pass their own laws authorizing civil damages for survivors by increasing funding for federal domestic violence programs in states that pass those laws.

The federal legislation mirrors a first-of-its-kind California law passed in October. That law expanded the definition of sexual battery in the state’s civil code to include removing a condom without verbal consent. The U.S. House bill defines stealthing as removing any “sexual protection barrier” without the consent of each person involved in the sexual act.

“Stealthing is a grave violation of autonomy, dignity, and trust that is considered emotional and sexual abuse,” reads the House bill, titled the Stealthing Act of 2022.

What Do Studies on Stealthing Suggest?

In the last several years, a number of researchers have attempted to quantify how many people experience nonconsensual condom removal.

In one Melbourne study, which surveyed more than 2,000 people visiting a local clinic over a three-month period in 2017, nearly one in three of the women surveyed said they had been “stealthed” at some point in their life. About 19 percent of men who had sex with other men said this had happened to them. Another 2019 study — which recruited women 21 to 30 with “increased sexual risk characteristics”— found that 12 percent of respondents said a partner engaged in stealthing (nearly half said they had experienced some form of coercive resistance to condoms).

One narrow 2019 study that recruited 626 men who were “inconsistent condom users” between the ages of 21 and 30 found that 10 percent said they had removed a condom without their partner’s consent; men with greater hostility toward women and more severe sexual aggression had “significantly higher odds of engaging in nonconsensual condom removal behavior,” the study’s author wrote.

Is Stealthing a form of Sexual Assault?

The growing narrative says “Yes.” Katie Russell, a spokesperson for the advocacy and support organization Rape Crisis, said the following:

“Ultimately what we’re talking about is rape . . . It’s not something that’s a bit cheeky or naughty to try to get away with — this is something serious that can have really damaging impacts for other person’s whole life and health.” ~Katie Russell, Spokesperson for Rape Crisis.

Defenses to Sex Crimes.

Sex crimes are very serious and being accused of committing one should be taken very seriously. While there aren’t very many, there are a few defenses to such an accusation: he or she is innocent; he or she engaged in consensual sexual activity, or he or she can’t be held guilty due to mental disease or defect.

  1. Actual Innocence.

Like all crimes, the most widely used defense is innocence. To prove innocence, an individual must generally be able to prove that it would be a physical impossibility to be guilty since they were at another location at the time or by providing a credible alibi. It’s the burden of the prosecution to prove that a defendant is guilty. The defendant will want to establish reasonable doubt. If he or she can do so then under the law the jury should acquit him or her.

In cases concerning an alleged victim’s intoxication, RCW 9A.44.030 offers a defense if the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Again, this statutory defense exists if the alleged victim is drunk/intoxicated beyond the point of consent. The defendant must prove this defense by a preponderance of the evidence.

          2. Consensual Act.

Consent is also a substantive defense. If a defendant can prove that the act was consensual, a crime does not exist. Consent means that at the time of the act of sexual intercourse and/or contact, there are actual words or conduct indicating freely given agreement to have sexual intercourse/contact.

However, it’s important to understand whom – and who cannot – provide legal consent. Those without legal capacity cannot consent no matter what. This includes minors. If an individual engages in sexual activity with a minor, it is statutory and there can be no legal consent – even if there is verbal consent. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol complicates the picture.

Hire an Attorney As Soon As Possible When Facing a Potential Sex Offense.

Merely being charged with a sexual offense is devastating. An allegation of sexual misconduct can cost someone their employment, their family, their loved ones and their home. Please contact my office if you, a friend or family member are charged with a sex offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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