Category Archives: felony

Not a Toy, Still a Gun

Kessler Arms 12Ga. Bolt Action Shotgun

In State v. Gouley, the WA Court of Appeals held that an antique shotgun that was missing a bolt action was still a “firearm.”  The State merely has to establish that the shotgun was a real gun, not a toy gun.  The State was not required to prove that the firearm could be rendered operational with reasonable effort and within a reasonable period of time.

FACTUAL BACKGROUND

Gouley was convicted of a felony and was under community supervision when he missed an appointment with his community corrections officer. Because of Gouley’s failure to report, the Department of Corrections issued a warrant for Gouley’s arrest.

Several officers attempted to locate Gouley at his listed residence to execute the warrant. The officers found Gouley asleep in his bedroom. In searching the bedroom, the officers discovered a shotgun under Gouley’s bed. Gouley was previously convicted of a serious offense and was prohibited from possessing a firearm.

After Gouley was placed in the squad car, he said the shotgun was given to him by his great uncle. The shotgun was a 20-gauge bolt action shotgun made by Kessler Arms. Although the company was out of business, the shotgun is not rare and is relatively inexpensive. When the shotgun was discovered under Gouley’s bed, it was missing a bolt action assembly and was not operable in that condition.

The State charged Gouley with one count of First Degree Unlawful Possession of a Firearm
and one count of Escape from community custody.

At trial, the judge instructed the jury on the definition of “inoperable firearms.” The instruction said that a “temporarily inoperable firearm that can be rendered operational with reasonable effort and within a reasonable time.” Also, a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time” met the definition of a firearm. Gouley consented to the use of this instruction. The jury convicted Gouley as charged. Gouley appealed on arguments that the State failed to present sufficient evidence to sustain his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals defined the term “firearm” under the statute. A “firearm” is a “weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.” Furthermore, a firearm need not be operable in order to qualify as a firearm under the statute. Instead, the inquiry is whether the firearm is a “gun in fact” rather than a “toy gun.”

The Court reasoned the evidence sufficient to show that the device at issue was a firearm  because it was a gun in fact and not a toy. “Although the shotgun was missing a bolt action, Schoeman testified that the gun could be made operable and could fire if a bolt or bolt assembly is inserted into the receiver.”

The Court raised and dismissed Gouley’s argument the firearm was inoperable. Gouley pointed to the fact that there was something wrong with the firing pin of that firearm or maybe the trigger spring, or the firing pin spring.

“However, the fact that the shotgun was defective or inoperable when it was discovered does not mean that the shotgun was a toy, or anything other than a “gun in fact.” And whether the device was a gun in fact is the only relevant determination that the jury had to make.” ~WA Court of Appeals

Ultimately, the Court reasoned the evidence established that the firearm possessed by Gouley met the definition of firearm. With that, the Court of Appeals upheld Gouley’s 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.

“Unlawful” Isn’t “Knowing”

This man has had so many scooters stolen he can't get theft insurance anymore - Wales Online

In  State v. Level, the WA Court of Appeals held that the term “Knowledge” cannot be inferred from the use of the term “Unlawfully” in the context of a Possession of Stolen Motor Vehicle charge.
BACKGROUND FACTS
A police officer stopped Mr. Level for driving a moped without wearing a helmet. The condition of the moped led the officer to suspect it was stolen. A review of the moped’s VIN confirmed this suspicion. The State charged Mr. Level with possession of a stolen motor vehicle. The Prosecutor’s charging documents, in pertinent part, said the following:
“The crime of Possession of a Stolen Motor Vehicle, Count 5, the maximum penalty for which is 10 yrs. imprisonment and/or $20,000 fine, plus restitution, assessments and court costs, in that the said Jacob Daniel Level in the County of Stevens, State of Washington, on or about July 22, 2019, did unlawfully possess a stolen motor vehicle, to-wit: a Taotao Scooter, the property of (victim’s name omitted); Contrary to RCW 9A.56.068(1), and against the peace and dignity of the State of Washington.”
A jury convicted Mr. Level of the stolen vehicle charge. He timely appealed on arguments that the charge failed to apprise him of any component of knowledge. Consequently, this violated his constitutional right to notice and required reversal of his conviction.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Level.
“The crime of possession of a stolen motor vehicle includes an element of knowledge,” said the Court. “The type of knowledge required has two components: the defendant must both knowingly possess the motor vehicle and also act with knowledge that the motor vehicle had been stolen.”
The Court raised and dismissed the State’s arguments that allegations of “‘unlawful and felonious’” conduct sufficient imply guilty knowledge in the context of drug and firearm offenses. “But none of our decisions have held that knowledge can be inferred from the use of “unlawfully” in the context of a possession of stolen property charge,” said the Court. Furthermore, the court reasoned that proof of knowledge is multifaceted. The State must not only prove knowing possession, but also that the defendant knew of the object was stolen.
“Given the state of the law, an information’s allegation that the defendant acted unlawfully is insufficient to convey an inference that the conduct was done with a mental state of knowledge.” ~WA Court of Appeals
Thus, reasoned the Court, the inclusion of the adverb “unlawfully” in the charges does not satisfy the requirements of sufficient notice.
Next, the Court held that the remaining language in the State’s charges was insufficient to fill in the gaps. Although the State tried to salvage its charges by pointing to the allegation that the moped was the property of someone other than Mr. Level, that contention was inadequate. “It says nothing about Mr. Level’s knowledge. It merely confirms that the moped was stolen,” said the Court. With that, the Court reversed Mr. Level’s conviction.
My opinion? Good decision. In criminal law, the defendant must have both the Mens Rea and Actus Reus to commit the crime. Mens Rea refers to criminal intent. The literal translation from Latin is “guilty mind.” A mens rea​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Actus Reus refers to the act or omission that comprise the physical elements of a crime as required by statute.
The only exception is if the charged crime is a Strict Liability crime. Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. Crimes like DUI, possession crimes and statutory rape are all examples of strict liability offenses.

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.

Offender Score Post-Blake


Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

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.

Access Devices

How to Spot a Forged Check | SQN Banking Systems

In State v. Arno, the WA Court of Appeals Division III held that a paper check presented to a bank is excluded from the definition of an “access device.” Such a paper check will not support a conviction for Second Degree Possession of Stolen Property.

BACKGROUND FACTS

The defendant Mr. Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May 2018. He was charged with Forgery and Possession of Stolen Property. While his charges were pending, Mr. Arno missed a court date. He was later charged with Bail Jumping.

The case proceeded to trial. The check was nominally written and bore a signature from the victim Mr. Pinnow. He testified that a box of checks had been stolen from his house in 2017 and that the check in question was one of those that had been stolen. He denied writing the check, and the signature on the check did not match the bank’s records. The account the check was drawn on had been closed earlier after several of the stolen checks were fraudulently cashed.

Regarding the Bail Jumping Charge, Mr. Arno testified that he received a scheduling order with several dates crossed out and was “confused.”

A jury found Mr. Arno guilty of all charges. He appealed the Possession of Stolen Property conviction because the statutory definition of “access device” specifically excludes paper checks from its definition.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying a person is guilty of second degree possession of stolen property if he “possesses a stolen access device.” An “Access device” is defined as “any card, plate, code, account number, or other means of account access that can be used . . . to initiate a transfer of funds, other than a transfer originated solely by paper instrument.”

“Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment,” said the Court of Appeals. “We agree. If the exclusion is to mean anything, it clearly applies to the presentation of a paper check at a bank.”

The Court of Appeals rejected the State’s arguments that that it was prosecuting Mr. Arno for possessing an account number, not for presenting a forged check. “The record belies the State’s argument,” said the Court. “In addition, it is clear that the State was not charging Mr. Arno for possessing bank account numbers; it was charging him with possession of a stolen check.”

“We hold that a paper check presented to a bank is excluded from the definition of an access device as ‘a transfer originated solely by paper instrument.’ RCW 9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for second degree possession of stolen property.” ~ WA Court of Appeals

Nevertheless, the Court of appeals affirmed Mr. Arno’s convictions for forgery and bail jumping.

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.

Crime Increased in 2020

What Can Be Done About the Increase in Violent Crime in Large Cities? | American Police Officers Alliance

Overall crime in Washington State increased in 2020 according to a report released this week by the Washington Association of Sheriffs and Police Chiefs (WASPC). The annual report tracks crime and arrest data from contributing law enforcement agencies throughout Washington.

The Crime in Washington 2020 report is compiled with data from 233 state, county, municipal, and Tribal agencies and is published in conjunction with the FBI, which will compile and release national data based upon state reports later this year. The report is designed to give residents, elected officials, and law enforcement data-driven information about crime in their communities.

The report shows that in 2020 murders were up almost 47% and have increased overall 67% since 2016. Manslaughter went up 100%, fraud increased by 131%, while drug and narcotic offenses, and reported hate crimes were down slightly. The total number of commissioned officers statewide was down from 1.24 per thousand to 1.19 per thousand people. Washington is ranked 51st out of the 50 states and District of Columbia for the number of officers per thousand people. Reported cases of officers assaulted was up 6% in 2020 and has increased 67% since 2016.

FACTS AT A GLANCE

  • The total population for the State of Washington is 7,656,066.
  • There were 302 murders in 2020; this is an increase of 46.6% compared to 206 murders in 2019. Murders have increased overall 66.9% since 2016.
  • There were 59,134 fraud offenses in 2020; this is an increase of 131.3% compared to 25,562 fraud offenses in 2019. The significant increase in fraud activity in 2020 was due in part to fraudulent unemployment claims related to the pandemic.
  • A total of 468 hate crime incidents were reported, down slightly from 2019 (a decrease of 13.1%).
  • A total of 22,070 persons were arrested for DUI, including 172 juveniles.
  • Drug and narcotic abuse incidents were lower in 2020 (a decrease of 22.7%).
    • There were 8,200 arrests for Drug/Narcotic violations; of that number 4.2%
      were persons under 18 years of age.
    • Possessing/concealing of heroin constituted 23.6% of the total drug abuse incidents; the distributing/selling of heroin accounted for 3.5% of incidents (type of criminal activity can be entered three times in each incident).
  • Full-time commissioned officers totaled 11,231.
  • There was a total of 2,047 assaults on law enforcement officers, this is an increase of 6.2% compared to 1,927 assaults in 2019.
  • Two officers were killed in the line of duty, Washington State Trooper Justin Schaffer and Bothell Officer Jonathan Shoop.
  • There was a total of 59,289 Domestic Violence offenses reported; 13,909 of these offenses were Violations of Protection or No Contact Orders.
  • Domestic Violence offenses made up 49.7% of all Crimes Against Persons and 2.7% of all Crimes Against Property.
  • There were 5,432 Sexual Offenses (forcible and non-forcible) reported in 2020. There was a total of 5,432 victims in these incidents: with a total of 5,026 offenders.

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.

Tackle or Terry Stop?

Man escapes NYPD car before being tackled Video - ABC News

In State v. Pines, the WA Court of Appeals held that police officers exceeded the scope of a Terry Stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.

BACKGROUND FACTS

On March 23, 2018, Officer Sausman was in his vehicle when he identified the defendant Mr. Pines driving a black BMW. Sausman recognized Pines and was aware that Pines had a warrant for Residential Burglary and Domestic Violence charges. Sausman also knew that Pines was previously convicted of a felony.

Sausman followed Pines to Columbia City, where Pines parked his vehicle and entered a Pagliacci Pizza restaurant. Sausman advised the uniformed arrest team that Pines was in the restaurant.

Detective Miller was one of three uniformed officers that entered the restaurant to contact Pines. As the officers entered, Pines began moving toward the other door. The officers tackled Pines to the ground, holding him down by the neck and head, and handcuffed him. The officers then frisked Pines and found a handgun in his jacket pocket. The State charged Pines with Unlawful Possession of a Firearm in the First Degree.

Pines moved to suppress the handgun during a pretrial CrR 3.6 hearing. The trial court denied Pines’s motion to suppress. Later, during a bench trial, the trial court found Pines guilty and imposed a sentence of 24 months in prison.

Pines appealed on arguments that that the trial court erred in finding that the search and discovery of his firearm was a lawful Terry Stop, and thus denying his motion to suppress. Pines contends that his seizure amounted to a custodial arrest and that the police lacked probable cause at the time of his arrest.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals said that under the Washington Constitution, warrantless searches are per se unreasonable unless one of the narrowly drawn exceptions to the warrant required applies. Furthermore, said the court, if the evidence was seized without authority of law, it is not admissible in court. Finally, it reasoned that a person is seized when an officer, by physical force or show of authority, restrains the person’s freedom of movement. The restraint must be such that a reasonable person would not believe they were free to leave.

“The State argues, and the trial court agreed, that Pines’s seizure and subsequent search was the result of a valid Terry Stop,” said the Court of Appeals. “We disagree.”

The Court of Appeals elaborated that under Terry v. Ohio, a police officer may temporarily detain a person based on a reasonable suspicion that the person is or has been involved in a crime.

“In evaluating the reasonableness of an officer’s suspicion, we look to the totality of the circumstances known to the officer,” said the Court of Appeals. “We determine the reasonableness based on an objective view of the known facts, not the officer’s subjective belief or ability to correctly articulate his suspicion in reference to a particular crime. The detention must not exceed the duration and intensity necessary to dispel the officer’s suspicions.”

The Court relied on State v. Mitchell  – an important Washington case on Terry Stops – to determine whether the officer’s interactions with Mr. Pines was lawful:

“Here, in stark contrast with Mitchell, the arresting officers did not observe Pines carrying a weapon. Indeed, as Detective Miller testified, they had no reason to contact Pines except for their belief that he might have a warrant.

Further, unlike Mitchell, where the officer was alone at night, there were three uniformed police officers along with Detective Sausman at the scene. No officer testified that they feared for their safety prior to Pines’s seizure or that they had seen a weapon prior to their search. And finally, unlike Mitchell where the defendant was told to lie down without contact from the officer, the three uniformed officers forcefully took Pines to the ground and handcuffed him, while Detective Sausman yelled that Pines was under arrest on a felony warrant.” ~WA Court of Appeals

With that, the WA Court of Appeals held that a reasonable person in Pines’s situation would consider themselves under custodial arrest. “Pines’s seizure exceeded the scope of a valid Terry Stop. The trial court erred in concluding the search was valid under Terry.”

The Court of Appeals also reasoned that although the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for arrest.  “The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval,” said the Court.

The Court dismissed Pines’s conviction with prejudice.

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.

As Lumber Prices Increase, Theft May Follow

Deputies arrested a man on June 1 who they say tried to steal 32 pieces of lumber, worth more than $2,300, from a Shoreline lumber yard. (Courtesy of the King County Sheriff’s Office)

Interesting article by reporter of the Seattle Times reports that the increase in lumber prices have more than tripled over the past year. Therefore, it was only a matter of time before thieves took note, said the King County Sheriff’s Office.

Earlier this month, deputies arrested a man trying to get away with more than $2,300 worth of wood from a locked lumber yard, the sheriff’s office said Thursday in a Facebook post.

“We’ve seen this with copper prices a number of years ago,” King County sheriff Sgt. Tim Meyers told KING 5. “We saw this with catalytic converter thefts as those minerals spiked, and our concern is that lumber thefts are going to be the new catalytic converter thefts as thieves try to profit in this spike in cost.”

Catalytic converters, however, don’t usually require a truck to cart away.

According to the article, on June 1, an employee of Dunn Lumber on North 185th Street in Shoreline called dispatchers around 3:30 a.m. The employee was watching a live camera feed of the lumber yard, where a suspect could be seen taking 32 pieces of lumber from the locked space and stacking them up near an entry point where a Dodge Durango sat waiting, police said. The man was arrested and booked into the King County Jail for investigation of commercial burglary.

As lumber prices hit all-time highs, theft seems to be on the rise – and not just in Washington. In early May, a Texas man was arrested for stealing an amount of lumber greater than $500 but less than $20,000. In April, Tennessee’s Department of Agriculture warned landowners to secure their properties as lumber thefts are rising in the state. On May 21, 144 sheets of plywood – valued at over $10,000 – were stolen from a job site in Florida. 

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

Discarded DNA Admissible

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Right to Present A Defense

Criminal Defendant Constitutional Rights- New Mexico Criminal Law

In State v. Cox, the WA Court of Appeals held that the trial court mistakenly excluded evidence pursuant to the Rape Shield Statute  that the victim flirted with the defendant and sat on his lap at the party where the unlawful sexual contact occurred.

BACKGROUND FACTS

The incident occurred in the early morning hours at the complaining witness’s house after her birthday party. The complaining witness testified that after she fell asleep in her bed, she was awakened by the defendant digitally raping her. The State presented evidence that Mr. Cox’s DNA was found on the complaining witness’s undergarments.

Mr. Cox denied the accusation entirely and testified that the complaining witness was intoxicated and that he had rejected her advances. Nevertheless, he was charged and convicted of Rape in the Second Degree.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that the Rape Shield Statute does not apply to behavior that is contemporaneous with the alleged rape. Here, the victim flirted with the defendant and sat on his lap at the party. That evidence should not have been suppressed. In addition, the statute does not apply to evidence, which was offered to explain how the victim’s intoxication affected her behavior and memory of that night and that there may have been an innocent explanation for the DNA transfer.

“The excluded evidence in this case was not past behavior; it was contemporaneous with the alleged rape. Nor was it being introduced to show consent. And while it was being introduced to discredit the victim’s credibility, the focus was on her level of intoxication, not on allegations of promiscuity. Thus, application of the Rape Shield Statute in these circumstances was untenable and an abuse of discretion.” ~ WA Court of Appeals.

The Court also decided the trial court wrongfully suppressed evidence of the alleged victim’s behavior with the Defendant at the party:

“Evidence that the victim was highly intoxicated, acting in a manner that was uncharacteristically flirtatious, and sitting on Mr. Cox’s lap in a dress, was ‘highly relevant’ to his theory of the defense. The prejudicial value of this evidence, if any, was low.” ~ WA Court of Appeals.

Also, the Court of Appeals reasoned that the trial court erred by sustaining an objection to a hypothetical question that defense posed to the State’s DNA expert during cross-examination. Here, Mr. Cox tried to present expert testimony evidence that it was possible for his DNA to be transferred to the complaining witness’s underwear through innocent, non-sexual contact such as sitting on his lap. The Court of Appeals disagreed, and held that an expert witness may be cross-examined with hypotheticals yet unsupported by the evidence that go to the opponent’s theory of the case.

“The lap-sitting incident provides an explanation as to how Mr. Cox’s DNA might have been transferred to the complaining witness. The witness’s inability to recall this incident calls into question her ability to remember other events from that night. And her flirtatious behavior with Mr. Cox supports his version of events.” ~ WA Court of Appeals.

Next, the Court of Appeals reasoned the trial court’s exclusion of the Defendant’s reputation evidence on the particular character trait of sexual morality was wrong. “Contrary to the trial court’s position, “this type” of evidence is explicitly
admissible under ER 404(a)(1),” said the Court.

With that, the Court of Appeals concluded that the trial court’s errors mentioned above were not harmless. It reversed Mr. Cox’s conviction and remanded for a new trial.

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.

Deliberate Cruelty

Burning Red Flare Held Up At Night by RockfordMedia | VideoHive

In State v. Burrus, the WA Court of Appeals held there was sufficient evidence the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim, lit a flare and set the victim on fire.

BACKGROUND FACTS

Mr. Burrus poured gasoline on victim Mr. Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged.

Based on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional  upward sentence. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

On appeal, Mr. Burrus argued the the trial court erred in imposing an exceptional sentence based on the jury’s finding of deliberate cruelty.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals stated that under the Sentencing Reform Act, generally, a court must impose a sentence within the standard range. A court may depart from the guidelines and impose a higher sentence if it finds substantial and compelling reasons. The existence of an aggravating factor may support an exceptional sentence.

Next, the court addressed the issue of whether the lack of comparative evidence meant there was insufficient evidence to supported the jury’s finding of deliberate cruelty.

“Burrus says insufficient evidence supports the jury’s finding of deliberate cruelty,” said the Court of Appeals. “He contends that because the State failed to provide comparative evidence of typical attempted first degree murders, the jury had insufficient evidence to determine whether the facts here were atypical.”

However, the Court of Appeals disagreed with Burrus and held that the State is not required to provide the jury with examples of typical attempted first degree murders:

“It is within a jury’s capability, based on their common sense and common experience, to determine that dousing a person in gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.” ~WA Court of Appeals

Consequently, the Court also reasoned that Mr. Burrus cannot assert a vagueness challenge to the deliberate cruelty aggravator, either.

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