Category Archives: felony

WA Death Penalty To End?

Bellingham Defense Attorney, Death Penalty, felony, Skagit County Criminal Defense, Studies, Uncategorized, Violent Crime, Whatcom County Criminal Defense, , ,

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Excellent article reporter Max Wasserman of the News Tribune reports that lawmakers are optimistic that 2018 may bring the end of Washington’s death penalty, following changes in senate leadership and years of stalled attempts in the state Legislature.

Wasserman reports that under current state law, individuals found guilty of aggravated first-degree murder can be put to death by hanging or lethal injection. The latest bill would replace that sentence with life imprisonment without the possibility of parole. Should it pass, Washington would a list of other states that have eliminated capital punishment in recent decades.

Wasserman also reports that the new chair on the committee overseeing the bill, state Sen. Jamie Pedersen, D-Seattle, expects the current push to abolish the death penalty to make it through the senate and possibly to the governor’s desk — the farthest any related bill would have made it in five years.

“The stars may be aligning now for support of doing away with the death penalty,” Pedersen said.

Washington’s death penalty has been seldom used in recent years. In 2014, Washington Gov. Jay Inslee placed a moratorium on capital punishment, suspending the practice for as long as he’s in office. The state’s last execution occurred in 2010 when Cal Coburn Brown, convicted for the 1991 rape and murder of 21 year-old Holly Washa, was put to death by lethal injection.

Despite its lack of use, the death penalty remains on the books in Washington. Attempts to match the governor’s position in the legislature have stalled in the past five decades, despite widespread support among lawmakers for abolishing it.

Wasserman reports that some place blame with prior leadership of the senate’s Law and Justice Committee. Sen. Mike Padden, R-Spokane Valley, who has been replaced by Pedersen as chairman of that committee, would not grant past death-penalty bills a hearing.

“I don’t anticipate I’ll be supporting the bill,” Padden said this week. “Some crimes are so heinous and so brutal that I think the death penalty is appropriate”

Padden pointed out that capital punishment also has been used as a negotiating tool against some of the state’s most egregious offenders, including serial killer Gary Ridgway. Ridgway — also known as the Green River killer — agreed to tell prosecutors the whereabouts of victims in exchange for the death penalty being taken off the table in his case.

Apparently, the state’s prosecutors are split on whether to abolish the death penalty.

“The death penalty is a question with profound moral implications, certainly worthy of wide discussion,” Pierce County Prosecuting Attorney Mark Lindquist said. “That discussion should not be limited to legislative debate in Olympia, but instead should be the subject of civic dialogue around the entire state.”

Tom McBride, the executive director of the Washington Association of Prosecuting Attorneys, defended the death penalty while leaving the door open for future reform.

“The constitutionality and evenhanded imposition of the death penalty in Washington State are issues that we will defend; but the costs, timely imposition and ultimate appropriateness of death for aggravated murder is certainly open to debate,” McBride told The News Tribune via email.

CRITICS OF THE DEATH PENALTY

Wasserman reports that critics of the death penalty have long scrutinized the practice as a high-stakes arm of an imperfect justice system that can — and has — executed innocent people. More than 150 people nationwide have been exonerated from death row since 1973, according to data from the National Coalition to Abolish the Death Penalty (NCADP).

One of those cases occurred in Washington. Benjamin Harris was sentenced to death in 1986 for the murder of Jimmie Lee Turner, a Tacoma auto mechanic, only to have the charges dropped on appeal 11 years later. Inadequate defense counsel may have led to Harris’ initial conviction, a point NCADP program director Toni Perry believes is emblematic of wealth disparities in capital sentencing.

“Minorities, persons with diminished capacities who can’t defend themselves, who can’t get a good attorney — it’s arbitrary. There are no rich people on death row,” Perry said.

The death penalty also comes with fiscal baggage. Largely due to legal fees in the appeal process, the death penalty costs an average $1 million more per case than life imprisonment in Washington, according to a 2015 Seattle University study of state convictions.

For these reasons, Washington Attorney General Bob Ferguson called upon the Legislature to do away with the practice last year. Five states — New Jersey, New Mexico, Illinois, Connecticut and Maryland — have since 2007 passed legislation to eliminate their death penalty.

“There is no role for capital punishment in a fair, equitable and humane justice system,” Ferguson, who requested this year’s bill, said in 2017 press release.

“Whether new leadership and a Democratic majority will be enough to achieve the goal one year later remains to be seen,” reports Wasserman.

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.

Vacating Convictions

Bellingham Defense Attorney, felony, Legislation, Rape, Sex Crimes, Skagit County Criminal Defense, Statutory Interpretation, Vacating Convictions, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Expungement and Vacating Criminal Records | The Curtis Firm, LLC

In State v. Lambert, the WA Court of Appeals held that when an offender has been convicted of an offense that is a crime against a person, the record of that conviction may not be vacated. Third degree statutory rape is a crime against a person.

BACKGROUND FACTS

In 1986, when Lambert was nineteen years old, he was charged with third degree statutory rape. The charge was based on an incident involving a victim fifty-five months younger than Lambert. Lambert pleaded guilty as charged.

Lambert was sentenced in May 1987. The law at that time said that the record of conviction for statutory rape could be vacated, in the trial court’s discretion, after the offender satisfied his sentence and completed five years after discharge without a new conviction.

In July 1987, however, the law concerning vacation of the record of conviction was amended. Under the new law, statutory rape in the third degree was defined as a crime against persons that could not be vacated.

In 1988, the legislature enacted broad changes to the criminal code concerning sex offenses. The sections defining statutory rape in each degree were replaced with provisions defining three degrees of rape of a child. “Rape of a child” replaced “statutory rape” in the list of crimes against persons that could not be vacated.

In 2016, Lambert moved to vacate the record of his conviction. He argued that the 1988 amendments did not apply retroactively and the trial court thus had discretion to vacate the record of conviction for his offense, third degree statutory rape. The trial court ruled that Lambert was “not eligible to have his conviction vacated because rape of a child third degree is a crime against a person.” Lambert appealed.

LEGAL ISSUE

Whether statutory rape in the third degree is a crime against a person that may not be vacated.

ANALYSIS & CONCLUSIONS

“The legislature expressly designated statutory rape in the third degree, and that crime as it ‘may be renamed in the future,’ as a non-vacatable crime against a person,” reasoned the Court. “Rape of a child in the third degree criminalizes the same essential conduct as third degree statutory rape: engaging in sexual intercourse with a person between fourteen and sixteen years of age.”

The court further reasoned that the offenses differ in replacing the requirement that the offender be at least eighteen years old with the requirement that the offender be at least forty eight months older than the victim. Rape of a child is expressly defined as a crime against persons.

“It appears that the 1988 amendments renamed statutory rape and retained the prohibition on vacating the record of conviction for that offense,” said the Court.

“We conclude that where, as here, an offender was convicted of statutory rape, and the facts proved establish each element of that offense as amended and renamed, the prohibition on vacating the record of conviction remains in effect.”

Finally, the Court said Lambert had no vested right to vacate the conviction because he failed to satisfy all statutory conditions for vacating his sentence before the change in law took place.

My opinion? It’s important to seek qualified, competent legal representation when trying to vacate prior criminal convictions. It’s not abundantly clear that prior crimes against others cannot be vacated under the law. Please contact my office if you, a friend or family member need advice on vacating criminal convictions.

“Revenge Porn” Outlawed by the Feds?

Bellingham Defense Attorney, Cyber Terrorism, Federal Crimes & Prosecutions, felony, Legislation, Shaming, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , ,

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Excellent article by Brian Murphy and Andrea Drusch of mcclatchydc.com discusses how congressional lawmakers are pushing to make “revenge porn” or “sextortion” a federal crime.

Tuesday, Sens. Richard Burr, R-N.C., Kamala Harris, D-Calif., and Amy Klobuchar, D-Minn., said they’d sponsor the new legislation to make “revenge porn” a federal crime by passing a bill very similar to a bill introduced last year by Rep. Jackie Speier, D-Calif. Speier introduced the bill in the House again Tuesday.

According to the article, Rep. Joe Barton, a Texas Republican who is sponsoring the bill, said he shared a sexually explicit video and text messages with a woman he was seeing after he separated from his second wife. An image from that video of a naked Barton, now 68, appeared on the internet last week, becoming the talk of his hometown and spurring debate over criminal intent.

Barton apologized last week for the leaked video, saying he should have used better judgment. He also suggested he’d been the victim of the crime of revenge porn, which is illegal under Texas’s law, but not federal law.

Barton sent the video to a woman who he saw over the span of several years. In a recorded phone conversation that the woman gave to the Washington Post, Barton asked her not to use the video to hurt his career. She said she had no intention of doing so, but the video surfaced last week from an anonymous Twitter account.

Barton took the incident to the U.S. Capitol Police, but said last week he’d heard no word that an investigation had been opened.

According to Murphy and Drusch’s article, thirty-eight states and D.C. have laws against distributing “revenge porn.” The new federal legislation would make it “unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”

Murphy and Drusch wrote that North Carolina passed legislation outlawing “revenge porn” in 2015 and updated the provision in 2017. The state law makes it illegal to post nude photos online without the consent of the victim.

The FBI defines “sextortion” as “when someone threatens to distribute your private and sensitive material if you don’t provide them images of a sexual nature, sexual favors, or money.”

In short, the proposed federal legislation would establish federal criminal liability for people who share private, explicit images without consent. In order to prosecute someone under the proposed law, officials would have to prove the defendant was aware of a substantial risk that the victim expected the image would remain private and that sharing could cause harm to the victim.

“Perpetrators of exploitation who seek to humiliate and shame their victims must be held accountable,” said Harris, the former attorney general of California who prosecuted operators of “revenge porn” sites. “It is long past time for the federal government to take action to give law enforcement the tools they need to crack down on these crimes.”

The bill provides up to five years in prison and/or unspecified fines.

My opinion? Washington State has already outlawed “revenge porn” as a Class C Felony under the “Disclosing Intimate Images” statute RCW 9A.86.010. Other states have also followed suit. It appears the feds are simply catching up.

Immediately contact my office if you, a friend or family member face criminal charges for distributing suggestive content online. It’s imperative to find a competent criminal defense attorney who can possibly suppress the evidence and/or convince prosecutors and judges to reduce or dismiss these egregious charges.

Vehicle Prowl Prior Convictions

"Plain Meaning" Rule, Bellingham, Bellingham Defense Attorney, felony, Knapstad Motion, misdemeanor, Rule of Lenity, Skagit County Criminal Defense, Statutory Interpretation, Vehicle Prowl, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. LaPointe, the WA Court of Appeals held that when a defendant pleads guilty on the same day in a single proceeding to multiple counts of misdemeanor vehicle prowling, the crime of vehicle prowling in the second degree is not elevated to a felony.

BACKGROUND FACTS

On December 9, 2013, Clifford Paul LaPointe Jr. pleaded guilty as charged by amended information to two counts of misdemeanor vehicle prowling in the second degree in July 2013 and in September 2013. LaPointe also pleaded guilty as charged by amended information to vehicle prowling in the second degree in May 2013 under a different cause number. On January 3, 2014, the court sentenced LaPointe on the convictions. The court imposed a concurrent 364-day suspended sentence.

On January 6, 2016, the State charged LaPointe with felony vehicle prowling in the second degree. The information alleged LaPointe had “previously been convicted on at least two separate occasions of the crime of vehicle prowling in the second degree, each occurring on a separate date and not having been charged in the same charging document.”

LaPointe filed a Knapstad motion to dismiss the charge of felony vehicle prowling in the second degree. He argued that under the plain and unambiguous language of RCW 9A.52.100(3), he had not been previously convicted on “two separate occasions.” LaPointe argued the record established he pleaded guilty in 2013 by amended information to the misdemeanor vehicle prowling in the second degree charges on the same day and in the same proceeding.

However, the State counter-argued the court should deny the motion to dismiss under RCW 9A.52.100(4). The State reasoned that because LaPointe pleaded guilty as charged in two amended informations to offenses that occurred on different dates, his 2013 convictions elevated the current offense to a felony.

The trial court denied LaPointe’s Knapstad motion. It reasoned that LaPointe was previously convicted on at least two separate occasions because he pleaded guilty in 2013 to misdemeanor vehicle prowling in the second degree based on separate dates of occurrence as charged in separate charging documents.

LaPointe agreed to a trial on stipulated facts (bench trial). The court convicted LaPointe of felony vehicle prowling in the second degree. The court ruled the State proved beyond a reasonable doubt that LaPointe had been previously convicted on two separate occasions of the crime of misdemeanor vehicle prowling in the second degree.

On appeal, LaPointe contends the court erred in denying his Knapstad motion to dismiss the felony charge of vehicle prowling in the second degree.

COURT’S ANALYSIS & CONCLUSIONS

On review, the Court of Appeals gave some necessary background. It explained that in 2013, the Washington State Senate proposed an amendment to RCW 9A.52.100 to elevate the crime of misdemeanor vehicle prowling in the second degree to a felony upon a third or subsequent conviction. Afterward, the Washington State House of Representatives amended Senate Bill 5053 to define when a third or subsequent conviction elevates vehicle prowling in the second degree to a felony.

Next, the Court turned to LaPointe’s arguments regarding statutory interpretation. “LaPointe argues that under the plain and unambiguous language of RCW 9A.52.100(3), the court erred in denying his Knapstad motion to dismiss the felony charge because he had not been previously convicted on two separate occasions,” said the Court. “The State asserts that under RCW 9A.52.100(4), LaPointe was previously convicted on two separate occasions because he was not charged in the same information and the crimes occurred on different dates.”

The Court of Appeals reasoned that when interpreting a statute, the fundamental goal is to ascertain and carry out the intent of the legislature:

“We seek to determine legislative intent solely from the plain language of the statute. The plain meaning of a statutory provision is to be discerned from the ordinary meaning of the language at issue.”

The court further explained that it derives legislative intent from the plain language of the statute by considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole.

“We do not analyze individual subsections in isolation from the other sections of the statute when doing so would undermine the overall statutory purpose,” said the Court. “We must also interpret and construe a statute to harmonize and give effect to the language used in the statute with no portion rendered meaningless or superfluous and assume the legislature means exactly what it says.”

It reasoned that in this case, the defendant was convicted of two counts of vehicle prowling in the second degree under King County Cause No. 13-1-13980-1, and one count of vehicle prowling in the second degree under King County Cause No. 13-1-12822-1. These convictions are each based on separate dates of occurrence. The convictions under 13-1-13980-1 were charged in a charging document that is separate from the charging document in 13-1-12822-1. The two cause numbers were sentenced on the same date to give the defendant the benefit of presumptively concurrent sentences.

“The State’s argument that by identifying two situations that do not count as convictions for purposes of charging a felony in RCW 9A.52.100(4), the legislature has defined “separate occasions” that elevate the crime to a felony, is the inverse of what the language actually says,” said the Court. “RCW 9A.52.100(4) states that multiple counts of vehicle prowling either charged in the same information or ‘based on the same date of occurrence’ do not count as separate offenses for the purposes of charging as a felony:

“Multiple counts of vehicle prowling (a) charged in the same charging document do not count as separate offenses for the purposes of charging as a felony based on previous convictions for vehicle prowling in the second degree and (b) based on the same date of occurrence do not count as separate offenses for the purposes of charging as a felony based on previous convictions for vehicle prowling in the second degree.”

“The State’s argument also relies on a logical fallacy,” said the Court. “The proposition that ‘A implies B’ is not the equivalent of ‘non-A implies non-B,’ and neither proposition follows logically from the other.”  In other words, said the Court, identifying two situations that do not count as separate offenses does not mean the inverse—that pleading guilty on the same day in the same proceeding to multiple charges that occurred on different days in two different cause numbers elevates the crime to a felony.

The Court reasoned that because neither a plain reading of the statutory scheme as a whole nor legislative history clearly resolves the ambiguity, under the rule of lenity, it interpreted the statute to mean that when a defendant pleads guilty on the same day in a single proceeding to multiple counts of misdemeanor vehicle prowling as charged by amended information in two different cause numbers, the crime of vehicle prowling in the second degree is not elevated to a felony.

With that, the Court of Appeals reversed the lower court’s denial of LaPointe’s Knapstad motion to dismiss and also reversed his conviction of felony vehicle prowling in the second degree.

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.

Corpus Delicti & Drugs

Bellingham Defense Attorney, Corpus Delicti, Drug Offenses, felony, Methamphetamine, police, Self-Incrimination, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Hotchkiss, the WA Court of Appeals held that, despite the corpus delicti defense, the discovery of 8.1 grams of methamphetamine and $2,150 in cash during a search of the defendant’s home, provided sufficient corroborating evidence of possession of methamphetamine with intent to deliver.

BACKGROUND FACTS

Law enforcement officers executed a search warrant on Hotchkiss’s residence in Vancouver. During the search, Hotchkiss admitted that he had an “8-ball” – approximately 3.8 grams – of methamphetamine in a safe and provided the officers with the code. He also stated that he procured about one 8-ball of methamphetamine every day and broke it down, and estimated that he had about 10 customers. Inside the safe, officers found 8.1 grams of methamphetamine and $2,150 in cash.

The State charged Hotchkiss with possession of a controlled substance with intent to deliver – methamphetamine. At a bench trial, officers testified about finding the methamphetamine and cash and about Hotchkiss’s statement that he had 10 methamphetamine customers. After the State rested, Hotchkiss requested that the trial court disregard the testimony regarding his incriminating statement under the corpus delicti rule because there was insufficient evidence corroborating his statement. The court reserved its ruling on the corpus delicti issue.

Hotchkiss then testified that he and a woman who lived with him used three or four grams of methamphetamine per day. He also testified that the cash in the safe came from other people living at his residence, who paid rent of $1,150 per month in cash, and from his employment. He claimed that any statement he made to the officers about selling methamphetamine referred to his actions 20 years earlier.

On rebuttal, an officer with extensive experience dealing with methamphetamine users
and sellers testified that a typical methamphetamine dose is 0.2 to 0.4 grams. He also testified that it would be very rare that someone would possess eight grams of methamphetamine solely for personal use.

The trial court found that the quantity of methamphetamine in Hotchkiss’s possession
combined with the amount of cash recovered with the drugs was sufficient corroborating
evidence to satisfy the corpus delicti rule. The court then found Hotchkiss guilty of possession of methamphetamine with intent to deliver. Hotchkiss appeals his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the corpus delicti rule prevents the State from establishing that a crime occurred solely based on the defendant’s incriminating statement. The State must present corroborating evidence independent of the incriminating statement that the charged crime occurred. Without such corroborating evidence, the defendant’s statement alone is insufficient to support a conviction.

The Court then addressed the question of whether there was enough independent evidence to support the conviction for possession of methampetamine with intent to deliver.

“The general rule is that mere possession of a controlled substance, including quantities greater than needed for personal use, is not sufficient to support an inference of intent to deliver,” said the Court. Here, the State presented evidence that (1) Hotchkiss had 8.1 grams of methamphetamine in his possession; (2) given an average dose size of 0.2 to 0.4 grams, such an amount typically would produce 20 to 40 doses; and (3) it would be very rare for a person to possess that amount merely for personal use.

The Court reasoned that under the general rule, this evidence standing alone would not be sufficient either to convict Hotchkiss of possession of methamphetamine with intent to deliver or to provide corroborating evidence under the corpus delicti rule.

“But the State presented evidence of an additional factor suggestive of intent to deliver –
$2,150 of cash in Hotchkiss’s safe next to the methamphetamine,” said the Court. “This methamphetamine and cash evidence would be sufficient to support a conviction for possession of methamphetamine with intent to deliver.”

With that, the Court of Appeals concluded that the State satisfied the corpus delicti rule and affirmed Hotchkiss’ conviction of possession of methamphetamine with intent to deliver.

My opinion? Corpus Delicti is a tricky defense. It usually works best in cases where there is a gaping hole between the corroborating evidence and the defendant’s statements.

For example, let’s say that police received a 911 call about a red truck driving around in your neighborhood swerving in an out of traffic. The police respond to the call, drive to your neighborhood, and look a for a red truck. They find one parked at your home. They knock on your door. You open the door. You’re intoxicated from drinking alcohol.

“Were you driving?” asked the police.

“Yes,” you say. Police immediately arrest you for DUI.

Corpus delicti would be the appropriate defense in a case like this. Under our current DUI laws, the State must prove that not only were you driving that particular red truck, but that you were under the influence of alcohol when driving. In short, corpus delicti ensures that your statements and admission shall not be used against you in cases where there is a lack of independent evidence supporting your statements.

Please contact my office if you, a family member of friend face criminal charges with weak and/or questionable evidence supporting the charges. No matter what a person’s admissions are, we have the constitutional right to question the sufficiency of the evidence supporting the charges and perhaps argue the corpus delicti defense.

Defense of Property

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Should Married Couples Deny themselves Access To Each Other's Cell Phone? – Rocworld

In State v. Yelovich, the WA Court of Appeals held that an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.

BACKGROUND FACTS

Assault & Arrest

Defendant Yelovich and his ex-girlfriend De Armond dated for several years before breaking up. A domestic violence no-contact order was in place that prevented Yelovich from contacting De Armond. According to Yelovich, on the morning of June 7, 2015, he was at his son’s house packing boxes in the garage and moving them to his car. While he was working, Yelovich left several items unattended in his car, which had a broken passenger-side window. One of the items was a cell phone. As Yelovich was taking a box to his car, he caught a glimpse of someone walking down the street. At that time, he could not tell who the person was.

When he reached his car, he noticed that his cell phone and other items were missing.
Yelovich walked to the middle of the street and saw that the person in the street was De
Armond. De Armond was repeatedly turning around and looking back toward Yelovich.
Yelovich immediately believed that she had taken his cell phone.

Yelovich got into his car and chased after De Armond. He drove to the end of the road a
few blocks away and turned the corner before encountering De Armond. He parked his car, got out, and demanded that she return his phone. Yelovich knew at that point that he was violating the no-contact order. But he believed that the action was necessary before De Armond disappeared with his phone.

Yelovich grabbed De Armond’s purse strap and attempted to pull the purse from her, believing that the cell phone was in the purse. De Armond resisted, holding tightly to her purse. In the struggle, De Armond fell to the ground. After a bystander intervened, law enforcement officers arrived and arrested Yelovich.

The State charged Yelovich with violating the no-contact order. The information alleged
that Yelovich had assaulted De Armond, making the violation a felony under RCW 26.50.110(4).

Trial and Conviction

At trial, the witnesses testified to the facts recited above. Yelovich proposed a jury instruction that included both defense of property and self-defense components. The trial court ruled as a matter of law that a defense of property instruction did not apply because Yelovich was not using force to prevent the cell phone from being taken; he was trying to recover the cell phone that was no longer in his possession.

A jury convicted Yelovich of the felony contact order violation. Yelovich appeals his
conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals disagreed with Yelovich’s argument that the trial court erred by refusing to give a defense of property jury instruction.

“Yelovich asserted as a defense that he was justified in using force against De Armond because she had taken his cell phone,” said the Court. It reasoned, however, that Yelovich’s own testimony established that he used force in an attempt to recover the cell phone after De Armond allegedly had taken it and had left the immediate area, not to prevent De Armond from taking the cell phone in the first instance. “The issue here is to what extent a defendant can rely on the defense of property as a defense when he or she uses force to recover property that already has been taken and is no longer in his or her possession,” said the Court.

The Court further reasoned that the plain language of the “Use of Force” Statute RCW 9A.16.020(3) establishes that an owner of property cannot use force to defend that property after the interference with the property has been completed.

First, the property owner can use force only if he or she is about to be injured. “Once the interference with the property has been completed, the owner no longer is about to be injured; he or she has been injured,” said the Court.

Second, the property owner can use force only in preventing or attempting to prevent
the interference. An action taken to prevent interference must occur before the interference has been completed. Defense of property by definition is defensive rather than offensive. “Once the interference with the property has been completed, the owner’s use of force is to recover the property, not to prevent the interference,” said the Court.

Third, the property owner can use force only if the property is lawfully in his or her
possession. “Once the interference with the property has been completed, another person has obtained possession of the property and the owner necessarily no longer has possession,” said the Court.

“Based on the language of RCW 9A.16.020(3) and relevant case law, we hold that an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.”

The Court reasoned that here, application of this three part test and the statutory language show that a defense of property instruction was not appropriate. First, Yelovich was not present at his car when De Armond allegedly removed the cell phone. He discovered that the cell phone was gone only after it already had been taken. Second, at that point De Armond had completed the alleged taking and had possession of the phone. Third, De Armond had left the area of Yelovich’s control – his car – and was a few blocks away. Therefore, the undisputed evidence shows that De Armond’s theft of Yelovich’s cell phone, if it occurred, already had been completed when Yelovich chased after De Armond and accosted her. Yelovich was attempting to recover the cell phone, not to prevent its theft.

The Court furthe rreasoned that Yelovich was not about to be injured when he accosted De Armond; he already had been injured through the loss of his cell phone. He was not attempting to prevent a theft; the theft already had occurred. And Yelovich no longer had possession of the cell phone; the phone allegedly was in De Armond’s possession.

“Therefore, defense of property under RCW 9A.16.020(3) cannot apply and there was no evidence to support Yelovich’s other proposed instruction,” said the Court.

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.

Dealing in Depictions

ACLU, Bellingham Defense Attorney, Constitutional Rights, felony, Juvenile, Legislation, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Gray, the WA Supreme Court decided that the Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct statute allows the State to prosecute a minor for taking and distributing a sexually explicit photo of himself.
BACKGROUND FACTS
When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of Second Degree Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct. It also charged him with one count of Telephone Harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.
In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was ordered to register as a sex offender.
Mr. Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. He appealed again, this time to the Washington Supreme Court, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves. The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amicus curiae, or “friend of the court”.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions?
COURT’S ANALYSIS AND CONCLUSIONS
The WA Supreme Court reasoned that the plain language of the statute prohibits transmitting sexually explicit images of a minor even if the minor himself sent it:
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
The Court also reasoned that the statute here is unambiguous. A “person” is any person, including a minor. “Images of a ‘minor’ are images of any minor,” reasoned the Court. It elaborated that nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. “Because of this, Gray was properly charged with taking and disseminating sexually explicit images of a minor,” said the Court.
Furthermore, the Court reasoned that the Legislature’s findings support the Court’s plain reading of the statute. “The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain,” said the Court. “Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.”
Finally, the Court reasoned that the statute is neither unconstitutionally overbroad nor unconstitutionally vague. First, it does not invite arbitrary and discriminatory enforcement. Despite Gray’s arguments, the Court reasoned that the State is vested with great discretion in determining how and when to file criminal charges. Here, Gray presents no evidence the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording of the statute allows a reasonable person to understand what conduct is prohibited. “It states that ‘a person’ will be guilty if they transmit sexually explicit images of ‘a minor,’ said the Court. “On its face, this includes any person, even a minor taking a picture of himself. Our responsibility is to interpret the law, not to write it, and here the law is clear.”
With that, the WA Supreme Court voted 6-3 to affirm the Court of Appeals and upheld Gray’s conviction.
THE DISSENT
Justice McCloud authored the dissenting opinion. He reasoned that RCW 9.68A.050 is designed to tackle a significant problem: trafficking in sexual depictions of children. Furthermore, the statute tackles that problem with severe criminal penalties for the traffickers but protection for the depicted children.

“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”

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.

Self-Defense

Bellingham Defense Attorney, felony, Firearm, Homicide & Manslaughter, Prior Bad Acts, Self-Defense, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

How Often Do People Use Guns In Self-Defense? : NPR

In State v. Vela, the WA Court of Appeals held that the defendant’s Sixth Amendment right to present evidence was violated when the trial court excluded testimony regarding why the defendant, who claimed self-defense, feared the victim.
BACKGROUND FACTS
On February 20, 2014, Duarte Vela shot and killed Antonio Menchaca in Okanogan County. The question at trial was why Duarte Vela shot and killed Menchaca.

Apparently, Menchaca was the ex-brother-in-law of Duarte. Vela and his family were living in Okanogan County. Apparently, Vela and his family were afraid of Menchaca, who just finished serving a prison sentence in California. Also, Vela had already contacted Menchaca when Menchaca returned from California and told Menchaca to stay away from his family.

On the date of the incident, Vela’s wife called Vela and said she thought she saw Menchaca driving by their house. Vela went home, retrieved a firearm and then was heading to Brewster to pick up a child, when he saw Menchaca parked along the road on old Hwy 97 near the Chiliwist Road. Vela stopped and confronted Menchaca. According to a witness at the scene, Vela then pulled out a pistol and shot the Menchaca two or three times. Menchaca died at the scene from the gunshots.

Vela then drove back to his home, put the gun away and called 911 to report the shooting. Vela told Deputies he was at his home and would be waiting for them. Deputies arrived and picked up Vela without incident. Vela was transported to the Okanogan County Jail and booked for various firearm offenses and Murder in the Second Degree.

The trial occurred in January 2015. Prior to jury selection, the State moved in limine to exclude evidence of Menchaca’s prior bad acts. Vela responded that he sought to admit certain prior bad acts of Menchaca known to him to establish the reasonableness of his fear of Menchaca. Specifically, Vela wanted to introduce testimony that (1) Menchaca threatened to return to Okanogan and kill Duarte Vela’s after being released from prison, (2) Menchaca kidnapped Vela’s younger sister in 2007 when she was just 15 years old, (3)
Menchaca had repeatedly battered Vela’s sister throughout their marriage, and that she had told Vela about this, (4) Vela’s wife witnessed the domestic violence abuse from Manchaca to Vela’s sister (5) Vela was told by his family members about Menchaca’s threat to kill his family and Menchaca’s domestic violence against Blanca, (6) Vela feared Menchaca being around his family, (7) Vela believed he needed to arm himself when he went to his sister’s apartment to confront Menchaca, (8) Vela’s wife told him the SUV driver  Martinez and Menchaca gave her a threatening look when the SUV first parked in or near the pullout, (9) why Vela followed the SUV the first time, (10) why Vela believed there were two people in the car when he followed the SUV the first time, (11) Martinez’s statement to him that he was alone in the SUV, (12) what he felt when he saw Martinez later drive by with Menchaca in the passenger seat, (13) why Vela had an elevated fear as he went after the SUV for the second time, (14) Vela’s wife being upset when he returned and explained that Menchaca was not in the SUV, (15) Vela’s belief that something was wrong when Martinez and Menchaca both got out of the car and walked toward him, (16) what Vela feared Menchaca and Martinez might do as they walked toward him, and (17) the degree of bodily harm Vela feared just before he shot Menchaca, as Menchaca became upset and reached into his pocket.

However, the trial court excluded the proferred evidence on the basis that the testimony was irrelevant, too remote in time and ultimately inadmissible.

Also, toward the end of trial, Duarte Vela requested a “no duty to retreat” jury instruction.
However, the trial court denied the instruction. The jury returned a verdict of guilty on all counts. Vela appealed.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals reasoned that right to present testimony in one’s defense is guaranteed by both the United States and the Washington Constitution. Here, Vela argued the trial court’s evidentiary rulings violated his right to present a defense. He principally argues the trial court committed reversible error when it excluded evidence relating to: (1) Menchaca’s prison threat, (2) Menchaca’s years of domestic abuse against Blanca, (3) Menchaca’s abduction of Maricruz, (4) why he feared Menchaca, and (5) the type of bodily harm he feared just before he shot Menchaca.
The Court reasoned that in considering a claim of self-defense, the jury must take into account all the facts and circumstances known to the defendant. “Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court of Appeals.
Furthermore, the Court reasoned that evidence of a victim’s propensity toward violence that is known by the defendant is relevant to a claim of self-defense because such testimony tends to show the state of mind of the defendant and to indicate whether he, at that time, had reason to fear bodily harm. Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.
“Here, Vela sought to introduce Menchaca’ s threat to kill Vela’s family and Menchaca’s past domestic violence not to prove they were true, but for the very relevant purpose of showing the reasonableness of his fear of Menchaca,” reasoned the Court of Appeals. “The evidence, therefore, was not hearsay. To the extent the trial court excluded this and
several miscellaneous statements offered by Duarte Vela to show his state of mind, the
trial court erred,” said the Court.
The Court also said that the reasonableness of Vela’s fear of Menchaca is one of two components of his self-defense claim, the other component being the degree of bodily harm he feared just before he shot Menchaca:
“Menchaca’s past threat to kill Vela’s family was central to Duarte Vela’s ability to explain the reasonableness of his fear. Unless the evidence was inadmissible under the State’s other arguments, the trial court’s exclusion of this evidence deprived Vela of the ability to testify to his versions of the incident.”
Furthermore, the Court of Appeals reasoned that the trial court’s evidentiary rulings precluded Vela from presenting a legal defense to the killing that he admitted to and omitted evidence that would have created a reasonable doubt that did not otherwise exist. “For this reason, the trial court’s evidentiary rulings violated Duarte Vela’s Sixth Amendment right to present a defense,” said the Court of Appeals.
Next, the Court of Appeals addressed whether the trail court erred in refusing to allow Vela the “No Duty to Retreat” jury instruction. “Because the facts would not support retreat as an option to someone pulling a gun at close range and because the State did not argue that Vela could have retreated, the trial court did not err in refusing the instruction.”
CONCLUSION
Although the Court of Appeals denied Vela’s argument of instructional error, it concluded the trial court’s evidentiary rulings denied his Sixth Amendment right to present
a defense. It therefore reversed and remanded for a new trial.
My opinion? Good decision. It’s wrong to hobble defendants of their right to self-defense when the defense is justified. For more on this topic, please read my Legal Guide titled, “Self-Defense.”  And please call my office if you have friends or family accused of crimes involving self-defense.

Extortion & Promises

Bellingham Defense Attorney, Extortion, felony, Jury Trial, Malicious Mischief, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for extortion

In State v. McClure, the WA Court of Appeals held that extortion was satisfied by evidence that the defendant attempted to obtain valuable intangible property – a promise from the victim that he would not pursue criminal charges or a civil remedy against the defendant for the damaged property.

BACKGROUND FACTS

In late 2013, Williams and McClure entered into an agreement under which McClure would reside in a double wide trailer Williams owned that needed repairs. McClure would perform the repairs. In return, he would live in the trailer rent free for one year and then he would start paying rent. After a year, Williams contacted McClure and told him that if he did not pay rent, Williams would evict him.

McClure responded by threatening to destroy the trailer if Williams evicted him.

McClure did not pay his rent and Williams began the eviction process. Williams visited
the trailer on the day McClure was to be evicted and discovered that the sliding glass door, the front door, the kitchen cabinets, and the wood stove had been removed. In addition, pipes were ripped out of the ceiling and electrical lines had been cut. Williams contacted the sheriff.

A few days later, Williams returned to the trailer and observed people on the property who were removing siding, electrical wire, plumbing, appliances, and fixtures from the trailer and portions of his shed. A deputy sheriff informed Williams that someone had taken out a Craigslist ad inviting people onto the property to take what they wanted. Williams sent a text message to McClure asking him to remove the ad. McClure texted a response:

“I will pull the ads if you take a letter . . . signed and notarized by both you and Lisa (Williams’ wife) that will not allow any charges to be placed against me or my wife for
anything related to the property. I don’t need the hassle. I will also not have the signs placed that I made for the same purpose.” After Williams again asked McClure to remove the ad, McClure texted, “A simple letter will take you 15 minutes and it will be done.”

The State charged McClure with first degree extortion and first degree malicious
mischief. A jury convicted him of both charges.

LEGAL ISSUE

McClure appeals only his first degree extortion conviction on the issue of whether that “promise” sought by the defendant  constituted valuable intangible “property” supporting an extortion conviction or merely involved coercion under RCW 9A.36.070 – Williams abstaining from conduct that he had the legal right to engage in.

ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under RCW 9A.56.120(1), a person is guilty of first degree extortion if that person commits “extortion” by means of specific types of threats. “Extortion” means “knowingly to obtain or attempt to obtain by threat property or services of the owner.” “Property” means “anything of value, whether tangible or intangible, real or personal.”

It further reasoned that McClure clearly was seeking a promise to not pursue criminal charges for a crime that involved financial loss to Williams – the cost of repairing damaged property. As a victim of a crime under RCW 9.94A.753(5), Williams would have the ability to receive restitution in a criminal proceeding for the property damage McClure caused.

“This ability to receive restitution for property damage had value to Williams,” reasoned the Court of Appeals.

Furthermore, McClure also arguably was seeking a promise not to pursue any civil remedy for the property damage McClure caused. That is how Williams interpreted the threat. He testified that McClure demanded Williams’ agreement “not to hold me responsible or press any charges for the damage that was done to your property.”

Finally, the Court of Appeals reasoned that this ability to hold McClure responsible for the property damage in a civil lawsuit had value to Williams:

“A reasonable jury could have inferred from the evidence that McClure was attempting to obtain something intangible that had value – Williams’ promise not to pursue compensation for the property damage that McClure caused.”

Accordingly, the Court of Appeals held that the State presented sufficient evidence to support McClure’s conviction for first degree extortion.

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.

“Furtive Movements”

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Evidence, felony, Furtive Movements, Privacy, Race & Law, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.

BACKGROUND FACTS

On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.

After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.

After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.

PROCEDURAL HISTORY

The State charged Weyand with one count of unlawful possession of a controlled substance. Weyand moved to suppress all evidence and statements under Criminal Rules (CrR) 3.5 and 3.6 and to dismiss the case against him. Weyand argued that the officer did not have sufficient individualized suspicion to conduct the investigatory stop.

After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.

The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.

Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”

LEGAL ISSUE

Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.

One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.

The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order to conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.

“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”

Furtive Movements

Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”

The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:

“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:

“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”

Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.

My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.

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.