Category Archives: felony

Confrontation, Video Testimony & COVID

Bellingham Defense Attorney, Burglary, Confrontation Clause, felony, Mount Vernon Criminal Defense Attorney, Robbery, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Legal Videography - Compass Reporting | Litigation Support Concierge

In State v. Milko, the WA Court of Appeals held that a defendant has a right to have witnesses present in the courtroom. However, that right can be overcome. Here, the trial court lawfully allowed witnesses to testify by video when they had health related concerns about contracting COVID-19.

FACTUAL BACKGROUND

In 2018, Milko on five separate occasions contacted women who were paid escorts. He
arranged to meet them at houses in Puyallup that he did not live in or own. When each
woman arrived, Milko displayed a knife in an attempt to take their money or to rape them.

The State charged Milko with 12 felony offenses related to five incidents and five
victims. The charges included Burglary, Robbery and Sex Offenses.

Milko’s trial was set for July 2020. At the time, COVID-19 had been declared a global pandemic and a national emergency in the United States. In February 2020, Governor Jay Inslee had proclaimed a state of emergency in Washington. He issued a number of proclamations designed to help curb the spread of COVID-19. The Supreme Court ordered all courts to follow the most protective public health guidance applicable in their jurisdiction and to use remote proceedings for public health and safety whenever appropriate.

Also, the CDC and the Washington Department of Health recommended social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The CDC encouraged people to avoid traveling because travel increased a person’s chance of getting infected and spreading COVID-19. The CDC noted that older adults and people of any age with serious underlying medical conditions, such as diabetes and asthma, were at a higher risk for severe illness from COVID-19.

The trial court granted the State’s request to allow two State’s witnesses to testify remotely. One witness was SANE nurse Ms. Biddulph. The other witness was victim JA.

At trial, the five victims and several investigating officers testified in person about the
incidents giving rise to the charges. Biddulph testified by two-way video about examining BP and completing a rape kit for her. JA testified by two-way video about Milko contacting her for her paid escort services in Florida and raping her at knifepoint. The trial court instructed the jury that the State was offering JA’s testimony only to establish identity, a common scheme or plan, and/or modus operandi.

The jury found Milko guilty of all charges except for attempted first degree robbery. He appealed on arguments that the trial court violated the confrontation clause by allowing witnesses to testify by video because of COVID-19 concerns.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals (COA) explained that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” Nevertheless, the COA quoted  Maryland v. Craig, and other cases holding that video testimony does not violate the confrontation clause if it ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Here, the COA upheld the trial court’s findings that Biddulph’s traveling to Washington would place her and her children at risk of negative health consequences regarding COVID-19 were warranted. Biddulph in particular had health concerns about her one year-old daughter, who had compromised health. And the court made a finding that Biddulph’s health care provider “advised against travel in order to protect the health of Ms. Biddulph and her small child.” The court’s ultimate finding was that Biddulph could not travel to Washington to testify because travel will place her at a significantly higher risk of exposure to the virus.

“Accommodating Biddulph’s health concerns was more than a matter of convenience,” said the COA. In addition, it reasoned that concern for the health of a third person may be sufficient to support a finding of necessity. “This is especially true in a pandemic. Given the nature of the COVID-19 pandemic, the risk to the health of Biddulph and her child if Biddulph was required to travel to Washington was significant and more than de minimis.”

The COA also found that the trial court found that JA’s health concerns due to her diabetes and asthma were warranted. These conditions would “place her at a higher risk of suffering severe health consequences if she were to contract COVID 19.”  Further, the COA upheld the trial court’s findings that JA’s conditions “make it difficult, if not impossible, to wear a face mask for an extended period of time, including on a cross-country flight.” The court’s ultimate finding was that “J.A.’s health is currently compromised, and she is at a higher risk of serious medical complications should she contract COVID-19.”

“We conclude that these findings support the conclusion that video testimony was necessary to protect JA’s health. Accommodating JA’s health conditions was more than a matter of convenience. Given the nature of the COVID-19 pandemic, the risk to JA’s health if she was required to travel to Washington was significant and more than de minimis.” ~WA Court of Appeals.

The COA concluded that the trial court did not err in allowing Biddulph and JA to testify remotely by video and their testimony did not violate Milko’s confrontation right. Consequently, the COA affirmed Milko’s convictions and sentence.

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.

Auto Dealership Burglaries Are On the Rise

Bellingham Defense Attorney, Burglary, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Apparently, auto dealers and repair shops are increasingly becoming a target of burglars around the Puget Sound region. Car thieves have become more brazen and aggressive in their attempts to profit from auto dealerships, whether stealing whole cars or stripping them of valuable parts.

Journalist Nicole Jennings reports that Western Washington burglars are reportedly breaking into dealerships and mechanics’ shops, often by ramming their cars into service entrances. Also, journalist Sebastian Robertson reported that a car dealership in Fife has suffered multiple break-ins. In one case, suspects made off with several sets of keys, only to return days later.

The object of the burglary usually appears to be the keys to the cars on site — either the dealership’s own cars or the keys that people drop off when having their cars worked on. The criminals steal the cars at the time of the burglary, or return later for them. This recently happened at Nissan of Olympia, when burglars rammed a car into the service entrance to get in.

The Puget Sound Auto Theft Task Force, made up of police officers from different agencies, is putting a special emphasis toward catching the burglars. PSATT is dedicated to investigating prolific auto theft offenders through multi-agency cooperation. The task force is recommending that auto dealers and repair shops put any keys dropped off after hours in a safe or similar secure storage system, so they could not be easily accessed by trespassers. The task force also suggests upgrading video systems and keeping parking lots well-lit.

Here are the Top 10 Burglary Statistics is 2022 according to Bankrate.com:

  1. Over 1 million burglaries are committed each year in the US, according to the FBI.
  2. Most recently, 1.1 million burglaries took place in 2019, down 9.5% since the previous year.
  3. One burglary happens every 25.7 seconds, so approximately 3,300 per day.
  4. The average value of property taken during burglaries is about $2,600, making the total cost of burglaries in 2019 about $2.9 billion.
  5. Burglars are drawn to homes that do not have home security systems. Homes that don’t have a security system are 300% more likely to be burglarized (Alarms.org).
  6. Unfortunately, less than 30% of homes have an effective security system installed (Security.org).
  7. 27% of the time, a person is home while the burglary occurs; 26% of those people home are harmed.
  8. Someone was injured in 7.2% of all burglaries committed.
  9. In 85% of burglaries, the crime is committed by amateurs, often done by someone who is desperate. It is assumed these amateurs are more unpredictable and dangerous than professional thieves.
  10. Despite the grim statistics burglaries have declined by 49% in the last 20 years, according to FBI data.

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

Animal Cruelty Can Be DV

Animal Abuse, Bellingham Defense Attorney, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Animal Cruelty and Domestic Violence - The Link Between Cruelty to Animals and Violence Toward Humans

In State v. Abdi-Issa, the WA Supreme Court held that Animal Cruelty may be designated
as a crime of Domestic Violence.

BACKGROUND FACTS

Ms. Fairbanks began dating Mr. Abdi-Issa shortly after she moved to Seattle with her dog, Mona. Mona was a small Chihuahua and Dachshund mix. Fairbanks testified she was close to Mona. Abdi-Issa, however, had a history of disliking Mona. Abdi-Issa was abusive toward Fairbanks and Mona, even threatening to kill them both.

One evening, while they were out in Seattle’s International District, Abdi-Issa insisted Fairbanks let him take Mona on a walk. Fairbanks objected, but Abdi-Issa ignored her and left with Mona. Not long after he left, Abdi-Issa called Fairbanks claiming that Mona had gotten out of her harness and that he could not find her. Fairbanks did not believe him, as Mona had never gotten out of her harness before. Abdi-Issa refused to tell her more. Fairbanks began to panic after she heard Mona yelping over the phone.

Around that same time, bystanders heard a sound of great distress. One of the bystanders was Ms. Ludin. She followed the sound and saw Abdi-Issa beating and making “brutal stabbing” motions toward Mona. She also saw Abdi-Issa kick Mona so hard that she went up into the air and into the bushes. Each time Mona was struck she made a screeching, screaming, pained, sound that was at last followed by silence.

Seattle Police Officers responded to the 911 call. Mona was found, still alive, underneath a bush. Officers transported Mona to an emergency veterinary clinic. Mona arrived at the clinic nearly comatose. She had severe swelling in her brain, bruising on her chest, and a wound to the top of her head. By the time Fairbanks arrived at the veterinary clinic Mona had died. A necropsy found that Mona had died from multiple instances of blunt force trauma.

The State charged Abdi-Issa with First Degree Animal Cruelty and sought a domestic violence designation. The State also charged two sentencing aggravators: (1) that the crime had a destructive and foreseeable impact on persons other than the victim, and (2) that Abdi-Issa’s conduct during the crime of domestic violence manifested deliberate cruelty or intimidation of the victim. Abdi-Issa unsuccessfully moved to dismiss the domestic violence designation and aggravators multiple times.

The jury found Abdi-Issa guilty of animal cruelty. The jury also found that Abdi-Issa and Fairbanks were in a domestic relationship prior to the crime. This allowed for a domestic violence designation.

The court imposed the maximum 12-month sentence for the crime of animal cruelty, and an additional 6 months for the aggravator, sentencing Abdi-Issa to an 18-month prison sentence. Based on the domestic violence designation, the court also imposed a no-contact order prohibiting Abdi-Issa from having contact with Fairbanks.

However,  the Court of Appeals vacated the domestic violence designation, the no-contact order, and the sentencing aggravator. The State appealed. The WA Supreme Court granted review and addressed the State’s appeal.

COURT’S ANALYSIS AND CONCLUSIONS

1. Animal Cruelty as a Crime of Domestic Violence

First, the WA Supreme Court decided that Animal Cruelty may be designated a crime of domestic violence. At first, the Court said Abdi-Issa correctly argued that Animal Cruelty is not a designated DV crime.

“But the list of crimes is explicitly nonexclusive,” wrote Justice Gonzalez. The court further reasoned that many of the designated DV crimes, including Burglary and Malicious Mischief, are against a victim’s property.

“Pets, as a matter of law, are considered personal property. Here, Fairbanks was directly harmed as a result of Abdi-Issa’s violent killing of her beloved pet and companion. She is plainly a victim of Abdi-Issa’s crime.” ~Justice Steven C. Gonzalez, WA Supreme Court

2. Sentencing Aggravator—Impact on Others

Next, the Court addressed whether the “Impact on Others” sentencing aggravator was appropriate. Here, defendants face increased consequences if the offense involves a “destructive and foreseeable impact on persons other than the victim.” Justice Gonzalez emphasized how Ms. Ludin, the bystander who witnessed the attack on Mona, was deeply affected by the incident.

“Ludin made the 911 call and was very distressed when the police arrived. Ludin testified that she had a severe panic attack that night, sitting in her car for a long time before she was calm enough to drive herself home. She continued to have flashbacks, had trouble sleeping, and would go into a state of panic whenever she heard a ‘high pitched, squeaky sound.’ Abdi-Issa’s act had a destructive and foreseeable impact on Ludin.

Abdi-Issa’s actions impacted someone other than Fairbanks. This emotional and psychological trauma will be something that Ludin and Fairbanks continue to carry. The sentencing aggravator was properly applied in this case.” ~Justice Steven C. Gonzalez, WA Supreme Court

Consequently, the Court held that Animal Cruelty can be designated as a DV crime and that the sentencing aggravators were appropriate.

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

Protecting Pot Shops

Bellingham Defense Attorney, Drug Court, felony, Legislation, Mount Vernon Criminal Defense Attorney, Robbery, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Brazen Weed Dispensary Robbery Happened At 4:20 AM | NowThis - YouTube

Great article from King 5 discusses the Washington Senate passing a pot shop protection bill.

Senate Bill 5927 adds a year to a prison sentence of someone convicted of first- or second-degree robbery of a cannabis retailer. It’s the same sentence that is given to someone who robs a pharmacy.

The passage of the bill in the Senate follows rising concerns over violent robberies at cannabis shops. This bill would make improvements for not just the benefit of the retailers themselves, but for the public safety of the community as a whole.

“When people would ask the infamous bank robber Willie Sutton why he robbed banks, Sutton simply replied, ‘Because that’s where the money is.’ Well, that’s why people rob marijuana retailers. Due to federal banking rules, these businesses are almost entirely cash-only operations, making them a target for robberies and a magnet for criminals.” ~Bill sponsor Sen. Jim Honeyford (R-Sunnyside)

Tom Bout, the founder of the Cannabis Professionals Network, made a spreadsheet tracking the crimes he could find records for. He counted more than 30 crimes since November 2021.

A spokesperson for the Washington State Liquor and Cannabis Board said it has been working to communicate safety guidelines with business owners.

The state Liquor and Cannabis Board said it is communicating these safety tips with cannabis retailers:

  • Hire armed security guards
  • Make frequent cash deposits so there isn’t much cash available in shops
  • Post signs in businesses explaining that staff don’t have access to much cash
  • Clearly communicate safety guidelines with staff so they know what to do in the event of a robbery.

Bout said the Washington State Liquor and Cannabis Board is not doing enough to protect cannabis retailers.

“They have not communicated with the stores. Like, you’d think that they would put on an alert to let everyone know that this has happened,” he said during a previous interview.

Interesting times, no? Years ago, selling and possessing marijuana was illegal. Nowadays, we’re passing laws bringing enhanced penalties to people who rob our pot shops.

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.

 

The Feds Increased Prosecution of Domestic Terrorism

Bellingham Defense Attorney, Domestic Terrorism, Federal Crimes & Prosecutions, felony, Hate Crimes, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense

Detecting the Financing of Domestic Terrorism - Financial Crime News

Excellent article by Matt Zapotosky  and Devlin Barrett discusses how the Justice Department formed a new domestic terrorism unit.

The announcement came from Matthew G. Olsen, the head of the Justice Department’s national security division. Mr. Olson announced the creation of the unit in his opening remarks before the Senate Judiciary Committee. He said the number of FBI investigations of suspected domestic violent extremists had more than doubled since the spring of 2020.

“This group of dedicated attorneys will focus on the domestic terrorism threat, helping to ensure that these cases are handled properly and effectively coordinated across the Department of Justice and across the country.” ~Matthew G. Olsen, Justice Department’s National Security Division

Olsen sought to assure lawmakers that the Justice Department is investigating and prosecuting all of those who committed crimes, no matter what motivated them. Olsen said authorities had arrested and charged more than 725 people. Charges included more than 325 felonies in conneced to the January 6th attack on the Nation’s Capitol. According to the article, the FBI is seeking to identify and arrest more than 200 additional suspects.

The Justice Department and the bureau have faced criticism in recent years for not focusing as intensely on domestic terrorism as they do internationally inspired threats, though officials have insisted they take both matters seriously.

Last year, the White House released a national strategy to address the problem, calling for, among other things, new spending at the Justice Department and FBI to hire analysts, investigators and prosecutors. It is believed the Capitol attack will spur broad crackdown on domestic extremists.

Historically, domestic terrorism investigations come with more procedural and legal hurdles than cases involving suspects inspired by groups based outside the United States, such as the Islamic State or al-Qaeda. The charge of material support for a foreign terrorist group, for instance, has no legal equivalent for someone eager to commit violence in the name of domestic political goals.

My opinion? Obviously, the breach of the Capitol has spurred new political and policy debates abouthow the government combats domestic terrorism. This may trickle down to more localized prosecutions. State prosecutors may become emboldened to prosecute Hate Crimes and other crimes involving speech, race or political affiliations.

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.

Parents in Prison

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Tips to Support Children When a Parent is in Prison - HealthyChildren.org

A fact sheet from the Sentencing Project gives key facts on parents in prison. It illustrates the policies that impede their ability to care for their children when released from prison. Here’s an overview:

  • In 2016, 47% of people in state prisons and 57% in federal prisons were parents of minor children.
  • Most parents in prison are fathers (626,800 fathers compared to 57,700 mothers).
  • The number of fathers in prison increased 48% and the number of mothers in prison increased 96% between 1991 and 2016.

Also according to the article, 2.7 million children have a parent serving time in prison or jail on any given day, and over 5.2 million have had an incarcerated parent at some point during their lives. Furthermore, the percentage of children who have experienced parental incarceration varies widely state to state, from a low of 3% in New Jersey to a high of 13% in Kentucky.

The prevalence of parental incarceration also varies considerably by race. In 2018, 20% of Native children, 13% of Black children, 6% of Latinx children, and 6% of white children had experienced parental incarceration at some point in their lives.

According to the National Institute of Justice, the impacts of parental incarceration on children bring terribly negative consequences. They include psychological stress, antisocial behavior, academic suspension or expulsion, economic hardship, and criminal activity.

The growth and decline of the number of children with imprisoned parents mirrors the changing incarceration rates of the past few decades. Between 1972 and 2009, the U.S. prison population increased nearly 700%, due to policy changes including long mandatory sentences, the declining use of parole, and more punitive responses to substance use disorders.

The arrest of a parent can be traumatic for many children. As noted in a comprehensive review of research on children with incarcerated parents, the arrest and removal of a mother or father from a child’s life forces that child to confront emotional, social and economic consequences that may trigger behavior problems, poor outcomes in school and a disruption or severance of the relationship with the incarcerated parent that may persist even after the parent is released from prison.

I work hard to reunite families separated by the criminal justice system. 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.

Rape By Forcible Compulsion

Bellingham Defense Attorney, Evidence, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Sexual Assault Laws WA State | Tario & Associates, P.S.

In State v. Gene, the WA Court of Appeals held that for a charge of Rape in the Second Degree by Forcible Compulsion, the force must be directed at overcoming the victim’s resistance. If a victim is unconscious or unable to respond there is no resistance to overcome.

BACKGROUND FACTS

The defendant Mr. Gene and K.M. had a “brother-and-sister-like friendship.” During the summer of 2018, they hung out almost all the time every weekend together with a group of their friends. On the evening of August 29, 2018, Gene and two of his friends, Jesus Montano and Sedrick Hill, went to K.M.’s apartment. K.M.’s friend Rachel Charles was already present. The group used the hot tub in K.M.’s apartment complex, consumed alcohol, and listened to music. At some point during the evening, they went up to K.M.’s apartment and played a drinking game.

Eventually, K.M. began to feel unstable and sick. She went to the bathroom and began vomiting. Still feeling nauseous and dizzy, K.M. went to her bedroom to sleep. K.M. felt uncomfortable and nauseous in her bed, so she took a comforter and slept in a fetal position on the floor. At trial, K.M. testified that Gene sexually assaulted her while she slept on the floor.

Gene was charged with numerous counts of Rape in the Second Degree by Forcible Compulsion. A jury found Gene not guilty of Counts 1 and 3, and guilty of Count 2. Gene appealed his  sole conviction on arguments that insufficient evidence existed to support it.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals began by defining “Forcible compulsion” under the statute.
In short, “Forcible compulsion” means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

Next the Court interpreted WA’s case law. Quoting State v. McKnight, it said that in order for there to be forcible compulsion, there must have been force that was “directed at overcoming the victim’s resistance and was more than that which is normally required to achieve penetration.” Furthermore, the resistance that forcible compulsion overcomes need not be physical resistance, but it must be reasonable resistance under the circumstances.

“Here, viewing the evidence in the light most favorable to the prosecution, K.M. did not resist the penetration of her vagina by Gene’s penis. K.M.’s testimony, set forth in full above, was that she was unconscious or unable to respond when Gene engaged in sexual contact with her. Because K.M. was unable to respond, she could not resist the penile-vaginal assault and there was no resistance for Gene to overcome.” ~WA Court of Appeals

Accordingly, under these circumstances, no reasonable juror could find beyond a reasonable doubt that Gene resorted to forcible compulsion to engage in penile penetration of K.M.’s vagina. Thus, the evidence was insufficient. With that, the Court of Appeals reversed Gene’s conviction and remanded for further proceedings.

However, the Court of Appeals also mentioned Gene for rape in the second degree by means of engaging in sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated.

Please contact my office if you, a friend or family member are charged with a sex ofense or any other crime. The Fourteenth Amendment due process clause both requires that
every element of a charged crime be proved beyond a reasonable doubt and
guarantees a defendant the right to a unanimous jury verdict. Hiring an effective and competent defense attorney is the first and best step toward justice.

Pandemic Gun Sales

Bellingham Defense Attorney, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Coronavirus: US gun sales soar amid Covid-19 pandemic fears - YouTube

Great article in the thetrace.org by reporter Champe Barton discusses new data suggesting a connection between Pandemic gun sales and increased violence.

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores. In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record. At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

Fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019. Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent. This is because a gun with a narrow window between sale and recovery is less likely to have changed hands. Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high. And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months. This means they were less likely to have been purchased the previous year.

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records. Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020. The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

The research shows that immediate booms in access to firearms almost always lead to corresponding spikes in violence.

Dr. Garen Wintemute directs the Violence Prevention Research Program at UC Davis. He wasn’t surprised that the largest increase in access to firearms in history happened alongside a parallel surge in violence.

“It can be difficult or impossible statistically to sort out the contributions that any one of these [phenomena] made” to the rise in violence . . . But the bottom line is, if the prior research holds up and increases in access are associated with increases in violence, we’re in for a very rough time ahead.” ~Dr. Garen Wintemute

Please contact my office if you, a friend or family member face firearm offenses or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Not a Toy, Still a Gun

Bellingham Defense Attorney, Evidence, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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”

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Skagit County Criminal Defense, Washington Court of Appeals, , , , ,

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.