Category Archives: felony

(Online!) Organized Retail Theft: No Such Thing

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Organized Retail Theft, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Theft Prevention (Retail) – Online Pretrial Education

In State v. Lake, the WA Court of Appeals held that Theft by ordering items online from catalogs will not support a conviction for second degree organized retail theft because the takings are not from a “mercantile establishment;” a phrase which only applies to a physical establishment.

BACKGROUND FACTS

In 2017, Ms. Lake was living in a senior living apartment complex. In February 2017, she placed three catalog orders with different companies using the names and accounts of other apartment complex residents. She had the items delivered to her as “gifts.”

One of the residents noticed that someone had placed an order using her credit account. She reported the suspicious order to the front office and made a fraud complaint with the police. After an investigation, the State charged Lake with one count of second degree organized retail theft, three counts of first degree identity theft, and two counts of second degree possession of stolen property.

At the close of the State’s case, Lake moved to dismiss the second degree organized retail theft charge because there was no evidence that she obtained goods form a “mercantile establishment” as required for that charge. The trial court denied the motion.

The jury found Lake not guilty of one count of first degree identity theft but guilty of the lesser degree offense of second degree identity theft. The jury found Lake guilty of the other five charged counts.

Lake appealed her convictions on arguments that her thefts involving online catalog purchases were not from a mercantile establishment.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals concluded that the term “mercantile establishment” was ambiguous, and applied the Rule of Lenity to hold that Lake’s thefts were not from a mercantile establishment.

The Court gave the framework for reaching its decision. It reasoned that if the plain language of the statute is susceptible to more than one reasonable interpretation, the statute is ambiguous.

“We first attempt to resolve the ambiguity and determine the legislature’s intent by considering other indicia of legislative intent, including principles of statutory construction, legislative history, and relevant case law . . . If these indications of legislative intent are insufficient to resolve the ambiguity, under the rule of lenity we must interpret the ambiguous statute in favor of the defendant.”

With that, the Court of Appeals examined the definition of “mercantile establishment.” In order to prove the charge, the State had to prove that Lake committed theft of property with a cumulative value of at least $750 from one or more “mercantile establishments.”

“The question here is whether fraudulently purchasing items online from a catalog constitutes theft from a mercantile establishment, or whether that term is limited to physical retail stores,” said the Court.

The court reviewed former RCW 9A.56.360 which gave a working definition of “mercantile establishments” as it applied to the crime of retail theft with special circumstances:

(1) A person commits retail theft with special circumstances if he or she commits theft of property from a mercantile establishment with one of the following special circumstances: (a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit; (b) The person was, at the time of the theft, in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome security systems including, but not limited to, lined bags or tag removers.

Here, reasoned the court, former RCW 9A.56.360 shows that the legislature intended to stop thefts from physical retail stores:

“Only a physical store has a ‘designated emergency exit’ and employs security systems that can be overcome by ‘lined bags’ or ‘tag removers.’” ~WA Court of Appeals

Consequently, the Court concluded that the statutory term “mercantile establishment” was ambiguous. And because the term “mercantile establishment” remains ambiguous, the Court applied the rule of lenity and interpreted the ambiguous statute in favor of Ms. Lake.

“Therefore, we hold that the trial court erred in denying Lake’s motion to dismiss because the evidence was insufficient to convict Lake of second degree organized retail theft,” said the Court. With that, the court dismissed the charges.

My opinion? Good decision. The Prosecutor should have sought different charges under these circumstances. Clearly, the organized retail theft statute clearly applies to brick-and-mortar businesses.

As a side-note, the Rule of Lenity is a rarely used criminal defense argument. In most cases, the definitions of terms are discussed in the legislative intent of statutes and/or found in the criminal statutes themselves. This case shows that when the Rule of Lenity is correctly applied, it’s quite powerful.

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

Illegal Search At Starbucks

Bellingham Defense Attorney, Community Caretaking, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Starbucks incident, Philly cops and employees acted 'in ...

In State v. Martin, the WA Court of Appeals held that the illegal search of a person in a Starbucks store should have been suppressed because the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket.

BACKGROUND FACTS

On December 11, 2017, Officer Bickar responded to a 911 call from a Starbucks employee, requesting assistance with the removal of a sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Martin was the person identified in the 911 call.

When Bickar approached Martin, he noticed Martin was wearing multiple jackets that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive.

Bickar noticed the end of a metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns about sharp needles.

Without feeling the outside of the pocket, Bickar removed the utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that point, Bickar determined that he had probable cause to arrest Martin for Possession of Drug Paraphernalia and continued searching Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and other drug paraphernalia. Martin was arrested.

Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin’s motion to suppress.

Martin proceeded to a stipulated bench trial on the charge of unlawful possession of a controlled substance. The court found Martin guilty. The court sentenced Martin to 30 days of confinement. Martin appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court held that the search was not a valid Terry search. It explained that while Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, non-intrusive search for weapons if, after a lawful Terry stop, a reasonable safety concern exists to justify the protective frisk for weapons so long as the search goes no further than necessary for protective purposes.

“A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.

Here, however, the Court of Appeals found the search was not a justifiable under Terry:

“This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the trial court’s finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the premises. Also absent from the record is evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety concern.” ~WA Court of Appeals

Consequently, the Court held the search was not lawful under Terry because there was no reasonable suspicion that a crime had been committed, there was not a reasonable safety concern, and the search exceeded the lawful scope of a frisk.

The Court also rejected the State’s arguments that the search was lawful under the community caretaking exception to the warrant requirement. It explained that the community caretaking exception applies when (1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.

“Officer Bickar did not subjectively believe an emergency existed and a reasonable person in the same situation would not believe there was a need for assistance,” said the Court. “Furthermore, even if the community caretaking exception applied to this search, a simple pat-down on the outside of Martin’s coat pocket would have alleviated any concern that the metal utensil was a sharp object or weapon.” Consequently, the Court held that removing the spoon violated Martin’s right to be free from unreasonable searches and seizures.

With that, the Court of Appeals vacated Martin’s conviction.

Please contact my office if you, a friend or family member face criminal charges in the aftermath of a questionable search and seizure of their home, car or person. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Forged Bank Applications

Bellingham Defense Attorney, felony, Forgery, Money Laundering, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Victim of union forgery files lawsuit

In State v. Smith, the WA Court of Appeals held that a forged bank application is a “written instrument” under Washington’s forgery statute.

BACKGROUND FACTS

Smith’s convictions arose from his involvement in certain transactions with his two half-brothers. The transactions involved creating auto dealer businesses and using invalid social security numbers to obtain loans from credit unions to purchase cars from the auto dealers. The men then would deposit the loan amount into a bank account for one of the auto dealer businesses but would not actually complete the car sale.

Eventually, Mr. Smith was charged and convicted of one count of first degree theft, two counts of forgery, and one count of money laundering. He appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. Legal Principles

The court held the State gave sufficient evidence of forgery. It reasoned that under the forgery statute, “A person is guilty of forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.” Also, the court reasoned that under the common law, a “written
instrument” is defined as a writing that has legal efficacy. Under this definition, “a writing can support a forgery charge only if the writing would have legal efficacy if genuine.”

       2. Legal Sufficiency of Bank Account Applications

The Court gave the statutory definition of a “written instrument” as (a) Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification.

Under this definition, the Court reasoned that a bank loan application fits the definition of a written instrument:

“In general, bank account applications initiate a contractual relationship between the bank and the depositor that, once accepted by the bank, create rights in and impose obligations on both parties. Depositors give money to the bank in exchange for the bank’s services. The bank services the depositor’s account in exchange for fees and the use of the depositor’s funds.” ~WA Court of Appeals

Also, the Court reasoned that the “Certificate of Authority” portion of the bank application provided that anyone who signed the application certified that he or she was authorized to act with respect to the account and any agreements with Wells Fargo, to make payments from the account, and to give instructions to Wells Fargo regarding the transaction of any business relating to the account.

“Therefore, the bank account applications at issue here provided the foundation of legal liability and had legal efficacy under the forgery statute,” said the Court. “Accordingly, we hold that sufficient evidence supports the conclusion that Smith’s bank account applications had legal efficacy.”

        3. The State Established That Bank Account Applications Were Falsely Completed.

Next, the Court rejected Smith’s arguments that even if the bank account applications had legal efficacy, the State failed to establish that they were falsely completed. It reasoned that a social security number is a form of identification, and Smith’s use of the Indiana child’s social security number misrepresented that someone with that social security number was opening a bank account.

“Smith also did not have the authority to use the social security number of the child in Indiana. Accordingly, we hold that sufficient evidence supports the conclusion that Smith falsely completed the bank account applications.” ~WA Court of Appeals

      4. The Trial Court Lawfully Declined the Defendant’s Proposed Jury Instruction.

The Court of Appeals held that the trial court did not err in declining to give Smith’s legal efficacy jury instruction because the legal efficacy of Smith’s bank account applications was a question of law for the trial court.

Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant is entitled to a jury determination of every element of the charged offense. As a result, the trial court must instruct the jury on all elements of the offense.

The Court reasoned that questions of law are for the court, not the jury, to resolve, and that legal efficacy of an instrument involves issues that are uniquely within the province of the court. “This is particularly true for a document like a bank account application,” said the Court. “The jury would have no basis for determining whether a bank account application has legal efficacy.

Such a determination requires a legal analysis that could be performed only by the trial court.” Consequently, the Court of Appeals held that the legal efficacy of Smith’s bank account applications was a question of law for the trial court. “Accordingly, we hold that the trial court did not err in declining to give Smith’s legal efficacy jury instruction.”

With that, the Court of Appeals affirmed Smith’s convictions.

Please contact my office if you, a friend or family member face Forgery charges. Hiring an experienced and effective criminal defense attorney is the first and best step toward justice.

Passive Obstructing

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

Extinction Rebellion: Climate protesters dodge arrest after police ...

In State v. Canfield, the WA Court of Appeals held that a defendant’s feigning sleep when first contacted by police and his repeated refusals to obey commands was “Passive Obstructing, and supported an Obstructing a Public Servant conviction.

BACKGROUND FACTS

Law enforcement officers testified that Mr. Canfield feigned sleep when first contacted, disregarded several commands, and tried to start his vehicle as if to drive away from the scene. He also lied about his identity and tried to hide a gun while being arrested. Eventually, he was charged with numerous crimes to include Possession of Methamphetamine, Second Degree Unlawful Possession of a Firearm, Possession of a Stolen Firearm, and Obstructing a Public Servant.

At trial, the court convicted Mr. Canfield of Obstructing in addition to some of the aforementioned charges. He appealed on numerous issues, including whether there was sufficient evidence to arrest to support a conviction for Obstructing.

COURT’S ANALYSIS & CONCLUSION

The Court of Appeals reasoned upheld the lower court’s finding that Mr. Canfield hindered a public servant in the performance of his duties.

In reaching its decision, the Court of Appeals raised and dismissed Mr. Canfield’s argument that his case was similar to State v. D.E.D. That case, which was a favorable legal precedent, involved a defendant who passively resisted an investigatory detention. In that case, the Court of Appeals held the defendant’s passive resistance to being handcuffed did not constitute obstructing a public servant.

“The comparison fails,” said the Court. It further reasoned that the law imposes a duty to cooperate with an arrest and makes it a crime to resist arrest, and actions that hinder an arrest short of resisting can constitute obstructing a public servant.

“Passive resistance to a lawful arrest can constitute obstructing by itself. Here, there was additional evidence beyond the handcuffing incident, including the repeated refusals to obey commands and feigning sleep. Mr. Canfield did not merely refuse to cooperate with the police. He actively tried to hinder them.”

With that, the Court of Appeals concluded the trial court rightfully concluded that Mr. Canfield was guilty of obstructing a public servant.

Please contact my office if you, a friend or family member face criminal charges of Obstructing. Hiring an experienced and effective defense attorney is the best step towards justice.

Memorial Day DUI Patrols

Bellingham Defense Attorney, DUI, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Vehicular Assault, Vehicular Homicide, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

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The WA State Patrol (WSP) issued a press release that troopers will be out in full force to ensure motorists have a safe Memorial Day weekend. Extra troopers will be on duty to strictly enforce the “Rules of the Road” and will pay particular attention to dangerous speed, distracted driving, seat belt usage and impaired driving violations.

According to its press release, the WSP has seen a sharp increase statewide in motorcycle fatality collisions over the last few months. In 2020, 12 of the 17 motorcycle fatalities on Washington roads occurred during the month of April. Speeding was a common factor in these almost always preventable collisions. Impaired driving continues to be one of the leading causes of serious injury and fatal crashes in Washington State.

“We will have zero tolerance for drivers who are stopped and are impaired . . . Our troopers will continue to do what it takes to remove these dangerous drivers from our roads.” ~Captain Jeff Otis, WSP District 4 Commander

Also, the WSP encourages motorists who see these types of dangerous driving behaviors to call 911.

Please contact my office if you, a friend or family member face criminal charges like DUI, Reckless Driving, Vehicular Assault or any other crimes involving vehicles. Hiring an experienced attorney is the first and best step towards justice.

Victim’s Motive To Testify

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Evidence, felony, Immigration, Jury Trial, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

Some Crimes Decreasing Amid COVID-19

Bellingham Defense Attorney, Coronavirus, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Coronavirus Quarantines Spark Drop in Crime – for Now | National ...

Great article in Bloomberg by Chris Dolmetsch, Edvard Pettersson and Christopher Yasiejko reports that in the largest U.S. cities, crime has dropped since the Coranavirus Pandemic.

In short, car thefts and store robberies are spiking in some municipalities even as crime overall — especially violent offenses — dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone, according to data analysis from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,’’ said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.

Car theft is surging New York city, up 49% for the week ended April 12 as compared to the same period a year earlier. It’s risen 53% over the past month and more than 63% year to date. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%.

Robberies and burglaries dropped more dramatically in Los Angeles than some other major U.S. cities, perhaps because it closed non-essential businesses and told people to stay at home earlier than other cities, said Charis Kubrin, a professor of criminology at the University of California, Irvine.

“Property crimes are crimes of opportunity and with most businesses closed, there are simply fewer opportunities.” ~Charis Kubrin, Professor of Criminology

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop — more than 50% — as compared to the same period a year earlier.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.

“There are fewer opportunities for young people to get together . . . So there’s less chance when there’s alcohol involved for arguments to get out of hand and to result in assaults or homicides.” ~Charis Kubrin, Professor of Criminology

According to the article, most cities are showing a decline in assaults, following the trend in other violent-crimes categories. Notably, the drop-off comes even after the release from prison of thousands of non-violent offenders. That may show that many such offenders need not have been put in jail to start with.”

Theft is also down across the board in the cities surveyed.  But Kubrin said the drop in street crime may be followed by an increase in white-collar crime, such as price gauging and online fraud. “Opportunities have shifted from the street to online,” she said.

Please contact my office if you, a friend or family member face criminal charges. Hiring a competent and experienced criminal defense attorney is the first and best step toward justice.

Imprisoned At 7-11

Assault, Bellingham Defense Attorney, felony, Harassment, Jury Instructions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Unlawful Imprisonment, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Why going to 7-Eleven has become a political act - Los Angeles Times

In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Felony Voting Rights Bill Pending in WA Legislature

Bellingham Defense Attorney, felony, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Voting Rights, Whatcom County Criminal Defense, , , , ,

Image result for voting rights for felons

Excellent article in the Tacoma News Tribune by reporter James Drew describes how Senate Bill 6228 would make about 9,000 felons eligible to vote is moving ahead in the Washington state Legislature, as Democratic senators vow to expand democracy by removing a barrier they say is rooted in systemic racism.

Senate Bill 6228 would make felons automatically eligible to vote once they are released from state prison. Under current law, they are eligible once they have completed community custody — formerly known as probation — and that can take several years.

“The very essence of community custody is to get people back on the right track, to reintegrate them into society and to reduce the chances of re-offending,” said the bill’s sponsor, state Sen. Patty Kuderer, a Bellevue Democrat. “Restoring the right to vote and the right to participate in our democracy is an important tool for that reintegration process.”

“Until someone can show me that there’s a good reason to deprive someone of the right to vote because of the commission of a crime, then I will rethink that. But for now, I have seen zero evidence for that.”    ~Senator Patty Kuderer.

Stressing that her bill addresses a “major equality and social justice issue,” Kuderer said blacks and Native Americans are overly represented in the criminal justice system. As a result, they are “disproportionately stripped of their voting rights, diminishing their representation,” she said.

A Senate committee on Friday approved the bill, putting it one step closer to a vote by the Democratic-controlled Senate. If it becomes law, the measure would take effect in 2021.

Senate GOP Leader Mark Schoesler, R-Ritzville, is opposed to the bill, saying it removes an incentive for felons to fulfill obligations under community custody such as making restitution to crime victims. The bill states that sanctions for violating community custody requirements or failure to pay court costs, restitution to victims, or fines and fees would not take voter eligibility away from a former inmate.

Samuel Merrill, clerk of the criminal justice working group for the Olympia-based Quaker Voice on Washington Public Policy, said whites after the Civil War and Reconstruction adopted laws targeting former slaves for felonies to deprive them of their voting rights. The practice continued into the voter suppression laws under Jim Crow — “vestiges of which continue today,” Merrill said.

Supporters of the bill include the Washington Association of Prosecuting Attorneys, the state Department of Corrections, the ACLU of Washington, and Attorney General Bob Ferguson.

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.

Support Legislation Ending Felony Charges for Missing a Court Hearing

Bail, Bail Jumping, Bellingham Defense Attorney, Criminal Justice, felony, Jail, Legislation, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for jumping bail

Did you know that a person who misses just one court hearing can be charged with Bail Jumping and be convicted of a new felony simply for missing that court hearing?

Fortunately, legislation proposed by WA Representative Mike Pellicciotti could possibly end this travesty.

THE PROBLEM

When the Legislature enacted the “Bail Jumping” statute, the intent wasn’t to criminalize every missed court date or failure to appear (FTA), rather lawmakers wanted to give the courts a tool to deter people charged with serious crimes from fleeing.

The legislature gave discretion to prosecutors to add a felony charge if someone “jumped bail.” Sadly, this prosecutorial discretion is being overused. The charge of “Bail Jumping” has now led to a long list of unintended consequences that disproportionately harm Washington’s low income and most marginalized citizens.

Research shows that most people charged with “Bail Jumping” were not intentionally avoiding court. Many had difficult life circumstances that made it hard or impossible to attend a court hearing on a particular day. They were not fleeing from the court, and they wanted to resolve their cases.

Research also shows that many people who miss court are experiencing difficulties with transportation, childcare, job disruption, homelessness, health problems, mental illness and other challenges related to poverty. Under current “bail jumping” laws, Washington disproportionally and unjustly allows for longer criminal sentences for people who are low-income or experiencing a crisis for the charge of “Bail Jumping” even though that was never the legislature’s intent.

THE SOLUTION

WA HB 2231 is legislation would would amend the current Bail Jump statute in two ways: (1) it makes bail jumping a misdemeanor, and (2) it requires the state to prove that a person received written notice of the court date that the person missed.

Here is a position paper about the bill. It is supported by the WDA, ACLU, WACDL, the Northwest Community Bail Fund and numerous other organizations.  This bill sponsored is by Mike Pellicciotti of the (Democratic Party). He is a member of the Washington House of Representatives, representing District 30-Position 1.

My opinion? This is great legislation.

Please contact my office if you face felony charges which include Bail Jumping. These charges are often used by prosecutors to coercively leverage a plea. Although there are substantive defenses to the charge, those who face barriers getting to court are frequently subject to this coercive manner of resolving cases that results in an unjust and disproportionate number of convictions for the most vulnerable.