Category Archives: Skagit County Criminal Defense

Domestic Violence & Cell Phone Privacy

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Privacy, Skagit County Criminal Defense, Technology, Violent Crime, Washington Privacy Act, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.

BACKGROUND FACTS

John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. During the incident, Mr. Smith used the home’s landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone’s voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female and name calling by the male.

Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.’ Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.

The State charged Mr. Smith with attempted first degree murder, attempted second degree murder, first degree assault, and second degree assault for the incident.

The Motion to Suppress & Trial

Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the Washington Privacy Act, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams’s conduct did not constitute an interception. The court also ruled that Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.

The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months.

The Appeal

He appealed, and his appellate argument focused on the trial court’s denial of the motion to suppress. Smith continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.

The Court of Appeals reversed Mr. Smith’s conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a “private conversation” and (2) Mr. Smith had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. The Court of Appeals rejected Mr. Smith’s assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith’s actions violated the privacy act. The State sought review on the issue of how the privacy act is to be properly applied in this case.

ISSUE

Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court  reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.

The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.

The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.

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.

Wine Glass Sizes Are Increasing

Bellingham Defense Attorney, Drug Offenses, DUI, misdemeanor, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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An article by of the Guardian reports that scientists at the University of Cambridge have found that the capacity of wine glasses has ballooned nearly seven-fold over the past 300 years, rising most sharply in the last two decades in line with a surge in wine consumption.

Wine glasses have swelled in size from an average capacity of 66ml in the early 1700s to 449ml today, the study reveals – a change that may have encouraged us to drink far more than is healthy. Indeed, a typical wine glass 300 years ago would only have held about a half of today’s smallest “official” measure of 125ml.

Smithers reports that the university’s behaviour and health research unit quizzed antique experts and examined 18th-century glasses held at the Ashmolean museum in Oxford, glassware used at Buckingham Palace, and more recent glasses in John Lewis catalogues.

The evidence was clear: the newer glasses were bigger.

The study, published on Wednesday in the BMJ, measured wine glass capacity from 1700 to the present day to help understand whether any changes in their size might have contributed to the rise in wine consumption.

“Wine will no doubt be a feature of some merry Christmas nights, but when it comes to how much we drink, wine glass size probably does matter,” said Prof Theresa Marteau, director of the Behaviour and Health Research Unit at the University of Cambridge, who led the research.

In 2016, Marteau and her colleagues carried out an experiment at the Pint Shop in Cambridge, altering the size of wine glasses while keeping the serving sizes the same. They found this led to an almost 10% increase in sales.

Smithers reports that for the new study, the researchers obtained measurements of 411 glasses from 1700 to the modern day. They found wine glass capacity increased from 66ml in the 1700s to 417ml in the 2000s, with the mean wine glass size in 2016-17 even higher at 449ml.

“Wine glasses became a common receptacle from which wine was drunk around 1700,” says author Dr. Zorana Zupan. “This followed the development of lead crystal glassware by George Ravenscroft in the late 17th century, which led to the manufacture of less fragile and larger glasses than was previously possible.”

The study points out that alcohol is the fifth largest risk factor for premature mortality and disability in high income countries. In England, the type of alcohol and volume consumed has fluctuated over the last 300 years, in response to economic, legislative and social factors. Significantly, wine consumption increased almost fourfold between 1960 and 1980, and almost doubled again between 1980 and 2004, a trend attributed to better marketing and licensing liberalisation which allowed supermarkets to compete in the lucrative drinks retail business.

“Our findings suggest that the capacity of wine glasses in England increased significantly over the past 300 years,” added Zupan.

“Since the 1990s, the size has increased rapidly. Whether this led to the rise in wine consumption in England, we can’t say for certain, but a wine glass 300 years ago would only have held about a half of today’s small measure.”

The strength of wine sold in the UK has also increased since the 1990s, adding to the amount of pure alcohol being consumed by wine drinkers.

In England, wine is increasingly served in pubs and bars in 250ml servings, with smaller measures of 125ml often absent from wine lists or menus despite a regulatory requirement that licensees make customers aware of them.

The Wine and Spirits Trade Association said sociological trends were probably part of the reason for the growing wine glasses.

“The size of a wine glass reflects the trend and fashions of the time and is often larger for practical reasons” said the WSTA chief executive Miles Beale. “Red wine, for example, is served in a larger glass to allow it to breathe, something which perhaps wasn’t a priority 300 years ago.”

Drink responsibly. If, however, your family or friends are charged with DUI or face any other alcohol-related charges, then contact my office and schedule a free consultation. You need effective and competent representation before the judge, prosecutors and the Department of Licensing.

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, , ,

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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.

A Vehicle is a “Premises”

Bellingham Defense Attorney, Jury Trial, Lesser Included Jury Instruction, Property Crimes, Skagit County Criminal Defense, Uncategorized, Vehicle Prowl, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Joseph, the WA Supreme Court held that a vehicle is a “premises” for the purpose of the second degree criminal trespass statute because a vehicle is a type of “building” and “premises” includes “any building.”

BACKGROUND FACTS

On October 4, 2014, police responded to a report of vehicle prowling. The responding officer found defendant Anthony Joseph asleep in an unlocked Chevy Blazer on a public street in Ellensburg. The officer recognized Joseph and knew that he was homeless. The officer contacted Joseph and told him to exit the vehicle.

Initially, Joseph said that he had the owner’s permission; however, he then admitted he did not, and was arrested for vehicle prowling. The State filed charges of third degree assault and second degree vehicle prowling.’ The matter proceeded to a jury trial. The State sought jury instructions on first and second degree criminal trespass as lesser included offenses of the vehicle prowling charge. The trial court refused to instruct the jury on first degree trespass, but instructed the jury on second degree trespass, over Joseph’s objection. The State asked the court to define the term “premises” used in the second degree criminal trespass statute, but did not submit a definitional instruction. The trial court did not define “premises,” but allowed the parties to argue whether this term included a motor vehicle.

The jury acquitted Joseph of vehicle prowling, but found him guilty of second degree criminal trespass. Joseph appealed, and the Court of Appeals, Division Three affirmed his conviction, holding that a motor vehicle constitutes premises for purposes of second degree criminal trespass.

ISSUE

Whether second degree criminal trespass is a lesser included offense of second degree vehicle prowling.

COURT’S ANALYSIS & CONCLUSIONS

“This case presents a challenging question of statutory interpretation because of the overlapping and intersecting definitions of ‘building’ and ‘premises’ in Title 9A RCW,” said the Court. It reasoned that although no definition of the word “building” is available in the criminal statutes, a definition of “building” is found in RCW 9A.04.110(5), which states the following:

“(5) ‘Building,’ in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale, or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.”

Next, the Court engaged a lengthy discussion about overlapping definitions of “premises” and “building” as they applied to legislative amendments to the criminal trespass statute and the Washington Pattern Jury Instructions.

Also, the court said that the legislature plainly intended second degree criminal trespass to encompass trespass into any “building” as defined in the criminal code, RCW 9A.04.110(5), save for trespass into a building in its ordinary sense. “This interpretation properly restricts first degree trespass to unlawful entries into ordinary ‘buildings,’ a descriptor that needs no further definition,” said the Court.

The more severe charge (a gross misdemeanor) is justified by the increased likelihood of trespass into a home or business.

“All other trespasses fall under the term “premises” and are treated as simple misdemeanors. RCW 9A.52.080. This includes trespasses into premises that are “buildings” broadly conceived, but are not ordinarily thought of as buildings—as relevant here, vehicles.”

The Court reasoned that under this interpretation, the trial court properly instructed the jury on second degree criminal trespass as a lesser included offense of second degree vehicle prowling. “Because the evidence supports the jury’s verdict, we affirm Joseph’s
conviction.”

My opinion? Clearly, legal definitions can be broadly interpreted; sometimes to the point of absurdity. However, it is not unreasonable to accept the notion that vehicles can actually be a premises. Many impoverished people live and sleep in their vehicles. If a man’s home is his castle, and the castle is a vehicle, then the vehicle is his castle, no?

Please contact my office if you, a friend or family member face criminal charges.

“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.

The Feds on Crime Under Jeff Sessions

Bellingham Defense Attorney, Federal Crimes & Prosecutions, Immigration, law enforcement, Police Misconduct, Race & Law, Sentencing, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

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Excellent news article by Matt Zapotosky and Sari Horwitz of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Immigration
Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

 

Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

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.

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.

Black Men Sentenced Longer

Bellingham Defense Attorney, Federal Crimes & Prosecutions, Prison, Race & Law, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,
Black men get longer prison sentences than white men for the same crime: Study - ABC News

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.

Character Evidence

Bellingham Defense Attorney, ER 404(B), Evidence, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Wilson the WA Court of Appeals held that the trial court mistakenly admitted into evidence a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
BACKGROUND FACTS
Claudine Wilson has cared for her granddaughter, B.E., since she was born on January 29, 2006. In 2010, when B.E. was four years old, Claudine married the defendant Leslie Wilson. Wilson moved into Claudine’s home in Auburn, Washington which Claudine shared with several other family members. Claudine, Wilson, and B.E. shared a bedroom. Claudine and Wilson slept in a king size bed. B.E. had her own bed in the same room, but sometimes slept with Claudine and Wilson.
Wilson and B.E. appeared to get along well. However, the marriage between Wilson and Claudine eventually deteriorated, in part due to Wilson’s alcohol use. Wilson left the household in July 2012. About five months later, in December 2012, just after Claudine spoke to Wilson on the telephone, B.E. told Claudine that Wilson had touched her.
Wilson was charged with two counts of Rape of a Child in the First Degree and one count of Attempted Rape of a Child in the First Degree.
Before trial, the State informed the trial court of its intent to present evidence of a sexual remark Wilson allegedly made to B.E.’s older cousin, S.H. Specifically, S.H. claimed that when she was 11 or 12 years old and wearing a bathing suit, Wilson remarked that she should not “wear that stuff around [him] because it gets—[him] so excited.” The State argued that this evidence showed that Wilson had a common scheme or plan to sexually assault young girls. The defense argued that the evidence showed only propensity and was inadmissible. The court ruled that S.H.’s testimony demonstrated a common scheme or plan and was admissible under ER 404(b).
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Wilson that the trial court erred in admitting a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
The Court reasoned that ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. The same evidence may be admissible for other purposes, however, depending on its relevance and the balancing of the probative value and danger of unfair prejudice. State v. Gresham. One accepted “other purpose” under ER 404(b) is to show the existence of a common scheme or plan.
The Court further reasoned that prior misconduct and the charged crime must share a sufficient number of “markedly and substantially similar” features so that the similarities can naturally be explained as individual manifestations of a general plan. The prior misconduct must be sufficiently similar to the charged crime, or else the evidence of misconduct is not probative of whether the alleged act occurred. Similarity of results is insufficient and the evidence must show more than a general “plan” to molest children. Ultimately, in doubtful cases, the evidence should be excluded.
Against that backdrop, the Court decided that the incidents described by B.E. and S.H. did not share “markedly and substantially similar” features that can naturally be explained as individual manifestations of a general plan:
“B.E. reported recurring incidents of sexual abuse. S.H. reported an isolated, sexually-oriented remark. There was a significant difference in the victims’ ages when the incidents occurred. The evidence was similar only in the respect that it tended to show Wilson’s sexual attraction to minors. S.H.’s testimony did not demonstrate the existence of a common scheme or plan. In view of the limited evidence presented to the jury, we cannot say that the admission of the ER 404(b) evidence did not materially affect the trial within reasonable probabilities.”
With that, the Court of Appeals reverse Wilson’s conviction of Rape of a Child.

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.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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

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

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

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