Category Archives: Theft of Motor Vehicle

Washington’s 2022 Crime Report: Homicides Are Up, Police Staffing is Down

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The Washington Association of Sheriffs and Police Chiefs‘ (WASPC) reported that Homicides and other violent crimes increased in Washington state at a dramatic pace last year.

“The rate of murders, violent, and property crimes rose across the state, while the number of officers available to respond and serve our communities decreased again in 2022. There were 394 murders in 2022, an increase of 16.6% over 2021. This is the highest number of murders recorded since WASPC began collecting this data in 1980. Homicides have increased by 96% since 2019. Crimes against persons, property, and society all increased in 2022, and violent crimes showed an increase of 8.9%.” ~WASPC 2022 Crime Report

The report analyzed 2022’s crime data across the state. It was compiled with data from 231 state, county, municipal, and tribal agencies within Washington.

WHAT DOES THE OTHER DATA REVEAL?

Other significant trends the report disclosed were motor vehicle theft rising by 34%. Also, nearly 46% of all crimes against persons were defined as domestic violence. Moreover, 544 hate crimes were reported last year. Finally, the state logged 719 fewer arrests for drug or narcotic violations.

This data follows a pattern the state saw last year with increases in violent crime. According to WASPC’s report, violent crime increased by 12.3% from 2020 to 2021. There were 325 murders recorded in 2021, an increase of 5.9% over 2020. The year 2021 had the highest number of murders recorded before 2022 broke its record.

ENROLLMENT FOR LAW ENFORCEMENT OFFICERS DECREASED.

“The total number of commissioned officers statewide was 10,666, down from 10,736 in 2021, while the total population of the state increased by 93,262,” the report continued. “Washington again is ranked 51st out of the 50 states and District of Columbia for the number of officers per thousand residents. Reported cases of officers assaulted were 2,375 in 2022, an increase of 20.7%.”

The report said the reduced law enforcement staffing means less ability to provide justice for victims, fewer people to de-escalate, less behavioral health assistance and many agencies “treading water.”

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.

Gasoline Theft

Bellingham Defense Attorney, Gas Theft, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Vehicle Prowl, Whatcom County Criminal Defense, , , , ,

This Kamloops mechanic has seen a rise in drilled gas tanks, then it happened to him | iNFOnews | Thompson-Okanagan's News Source

King5.com reports that local police departments are warning residents of a potential increase in gas thefts.

In Everett alone, at least seven gas thefts have been reported in the past six months. Some gas thieves are using rubber hoses to siphon the fuel out while others are using power tools to drill holes in gas tanks. Residents are advised to park their vehicles in well-lit areas or in garages to deter thieves.

Other communities in western Washington are also reporting gas theft. In Lacey, a suspect was seen siphoning gas out of a minivan on surveillance video. This took place at the Lacey Veterans Service HUB, according to the Lacey Police Department.

Gas prices hit an average of $4.79 Wednesday in the Seattle-Bellevue-Everett area and an average of $4.63 statewide, according to AAA. Nationally, a gallon of gas costs about $4.25 according to data from AAA. This is the highest price it’s been since 2014, as the country was pulling out of the 2008 recession.

“This is a sign of the times, you know . . . It’s thieves looking for ways that they can make money by stealing what is becoming an increasingly more expensive and valuable commodity, gasoline.” ~Doug Shupe, Corporate Communications Manager, AAA

The surge in price is being spurred on partially by high demand as the country begins to return to normal after the omicron surge of COVID-19, global oil instability thanks to the Russian invasion of Ukraine, and renewed worries about domestic production after President Joe Biden announced a total ban on Russian energy imports as punishment for the invasion.

Theft of gas poses serious danger risks. Interfering with gas pipes or gas meters is a dangerous crime, putting personal safety on the line and the safety of other people and neighboring properties. Gas theft can also carry hefty repercussions for those found guilty.

Gasoline theft is a type of theft where the criminal steals gasoline from another without paying market value for it. Gasoline theft is more common when oil prices rise. It typically occurs in one of two ways: pump and run and siphoning.

Pump and runs occur when the criminal pumps gas at a gas station and leaves without paying. Most gas stations require payment prior to pumping, so this type of gas theft is no longer very common.

Siphoning is a method of stealing gas from someone’s car. The perpetrator siphons off the gas by sticking a hose into another car’s gas tank and sucking the gas out. The thief siphons the gas into their gas can. Gas is usually siphoned from parked cars.

For a criminal to be found guilty of gas theft, three elements must be proven:

  1. The defendant knowingly took the gasoline;
  2. The gasoline belonged to another person or entity (such as a gas station); and,
  3. The defendant intended to deprive the owner of its use.

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

FBI Releases 2019 Hate Crime Statistics

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Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

A Snowmobile IS a Motor Vehicle

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Search warrant in Innisfil leads to charges in snowmobile theft ...

In an interesting turn – and a razor-thin 5-4 decision – the WA Supreme Court’s State v. Tucker reversed an earlier decision by the WA Court of Appeals and found that a snowmobile IS, in fact, a “motor vehicle” for purposes of Washington’s Theft of a Motor Vehicle statute.

BACKGROUND FACTS

I recently blogged about this case last year. In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Therefore, her conviction remained unchanged on the theft of a motor vehicle charge.

Ms. Tucker appealed the conviction. The WA Court of Appeals reversed the lower court. Relying on Barnes, a majority of that court held that the statute criminalizes only theft of “a car or other automobile.”

Apparently, the story didn’t end. This time, the State appealed the case to the WA Supreme Court, who seems to have made a final decision on the matter (for now).

COURT’S ANALYSIS AND CONCLUSIONS

The WA Supreme Court reasoned that the WA legislature defined “motor vehicle” as a self-propelled device that is capable of moving and transporting people or property on a public highway.

The Court reasoned that Washington’s vehicle and traffic laws define “Motor Vehicle” as a vehicle that is self-propelled or a vehicle that is propelled by electric power obtained from overhead trolley wires but not operated upon rails.  Also, “Vehicle” is further defined as a “device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway.”

“So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function). Where, as here, the legislature has provided a definition, we are not free to create our own.”

It also reasoned that although the trial judge said that a snowmobile is a motor vehicle in part because a snowmobile must be licensed (at least in some situations), the legislature’s definition of “motor vehicle” says nothing about a licensing requirement. “Although such a requirement may provide the courts with a useful test, we cannot simply create a new requirement out of thin air.”

Furthermore, reasoned the Court, a “snowmobile” is a self-propelled device that is capable of moving and transporting people or property on a public highway. Here, the court reasoned that although people generally don’t operate snowmobiles – which are designed for use on snow and ice – on public highways, Washington’s  Snowmobile Act not only makes clear that a snowmobile is capable of moving and transporting people or property on a public highway, at least when the highway is covered with snow or ice, but also makes clear that it is legally permitted to do so.

“In sum, a snowmobile satisfies the definition of “motor vehicle” provided by the legislature.”

Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Tucker’s conviction.

Please contact my office if you, a friend or family member face criminal charges like Theft of a Motor Vehicle. Hiring an experienced, competent attorney who knows and understand the law is the first and best step toward justice.

“You’re In Contempt!”

Bellingham Defense Attorney, Contempt of Court, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Contempt of Court and Child Custody - TDC Family Law

In State v. Dennington, the WA Court of Appeals held that a criminal defendant who responded inappropriately to the judge after the judge scolded him for making an inappropriate reference to the prosecutor’s personal appearance was properly found in contempt.

BACKGROUND FACTS

The State charged Dennington with multiple offenses related to vehicle theft. To ensure sufficient time to conduct witness interviews, defense counsel filed a motion to continue Dennington’s trial date, which the court granted over Dennington’s personal objection.

At the close of this discussion, Dennington made a reference to the prosecutor’s personal appearance, stating that “she needs to lose weight somehow.”

The defendant’s comment prompted the following hostile verbal exchange between the judge and defendant, who turned his back and walked away at least two times during their exchange:

The Court: Let’s go. Sir, you need to watch your conduct in my courtroom. Come back here.
Defendant: I don’t respect you. I don’t respect the court.
The Court: I got it—
Defendant: I don’t respect the liars that you entertain in your court.
The Court: But your conduct in my courtroom is important.
Defendant: Do something about it. I don’t care about that.
The Court: All right, I’m going to find you in contempt of court, sir.
Defendant: Thank you.
The Court: I’m going to add 30 days to your sentence, whatever it may be.
Defendant: Add it to my sentence. I’m not guilty.
The Court: You need to do an order on that.
Prosecutor: Thank you, your Honor.
Defense Counsel: Your Honor, I’ll just—
The Court: It wasn’t to his sentence. You may note your objection, but your client’s conduct in this courtroom is unacceptable, so he’s got 30 days in contempt of court.

Dennington later pled guilty to two counts of taking a motor vehicle without permission in the second degree.  Dennington appealed from the order holding him in contempt of court. On appeal, he argued that the contempt order must be reversed because (1) his actions did not constitute contempt of court under RCW 7.21.010, and (2) he was never given the statutorily required opportunity to speak in mitigation after the trial court held him in contempt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by describing the statute defining Contempt of Court. Contempt of court is defined as intentional (a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings; (b) Disobedience of any lawful judgment, decree, order, or process of the court; (c) Refusal as a witness to appear, be sworn, or, without lawful authority, to answer a question; or (d) Refusal, without lawful authority, to produce a record, document, or other object.

Also, the court found that the Contempt of Court statute requires that “the person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise.

“This is so because the opportunity to mitigate does not enable the contemnor to avoid the finding of contempt but, rather, permits a contemnor to apologize for, defend, or explain the misconduct that the court has already determined constitutes contempt in an effort to mitigate the sanctions to be imposed,” said the Court, citing Templeton v. Hurtado. 

Here, the Court of Appeals reasoned that the judge properly found the defendant in contempt of court:

“Dennington’s actions—rudely commenting on the prosecutor’s physical appearance and, when admonished to adjust his behavior, turning his back on the judge and explicitly and rudely telling the judge that he did not respect the court or others involved in his case—plainly presented a direct threat to the authority and dignity of the court and to maintaining proper decorum during court proceedings . . . Dennington’s behavior, left unaddressed, could have encouraged others to similarly disrespect the court or similarly disrupt proceedings.”

However, the Court of Appeals also ruled that Mr. Dennington was denied his statutory right to speak in mitigation of his contempt. “Second, the court never asked Mr. Dennington if he had anything he wished to say to mitigate his contempt, said the Court of Appeals. “Following the summary contempt finding, the court was statutorily required to offer Dennington the opportunity to allocute in mitigation of his contempt before imposing sanctions. Here, the court erred by not doing so.”

With that, the Court of Appeals affirmed the finding that Dennington was in contempt, yet reversed the sanction imposed.

My opinion? Granted, it’s difficult for many defendants to be under the authority of a judge’s decision. However, respecting the judge is a necessary formality and like most formalities, it has very real purposes. Whether you actually respect the judge is irrelevant. At the end of the day, the judge is the one calling the shots. Therefore, it is symbolically important for everyone to make a showing of deference at the outset of the proceedings.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced attorney is the first and best step toward gaining justice.

A Snowmobile Is Not a Motor Vehicle

Bellingham Defense Attorney, Burglary, Malicious Mischief, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Theft of Motor Vehicle, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for snowmobile theft

In State v. Tucker, the WA Court of Appeals held that a snowmobile is not a motor vehicle for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle.

BACKGROUND FACTS

In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Ms. Tucker timely appealed this aspect of her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals reviewed existing caselaw under State v. Barnes and concluded that, similar to the riding lawn mower in the Barnes case, a snowmobile is not a motor vehicle.

“Here, a snowmobile is not a car or other automobile. To paraphrase the Barnes lead opinion, the legislature was responding to increased auto thefts, not increased snowmobile thefts.”

The Court of Appeals rejected the State’s argument that the stolen snowmobile should be classified as a motor vehicle because at the time and place it was stolen, a snowmobile was the only vehicle capable of transporting people or cargo. It reasoned that transporting people or cargo is not the touchstone agreed to by six justices in the Barnes Case.

“The concurring justices never stated that transporting people or cargo was a relevant consideration,” said the Court of Appeals. “Also, the lead and concurring justices also required the vehicle to be a car or other automobile. A snowmobile obviously is not a car or other automobile.”

The Court of Appeals concluded that because a snowmobile is not a car or other automobile, a snowmobile is not a motor vehicle for purposes of the statute. The Court reversed Ms. Tucker’s conviction for theft of motor vehicle and instructed the trial court to dismiss that conviction.

My opinion? Excellent decision. The Court appropriately relied on the Barnes decision and made the right decision.

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

Unlawful Opinion Testimony of Police Officer

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Chicago cops reluctantly testify against 1 of their own

In State v. Winborne, the WA Court of Appeals held that an officer’s use of the word “reckless” or “eluding” while testifying in a Felony Eluding trial was improper opinion testimony.

BACKGROUND FACTS

The State of Washington charged Tishawn Winborne with Theft of a Motor Vehicle, two counts of Attempting to Elude a Police Vehicle, one count of Second Degree Assault, and one count of Third Degree Assault. The assault charges arise from his resisting
of police officers.

At the start of trial, Tishawn Winborne made a motion in limine to prohibit the State’s witnesses from testifying regarding ultimate factual issues such as whether Winborne “eluded” or drove “recklessly.” However, the trial court denied the motion. For those who don’t know, a motion in limine is a pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

During trial, State witnesses repeatedly testified to Tishawn Winborne’s driving “recklessly” or “eluding” law enforcement. At the close of the State’s case, the trial court dismissed the Theft of a Motor Vehicle charge because of insufficient evidence.

The jury found Tishawn Winborne guilty of both counts of Attempting to Elude a Police Vehicle, but acquitted Winborne of both assault charges.

Winborne appealed. Among other issues, he challenged the trial court’s denial of his motion in limine to prohibit any witness from testifying that Winborne drove “recklessly” or “eluded” police.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that no witness, lay or expert, may testify to his or her opinion as to the guilt of a defendant, whether by direct statement or inference. Whether testimony provides an improper opinion turns on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.

Next, the Court held this case was similar to the controlling precedent of State v. Farr-Lenzini:

“The state trooper in State v. Farr-Lenzini did not employ the word “reckless” in his testimony as did officers in Tishawn Winborne’s trial. Nevertheless, the same reasoning behind excluding the testimony applies. An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.”

Finally, the Court of Appeals held that the trial court abused its discretion by denying Tishawn Winborne’s motion in limine. It reasoned that the State’s police officer witnesses testified by direct statements to Tishawn Winborne’s guilt. “Whether Tishawn Winborne drove ‘recklessly’ or ‘eluded’ the officer is an element of attempting to elude a police vehicle,” said the Court. “A law enforcement officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability.”

With that, the Court of Appeals reversed Tishawn Winbome’s convictions for Felony Eluding a Police Officer and remanded for a new trial.

My opinion? Good decision. The Court of Appeals is correct in saying that a police officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability. This is true. Instinctively, most jurors give much weight to the testimony of police officers. And the police officers know that. For those reasons, it is imperative for defense attorneys to argue pretrial motions in limine asking the trial judge to prohibit the police officers from offering their opinions at trial and to take exception to the court’s adverse rulings; thus preserving the issue for appeal. Kudos to the defense attorney in this case.

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.

Witness Tampering

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FCC Regulates Prison Phone Call Prices: No More $14 a Minute Rates

In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.

BACKGROUND FACTS

The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.

COURT’S ANALYSIS & CONCLUSIONS

Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this opinion.

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.

Lawnmowers Aren’t Vehicles

"Plain Meaning" Rule, Bellingham Defense Attorney, felony, Property Crimes, Skagit County Criminal Defense, Theft, Theft of Motor Vehicle, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for riding lawn mower with beer

In State v. Barnes, the WA Court of Appeals Division III held that a riding lawnmower is not a “motor vehicle” for the the crime of Theft of a Motor Vehicle.

On June 22, 2015, defendant Joshua Barnes and a female companion, Danielle Goodman, drove a white pickup to Judy Fraker’s property near Leavenworth. Fraker was home. Barnes exited the pickup, mounted Fraker’s riding lawnmower, and started the mower’s motor. The mower was a Craftsman, gas-powered, self-propelled riding lawnmower, with a twenty-six horse power engine. Barnes drove the lawnmower up a ramp and into the bed of his pickup.

Fraker exited her home, confronted Barnes, ordered him to remove her lawnmower from his pickup and leave her premises. Barnes obeyed. Two days later, Barnes admitted to law enforcement that he attempted to steal the riding lawnmower.

The State of Washington charged Barnes with Theft of a Motor Vehicle, Driving With License Suspended in the Third Degree, and Criminal Trespass in the Second Degree. Barnes argued a Knapstad Motion to dismiss the allegation of Theft of a Motor Vehicle under arguments that the evidence was insufficient because a lawnmower is not a “motor vehicle.” The trial court agreed and dismissed the charge of theft of a motor vehicle without prejudice. The State pursued appealed.

The Court began by saying that Washington follows the “Plain Meaning” rule. In other words, to determine legislative intent, this court looks first to the language of the statute. If the statute’s meaning is plain on its face, the court will give effect to that plain meaning as the expression of what was intended. Here, the Court reasoned that a riding lawnmower meets the elements· of ‘motor vehicle’ if we read RCW 46.04.320 and .670 literally.

Nevertheless – and in a surprising twist – the Court questioned whether we should always follow the Plain Meaning principle. First, “The legislature sometimes uses inept language in expressing its intent,” reasoned the Court. Second, courts should interpret statutes to affect their purpose. “Therefore, any unlikely, absurd, or strained consequences resulting from a plain and literal reading of the statute should be avoided and a literal reading of RCW 46.04.320 and its definition of “motor vehicle” would lead to unintended and silly results,” reasoned the Court:

“As argued by Joshua Barnes, a literal reading of RCW 46.04.320 and its definition of ‘motor vehicle’ would lead to unintended and silly results. An iRobot Roomba, a self-propelled vacuum, would be a motor vehicle, since one could transport small property on the Roomba. A jokester could place her cat on top of the vacuum and send the iRobot Roomba down her neighborhood street. Theft of a child’s remote control car that includes a doll in the driver’s seat would also qualify for theft of a motor vehicle if we literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065 should assist in limiting a literal meaning of the ‘motor vehicle’ definition.”

With that, the Court of Appeals affirmed the superior court’s dismissal of charges against Joshua Barnes for theft of a motor vehicle. “A riding lawnmower is not a motor vehicle for purposes of theft.”

My opinion? Good decision. I’ve argued many pretrial motions where my opponent’s statutory interpretations lead to absurd results. Sometimes, we must point out the obvious.

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.

State v. Howerton: Citizen 911 Call Supports Terry Stop

911 Call, Bellingham Defense Attorney, Constitutional Rights, Due Process, Jury Trial, law enforcement, misdemeanor, police, Property Crimes, Search and Seizure, Terry Stop, Theft of Motor Vehicle, Washington Court of Appeals, , ,

terry stop | Nevada Public Radio

In State v. Howerton, the WA Court of Appeals held that a citizen informant’s 911 call was reliable enough to support a Terry stop. The citizen informant provided her name, address, and telephone number to the dispatch, included a statement that she had just witnessed the crime, objective facts that indicated criminal rather than legal activity, and an offer to speak with the police if they needed to contact her.

On September 29, 2013, at 2:00 a.m., Laura Parks called 911 from her cell phone to report that she just witnessed someone break into a van parked across the street from her house. She provided her name, address, and telephone number to the dispatcher. Parks described the suspect as a black male, average build, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. She stated he left the area on foot and was heading south on Second Avenue in Burien, Washington.

Police responded to the call and began searching the area for the subject. They contacted a man identified as Delante Howerton matching the description. Howerton was handcuffed. Police noticed a blade sticking out of Howerton’s sleeve. When searched Howerton for weapons, police officers found a foot-long bread knife and a screwdriver on Howerton’s person.

Ms. Parks confirmed that Howerton was the individual she saw break into the van earlier.

Howerton was charged with attempted Theft of a Motor Vehicle, Making or Possessing Vehicle Theft Tools, and Intimidating a Public Servant. The trial court later dismissed the charge of intimidating a public servant. Howerton moved to suppress evidence obtained as a result of the investigatory detention. Specifically, Howerton argued Hutchinson lacked reasonable articulable suspicion to detain him when Hutchinson’s only source of information was from a named but unknown telephone informant. After a CrR 3.5 and CrR 3.6 hearing, the trial court denied Howerton’s motion to suppress.

A jury convicted Howerton of misdemeanor second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. He appealed.

The Court of Appeals upheld Howerton’s conviction and ruled his stop/arrest was lawful under Terry v. Ohio. They reasoned that an investigatory Terry stop is permissible if he investigating officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. A reasonable suspicion is the substantial possibility that criminal conduct has occurred or is about to occur. A reasonable suspicion can arise from information that is less reliable than that required to establish probable cause.

The Court further reasoned that an informant’s tip can provide police with reasonable suspicion to justify an investigatory Terry stop if the tip possesses sufficient “‘indicia of reliability.'” Courts employ the totality of the circumstances test to determine whether an informant’s tip possessed sufficient indicia of reliability to support reasonable suspicion.

When deciding whether this indicia of reliability exists, the courts will generally consider several factors, primarily “(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant’s tip.” Known citizen informants are presumptively reliable.

Here, the Court further reasoned that Parks’s 911 call demonstrated a sufficient factual basis to provide reasonable suspicion for the seizure:

Here, Parks unequivocally indicated to the 911 dispatcher that she was an eyewitness. When she called 911, she told the dispatcher, “I just saw a robbery.” She provided her full name, her address, and her telephone number. She indicated that she was willing to speak with police if they needed to contact her. She told the dispatcher the incident occurred “directly across the street” from her house and that it “just now happened.” She stated that an individual “broke into a car.” She said she actually saw him enter the car.

She gave a detailed description of the suspect—black male, average build, short hair, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. The dispatcher immediately broadcast this description via radio to officers. Parks stated that the suspect just left the scene heading south on Second Avenue. She also accurately described the street location. Further, Parks reported objective facts that indicated criminal rather than legal activity.

The court further elaborated that Ms. Parks reinforced her factual basis for these allegations by stating that the incident “just now happened” and that the car was directly across the street from her house. Parks reported facts she personally observed. The Court decided the information was reliably obtained and that the police corroborated the information from Ms. Parks’ tip.

Consequently, the totality of the circumstances supported Howerton’s  Terry stop. The Court of Appeals upheld his conviction.

Please review my Search and Seizure Legal Guide and 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.