Category Archives: Washington Court of Appeals

NCO’s & Double Jeopardy

Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

In State v. Madden, the WA Court of Appeals held that a defendant who contacted a person with three separate No-Contact Orders (NCO’s) against him may only be punished for a single count of Violation of a No-Contact Order.

BACKGROUND FACTS 

Mr. Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of Violating a No-Contact Order (DV). The jury found him guilty as charged. Madden appealed on arguments that his three convictions for violation of a no-contact order violated Double Jeopardy principles

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began with the background that Article I, section 9 of the WA State Constitution and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense.

“When a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act,” said the Court, quoting State v. Mutch.  “It must be manifestly apparent from the record, testimony, and argument that identical charges are based on separate acts.”

Furthermore – and importantly – the Court of defined what a “Unit of Prosecution” was. “Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the Rule of Lenity requires a court to resolve ambiguity in favor of one offenses,” said the Court.

Consequently, the Court reasoned that while Mr. Madden violated multiple court orders, he committed only one act constituting a “violation.” The Court further reasoned that the State cites no case in which a court allowed multiple convictions under a single statute based on a single act. Finally, the court reasoned that when a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act. “Any other interpretation would lead to an unconstitutional result.”

With that, the Court of Appeals reversed counts two and three of Madden’s No-Contact Order Violation convictions.

Please read my Legal Guide Defending Against Domestic Violence Charges and contact my office if you, a friend or family member are charged with Domestic Violence crimes, including Assault and/or No-Contact Order Violations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Jail Phone Calls

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My clients in jail often ask me whether their phone calls from jail are recorded by the jail staff. In short, yes, they are. A recent case gives helpful insight to this  issues.

In  State v. Koeller, the WA Court of Appeals held that a jail inmate’s phone call with counsel that was recorded and was accessed by a deputy prosecuting attorney (DPA) did not establish a basis for dismissal of charges.  The DPA was the only person who accessed the 15-minute long call, and he stopped listening to the call after 8 seconds when he recognized defense counsel’s voice.

BACKGROUND FACTS

The defendant Mr. Koeller was alleged to have sexually abused his stepdaughter for years. The State also alleged aggravating circumstances of domestic violence and of an ongoing pattern of sexual abuse.

The Island County jail records incoming and outgoing phone calls, except for calls from attorneys. On October 11, 2017, Defense Counsel Mr. Platt provided his cell phone number to the Island County jail so the automated recording system would not record any calls made between him and the defendant Mr. Koeller. The jail failed to do so.

The next day, Island County chief criminal deputy prosecutor (Prosecutor) checked the automated recording system and saw Koeller made an outgoing, 15-minute phone call that day. Prosecutor began playing the call and heard Defense Counsel’s voice, so he shut off the recording. Prosecutor heard only eight seconds of the phone call. He immediately told Defense Counsel about the recording and told the jail to register Defense Counsel’s phone number because it had failed to shield Platt from being recorded.

On March 26, 2019, about one week before the scheduled start of trial, Koeller filed a CrR 8.3(b) motion to dismiss as a result of the recording. The court denied the motion. In its ruling, the court found no one else “in connection with the State of Washington listened to the conversation.”

At trial, Koeller was convicted of multiple charges, including first degree child molestation. He appealed on arguments that the trial court mistakenly denied his Motion to Dismiss.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that a criminal defendant has a constitutional right to confer privately with Defense Counsel. Where the government violates this right, it creates a rebuttable presumption of prejudice to the defendant.

Here, however, Prosecutor heard only eight seconds of the call between Koeller and Defense Counsel. He heard no substance of the conversation and no one else in connection to the Prosecutor’s Office listened to the conversation. The State did not obtain any information material to the defense.

“Although Koeller argues the court abused its discretion because the State did not prove Chief Briones did not listen to the call, the trial court found otherwise, and its finding is supported by substantial evidence. Because the court’s findings support its conclusion that Koeller was not prejudiced, the court did not abuse its discretion by denying the CrR 8.3(b) motion to dismiss.” ~WA Court of Appeals.

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.

Right to Present a Defense

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In State v. Jennings, the WA Court of Appeals held the trial court’s exclusion of a shooting victim’s toxicology report indicating the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.

BACKGROUND FACTS

On the date of the incident, the defendant Mr. Jennings accompanied his friend Mr. Redman to get Redman’s car from a mobile home in Puyallup, Washington. Redman had been living there, but had recently been kicked out. Drug activity occurred there. Jennings was there to defuse any hostilities between Redman and others at the house. Jennings armed himself with bear spray and a gun.

When they arrived, Jennings was on high alert. He knew violent events had recently occurred there. His friend Mr. Redman got into an argument with Mr. Burton, an individual at the house. Redman had his gun out. Jennings was familiar with the behavior of people who consumed methamphetamine. He realized that both Redman and Burton were high on methamphetamine and acting aggressively.

Burton and Redman argued about Redman’s car and then began to scuffle, wrestling in the foyer of the house. Jennings sprayed his bear spray at them to break up the fight. Burton then turned around and started walking toward Jennings, who backed up. Jennings believed Burton had Redman’s gun.

Jennings feared for his life. He was afraid Burton was reacting violently because he was high on methamphetamine. Jennings fired his gun and hit Burton twice. Burton died at the scene shortly after the shooting and before the ambulance arrived.

Jennings was arrested the next day. He was charged with second degree intentional murder (RCW 9A.32.050(1)(a)), second degree felony murder predicated on second degree assault (RCW 9A.32.050(1)(b)), and unlawful possession of a firearm.

At trial, Jennings claimed at trial that he shot Burton in self-defense. However, the judge excluded the toxicology report showing that Burton had methamphetamine in his body at the time of his death.  A jury found Jennings guilty of second degree felony murder.

Jennings appealed on numerous issues, including arguments that the trial court violated his constitutional right to present a defense by excluding a toxicology report showing that Burton had methamphetamine in his body at the time of his death.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by emphasizing that criminal defendants have a constitutional right to present a defense under the Sixth Amendment. Furthermore, evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Finally, the court reasoned that evidence that might impact a defendant’s assessment of the danger presented, like the victim’s prior specific violent acts, is admissible only if known to the defendant when the incident occurred.

“In analyzing the Sixth Amendment right to present a defense, we balance the State’s interest in excluding the toxicology report against Jennings’s need for evidence showing that his subjective fear was reasonable,” said the Court of Appeals.

The Court further reasoned that in this case, the toxicology report did not have extremely high probative value and it did not constitute Jennings’s entire defense. “At trial, Jennings testified that what he observed on the day of the shooting gave rise to his subjective fear . . . his belief that Burton was high on methamphetamine,” said the Court.

“Jennings has not shown that there was a reasonable probability that any additional corroboration from the toxicology report would have materially changed the result at trial,” said the Court. “We hold that even if the trial court abused its discretion by excluding the toxicology report under ER 401 and 402, this ruling was harmless error.”

With that, the Court of Appeals upheld Mr. Jennings’ conviction.

My opinion? Evidentiary and legal issues aside, these facts are terribly tragic. My heart goes out to the friends and families of all who were impacted by this. From a legal standpoint, however, It appears the WA Court of Appeals conducted a basic balancing test under Washington’s Rules of Evidence and determined that the toxicology report of the victim’s meth/blood levels was neither probative nor relevant at trial.

Under Washington’s Rules of Evidence, relevant evidence is defined in ER 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 402 provides that evidence which is not relevant is not admissible. Finally, ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice.

Here, the Court of Appeals was convinced that Mr. Jennings’ self-defense theory was properly supported by his testimony that he responded in self-defense to the victim’s meth-induced attack. Therefore, no other evidence was necessary to admit more evidence that the victim was high on meth. Jennings’ testimony, by itself, was enough. Any additional evidence on that issue was therefore cumulative, repetitive, unnecessary and potentially prejudicial to the State’s case under ER 403.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a possible defense. It’s important to hire an experienced criminal defense trial attorney who understands the law, the rules of evidence and how both contribute to trial defenses.

Assault or Swim Lesson?

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In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was a lack of evidence proving the defendant’s actions were Assault.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away.

Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its 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.

Privacy & Text Messages

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Privacy & Text Messages. In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Cloud Storage & Privacy

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Cloud Storage & Privacy. In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family member were arrested after police found incriminating evidence from a questionable search of cyber account information. And please review my Legal Guide on Search & Seizure. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Improper Opinion Testimony

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.

Exigent Circumstances for Warrantless Blood Draw

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In State v. Rawley, the WA Court of Appeals held that Exigent Circumstances justified an emergency DUI blood draw at the scene of a car collision. Here, the driver exhibited the effects of alcohol and a telephonic search warrant could not be obtained.

BACKGROUND FACTS

At 2:55 PM, Deputy Aman responded to a two-car, head-on collision. The defendant Ms. Rawley had crossed the center line, causing her vehicle to collide with another vehicle. Rawley was trapped in her vehicle.

As Deputy Aman spoke to Rawley, he noted a strong smell of alcohol and that her speech was slurred and repetitive. Rawley admitted to drinking alcohol.

The paramedics freed Rawley from the vehicle and placed her in the ambulance. Deputy Aman went to the ambulance and learned that IV fluids and medications were about to be administered to Rawley.

Deputy Aman felt exigent circumstances existed to draw Rawley’s blood to check her blood alcohol content (BAC) before administering IV fluids. The paramedic drew Rawley’s blood at 3:07 PM. IV fluids started at 3:23 PM. The ambulance left for the hospital at 3:23 PM. Rawley’s BAC was .35—over 4 times the legal limit under statute.

The State charged Rawley with felony driving under the influence. Before trial, Rawley made a CrR 3.6 motion to suppress the results of the blood draw. The trial court denied her motion. Following a bench trial, the trial court found Rawley guilty of felony driving under the influence.

Rawley appealed on the issues of whether exigent circumstances justified a warrantless blood draw.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by stating that warrantless searches and seizures are per se unreasonable and in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. However, under Missouri v. McNeely, the U.S. Supreme Court recognized an exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“Exigent circumstances exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence,” said the Court.  “But the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals addressed whether the warrantless blood draw was lawful under the exigent circumstances based on State v. Inman, a WA Court of Appeals case involving  a DUI motor vehicle injury collision occurring in a rural area with spotty phone service. In Inman, the Court held that a search warrant was not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

“The circumstances here are like those in Inman. Rawley was in a head-on collision and was trapped inside her vehicle. Her speech was slurred and Deputy Aman could smell intoxicants on her breath. Rawley admitted to drinking. One of the paramedics told Deputy Aman he would be administering IV fluids and then taking Rawley to the hospital. Deputy Aman was aware that IV fluids are generally administered if there is concern for internal injuries. In Deputy Aman’s experience, a warrant request could take on average up to 45 minutes during the day.” ~WA Court of Appeals

The Court of Appeals decided Inman was similar to the present case and was properly relied upon by the trial court. “Accordingly, the trial court’s findings of fact support the trial court’s conclusion of law that exigent circumstances justified the warrantless blood draw based on Inman.”

In closing, the Court of Appeals rejected Rawley’s arguments that a police officer must inquire into the type of IV fluid being administered in order to show that exigent circumstance existed because the IV fluids would alter the blood test results.

“There is no binding legal authority requiring police officers to be knowledgeable of medicines and their effect on blood alcohol content.” ~WA Court of Appeals

With that, the Court of Appeals affirmed Rawley’s conviction for Felony DUI.

Please contact my office if you, a friend or family member face Alcohol DUI charges and evidence was obtained through a warrantless blood draw. Hiring a competent and experienced trial attorney is the first and best step toward justice.

(Online!) Organized Retail Theft: No Such Thing

Theft Prevention (Retail) – Online Pretrial Education

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

BACKGROUND FACTS

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consecutive v. Concurrent Sentencing

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Clients often ask, “What’s the difference between consecutive and concurrent sentences?”

Quite a lot, actually!

The question applies to Clients facing criminal charges from numerous jurisdictions. For these clients, sometimes the best approach is to seek a global resolution. This can happen if the prosecutors of the different jurisdictions are willing to coordinate their efforts toward a plea bargain involving reductions and dismissals of some criminal charges in exchange for guilty pleas to other charges.

Naturally, a big question in these negotiations is whether the defendant shall serve their jail time under a consecutive sentence or a concurrent sentences. Here’s some definitions:

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time. This outcome is favorable to the defendant.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense. This sentence outcome is not favorable to the defendant.

To illustrate the point, in State v. Brown the WA Court of Appeals recently held that firearm enhancements must be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes.

BACKGROUND FACTS

A jury convicted Mr. Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements, which are increased sentencing penalties.

At sentencing, the State recommended a sentence of 381 months. The State recommended five firearm enhancements ran consecutively to each other and to Mr. Brown’s base sentence of 129 months. The trial court imposed the State’s recommended sentence. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals raised and dismissed Mr. Brown’s arguments on appeal. It reasoned that under the Sentencing Reform Act – and specifically, RCW 9.94A.533(3)(e) – all firearm enhancements require prison time and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

“Brown’s sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.” ~WA Court of Appeals

To support its reasoning, the WA Court of Appeals relied on State v. Brown (no relation) a WA Supreme Court case which held that Washington law deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements.

“In any event, a decision by the Washington Supreme Court is binding on all lower courts of the state,” reasoned the WA court of Appeals. “This court does not have the
authority to overrule Brown.”

With that, the Court of Appeals upheld Mr. Brown’s lengthy prison sentence.

My opinion? Again, if a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences.

As you can see, however, some criminal statutes require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.

Please contact my office if you, a friend or family member face criminal charges involving the possibility of concurrent or consecutive sentencing. It’s crucial to hire an experienced criminal defense attorney who understands the law.