Category Archives: Washington Court of Appeals

Prosecutor’s “Gorilla Pimp” Comment Admonished by High Court

Gorilla Pimp the skunk ape by seraphonfire on DeviantArt

In State v. McKenzie, the WA Court of Appeals reversed the defendant’s convictions because the prosecutor improperly injected race into the trial and used the term “gorilla pimp” to describe the defendant.

BACKGROUND FACTS

In 2018, the defendant Mr. McKenzie, a 27-year-old Black man, was perusing the dating application Skout when he came across the profile for a white female named “‘Samantha.’”  Samantha’s profile listed her age as 18, and stated “‘Fun Times. My age is wrong. Daddy wanted.’” Samantha was actually a fictional person created by Detective Rodriguez of the Washington State Patrol’s missing and exploited children’s task force. They conduct undercover investigations to find sexual predators in part by using fictional profiles on social media and dating websites. The profile picture Mr. McKenzie viewed was that of an undercover female officer who was at least 22 years old.

The two continued to chat on Skout and then moved to text messaging on their
phones. During the text messaging, Samantha asked Mr. McKenzie if he was interested in being her pimp to which he replied, “Oh nah im not doing all that,” “Thats low. I dont need that & dont have time for all that. If you have a way to get money I support that,” and “But pimping? No thanks missed me with that one.”

Samantha made repeated suggestions that she and Mr. McKenzie meet up. The two discussed where to meet and Mr. McKenzie expressed concern that Samantha was “setting him up.” Later Mr. McKenzie asked Samantha about whether she had condoms. Mr. McKenzie drove from Seattle to Puyallup and waited for Samantha at an agreed meet location for just under 30 minutes. Unbeknownst to Mr. McKenzie, he was under surveillance the entire time he waited. After Mr. McKenzie messaged Samantha that he was giving up and leaving, law enforcement surrounded Mr. McKenzie’s car and placed him under arrest. A search of Mr. McKenzie’s car revealed a box of condoms on the passenger seat.

The State charged Mr. McKenzie with sex offenses to include one count of attempted second degree rape of a child and one count of communication with a minor for immoral purposes. Mr. McKenzie exercised his right to a jury trial.

At trial, Detective Rodriguez took the witness stand. The prosecutor initiated the following
exchange:

Q: Are you familiar with the terms gorilla pimp and romance pimp?
A: Yes.
Q: What are those?
A: A gorilla pimp is someone who is very aggressive. They’re very direct. They’re going to tell you what they want. “This is what you’re going to do.” I’ve had them try to get me or the people they’re victimizing to pay them for that. For them to be sexually exploited, they actually want the victim to pay them for it. As far as a romance pimp, they’re going to come across as your boyfriend or your friend. They’re going to romance you, get you into the situation where then they have control. They can continue to play the romance role or they can switch to a more aggressive pimp or they can go back and forth.
Q: So they’re not mutually exclusive?
A: No.
Q: The romance pimp angle can be used to gain confidence with a young person. And then once you’re engaged with them, the roles can change?
[DEFENSE COUNSEL]: Your Honor, leading.
THE COURT: Sustained.
Q: Can the roles change once they’re engaged?
A: Yes.
Q: Do Mr. McKenzie’s answers about, “I’m not into that. I would treat you right,” all of those kind of things, do they negate the possibility that he is looking to put Sam out?
A: No.

The defense never voiced a specific objection to the gorilla pimp concept. The prosecutor made no further reference to it. A jury found Mr. McKenzie guilty as charged. The court subsequently imposed a standard range sentence of 76.5 months to life in prison. Mr. McKenzie appealed on arguments that the prosecutor engaged in misconduct by injecting the racially charged term “gorilla pimp” into the trial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reversed the Defendant’s conviction. It reasoned that use of the term “gorilla pimp” by the State was not harmless error beyond a reasonable doubt. The court said that when a prosecutor improperly injects race into a criminal trial, a court will generally reverse the conviction.

“Racist rhetoric has no place in our justice system. It is hurtful, thwarts due process, and undermines the rule of law. ~WA Court of Appeals

The Court discussed the State’s argument that the term used was actually “guerrilla pimp.” However, that argument was unpersuasive to the court, which found the analogy of a “gorilla” to be particularly concerning:

“At this point in our history we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric,” said the Court of Appeals. It reasoned that individuals involved in criminal enterprises use racialized language that is sometimes offensive. However, that is no excuse for outsiders to do the same.

“The only purpose served by referencing the gorilla pimp concept was to tap into deepseated racial prejudice by comparing Black human beings to primates. The State cannot prove that this racist rhetoric was harmless beyond a reasonable doubt. We therefore reverse Mr. McKenzie’s conviction.” ~WA Court of Appeals

My opinion? Great decision. The type of racist rhetoric invoked by the Prosecution appears to have especially strong pull. A six-year study of undergraduates at Stanford University and Pennsylvania State University showed young people are swayed by Black-ape associations, even when they claim to know nothing about the historical context of racist simianization. According to this study, undergraduates who were exposed to words associated with apes were more likely to condone the beating of those in police custody when they thought the suspect was Black.

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

Confrontation, Video Testimony & COVID

Legal Videography - Compass Reporting | Litigation Support Concierge

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

Rape By Forcible Compulsion

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

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

BACKGROUND FACTS

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

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

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

COURT’S ANALYSIS AND CONCLUSIONS

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

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

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

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

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

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

Attorney-Client Communications During COVID

Defendant in credit union robbery makes initial appearance | News, Sports, Jobs - Messenger News

This is an interesting case that arose in the early days of the COVID-19 Pandemic.

In State v. Anderson, the WA Court of Appeals held that courts must try to ensure that criminal defendants are able to confidentially communicate with counsel throughout court proceedings. Failure to provide a confidential means to communicate may be grounds for reversal on appeal.

FACTUAL BACKGROUND

In 2016, a Franklin County jury convicted Mr. Anderson of multiple felonies including murder, assault, and unlawful possession of a firearm. Mr. Anderson received a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and severally with two codefendants.

Three specific issues were identified for resentencing: a vague community custody
condition, two scrivener’s errors, and imposition of discretionary legal financial
obligations in light of Mr. Anderson’s indigence.

A re-sentencing hearing was scheduled to address some concerns Mr. Anderson raised. His resentencing took place in the early days of the COVID-19 pandemic. Washington’s governor declared a state of emergency on February 29, 2020. Shortly thereafter, our Supreme Court began issuing a series of emergency orders addressing court operations during the pandemic. On April 29, 2020, the Supreme Court
issued an order that specified as follows:

Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

Mr. Anderson attended the May 12 resentencing hearing via video. His attorney appeared telephonically. The hearing was very brief, generating only seven substantive pages of a report of proceeding. During the hearing, there was no discussion regarding whether Mr. Anderson had consented to appear via video.

Nor was there any clarification about whether Mr. Anderson and his attorney were able to communicate throughout the hearing. The parties agreed to modify the judgment and sentence according to the three issues identified in our prior decision. When addressed by the court, Mr. Anderson confirmed he agreed with the modifications.

At the hearing’s close, the court asked Mr. Anderson if he had been able to hear and understand the proceedings. Mr. Anderson responded affirmatively, but also asked how he was supposed to pay the outstanding restitution. The court instructed Mr. Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how long he had to appeal the decision. The court told him that he had 30 days to make a direct appeal, and that he should speak to his attorney regarding the process. The hearing then adjourned.

Mr. Anderson filed a timely notice of appeal. He argues the videoconference resentencing hearing deprived him of his right to be present and to confer with counsel.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the right to counsel applies to all critical stages of criminal proceedings, including resentencing.

“The constitutional right to counsel demands more than just access to a warm body with a bar card,” said the Court. “Among other things, it requires individuals charged with crimes to be able to confer privately with their attorneys at all critical stages of the proceedings.” It further reasoned that the ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful. “It is the role of the judge make sure that attorneys and clients have the opportunity to engage in private consultation.”

The Court relied on State v. Gonzalez-Morales, a WA Supreme Court case with similar issues. In Gonzalez-Morales, the defendant’s rights were violated when the trial court failed to give him an interpreter to communicate with his attorney.

“Mr. Anderson argues his case fails to meet the constitutional standard recognized
in Gonzales-Morales,” said the Court of Appeals. “We agree.”

“Unlike what happened in Gonzales-Morales, the trial court here never set any ground rules for how Mr. Anderson and his attorney could confidentially communicate during the hearing. Nor were Mr. Anderson and his attorney physically located in the same room, where they might have been able to at least engage in nonverbal communication.

Given Mr. Anderson participated by video from the jail and his attorney was appearing by telephone from a separate location, it is not apparent how private attorney-client communication could have taken place during the remote hearing. It is unrealistic to expect Mr. Anderson to assume he had permission to interrupt the judge and court proceedings if he wished to speak with his attorney.” ~WA Court of Appeals

Despite the communication obstacles, the Court nevertheless held Mr. Anderson was not entitled to relief because of harmless error. It also said that although Mr. Anderson was not entitled to relief, this case is a cautionary tale for trial judges administering remote criminal proceedings:

“The COVID-19 pandemic has complicated the administration of justice in innumerable ways. Videoconferencing has been an essential component of continued court operations. But courts must ensure videoconferencing occurs in a way that allows for private attorney client consultation. The best method is to arrange for attorneys and clients to be located in a shared physical space, with access to additional communication technologies (such as text messaging devices) if necessary to maintain physical distancing.”

My opinion? The COVID-19 Pandemic has certainly increased the difficulty of practicing law. Courtroom proceedings went virtual or were put on hold, causing delays in justice. Law schools and bar exams were upended. The shift was dramatic. We’ve had to learn new technologies and skills. We’ve had to revolve our practice to adhere and comply with new Executive Orders from our courts. And In the face of change and challenge, we do what American lawyers have done since lawyers helped found this country: we choose to get to work to help to solve the problems before us.

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.

Blake Case & Bail Jumping

HOW PROSECUTORS USE BAIL JUMPING CHARGES TO COERCE GUILTY PLEAS

Ever since the WA Supreme Court decided State v. Blake – which held Unlawful Possession  of Controlled Substance charges and convictions unconstitutional – I’m inundated with questions from defendants on what that means. Can other charges filed alongside the drug charge get dismissed? Are Bail Jumping charges dismissible, too?

Fortunately,  the WA Court of Appeals decided the issue and answered these questions. In State v. Stacy, the Court of APpeals found that the invalidation of the defendant’s  conviction for a Drug Possession charge does not affect the validity of his Bail Jumping convictions.

BACKGROUND FACTS

Here, Mr. Stacy seeks relief from personal restraint imposed following his 2019 plea of guilty to one count of Unlawful Possession of Controlled Substances (UPCS) and two counts of Bail Jumping, committed while charged with UPCS. He argues that under State v. Blake, which held UPCS charges and convictions unconstitutional, he is entitled to have all convictions vacated.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals’ decision is captured in two sentences below:

“The State concedes that under Blake, Stacy is entitled to have his conviction for unlawful possession of controlled substances vacated. But the invalidation of his conviction for unlawful possession of controlled substances does not affect the validity of the bail jumping convictions. State v. Downing, 122 Wn. App. 185, 193, 93 P.2d 900 (2004).” ~WA Court of Appeals

In other words, Mr. Stacy’s Bail Jumping conviction was upheld despite the fact his UPCS – were later found unconstitutional. The Court’s usage of State v. Downing was notable.

In Downing, the WA Court of Appeals upheld the defendant’s Bail Jumping charges even though his underlying Unlawful Issuance of Bank Check charges were dismissed. It reasoned that although no Washington cases addressed whether the charge underlying an allegation of Bail Jumping must be valid, the State is not required to prove that a defendant was detained under a constitutionally valid conviction.

With that, the Court of Appeals in Mr. Stacy’s case dismissed his UPCS convictions and upheld his Bail Jump convictions.

Please read my guide on Making Bail 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.

Not a Toy, Still a Gun

Kessler Arms 12Ga. Bolt Action Shotgun

In State v. Gouley, the WA Court of Appeals held that an antique shotgun that was missing a bolt action was still a “firearm.”  The State merely has to establish that the shotgun was a real gun, not a toy gun.  The State was not required to prove that the firearm could be rendered operational with reasonable effort and within a reasonable period of time.

FACTUAL BACKGROUND

Gouley was convicted of a felony and was under community supervision when he missed an appointment with his community corrections officer. Because of Gouley’s failure to report, the Department of Corrections issued a warrant for Gouley’s arrest.

Several officers attempted to locate Gouley at his listed residence to execute the warrant. The officers found Gouley asleep in his bedroom. In searching the bedroom, the officers discovered a shotgun under Gouley’s bed. Gouley was previously convicted of a serious offense and was prohibited from possessing a firearm.

After Gouley was placed in the squad car, he said the shotgun was given to him by his great uncle. The shotgun was a 20-gauge bolt action shotgun made by Kessler Arms. Although the company was out of business, the shotgun is not rare and is relatively inexpensive. When the shotgun was discovered under Gouley’s bed, it was missing a bolt action assembly and was not operable in that condition.

The State charged Gouley with one count of First Degree Unlawful Possession of a Firearm
and one count of Escape from community custody.

At trial, the judge instructed the jury on the definition of “inoperable firearms.” The instruction said that a “temporarily inoperable firearm that can be rendered operational with reasonable effort and within a reasonable time.” Also, a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time” met the definition of a firearm. Gouley consented to the use of this instruction. The jury convicted Gouley as charged. Gouley appealed on arguments that the State failed to present sufficient evidence to sustain his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals defined the term “firearm” under the statute. A “firearm” is a “weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.” Furthermore, a firearm need not be operable in order to qualify as a firearm under the statute. Instead, the inquiry is whether the firearm is a “gun in fact” rather than a “toy gun.”

The Court reasoned the evidence sufficient to show that the device at issue was a firearm  because it was a gun in fact and not a toy. “Although the shotgun was missing a bolt action, Schoeman testified that the gun could be made operable and could fire if a bolt or bolt assembly is inserted into the receiver.”

The Court raised and dismissed Gouley’s argument the firearm was inoperable. Gouley pointed to the fact that there was something wrong with the firing pin of that firearm or maybe the trigger spring, or the firing pin spring.

“However, the fact that the shotgun was defective or inoperable when it was discovered does not mean that the shotgun was a toy, or anything other than a “gun in fact.” And whether the device was a gun in fact is the only relevant determination that the jury had to make.” ~WA Court of Appeals

Ultimately, the Court reasoned the evidence established that the firearm possessed by Gouley met the definition of firearm. With that, the Court of Appeals upheld Gouley’s conviction.

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

“Unlawful” Isn’t “Knowing”

This man has had so many scooters stolen he can't get theft insurance anymore - Wales Online

In  State v. Level, the WA Court of Appeals held that the term “Knowledge” cannot be inferred from the use of the term “Unlawfully” in the context of a Possession of Stolen Motor Vehicle charge.
BACKGROUND FACTS
A police officer stopped Mr. Level for driving a moped without wearing a helmet. The condition of the moped led the officer to suspect it was stolen. A review of the moped’s VIN confirmed this suspicion. The State charged Mr. Level with possession of a stolen motor vehicle. The Prosecutor’s charging documents, in pertinent part, said the following:
“The crime of Possession of a Stolen Motor Vehicle, Count 5, the maximum penalty for which is 10 yrs. imprisonment and/or $20,000 fine, plus restitution, assessments and court costs, in that the said Jacob Daniel Level in the County of Stevens, State of Washington, on or about July 22, 2019, did unlawfully possess a stolen motor vehicle, to-wit: a Taotao Scooter, the property of (victim’s name omitted); Contrary to RCW 9A.56.068(1), and against the peace and dignity of the State of Washington.”
A jury convicted Mr. Level of the stolen vehicle charge. He timely appealed on arguments that the charge failed to apprise him of any component of knowledge. Consequently, this violated his constitutional right to notice and required reversal of his conviction.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Level.
“The crime of possession of a stolen motor vehicle includes an element of knowledge,” said the Court. “The type of knowledge required has two components: the defendant must both knowingly possess the motor vehicle and also act with knowledge that the motor vehicle had been stolen.”
The Court raised and dismissed the State’s arguments that allegations of “‘unlawful and felonious’” conduct sufficient imply guilty knowledge in the context of drug and firearm offenses. “But none of our decisions have held that knowledge can be inferred from the use of “unlawfully” in the context of a possession of stolen property charge,” said the Court. Furthermore, the court reasoned that proof of knowledge is multifaceted. The State must not only prove knowing possession, but also that the defendant knew of the object was stolen.
“Given the state of the law, an information’s allegation that the defendant acted unlawfully is insufficient to convey an inference that the conduct was done with a mental state of knowledge.” ~WA Court of Appeals
Thus, reasoned the Court, the inclusion of the adverb “unlawfully” in the charges does not satisfy the requirements of sufficient notice.
Next, the Court held that the remaining language in the State’s charges was insufficient to fill in the gaps. Although the State tried to salvage its charges by pointing to the allegation that the moped was the property of someone other than Mr. Level, that contention was inadequate. “It says nothing about Mr. Level’s knowledge. It merely confirms that the moped was stolen,” said the Court. With that, the Court reversed Mr. Level’s conviction.
My opinion? Good decision. In criminal law, the defendant must have both the Mens Rea and Actus Reus to commit the crime. Mens Rea refers to criminal intent. The literal translation from Latin is “guilty mind.” A mens rea​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Actus Reus refers to the act or omission that comprise the physical elements of a crime as required by statute.
The only exception is if the charged crime is a Strict Liability crime. Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. Crimes like DUI, possession crimes and statutory rape are all examples of strict liability offenses.

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

Offender Score Post-Blake


Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

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.

Access Devices

How to Spot a Forged Check | SQN Banking Systems

In State v. Arno, the WA Court of Appeals Division III held that a paper check presented to a bank is excluded from the definition of an “access device.” Such a paper check will not support a conviction for Second Degree Possession of Stolen Property.

BACKGROUND FACTS

The defendant Mr. Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May 2018. He was charged with Forgery and Possession of Stolen Property. While his charges were pending, Mr. Arno missed a court date. He was later charged with Bail Jumping.

The case proceeded to trial. The check was nominally written and bore a signature from the victim Mr. Pinnow. He testified that a box of checks had been stolen from his house in 2017 and that the check in question was one of those that had been stolen. He denied writing the check, and the signature on the check did not match the bank’s records. The account the check was drawn on had been closed earlier after several of the stolen checks were fraudulently cashed.

Regarding the Bail Jumping Charge, Mr. Arno testified that he received a scheduling order with several dates crossed out and was “confused.”

A jury found Mr. Arno guilty of all charges. He appealed the Possession of Stolen Property conviction because the statutory definition of “access device” specifically excludes paper checks from its definition.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying a person is guilty of second degree possession of stolen property if he “possesses a stolen access device.” An “Access device” is defined as “any card, plate, code, account number, or other means of account access that can be used . . . to initiate a transfer of funds, other than a transfer originated solely by paper instrument.”

“Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment,” said the Court of Appeals. “We agree. If the exclusion is to mean anything, it clearly applies to the presentation of a paper check at a bank.”

The Court of Appeals rejected the State’s arguments that that it was prosecuting Mr. Arno for possessing an account number, not for presenting a forged check. “The record belies the State’s argument,” said the Court. “In addition, it is clear that the State was not charging Mr. Arno for possessing bank account numbers; it was charging him with possession of a stolen check.”

“We hold that a paper check presented to a bank is excluded from the definition of an access device as ‘a transfer originated solely by paper instrument.’ RCW 9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for second degree possession of stolen property.” ~ WA Court of Appeals

Nevertheless, the Court of appeals affirmed Mr. Arno’s convictions for forgery and bail jumping.

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.

Consensual Seizures

MTS Says Its Officers Aren't Bound by New State Use-of-Force Law

In State v. Meredith, the WA Court of Appeals held that a bus passenger consents to a warrantless search and seizure consisting of a bus fare enforcement officer requests the passenger provide proof of payment.

BACKGROUND FACTS

The defendant Mr. Meredith was riding the Swift regional transit bus in Everett late one morning. Two officers from the Snohomish County Sheriff’s Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A “chase vehicle” would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Dalton moved to the back of the bus. He began working his way forward and saying “proof of payment or ORCA card” to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment.

Officer Dalton requested “proof of payment or ORCA card” from Meredith, who began to check his pants and backpack. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith gave a fake name. Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected Meredith gave a fake name. Officer Zelaya arrived to help determine Meredith’s identity.

Officer Zelaya used a mobile fingerprint reader to scan Meredith’s fingerprints. He learned Meredith’s real name and that he had two outstanding felony warrants. Meredith was arrested on his warrants and for committing third degree theft of services for nonpayment of fare. He was charged with Making a False Statement to a Public Servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton’s fare enforcement. The trial court denied the motion. A jury found Meredith guilty of making a false statement. Meredith appealed under arguments that his constitutional rights were violated by the officers when they executed an unauthorized and warrantless seizure.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said the Washington Constitution  provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Furthermore, the WA Constitution protects against unauthorized seizures by government, despite not using the word “seize.”

However, the Court emphasized that Meredith did not allege his privacy was violated. It reasoned that the analysis does not not depend upon the “privacy” of information requested when police merely request proof of payment on public transit. Therefore, a person can be unlawfully seized without a violation of their privacy.

Next, the Court analyzed whether Meredith validly consented to being seized. “We consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and whether consent was granted by a party with authority to do so,” said the Court. “We determine whether consent was voluntary by considering the totality of the circumstances from the perspective of a reasonable—meaning innocent—person.”

“Here, Meredith freely chose to contract with Swift Transit for transportation. He agreed to pay and provide proof of payment. And as a reasonable rider, he necessarily understood his duty to pay his fare and provide proof of payment when asked. Thus, like the civilian base visitor in Farkas, Meredith was aware of the possible seizure of his person and consented to it.” ~WA Court of Appeals

The Court concluded by saying Meredith voluntarily consented to Officer Dalton’s initial contact. With that the Court affirmed Meredith’s conviction.

Please review my Search & 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.