Category Archives: Washington Court of Appeals

Entrapment & Sex Crimes

Bellingham Defense Attorney, Constitutional Rights, Entrapment, Ineffective Assistance, Jury Instructions, Juvenile, law enforcement, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards 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.

No Interpreter is Court Mismanagement

Assault, Bellingham Defense Attorney, Dismissal, Interpreter, Malicious Mischief, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Jieta, the WA Court of Appeals held that a trial court judge may dismiss a criminal prosecution due to the court’s failure to arrange for an interpreter for all scheduled court hearings.

BACKGROUND FACTS

On May 19, 2015, Mr. Jieta was first arraigned on charges of fourth degree assault and third degree malicious mischief in Snohomish County District Court. The court continued the arraignment after ordering that Jieta be provided a Marshallese interpreter. Over the next 15 months, the court held 14 more pretrial hearings, and the interpreter repeatedly failed to appear telephonically or personally.

On August 26, 2016, Jieta moved under CrRLJ 8.3(b) to dismiss all charges. On September 12, — another hearing where the interpreter failed to appear — the court dismissed all charges with prejudice and found the interpreter’s absences “seriously interfered with Mr. Jieta’s right to representation by counsel.” In short, out of 14 pretrial hearings conducted after the court directed the appointment of a interpreter, the interpreter failed to appear 10 times, appeared by phone – ineffectively – two times, and appeared in person two times. The superior court affirmed the dismissal on the State’s appeal.

The State sought discretionary review in this court, which was granted on the narrow question whether CrRLJ 8.3(b) can apply when court administration mismanages a case.

COURT’S ANALYSIS & CONCLUSIONS

Furthermore, the Court of Appeals explained that CrRLJ 8.3(b) gives courts discretion to dismiss “any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” To satisfy the rule, the alleged misconduct “need not be of an evil or dishonest nature; simple mismanagement is sufficient.”

The Court also reasoned that the judiciary has a statutory duty of appointing an interpreter to assist the defendant throughout the proceedings:

“Reliable interpreter services are necessary to secure a non-English speaking defendant’s fair trial rights. Thus, to assist a defendant throughout the proceedings, the interpreter must actually deliver translation services throughout the proceedings.”

The purpose of CrR 8.3(b) is to ensure fairness to defendants by protecting their right to a fair trial. Thus, when mismanagement by court personnel prevents a defendant from receiving reliable interpreter services and effective assistance of counsel for more than one year, the defendant has a viable claim of “governmental misconduct” consistent with the text and purpose of CrRLJ 8.3(b).

Here, the Court of Appeals reasoned that “governmental misconduct” can extend to mismanagement by court administration.

“We need not decide the exact types of court mismanagement that could warrant relief or when dismissal is an appropriate remedy for such mismanagement,” said the Court. “On the record before us, the State does not establish that the trial court erred in its conclusion that CrRLJ 8.3(b) may extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.”

With that, the Court of Appeals affirmed the dismissal of all charges.

My opinion? Good decision.

Court interpreters are important in legal proceedings, especially when criminal charges are involved. Interpreters ensure that defendants fully understand the charges and the proceedings. Indeed, the constitutional right to simply understand the charges and their maximum consequences is captured under the 6th Amendment.

Please contact my office if you, a friend or family member are charged with a crime and they need an interpreter to move forward in their defense. Hiring a competent, experienced attorney is the first and best step toward achieving justice.

Imprisoned At 7-11

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

Unlawful Jury Selection

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Getting Rid Of Bad Jurors Through Unconventional Means - Trial Practice Tips

In State v. Guevara Diaz the WA Court of Appeals held that seating a juror without questioning  regarding her ability to be fair can never be harmless and requires a new trial without a showing of prejudice.

BACKGROUND FACTS

The State charged Mr. Diaz with one count of second degree rape and one count of third degree rape. At the beginning of trial, the judge explained to the jury that he and the attorneys would be asking them questions, first with a questionnaire and then orally. The judge told the potential jurors that counsel had prepared a questionnaire and pointed out that each juror had “the opportunity to be questioned outside the presence of the other jurors in the event that certain questions are answered yes.”

Thirteen jurors stated that they wished to be questioned outside the presence of other jurors. Seven of them had answered they could not “be fair.” Six others, including juror 23, who also answered that they “could not be fair” did not ask to be questioned outside the presence of other potential jurors.

At the conclusion of jury selection, the court seated two jurors who said that they could not be fair. One of those jurors included juror 23. The jury found Mr. Diaz guilty of one count of second degree rape and one count of third degree rape (this conviction was later overturned on double jeopardy grounds).

On appeal, Mr. Diaz argued that the trial court violated his constitutional right to a fair and impartial jury by allowing a biased juror to serve.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Court of Appeals held that the trial court should not have allowed juror 23 to serve because she expressed actual bias without further inquiry.

“A criminal defendant has a federal and state constitutional right to a fair and impartial jury. Seating a biased juror violates this right. Because the presence of a biased juror cannot be harmless, seating an actually biased juror requires a new trial without a showing of actual prejudice.”

Second, the Court held that juror 23 demonstrated actual bias when she answered “No” to the fairness question.

The Court explained that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution both guarantee a criminal defendant the right to trial by an impartial jury. To protect this right, a party may challenge a juror for cause. Actual bias provides a basis to challenge a juror for cause.

“The trial court should have addressed this actual bias by questioning juror 23 or allowing defense counsel to question her outside the hearing of other jurors,” said the Court. “Under the circumstances of this case, any court questioning also should have occurred outside the hearing of other jurors because of defense counsel’s viable concern over questioning potentially biased jurors in front of the jury pool.”

With that, the Court of Appeals reversed Mr. Diaz’s conviction and remanded his case for a new trial.

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

Sexsomnia

Bellingham Defense Attorney, Child Molestation, felony, Mount Vernon Criminal Defense Attorney, Sex Crimes, Sexsomnia, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Pratt, the WA Court of Appeals held that Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep.  However, the trial court’s exclusion of expert testimony regarding sexsomnia did not violate the defendant’s Sixth Amendment right to present a defense because no psychological evaluation could determine whether the defendant suffered from sexsomnia at the time of the offense or that the defendant had the disorder.

BACKGROUND FACTS

The State charged Mr. Pratt with child molestation in the first degree based on an allegation by the juvenile victim MB that Pratt had sexually assaulted her while they were both sleeping in a tent for her cousin’s birthday sleepover party. The party occurred at the home of Pratt’s aunt and uncle. MB is the daughter of Pratt’s aunt’s stepsister.

Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt’s actions included sexsomnia, but he could not confirm it happened.

At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification. Pratt viewed being asleep as a general denial.

The State moved to exclude the testimony on grounds of relevance. The judge was concerned that calling an expert to testify about sexsomnia could amount to “a back door diminished capacity.” The judge granted the State’s motion to exclude.

Pratt waived a jury. At a bench trial, court found Pratt guilty as charged. Over the State’s and the victim’s objections, the court imposed a SSOSA disposition. The State appealed the sentence. Pratt cross-appealed the exclusion of Dr. Johnson’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals reasoned that in order to be eligible for a SSOSA sentence, a defendant must have a connection with the victim which is independent of the crime. Here, Pratt was not eligible for a SSOSA sentence because it is clear that Pratt did not have an “established connection” with MB. Other than the sexual molestation, their only connections involved Pratt giving MB a skewer with marshmallows and asking MB her name.

Second, regarding the defense of Sexomnia, the Court of Appeals reasoned that under State v. Utter, Washington courts have recognized a defense of involuntary action due to sleepwalking where, at the time of the crime, the offender was clearly unconscious.

Furthermore, the defense of involuntary action as a result of being asleep, therefore, should not be treated as one of diminished capacity. Instead, involuntariness due to sleep is an affirmative defense that must be proved by the defendant by a preponderance of the evidence.

In this case, however, the Court of Appeals reasoned that Dr. Johnson could not testify that Pratt suffered from sexsomnia either on the night of the sexual molestation or ever.

“The fact that this disorder exists is irrelevant without some tendency to make the existence of sexsomnia of consequence to the determination of the action more probable than it would without the evidence. No nexus existed between Pratt, sexsomnia, and his actions on the night of the molestation.”

Therefore, the Court of Appeals held that the trial court properly excluded Johnson’s testimony because it was irrelevant to both the general denial defense and to a defense of lack of volition. With that, the Court of Appeals affirmed Pratt’s conviction.

Please contact my office if you, a friend or family member are charged with a crime and the defense involves being unconscious due to sleepwalking, and/or experiencing a medical condition called “slow wave sleep.”

I’ve successfully obtained dismissal of criminal charges for prior clients who were asleep and/or unconscious during the commission of crimes. Expert testimony might be necessary to educate the jury of a possible Diminished Capacity defense.

Rape By Forcible Compulsion or Consent?

Bellingham Defense Attorney, felony, Jury Instructions, Jury Trial, Methamphetamine, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

GDPR Brief: What is the difference between research ethics consent and data protection consent?

In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: “Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face a sex offense. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

Body Camera Evidence Admissible

Assault, Bellingham Defense Attorney, Body camera, Evidence, Firearm, Mount Vernon Criminal Defense Attorney, police, Privacy, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , ,

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In State v. Clayton, the WA Court of Appeals held that police body camera evidence is admissible at trial. It does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please read my Search & Seizure Legal Guide titled contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras. Hiring an effective and competent defense attorney is the first and best step toward justice.

Search Incident to Arrest

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In State v. Richards, the WA Court of Appeals held that a search of an arrestee’s person, purses or handbags extends to closed, but not locked containers found on their person at the time of arrest.

BACKGROUND FACTS

On November 11, 2017, a loss protection officer at a retail store in Woodland, observed Richards placing store merchandise into her purse. The officer approached Richards after she left the store without paying for the items in her purse. Two police officers, who were waiting outside, detained Richards and escorted her to the loss protection office.  There, the officers arrested Richards and searched her purse.

During the search of the purse, the officers discovered the stolen merchandise and a closed, zippered pouch. They opened the pouch and searched it, looking for theft tools used for removing secure access devices. The pouch contained drug paraphernalia, foil residue, straws, and syringes.

The State charged Richards with unlawful possession of heroin. Richards filed a motion to suppress the contents of the pouch found in her purse. The trial court considered the evidence set out above and denied the motion. Richards subsequently was convicted of possession of heroin. She appeals her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that officers did not exceed the scope of a lawful search incident to arrest when they searched a closed pouch in Richards’s purse that she was carrying at the time of arrest. Accordingly, the Court of Appeals affirmed Richards’s conviction.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the exceptions to the warrant requirement applies.

One exception to the warrant requirement is a search of a person incident to a lawful arrest of that person. Under this exception, an officer making a lawful custodial arrest has authority to search the person being arrested as well articles of the arrestee’s person such as clothing and personal effects.

“An article immediately associated with the arrestee’s person may be searched if the arrestee has actual possession of it at the time of a lawful custodial arrest,” reasoned the Court of Appeals. “This rule is referred to as the ‘time of arrest’ rule. Based on this rule, an officer may search a purse or a bag in the arrestee’s possession at the time of arrest.”

However, the Court of Appeals also reasoned that the search incident to arrest exception did not apply to the search of a locked box inside a backpack an arrestee was carrying at the time of the arrest. For example, in State v. VanNess, the court concluded that the locked box in the backpack could not be searched without a warrant because the arresting officer raised no concerns about his safety and there was no indication that the officer believed that the box would contain evidence relevant to the crime of arrest.

“The issue here is whether the same rule applies to a closed, unlocked container in Richards’s purse. We conclude that it does not.”

Ultimately, the Court of Appeals reasoned that the search of a closed, unlocked pouch in a purse in the arrestee’s possession simply does not implicate the type of significant privacy interests that would render the search of the pouch unlawful.

The Court concluded that officers searching a purse or bag incident to arrest may lawfully search closed, unlocked containers within that purse or bag. “Accordingly, we hold that the trial court did not err in denying Richards’s motion to suppress the evidence discovered in the search of the pouch in her purse.”

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges involving a search of persons, vehicles or homes. It’s critically important to retain experienced defense counsel like myself who are knowledgeable of Washington’s search and seizure laws.

Exigent Circumstances Support Warrantless Blood Draw

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In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph.

Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, 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’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.