Tag Archives: Skagit County Criminal Defense

Are Court Fines Sensible?

Bellingham Defense Attorney, Legal Financial Obligations, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Research on Court Fines and Poverty Influences Latest Federal Reserve Survey | UNC School of Law

According to a press release from the Washington Courts, a new report sheds new light on court practices regarding the imposition of fines and fees.

The report, titled “The Price of Justice: Legal Financial Obligations in Washington State,” was issued by the Washington State Minority and Justice Commission. It found that more than 80 percent of criminal defendants in Washington courts are indigent. Also, courts had imposed approximately $223 million in fines and fees but within a three-year period had collected approximately $11.5 million. A companion report discusses the consequences of LFOs and how court debt can plague the lives of individuals with little or no ability to pay.

The Commission’s study on court fines and fees — called “legal financial obligations” or LFOs – was the result of a three-year grant from the U.S. Department of Justice awarded to five states for exploring LFO practices and issues of fairness and equity.

The grant led to creation of the first statewide LFO Stakeholder Consortium; presentation to the state Supreme Court of a comprehensive symposium on LFO practices and impacts across Washington; the development in partnership with Microsoft of a unique LFO calculator for use by judges and the public; the Price of Justice study and report; a companion report describing significant impacts of LFOs on individuals; and ongoing legislative work to reform LFO policies.

“A great deal of time was spent learning about our own court practices regarding the imposition of fines and fees and trying to trace collection and allocation of these funds . . . We hope this new resource will contribute to the discussion on how we might further our mission to dispense justice fairly by finding another way to fund our courts; one that is more fair and equitable.” ~Washington Supreme Court Justice Mary Yu, co-chair of the Minority and Justice Commission.

Findings from the study report, “The Price of Justice: Legal Financial Obligations in Washington State,” and recommendations from the companion report, “The Cost of Justice: Reform Priorities of People with Court Fines and Fees,” include:

  • The vast majority of criminal defendants who come to court, 80-90 percent, are indigent.
  • Washington’s system of LFOs is complicated and extensive, with more than 155 separate and distinct court fines and fees that can be imposed. Some LFOs are mandatory and must be imposed regardless of ability to pay.
  • Surveys with prosecutors and defense attorneys indicated a great deal of statewide inconsistency in how LFOs are imposed, and how defendants’ ability to pay is assessed.
  • Though LFO reform was passed by state lawmakers in 2018 with ESSHB 1783, providing some avenue for relief from LFOs for low-income persons, many of them don’t know that relief is available or how to access relief. Many jurisdictions have no formal process to help people with court debt understand the options they have.
  • From 2014 – 2016, Washington superior courts imposed approximately $130 million in LFOs and collected roughly $7 million.
  • In the same time period, Washington district and municipal courts imposed roughly $88 million in LFOs and collected about $4 million.
  • Juvenile courts in that time imposed approximately $5.3 million in fines and fees and collected about $494,000.
  • Nearly all Washington district and municipal courts (courts of limited jurisdiction) utilized collection agencies for collection of unpaid court debt. The collection agencies are authorized to impose sizeable interest and fees, and are not required to consider ability to pay.
  • Other fees and costs beyond LFOs are added on to persons involved in the criminal justice system that are collected by other court-related entities, such as warrant issuance fees, jail booking fees, intake or supervision fees, and more.
  • There was a decline in the number and amount of LFOs imposed by courts following 2014.
  • Important steps are needed to continue reforming Washington’s LFO system, according the Living With Conviction companion report. Those improvements fall into four categories – 1) reducing barriers to achieving relief from LFOs, 2) reducing barriers to paying off LFOs, 3) reducing the amount of LFOs imposed, and 4) conducting additional research into personal experiences with impacts of court debt, inequities in the system, and more.

New Court Rule Opens a Path to LFO Relief

During the study period, notable improvements to Washington’s LFO system were adopted by state lawmakers through the passage of ESSHB 1783 and by the judicial branch through adoption of Court Rule GR 39. Late King County Superior Court Judge David Steiner drafted an important statewide court rule, GR 39, making it easier for people with LFOs to seek relief in court.

In addition to the 2018 legislation and the court rule change, new court forms have been created to help people seek LFO relief from courts. And additional reform legislation — HB 1412 — has been proposed by state Representative Tarra Simmons for the upcoming session of the state Legislature.

My opinion? While much as been done, there is still much work to do. This is an area of our justice system that can be overlooked. Unfortunately, it has a serious and long lasting impact on people’s lives for many years. Please contact my office if you, a friend or family member are charged with a crime. Hiring a competent defense attorney is the first and best step toward avoiding criminal convictions and court fines.

Housing & Criminal Record

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Detroit bans criminal history question on most rental applications

Great article by Shauna Showersby reports on legislation that would prevent landlords from denying housing based on a person’s criminal record. House Bill 2017 was introduced by Rep. Lauren Davis, D-Lynnwood, and has 10 other Democratic sponsors. Davis said the majority of those benefitting from the legislation are in recovery for mental illness or substance abuse. She said many end up in the legal system to begin with because of untreated behavioral health needs.

Committee member Rep. Andrew Barkis, R-Olympia, who owns Hometown Property Management, opposes the legislation:

“I completely agree that people in recovery who are working through all that absolutely need housing. Unfortunately there’s the other side of the spectrum when it comes to housing.” ~Rep. Andrew Barkis, R-Olympia

He said because this is a broader bill, it’s important to know the data behind it and what percentages of people would actually be affected. Some of those in support testified. Predictably, several landlords testified against the legislation.

HUD guidelines suggest that landlords and property managers take a more individualized approach to screening applicants by considering the specific circumstances of an individual’s criminal history. However, the organization acknowledges that blanket policies which deny people housing based on past records do not serve a legitimate purpose.

HUD also noted that over 100 million of U.S. adults, or nearly one-third of the population, have a “criminal record of some sort.” The report said that even those who were convicted of crimes but not incarcerated face “significant barriers to securing housing, including public and other federally subsidized housing because of their criminal history.” Additionally, because African-Americans and Hispanics are arrested at a disproportionate rate, they are more likely to encounter barriers to secure housing.

If passed, HB 2017 would go into effect 90 days after the legislature adjourns.

Please contact my office if you, a friend or family member are charged with a crime. A criminal history can affect one’s eligibility for both public housing and private housing. An arrest – even before anyone is found guilty – can often trigger eviction of you or your entire household from public or private housing. Hiring an effective and competent defense attorney is the first and best step toward justice.

Don’t Talk to Jurors!

Bellingham Defense Attorney, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Jury deliberations begin in 2018 gang slaying at Yakima County jail | Local | yakimaherald.com

In State v. Hall, the WA Court of Appeals held that improper communication between the jury and court bailiff impacts the right to a fair and impartial jury. Don’t talk to jurors.

BACKGROUND FACTS

The State charged Hall with sex offenses. A jury trial in Snohomish County Superior Court began on October 15, 2019. The case was submitted to the jury on October 23, 2019. On the eighth day of deliberations, November 1st, the bailiff received a question from the jury. The bailiff described the event as follows:

“So I received the juror question asking me if Juror 4 could be dismissed. The juror stated that she was not ill but just wanted to leave, and they asked if they could call in the alternate. I told them that if they did that, they’d have to start over and that generally that’s not what the alternate is for, but they told me to ask it anyway.” – Court Bailiff

After this exchange, the judge, prosecutor and defense counsel engaged a heated debate on the propriety of the bailiff’s remarks.

At some point, defense counsel moved for a mistrial based on juror misconduct over the exchange with the bailiff. Defense Counsel also took issue with the juror’s potential discussion of the case outside of deliberations. Rather than decide on the motion, the court proposed polling the jury. Later, within 10 minutes of the jury returning to deliberations, the trial court received notice that juror 4 wanted to be excused. Defense counsel again expressed her concerns that juror 4 may be hastened or coerced. The court declined to dismiss juror 4 and instructed them to continue deliberating with the other jurors.

Fourteen minutes later, the jury returned a verdict finding Hall guilty of two sex offenses. Following the verdict, Hall moved for a new trial. He argued that the bailiff’s communications to the jury had a prejudicial impact on his trial.

COURT’S ANALYSIS & CONCLUSIONS

The court began by stating that RCW 4.44.300 forbids a bailiff from communicating with the jury during its deliberations, except to inquire if they have reached a verdict.

“The statute was designed to insulate the jury from out-of-court communications that may prejudice their verdict,” said the Court of Appeals. It emphasized that the bailiff is in a sense the “alter-ego” of the judge. Therefore, improper communication between the court and the jury is an error that impacts the right to a fair and impartial jury.

“It is at least possible that the bailiff’s comments resulted in juror 4 being pressured to reach a verdict,” said the Court of Appeals. Relying on State v. Christensen, and examining the record as a whole, the Court reasoned that the bailiff’s remarks had a prejudicial effect on the jury. With that, the Court reversed the convictions and remanded for a new trial.

My opinion? Good decision. I’m sure the bailiff was simply trying to be helpful. Nevertheless, the road to Hell is paved with good intentions. I echo the excellent advice from the Washington Courts given to potential jurors: DON’T talk to anyone about your deliberations or about the verdict until the judge discharges the jury. After discharge, you may discuss the verdict and the deliberations with anyone, including the media, the lawyers, or your family. But DON’T feel obligated to do so.

And 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.

Catalytic Converter Theft

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Whatcom County Criminal Defense, , , , ,

You’ve seen the news. Apparently, Catalytic Converter Thefts are a growing problem. Thieves have been stealing these devices from cars, trucks, and buses at an alarming rate lately. The precious metals that go into the making a catalytic converter are valuable.

According to the Office of the Insurance Commissioner, the number of catalytic converter thefts increased in Washington by 3,800% between 2019 and 2020. The soaring price of metals is one of the reasons behind the recent spurt in catalytic converter thefts in the country. The stolen car parts fetch a tidy sum on the black market. Recent supply chain disruptions have also led to the current situation.

The department is aware of increased local catalytic converter thefts which are a nuisance and decrease the quality of life in our community. We have dedicated resources to work on this problem and are investigating those responsible. Community members are encouraged to take proactive crime prevention measures to reduce the chance of being victimized.

The process of stealing a catalytic converter is so fast and quiet. Most car owners do not know of the theft until they start their car and hear a loud rattle. Most car owners assume the loud noise is because of a crack in the exhaust and ignore the sound until their next tune-up. These parts are expensive to replace, costing anywhere between $2,000 to $2,500, depending on the model you drive.

Local government is responding in kind. Lawmakers are looking for solutions. Also, the Everett Police initiated Project CATCON ID to promote theft prevention techniques. Here, residents are asked to engrave the last 8 digits of their vehicle identification number (VIN) on the catalytic converter and highlight the number with high temperature paint. If your converter is stolen and reported, if recovered, the police can track it back to the owner.

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

Do Increased Gun Sales Bring More Homicides?

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Addressing Gun Violence by Reimagining Masculinity and Protection - Gender Policy Report

Excellent article by reporters Jeff Asher and Rob Arthur show that a massive increase in gun sales in early 2020 seems to have contributed to the recent rise in homicides.

Researchers began searching for a definitive explanation why murders in the United States soared to more than 21,000 in 2020.New data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suggests that newly purchased weapons found their way into crimes much more quickly and often last year than in prior years. This data may prove that new guns led to more murders.

The ATF data are the result of tracing nearly 400,000 firearms in 2020. According to the bureau, firearms are traced only “at the request of a law enforcement agency engaged in a bona fide criminal investigation where a firearm has been used or is suspected to have been used in a crime.” Not all guns recovered by law enforcement are traced, and many guns that are used in crimes are never recovered by law enforcement to begin with. But the ATF’s data are the most robust source available for evaluating the increased use of firearms in the United States in 2020.

Reporters Asher and Arthur discuss the degree to which firearms purchased in 2020 featured in crimes committed in 2020. They say the ATF’s data set includes a measure known as the “time to crime” of each gun traced. Technically, this is the time from when a firearm was legally purchased to when it was recovered after a crime. On this metric, an enormous shift is apparent: The number of traced guns whose time to crime was a year or more increased by less than 1 percent in 2020 compared with 2019, but the number of guns whose time to crime was six months or less increased by 90 percent.

No data exist on exactly how many guns were sold in 2020. The best proxy is the number of firearm background checks performed by the FBI, which indicates an attempted purchase but doesn’t necessarily mean a completed one. These background checks surged dramatically in 2020, first when coronavirus cases began to appear in the U.S. and again after Floyd’s murder at the end of May. Background checks remained remarkably high for the first few months of 2021 but came down a bit during the second half of the year.

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

Should We Criminalize “Big Lies?”

Bellingham Defense Attorney, First Amendment, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Write a Political Speech for Strategic Communications

Gov. Jay Inslee supports legislation to make it a gross misdemeanor for politicians to issue false statements about election outcomes.

Inslee announced his support for the legislation during a legislative preview event hosted by the Associated Press which coincided with the anniversary of the January 6, 2021 attack on the U.S. Capitol by supporters of former President Donald Trump.

The three-term Democratic governor, in his most extensive comments on the subject to date, spoke passionately about his concern for the state of democracy in the United States and his belief that Trump is engaged in an ongoing coup attempt. He called for politicians on both sides of the aisle to speak out more forcefully against the former president and his allies.

“It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, and unfortunately they are doing that . . . This needs to be made illegal . . . The violence of January 6 of last year is just a warning of what is coming and the basis of it is the ‘Big Lie’ . . . That’s why I’m calling on all elected officials of both parties to join together arm-in-arm and call that out.” ~Governor Jay Inslee

The “Big Lie” is a reference to the false assertion by Trump and his supporters that the 2020 election was stolen.

“The defeated president and his allies, including some legislators in Washington state, are perpetuating the belief that this election was stolen from them,” Inslee said. “What do you think is going to happen if you perpetuate that belief? Of course violence can be happening as a result of that.”

Regarding his proposal to criminalize false statements about elections, Inslee said the “finishing touches” were being put on a draft of the bill and that his office was talking to lawmakers about sponsoring it. The proposal would be narrowly tailored to target “lies about free and fair elections when it has the likelihood to stoke violence.”

Inslee defended the idea of criminalizing unsupported claims of election fraud and stolen elections — if they’re likely to result in violence — as not a violation of freedom of speech. The governor likened the rhetoric about elections being stolen to “yelling fire in a crowded theater.”

“The defeated president as recently as an hour ago is yelling fire in the crowded theater of democracy,” Inslee said, referring to statements Trump issued Thursday. Those statements included: “Never forget the crime of the 2020 Presidential Election. Never give up!”

My opinion? Many believe the incendiary rhetoric of political leaders makes political violence more likely. It gives violence direction, complicates the law enforcement response, and increases fear in vulnerable communities.

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

Political Violence

Bellingham Defense Attorney, First Amendment, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Political Violence Threatens to Destabilize America | Time

Wonderful article from CNN reporter Paul LeBlanc discusses the rising acceptance of political violence in the aftermath of the January 6th riot.

According to LeBlanc, two recent polls on this issue show our country is deeply divided on political lines. Thirty-four percent of Americans think violent action against the government is sometimes justified, according to a poll from The Washington Post and the University of Maryland released Saturday. The survey, conducted December 17-19, revealed stark partisan splits. Apparently, 40% of Republicans and 41% of independents said violence against government is sometimes justified, compared with 23% of Democrats.

Our New Normal? Listen to what David Frum, a veteran of the George W. Bush White House, told CNN’s Brian Stelter this weekend about the mentality of Trump’s allies and followers a year after the Capitol attack.

LeBlanc also discusses a recent survey from the Institute of Politics at the Harvard Kennedy School that found most American adults younger than 30 are concerned about the US and its democracy. Young adults say, by 55% to 44%, that they’re more fearful than hopeful about the future of America. This shows a shift from earlier in 2021, when most said they were hopeful. Only about one-third describe the US as a healthy or even “somewhat functioning” democracy, with 52% saying it’s a “democracy in trouble” or that it’s failed altogether.
Young Republicans are especially pessimistic. 70% say American democracy is in trouble or failed, compared with 45% of young Democrats who say the same.
“After turning out in record numbers in 2020, young Americans are sounding the alarm . . . When they look at the America they will soon inherit, they see a democracy and climate in peril — and Washington as more interested in confrontation than compromise.” ~John Della Volpe, Director of the Institute of Politics Polling
My opinion? There’s a fine line between freedom of speech and political violence. Please contact my office if you, a friend or family member are charged with Harassment, Resisting Arrest, or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

2021: Deadly for Drivers

Bellingham Defense Attorney, Driving While License Suspended/Revoked, Driving With Wheels Off Roadway, Drug Offenses, DUI, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Vehicular Assault, Vehicular Homicide, Whatcom County Criminal Defense, , , , ,

Excellent article by journalist David Kroman found that 2021 was the deadliest on Washington roads in 15 years.

Washington for the year saw 540 fatal crashes, which killed more than 600 people, according to data from the Washington State Department of Transportation. Not since 2006 have the numbers been that high. In 118 of the year’s fatal crashes, a bicyclist or pedestrian was killed. An additional 2,411 crashes in 2021 resulted in likely serious injury — also the most since 2006 and 16% more than in 2020.

Alcohol- and drug-influenced serious and fatal crashes remained high in 2021, sustaining a harrowing 25% jump from 2019 to 2020. Speed, too, continued to play an outsized role after climbing nearly 18% in 2020.

Kroman reports that in Seattle, 31 people were killed in car crashes in 2021, according to preliminary data from the Seattle Department of Transportation. That, too, is the most since 2006. Jim Curtain, project development director at SDOT, said 19 of those deaths were pedestrians, and nearly half involved hit-and-runs. The city has also seen a jump in impaired driving, Curtain said.

INTERPRETING THE DATA

Kroman reports that early in the pandemic, reports from state troopers suggested behavior behind the wheel had become more extreme. There was a rise of speed-related crashes and so-called “aggressive drivers.” As the roads emptied, drivers could more easily hit triple digits on their speedometers. Combined with a rise in alcohol and drug use, collisions that may have been moderate in 2019 became serious or deadly in 2020.

As traffic returns, 2021’s picture is less obvious. Speed and distraction are almost certainly at the trend’s core, said Mark Hallenbeck, director of the Washington State Transportation Center at the University of Washington. But there’s another, more nebulous cause that’s even more difficult to track.

“We have a pissed-off society . . . When you are in your big metal box of a car, you have an awful lot of ability to act out your frustrations both with accelerator and brake.” ~Mark Hallenbeck, director of the Washington State Transportation Center

HOW WASHINGTON COMPARES

Washington’s 6% rise in serious and fatal crashes from 2019 to 2020 was close to average for the country that year, which saw a national 7% spike, according to the National Safety Council. Maine, Arkansas and Washington, D.C., experienced the sharpest jumps, each over 30%. Rhode Island saw a 24% increase.

My opinion? The stressors of 2020-21 — isolation, uncertainty, fear — remain. And with them comes an environment still conducive to risk, substance abuse and high speeds. Please contact my office if you, a friend or family member are charged with a DUI, Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Parents in Prison

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Tips to Support Children When a Parent is in Prison - HealthyChildren.org

A fact sheet from the Sentencing Project gives key facts on parents in prison. It illustrates the policies that impede their ability to care for their children when released from prison. Here’s an overview:

  • In 2016, 47% of people in state prisons and 57% in federal prisons were parents of minor children.
  • Most parents in prison are fathers (626,800 fathers compared to 57,700 mothers).
  • The number of fathers in prison increased 48% and the number of mothers in prison increased 96% between 1991 and 2016.

Also according to the article, 2.7 million children have a parent serving time in prison or jail on any given day, and over 5.2 million have had an incarcerated parent at some point during their lives. Furthermore, the percentage of children who have experienced parental incarceration varies widely state to state, from a low of 3% in New Jersey to a high of 13% in Kentucky.

The prevalence of parental incarceration also varies considerably by race. In 2018, 20% of Native children, 13% of Black children, 6% of Latinx children, and 6% of white children had experienced parental incarceration at some point in their lives.

According to the National Institute of Justice, the impacts of parental incarceration on children bring terribly negative consequences. They include psychological stress, antisocial behavior, academic suspension or expulsion, economic hardship, and criminal activity.

The growth and decline of the number of children with imprisoned parents mirrors the changing incarceration rates of the past few decades. Between 1972 and 2009, the U.S. prison population increased nearly 700%, due to policy changes including long mandatory sentences, the declining use of parole, and more punitive responses to substance use disorders.

The arrest of a parent can be traumatic for many children. As noted in a comprehensive review of research on children with incarcerated parents, the arrest and removal of a mother or father from a child’s life forces that child to confront emotional, social and economic consequences that may trigger behavior problems, poor outcomes in school and a disruption or severance of the relationship with the incarcerated parent that may persist even after the parent is released from prison.

I work hard to reunite families separated by the criminal justice system. 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

Bellingham Defense Attorney, Evidence, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

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.