October 2017 advance sheets

ADVANCE SHEET SUMMARIES FOR WACDL

Prepared by Mark W. Muenster

For cases decided October 1, 2017 to October 31, 2017

SUPREME COURT CASES

Blomstrom v. Tripp, et al. No.91642-0, decided October 5, 2017

These consolidated cases challenged the imposition of random U/A testing as a condition of release on DUI cases. The court reverses the Superior Court, which had denied a writ of review.

The majority holds that a writ of review was appropriate, since the defendants had no adequate remedy at law. The Superior Court judge had suggested they do a RALJ appeal after conviction.

The court also holds that the requirement of random U/A testing was a violation of Art. I Sec. 7 of the Washington Constitution. There is a privacy interest involved, and the orders were entered without the "authority of Law" required under the state constitution.

The court rejects RCW 10.21.055 as a source of power because none of the arrestees had a prior conviction for DUI (the third petitioner did, but was not being arrested on an alcohol related DUI). The court rejects the state's invitation to create a new exception to the warrant requirement by importing the Federal "special needs" exception (think airport searches).

The four dissenters would allow the testing pursuant to the trial judge's power under the court rules to set conditions of release, on the theory that there was a substantial danger that the arrestees would commit a "violent offense," or as a means of enforcing the condition that an arrestee not consume alcohol while the case is pending.

State v. Barnes, 93829-6, Decided October 12, 2017

A riding lawn mower is not a "motor vehicle" for the purposes of the theft of a motor vehicle statute, RCW 9A.65.065. The legislative history suggests that this was intended to apply only to cars and trucks, despite the fact that a riding lawn mower was self- propelled and could be driven (slowly) on a road.

State v. Salgado-Mendoza, 93293-0, decided October 12, 2017

Prosecution for DUI. The state did not disclose the name of the toxicologist it planned to call until the day of trial, although it had whittled the list down from nine to 3 the day before the trial.

The Supreme Court reverses a COA decision which upheld the Superior Court's RALJ decision which had found that the District Court abused its discretion in failing to order suppression of the toxicologist's testimony. While the Supreme Court agreed that the defense had shown government mismanagement, the first prong of an CrRLJ 8.3 (b) dismissal motion, it had not shown actual prejudice. Mismanagement without prejudice does not support a remedy, under CrRLJ 8.3.

Prejudice was not shown because defense counsel had as long as five months to prepare for cross-examination, was very experienced, and did not ask for a continuance due to being unprepared for cross-examination. Also, the nature of the testimony, while not "fungible" from one toxicologist to another, did have areas of commonality.

The four dissenters agreed that mismanagement had been shown, but would also have found prejudice from the late disclosure of the witness.

COURT OF APPEALS CASES

State v Sinrud, No. 750052-6-I, decided Oct. 2, 2017

Prosecution for possession and possession with intent.

Defendant challenges the sufficiency of the evidence due to the fact that the jury instructions added an element ("Knowingly") to the possession charges. The court finds there was sufficient evidence even with the additional burden.

Sinrud successfully challenged a jury instruction on the basis of judicial comment on the evidence. The instruction said that there had to be substantial corroborating evidence in order to find possession with intent. That was undercut by the next sentence: "The law requires at least one additional corroborating factor." The panel holds that the jury could have read the last sentence as judicial assurance that only one corroborating factor would be enough. So a new trial was ordered on the possession with intent count.

State v. Dennis-No. 75441-6 -I, amended and filed October 2, 2017

Petition for order restoring right to own or possess firearms. Dennis had a disqualifying conviction, and then had more than 5 crime free years in the community before getting a negligent driving in the first degree conviction. Less than 5 years after that conviction, he filed his firearm rights restoration petition. The court read the statute as requiring the five year crime free period to be measured from the date of the filing of the petition, not just any five year period since the disqualifying conviction. This case conflicts with the Division Two decision in Payseno, which held that the rule of lenity required the ambiguous statute to be allowed to read the five year period to be at any time. A petition for review has been accepted by the Supreme Court.

State v Pippin, NO. 48540-1-II, decided October 10, 2017

Prosecution for possession of methamphetamine.

In an important criminal law decision regarding the right to privacy, the Washington Court of Appeals recently decided that the police could not enter a homeless person's tent/tarp shelter without a warrant. The decision recognizes that under Washington's Constitution, Article I, §7, a homeless person should have the same rights to privacy in his makeshift shelter that other Washington residents have in their homes or apartments.

The case arose out of the City of Vancouver's attempt to clear out a homeless area by changing the enforcement policies regarding Vancouver's anti-camping ordinance. Police were visiting homeless people and notifying them that they would be subject to arrest and prosecution if they were found camping on public property between 6 AM and 9:45 PM. Police were trying to notify the homeless man in this case about the new policy. In their view, the man was somewhat slow to respond, so the police then lifted the flap of his tent/tarp and saw that he was in possession of methamphetamine.

Pippen challenged the search of his tent on constitutional grounds. The trial court determined that he did have a privacy interest in his shelter, and that the police had not demonstrated any facts that would allow a warrantless entry into his shelter. The State of Washington appealed.

In a long and well-reasoned decision, the Court of Appeals ruled that the homeless man did have a right to privacy in his tent. They sent the case back to the Superior Court for additional findings about whether the police had a realistic concern for their own safety which might justify the entry on an emergency basis.

State v. Wilkins, No. 47835-8-II, Decided October 10, 2017

Prosecution for rape of a child and child molestation.

Wilkins argued that double jeopardy prohibited convictions for both charges with the same victim and one incident. The prosecutor had intimated that he thought if convicted of both, the lesser charge would be dismissed, but reversed himself at the sentencing hearing.

The panel rejects an argument based on estoppel, and also finds that double jeopardy does not bar the second conviction, based on several court of appeals decision with the same issue. Child molestation has an element of sexual gratification that the rape charge lacks, while the rape charge requires proof of intercourse, which molestation does not. They are not the "same offense" for purposes of double jeopardy.

The court does hold the "same criminal conduct" rule applied to the sentencing scoring.

Wilkins also argued that the prosecutor improperly commented on his pretrial statement to the police that they did not have enough evidence. This is couched as an improper attack on his right to have a jury trial, which the court quickly rejects.

PRP of Sorenson, decided October 3, 2017

Prosecution for child molestation. Direct appeal remanded to correct some "scrivener's errors" in the judgment and sentence. Review by Supreme Court was denied. The mandate was issued August 12, and this PRP was not filed until Sept. 15, one day before the trial court entered the order in obedience to the remand from the COA.

The panel holds that the PRP is untimely, and that the one year limitation ran from the date of the mandate rather than when the Superior Court entered its order correcting the sentence. Since the Superior Court was not exercising any judgment, the litigation was final with the issuance of the mandate.

In the unpublished part of the decision, which is complete dicta given the decision on the time bar, the court reaches the merits of Sorenson's IAC claim and finds it without merit.

State v. Gonce, No. 74672-3-I, decided Oct. 16, 2017

Prosecution for malicious harassment and assault. Gonce attacked a number of workers at the UW Medical Center. The injured workers put in Labor and Industry claims, which were paid by L and I. These included counseling for post-traumatic stress disorder.

The court holds that the restitution statute covers damages when these include treatment for emotional distress and for lost wages due to emotional injury. The court distinguishes lost wages due to emotional distress, which are easily ascertainable, from the statute's prohibition on damages for emotional distress generally.

State v. Christian, No. 75536-6-I, decided October 16, 2017

Prosecution for Identity Theft.

Defendant twice swiped a stolen debit card at a store. The bank declined the second attempted purchase. Defendant argues that to convict for identity theft, there has to be a completed crime, not just an attempt. The court holds that the word "used" in the ID theft statute only requires intent to use the piece of stolen ID in connection with a crime.

Christian gets a small win. The court reverses the imposition of a $125 jury demand fee. This was a bench trial.

State v. Todd, No. 34536-0-III, decided October 17, 2017.

Prosecution for robbery at a Home Depot. Store employees intercept defendant as he is attempting to leave after stealing a Leatherman tool. The "to convict" instruction left out the language about force being used to overcome resistance to the taking, but it was in the definitional instruction. The jury noticed and asked a question about whether the broader definition instruction was one of the elements. The state apparently did not argue this means as a basis for conviction, so the court holds the to convict instruction was sufficient.

The defendant also argues that robbery is an alternative means crime, and not all the alternative means were proven. The court holds that robbery is not an alternative means crime.

State v. Cofield and Jeter, 49039-1-II, decided October 24, 2017

Cofield and Jeter were juvenile offenders. The court commissioner scheduled administrative sealing hearings, and then denied sealing without setting a contested hearing. The juveniles moved for revision, which was denied. They appealed to the Court of Appeals.

The panel holds that holding a contested hearing is mandatory if the state objects to an administrative sealing (which it did here), and remands to the Superior Court to hold such a hearing.

State v. Yelovich, No. 48949-0-II , decided October 24, 2017

Prosecution for felony violation of a no contact order. The aggravating factor was an assault, not prior convictions. Defendant believed his ex-girlfriend had just stolen his cell phone while he was packing. The order was already in place. He pursued her and tried to recover his phone.

The panel holds that the trial court properly refused an instruction based on defense of property. The statute, RCW 9A.16.020(3), allows the use of force to prevent the taking of property, but it does not condone the use of force to recover property that has already been taken.

State v. Wilson, No. 74944-7-I decided Oct. 30, 2017

Prosecution for rape of a child and attempted rape of a child. Jury acquitted on a second count of rape of a child.

State concedes error with regard to jury instruction on the attempt charge. Although the court does not reproduce the jury instructions given, there was obviously a defective elements instruction regarding "substantial step."

The state also apparently concedes error on the other count. The state offered as ER 404(b) evidence a statement that Wilson had made to a preteen girl, which the state argued showed a "common scheme or plan." The court rejects this argument because the statement showed no "marked and substantially similar features" between the charged offenses and the casual remark. The error was not harmless.

The court finds there was sufficient evidence on the attempt charge, so both counts are remanded for new trials, rather than being dismissed.

State v. Norris, NO. 75258-8-I, decided Oct. 30, 2017

Conditions of sentence reviewed on a revoked SSOSA sentence. The court upholds a restriction on going to places where minors congregate, and from possessing sexually related material. A curfew and ban on going to businesses that are sex-related are not upheld, because they are not sufficiently crime related. Consumption of alcohol was prohibited, but "use" of alcohol was not. The court says there is a difference, but without explaining what it is.

State v. Duarte Vela, No. 33299-3, decided Sept. 5, motion to reconsider by state denied Oct. 31, 2017

This case was originally decided and published in September. The court denies the state's motion to reconsider, but makes one change in its opinion regarding the standard of review for evidentiary rulings.

The defendant's conviction is reversed and remanded for a new trial because the trial court excluded evidence that tended to support the defense theory of self-defense.

State v. Novikoff, No. 34458-4-III, decided October 31, 2017

Prosecution for felony violation of a no contact order and fourth degree assault. Novikoff argues that double jeopardy prohibits convictions for both. The court holds it does not. While the two crimes meet the Blockburger test of same elements, the legislative intent (found mostly in the domestic violence statute) was to punish the two crimes separately.

Novikoff also argues that the assault merges into the no contact order violation, which seems like a good argument. The Court rejects it, again on the basis of stated legislative intent to have separate enforcement of domestic violence offenses.

State v. Allen, No. 48384-0-II, decided Oct. 31, 2017

Allen was the co -defendant of the man who ambushed four Pierce County police officers. This is a second appeal in this case. Allen's convictions were reversed in 2015 by the State Supreme Court. The jury in the original trial had not found any of the aggravating circumstances beyond a reasonable doubt. When the state re-filed the case, it did not seek the death penalty, but was seeking a second life without parole sentence, and hence re-filed the aggravating circumstances rejected by the earlier jury. Allen moved to dismiss the aggravating circumstances on the basis of his previous acquittal on those circumstances. The trial court agreed and dismissed them. The state filed a motion for discretionary review. The Court of Appeals granted review, but affirms the trial court's dismissal of the aggravating circumstances.

The court begins by agreeing with the state that the aggravating circumstances are not elements of the crime. However, they are the "functional equivalent" of elements. Under the Apprendi v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) line of cases, that means they must be proven to a jury beyond a reasonable doubt. Here the previous jury had found that the aggravating circumstances had not been proven. The panel holds that this operates as an "acquittal", and raises the double jeopardy bar to a retrial on these aggravating circumstances, following a similar ruling in Arizona v. Rumsey, 467 U.S. 203, 205, 104 S. Ct. 230, 81 L. Ed. 2d 164 (1984).

The panel distinguishes State v. Benn, because there the jury did not actually reach a verdict on the aggravating circumstance, but had left the verdict form blank.

This decision was originally not scheduled for publication, but the court determines on its own motion to publish, perhaps making it more likely for review to be granted if the state tries to do so.