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Advance Sheet Decisions for February 2015

Prepared for WACDL by Mark W. Muenster

Decisions from Feb. 1 through February 28, 2015


State v. Hayes, NO. 89742-5, decided Feb. 5, 2015

Prosecution for leading organized crime and identity theft, originally. Previous COA case reversed the leading organized crime charge which vacated an exceptional sentence for major economic offense. After remand, the state asked for and got an exceptional sentence on one of the identity theft counts.

The substantive charges required the jury to find defendant or an accomplice committed the acts, but for the special verdicts, they only had to find it was a major economic offense, without attribution to the defendant rather than the accomplices.


Can the exceptional sentence be based on accomplice liability?

The five person majority says no. This is based on the 1975 amendments to the accomplice liability statute, which removed language from the 1909 version that an accomplice could be punished to the same degree as a principal. Unlike the firearm and deadly weapon enhancements, where the statute expressly permits liability based on acts of an accomplice, there is nothing in the exceptional sentence statute which allows an accomplice to get an exceptional sentence based on the acts of other accomplices.

“We hold that for aggravating factors that are phrased in relation to “the

current offense” to apply to an accomplice, the jury must find that the defendant had some knowledge that informs that factor.”

State v. Henderson, No. 90154-6, decided Feb. 26

Prosecution for first degree murder by extreme indifference. The facts describe sort of a “walk by” rather than a “drive by” shooting into either “a crowd of people” or “Two or three security people”. The COA panel below reversed because the trial court refused to instruct on first degree manslaughter. The state petitioned for review. The Supreme Court affirms the COA decision to remand for a new trial.

The parties agree that the legal prong of the Workman test for getting a lesser included instruction is met here. The dispute is whether the facts raised the inference that only the lesser had been committed. As the dissent notes, the majority skates around this, emphasizing that the trial court used the wrong legal standard for recklessness, and the disputed facts. The decision can be used to argue that this is the only standard to get the lesser included instruction, as far as the factual prong is concerned:

“If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury must be instructed on the lesser offense.”


State v. Hernandez, No. 31595-9-III, Decided Feb. 3

Prosecution for felony DUI.

Issues: Calculation of Offender Score

Ignition Interlock requirement limits

Hernandez had numerous prior convictions of various types, not all driving related. He argued that only the driving related priors could be used in his offender score. Decisions from Division II and Division I support his interpretation of the statute. (State v. Morales, and State v. Jacob.) Division III holds instead that the offender score includes felony convictions for non-driving offenses. Oddly, the decision cites a 2013 amendment which says that NOW, “all other convictions shall be scored according to this section,” which implies that this was not the rule previously.

The court ordered a 10 year ignition interlock requirement. The court vacates this, noting that the length of interlock is tied to the maximum jurisdiction, in this case 5 years.

State v Johnson, No. 72365-1-I, Decided Feb. 2

Prosecution for first degree rape, kidnapping and burglary with firearm enhancements, and felony stalking.

Issues: sufficiency of evidence for felony stalking

Admissibility of items seized from backpack under ER 403

Adequacy of notice in charging document for firearm enhancements.

Facts: Defendant comes to ex-girlfriend’s house with zip ties and a gun. To placate him, she agrees to have sex with him. He is found not guilty of that charge. He shows the gun to her, but unloads it while they are together.

After being charged, and after NCO is issued, he follows her in his car, on one occasion.

Interpretation of felony stalking statute reveals that “repeatedly” means more than once, so the felony stalking charge is dismissed.

The information adequately gave notice that a firearm enhancement was being sought, because of the wording and the specific statutory reference to the firearm portion of the statute as opposed to the deadly weapon statute.

Although some of the items in the backpack were never displayed to the victim, they are nevertheless admissible to show intent on the kidnapping and burglary charges.

State v. Longo, No. 70523-7-I, Decided February 9, 2015

Prosecution for manufacture of marijuana, and accompanying forfeiture proceeding.

Bellingham initiated a civil forfeiture proceeding against Longo based on a marijuana grow operation. He moved to suppress the evidence in the civil forfeiture on the basis that the warrant affidavit did not demonstrate probable cause that his grow was in violation of the medical marijuana limits. The district court granted his motion. He brought the same motion in Superior Court in the companion criminal case. The superior court granted the motion on the basis of collateral estoppel. The state appealed, but not the city of Bellingham.

The COA panel holds that collateral estoppel does not apply. It holds that Bellingham and the state were not in privity, the third factor in determining whether collateral estoppel applies. Similarly, the fourth factor in determining whether collateral estoppel, whether application of the principle would work an injustice is the second basis for the court’s decision.

Longo also cross-appealed the Superior Court’s decision that probable cause was present. He asked for a stay pending the resolution of the Supreme Court’s decision in State v. Reis. The court rejects the request for a stay, and follows its own decision in Reis, which held that the police do not have to establish a violation of the medical marijuana law in order to obtain a warrant.

State v. Walker, No. 69732-3-I, originally decided Dec. 8, 2014, motion for reconsideration granted Feb. 17.

Issue decided:

Whether defendant could be made to appear in shackles at time of sentencing on his murder conviction?

The outcome did not change here between the original decision, filed in December of last year, and the opinion filed in February. The opinion seems to be almost exactly the same one that was filed earlier. The difference is the attribution of who is arguing. The revised opinion makes it clear that DAJD (Department of Adult and Juvenile Detention) rather than “The state” was arguing for shackling. (Page 2 and 3 of revised decision)

The court holds that it is the trial court, not the jail officials, who must decide whether a defendant appears in shackles. The court also holds that a lesser showing is all that is necessary for appearances other than jury trials, and that Walker did not overcome the government’s arguments that he needed to be shackled for the court’s security. He also did not provide support in the record that shackling made it difficult for him to consult with counsel.

State v. P.E.T., No. 68068-4-1, Decided Feb. 17.

This case was originally decided in 2013, and the court had reversed the juvenile adjudication, holding that the trial court had improperly placed the burden of proving incompetency on the defendant. The case was remanded in light of the Supreme Court decision in State v. Coley, 180 Wn.2d 543, 554, 326 P.3d 702 (2014) which held that the burden of proof is on the party challenging competency. In light of this new authority, the panel reverses itself and affirms the juvenile adjudication.

State v. Larson, NO. 71238-1-I, Decided Feb. 17

Prosecution for retail theft with extenuating circumstances.

Defendant used wire cutters to try to defeat a store security system. He filed a Knapstad motion and argued that wire cutters are not within the statutory definition of a “device designed to overcome security systems.” He appeals from his conviction after a bench trial.

The panel holds that wire cutters are indeed a “device designed to overcome security systems.” They would reach the decision even if the wire cutters had not actually been used to cut the wire that comprised part of the store security system.

The panel disagrees with the recent decision in State v. Reeves (October 2014) that held that pliers were not a “device designed to overcome security systems”, because they have many other uses.

The dissent would have followed Reeves.

State v. Weller, 42726-6- II and 44733-9-II

Decided Feb. 18

Prosecutions of couple for assault, unlawful imprisonment, etc.

Only two issues are published:

The warrantless seizure of a wooden board found in defendants’ garage during a “welfare check” and exceptional sentences based on deliberate cruelty and ongoing pattern of abuse.

The wooden board was found in the defendants’ garage after police responded to the house after a CPS worker had conducted a health and safety check and wanted two of the children interviewed. The interview somehow wanders into the garage where a board used to beat the children was found in “plain view”.

Panel decision holds that this warrantless search is justified under the “community caretaking” exception, which itself has two prongs: “emergency aid”, which the court holds was not present, and the routine “health and safety” check, which the court uses as the basis for this search. The court glosses over the fact that the police were called after the CPS worker had already done her welfare check, so the intervention of four police starts to look like an investigation of the crime of abuse of a child.

The court remands for resentencing after knocking down one of the props of the exceptional sentence, the ongoing pattern of abuse, since it was not clear that this could be applied to both defendants. The “deliberate cruelty” basis could be applied to both defendants, since the special interrogatory asked if each used deliberate cruelty. But since the trial court had not specified that the same sentence would have been imposed if just one finding had been made, the case is remanded. The sentencing judge is retiring, so this may become the province of her successor.

State v. Smith, NO. 45432-7-II, Decided Feb. 18

Prosecution for failure to register.

Defendant challenges the registration statute as an unconstitutional impingement on the right to travel. The court notes a person can travel all he wants, as long as he maintains a “residence.” The court notes there is also a compelling state interest in registering the whereabouts of sex offenders.

Defendant’s challenge to the sufficiency of the evidence revolves around whether he actually signed a change of residence which directed the police to a house they found was vacant when they checked. The court finds the signatures on the change of address were sufficiently distinctive to support the trial court’s conclusion that Smith had penned them.

State v. Ashley, No. 45173 -5 -II, decided Feb. 18

Prosecution for unlawful imprisonment

Issue in the published portion of the decision is whether an attempted assault in the second degree juvenile adjudication counts as one half point or a full point in the offender score.

Attempted second degree assault is not defined as a “violent offense”, because the only attempts that are violent are Class A felonies. A completed second degree assault is defined as a violent offense.

A violent juvenile offense counts a full point, not a half point.

However, another portion of the SRA , RCW 9. 94A.525( 4), directs trial courts to score prior anticipatory offenses the same as the completed crimes.

The panel follows the reasoning of State v. Becker, 59 Wn. App. 848, 801 P.2d 1015 (1990), which held that an attempted second degree robbery prior conviction should be counted two points for a violent offense, despite not being defined as such. The Becker court noted the potential conflict between the definitional statute and the statute which counts prior anticipatory offenses as completed crimes, and “harmonized” them by following the latter to the expense of the former. This analysis has been followed by a Division III case (Knight) and another Division I case (Howell) decided after Becker. It does not appear that the Supreme Court has reviewed the issue.

Here is Becker’s analysis. It is not satisfying:
The apparent conflict in the sections is based on the assumption that the attempted robbery can only receive two points if it is a “violent offense.” Contrary to Becker’ s contention, the offense does not receive two points because it is a violent offense, but rather, it receives two points because the completed crime of robbery in the second degree would receive two points and the attempted robbery is to be treated as a completed crime. According to the plain language of [ former] RCW 9. 94A.360( 5) the attempt must be treated the same as the completed crime. Such a reading of the two sections gives effect to each section and does not distort the language of the sections.

The problem with this logic is that only the completed crime of robbery is a violent offense, which yields two points. If the legislature had wanted all attempts to be defined as violent if the completed crime was a violent offense, it could have done so more explicitly, and the fact that it did so with respect to Class A offenses suggests the exclusion of other types of attempts. But, as the Ashley court points out, the legislature has not amended either section, which is deemed to be acquiescence in the courts’ interpretations of them.

State v McDaniel, NO. 44972-2-II, decided Feb. 18

Prosecution for second degree murder. Defendant is acquitted of intentional murder, but convicted of second degree felony murder with assault as the predicate felony.

The issue in the published part of the decision is whether assault in the second degree is a predicate offense for felony murder in the second degree. The court disagrees with defendant’s argument that the statute as rewritten after Andress is ambiguous. If it were ambiguous, then his conviction should be reversed under the rule of lenity. The court holds that the amendment after Andress is not ambiguous and upholds the conviction. There is a second attack on the statute in the unpublished part of the decision.

State v Bergen, NO 31648-3-III, decided Feb. 19, 2015

Prosecution for possession of methamphetamine.

Issues: can a court order a person to be detained until a treatment bed is available when imposing a residential DOSA sentence?

Can a person challenge the imposition of LFOs for the first time on appeal?

The trial court gave Bergen a residential DOSA sentence, but held her in jail until a bed date opened up.The state argued this was within the trial court’s inherent authority under a DOSA sentence.

COA panel reaches the issue, which is moot by the time of the decision because the defendant had completed treatment and had been released. There is no statutory authority to hold a person after sentencing until a bed date is available. However the COA offers the helpful hint that a court could accept a plea, and then delay holding the sentencing, and increase bail to make sure the person was around for the sentencing, and by inference, the bed date.

Certain LFOs are mandatory: filing fees, Victim Assessment, DNA fee. For the others, the court only has to take into account the defendant’s resources. In this case, the court reduced the monthly payment from $100 to $50 based on the fact that the defendant was getting Social Security disability and could pay the lower amount.

State v. McPherson, No. 45056-9-II, decided Feb. 24

Prosecution for residential burglary. Defendant entered a jewelry store that had an apartment above it. He did not enter the apartment portion. He argued that this was only second degree burglary because he did not enter the “residence” portion of the building.

COA panel holds that if a portion of the building constitutes a residence, it is a question of fact for the jury to determine whether the building is a residence or not. The panel goes on to hold there was sufficient evidence for the jury to conclude it was a residence, based on the physical attributes of the building.

Defendant also argues that the accomplice liability statute is unconstitutional because it infringes on speech. This argument is rejected, following State v. Coleman, 155 Wn. App. 951, 960 -61, 231 P. 3d 212 (2010), State v. Ferguson, 164 Wn. App. 370, 375 -76, 264 P. 3d 575 ( 2011), and State v. Holcomb, 180 Wn. App. 583, 589, 321 P. 3d 1288, review denied, 180 Wn.2d 1029 ( 2014) all of which have dealt with the same or similar arguments.

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