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February 2014 Advance Sheet Summaries

February 2014 Advance sheet Summaries

Cases decided in February, 2014

Prepared by Mark W. Muenster


State v. Kipp, Feb. 6, 2014 – 88083-2

Prosecution for child molestation. Kipp made incriminating statements to his brother in law, in a kitchen in his house. The brother in law secretly taped the conversation, and later gave the tape to the police. Court of Appeals held that the conversation was not private, and so the Privacy Act prohibition on recording private conversations did not apply

The Supreme Court reverses. No dissent, but a concurrence on what the proper standard of review. The majority, following State v. Clark, a Privacy Act case, holds that if the facts are undisputed, as they were here, the review is de novo.

COMMENT: the court points out that Art. I §7 would not have prohibited the call. So be on the lookout for a legislative “fix.”

State v. Peña Fuentes, Feb. 6, 2014 – 88422-6

Prosecution for multiple counts of rape and child molestation. After conviction, while motion for new trial is pending, the police eavesdrop on phone calls between client and his lawyer. The prosecutor is told about this and tells the investigator not to do this, and he is replaced on the investigation.

Main issue is whether the reversal for this is automatic, or whether the state can show there was no prejudice that resulted. The Court of Appeals reversed the trial court’s decision to dismiss one count on the basis of the eavesdropping, on the basis that there was no prejudice to the trial, since he had already been convicted.

Supreme Court reverses, holding that the state has to show beyond a reasonable doubt that no prejudice resulted. This case is remanded for findings on that. The court also orders that Peña Fuentes can have discovery to prove there was prejudice.

The court also rejects an argument that the rape and child molestation cases resulted in double jeopardy, on the basis that the prosecutor differentiated sufficiently in closing between the incidents that the jury could not have used proof of one to convict on the other.

The court also affirms the COA decision that limiting a letter that the sister of the victim wrote concerning the incidents to impeachment, and affirms a ruling striking a motion to consider additional evidence which had information from the disciplinary file for the detective who did the eavesdropping, on the basis that the defense filing did not meet all the criteria of RAP 9.11 for the consideration of other evidence on review.

State v. Garcia, no. 88020-4, Decided February 13.

Issues: 1. sufficiency of evidence of alternative bases for kidnapping conviction

2. restriction on cross–exam of victim

3. Admission of prior Burglary conviction under ER 609

1. Prosecution for first degree kidnapping, and burglary. Court reviews the first degree kidnapping statute and holds that there was insufficient evidence of two of the three alternatives that were charged: intent to use victim as hostage or shield, and intent to inflict extreme mental distress. In this case the facts did not support the conclusion that the defendant intended to use the victim as a hostage or shield. As to the second alternative, the court indicates that while being kidnapped obviously makes the victim uncomfortable, the focus is on the defendant’s intent, and there has to be extreme measures to convict on this prong, otherwise it would be just an ordinary abduction and thus second degree kidnapping.

Since there may have been enough evidence for the third alternative, the remedy is not dismissal, but remand for a new trial without the two insufficient alternatives.

2. Restriction on Cross:

The trial Court did not allow cross-examination of the victim concerning Garcia’s statements to her. These were offered by defense concerning his intent during the kidnapping. The court holds it was error to exclude these statements, since they were not hearsay, due to the fact that they were not being offered for the truth but to show Garcia’s intent. However, as to the burglary charge, they were harmless.

3. ER 609 issue. Burglary is not intrinsically a crime of dishonesty, so a trial court can look at the information, plea, and PC statement to determine whether the crime intended in the building is one of dishonesty. Here the trial court used a police report containing a co–defendant’s statement to make that determination. The COA had held this was error but harmless. The Supreme Court holds that the error was not harmless, because it could have contributed to the burglary verdict here. That conclusion is reached partly because the prosecutor’s closing argument was that breaking the window of the building with an object constituted the crime committed within the building. This collapsing of the elements was an incorrect statement of the law. Coupled with the ER 609 evidence, there was a reasonable probability that this affected the outcome of the burglary trial. The burglary is reversed and remanded. A related criminal trespass conviction is left undisturbed.

State v. Gower, NO. 88207-0, decided Feb. 13, 2014

Prosecution for sex offense. Bench Trial. Evidence which the Trial Judge ruled inadmissible under ER 404 (b) was nevertheless admitted under RCW 10.58.090. After the statute was declared unconstitutional in State v. Gresham, Gower petitioned for review.

The COA decision had relied on the fact that this was a bench trial and the presumption that a trial judge does not rely on inadmissible evidence. The Supreme Court notes that this is merely an assumption. And here, the judge explicitly relied on the evidence, because at the time, there was an alternative basis for its admission, namely RCW 10.58.090


State v. Bailey, 27489-6-III decided February 13, 2014

Prosecution for third strike offense. Bailey had a Robbery 2 when he was sixteen, in adult court. He argued on appeal that the transfer to adult court was invalid, because of inadequate findings regarding declination. COA originally affirmed the three strike sentence, and Bailey petitioned for review to the Supreme Court. That court remanded to Division III in light of State v. Sainz, 175 Wn.2d 167,283 P.3d 1094 (2012), which identified two specific prerequisites for a valid transfer of juvenile court jurisdiction:

(1) the juvenile must be fully informed of the rights and protections being waived, and

(2) the juvenile court must enter written findings in the record, including a finding that transfer is in the best interest of the juvenile or public.

The dissent argues that the records was sufficient to show that Bailey had a sufficient understanding of the rights he gave up by trading the “short term” gain in his early robbery case against the danger it could be used as a strike in the future.

Remanded to superior court for sentencing without the third strike.

State v. Moore, decided 2/18, No. 69766-8-1

“To convict” instruction containing “duty to convict” language is permitted.

Previous cases upholding the instruction:

See State v. Meggyesy, 90 Wn. App. 693,

706, 958 P.2d 319 (1998) (Division One);

State v. Brown. 130 Wn. App. 767, 771, 124

P.3d 663 (2005) (Division Two);

State v. Wilson, 176 Wn. App. 147, 151, 307 P.3d 823

(2013) (Division Three), review denied Wn.2d , 316 P.3d 495 (2014).

State v. Creed, 30893-6-III decided Feb. 20, 2014

Prosecution for possession of heroin. Officer stopped Creed’s car because he thought it was on a database of stolen plates. He had mis–entered the number sequence when checking the database. When he returned to the car to tell Creed she could go, he saw her toss something, which turned out to be heroin, into the back seat.

Trial court granted a motion to suppress. State appeals. COA refuses to extend Snapp, 174 Wn.2d 177,275 P.3d 289 (2012) to this situation, where the officer’s belief may be sincere, but was not reasonable due to his data entry mistake.

The dissent agrees that the police cannot create reasonable suspicion by their own negligence, but would have held that the discovery of the heroin was not a fruit of the illegal seizure:

“Officer Gabe Ramos did not exploit his mistake; instead, Ms. Creed made her own mistake by tossing the heroin to the backseat in his presence, putting it in open view.”

State v. Cobarruvias, NO. 30665-8-III, decided Feb. 20

Prosecution for possession of methamphetamine.

From the factual summary it looks like everyone had a problem with attendance at this trial, not just the defendant. It must be hard to try a case in Spokane in January.

The defendant was absent during the last day of the trial, and was apparently at the hospital with his son. The trial court held that he was voluntarily absent. At the motion for a new trial, a more detailed explanation of the reason for his absence was made, but the motion was still denied.

The panel considers this case in light of Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994) and Garza, 150 Wn.2d 360, 367-68, 77 P.3d 347 (2003) and holds that the trial court did not give sufficient weight to the presumption against voluntary absence as a basis to carry on trial proceedings when the defendant is not there. Remanded for a new trial.

State v. Hecht, no 71059-1-I Decided Feb. 18, 2014

Prosecutor’s slide show with “Guilty” superimposed on defendant’s photo is misconduct which requires reversal despite the lack of an objection.

State v. Zeferino-Lopez, No. 69649-1-I decided Feb. 24, 2014

Prosecution for identity theft in the second degree. Defendant had a SSN which belonged to another person. He had bought the number and used it for several years.

Issue: Does the state have to prove defendant knew the number actually belonged to another person, living or dead?

Following a US Supreme Court case about misuse of identity, Flores-Figueroa v. United States, 556 U.S. 646, 649, 129 S. Ct. 1886, 173 L Ed. 2d 853 (2009) and State v. Killingsworth (trafficking in stolen property requires knowledge that the property is stolen) the court holds that the state had to prove knowledge that the SSN belonged to someone else. There was no evidence of that in this case, so the conviction is reversed and dismissed.

State v. Johnson, 69322-1-1, decided Feb. 24, 2014

Involuntary detention. Johnson argues that the 72 hour initial detention must be reviewed by a court to determine whether she was an imminent harm to herself or others., or was gravely disabled.

COA reviews the statute, which does not require judicial review of an emergency detention, and holds that due process does not require such judicial review, in light of the fact that after 72 hours, a 14 day detention does require judicial review.

State v. Rainey, 68846-4-I decided Feb. 24, 2014.

Prosecution for attempt to elude and DWS 3.

Rainey attempted to get his passenger/potential driver to testify at a motion for new trial after his conviction for attempt to elude. Her lawyer told the court she would invoke the 5th Amendment. The judge held a closed hearing at the prosecutor’s recommendation to determine whether her invocation of the 5th Amendment was valid.

ISSUE: was the closing of the court to take the preliminary testimony of the witness regarding her privilege a violation of Bone–Club?

Court reviews cases that say that a witness cannot do a blanket invocation of the 5th Amendment and that the “experience” part of Subtlett’s “experience and logic” test for determining Bone–Club violations is met here, as well as the logic test. Rather than reverse the conviction, the court remands for a second hearing on the motion for a new trial.

The court also accepts the state’s concession that the admission of Rainey’s driving record without a witness was a confrontation clause violation.

State v. Kalebaugh

Prosecution for child molestation. In published part of the decision, court holds that the reading of the preliminary WPIC instruction does not deprive a person of a fair trial. Defendant did not object to the reading of the instruction, so he had to argue manifest constitutional error.

The preliminary instruction read in part:

If after your deliberations you do not have a doubt for which a reason can be

given as to the defendant’ s guilt, then, you are satisfied beyond a reasonable


On the other hand, if after your deliberations you do have a doubt for

which a reason can be given as to the defendant’ s guilt, then, you are not satisfied

beyond a reasonable doubt.

Kalebaugh argued that this instruction was like the improper prosecutorial “fill in the blank” arguments condemned in State v. Emery, 174 Wn.2d 741, 761, 763, 278 P. 3d

653 ( 2012), The court holds that the error, if any, was not preserved, and does not qualify under RAP 2.5(a), partly because no prejudice was shown because a correct statement of the law was read to the jury at the time of closings.

State v Nguyen, No 68408-6-I, decided in December , but published Feb. 10, 2014

Denial of motion to continue hearing date for a motion to withdraw a plea. The plea took place during after jury selection and opening statements in a homicide and conspiracy trial. The motion to withdraw the plea came after defendant had new counsel, who wanted to review the entire voluminous discovery in order to advise the client about the plea. The trial court, after giving a one month continuance, refused the six month continuance that the new lawyer requested, pointing out that the validity of the plea did not hinge on whether it was a good idea in the first place, but rather whether it was knowing and voluntary.

Since the denial of a motion for a continuance is a discretionary ruling the COA holds that the trial court did not abuse its discretion in denying the 6 month continuance to review the discovery.

State v. Kloepper, 30294-6-III, decided Feb. 4.

Prosecution for rape, burglary, and assault, all in the first degree.

Two main issues of note: Identification and Sentencing

The complaining witness was show a photo montage with the defendant with short hair, and did not pick him out. The assailant had long hair. The victim recognized his picture in another larger photo laydown, but picked another person has her assailant. The other man was exonerated by DNA testing. The police told her that Kloepper’s DNA matchedthe sample and she changed her mind and identified him as her attacker. Kloepper sought to suppress her anticipated in court identification, but his motion was denied.

The standard of review for an evidentiary ruling of this type is abuse of discretion. The COA upholds the trial court’s exercise of discretion. The court was not convinced that the police communication to the witness about the DNA match was “suggestive” but also rests on the ground that it was not likely to rise to a substantial risk of misidentification.

The second issue of interest was the sentencing. Kloepper argued that the rape and assault convictions should have run concurrently, i.e. that they were not “separate and distinct”. Serious violent offenses run consecutively if they are separate and distinct. The trial court’s discretionary decision here was also upheld, on the basis that the assault did not facilitate the rape, and was not used to force compliance.

State v. Cardenas Muratalla, NO. 68057-9-I, decided Feb. 3

Prosecution for unlawful possession of a firearm.

A Terry stop leads to the discovery of the gun. Anonymous 911 caller tells the dispatcher that a man displayed a gun to him, but he did not feel threatened. Being in a high crime area, or avoiding the police did not add to the fact that there was no real suspicion of criminal activity.There is a useful and long footnote about reports concerning a gun as the basis for a stop.

Trial court denial of a motion to suppress is reversed.

State v. Arndt, No. 43717-1-II, decided Feb. 4

Prosecution for vehicular assault. The reported issue is the trial court’s miscalculation of the offender score.

The defendant had several Oregon priors, three of which were not comparable to Washington offenses. The COA holds that three of the Oregon convictions, (DUI, Third Degree Rape, and attempted second degree assault) were not comparable.

The validity of the attempted assault conviction turns on the difference between “serious physical injury” (the Oregon standard) and “substantial bodily harm” (the Washington standard), with the Oregon standard being broader. The record did not prove that the assaults were factually comparable either.

The DUI conviction could not be counted because of the statutory differences regarding “under the influence”. The COA says that the Washington statute focuses on actual ability to drive, while the Oregon statute focuses on impairment of mental or physical facility without reference to the ability to drive. The state did not prove factual comparability either. No mention is made about either state’s per se standard.

The Washington rape statute requires more elements than the Oregon statute, so they are not legally comparable either. Because there was nothing in the record of the Oregon case about the victim’s marital status, the two are not factually comparable either.

The case is remanded for resentencing. However, whether this victory is short lived or not is left up to the trial court. The decision does not give any directives about whether additional evidence can be considered on remand to establish factual comparability.

Two of the best of the month are saved for the last of the month.

State v. McDicken, NO. 88267-3, decided Feb. 27, 2014

Prosecution for robbery. McDicken was apprehended by the police in possession of a shoulder bag, and a rolling duffel bag.

The police arrested him and moved the two objects a car length away, and then proceed to search them without a warrant.

The majority follows the recent decision in Byrd, which distinguishes searches of a person from area searches. The latter are not allowed in Washington without a warrant, while searches of a person are. However, in Byrd, the object searched was a purse, not the person of Byrd. This was allowed because it was “closely associated” with her person at the time of the arrest. The two items of luggage searched here were “closely associated” with McDicken immediately before his arrest, and hence follow under the Byrd rule.

The dissent argues that searches of an object which was formerly, but not currently, in the possession of a person should not be allowed as a search incident to arrest, because the exigencies which allow such a search, officer safety and evidence preservation., do not apply to a situation where the police have already acquired control of the object.

State v. Roden, 87669-0, decided Feb. 27, 2014

Prosecution for attempted possession of a controlled substance. This case arises out of the same fact pattern as Hinton, discussed below.

The court holds that the interception of the text messages violates the privacy act, RCW 9.73 et seq.

The court distinguishes an earlier case, Wojtyna, which dealt with a pager that only displayed the phone number of the caller. The court there held that the transmission of the pager number was not a private communication protected under the act.

The majority also holds that the caller did not impliedly consent to the interception, of his messages, which would also strip them of protection under the act, not reaching the question presented in Townsend which was that the emailer had consented to the “recording” of the emails by the recipient’s computer, which in that case was a police decoy computer.

The court also rejects the WAPA argument that there was no “interception” because the police had the phone in hand, based on phone call cases. The majority notes that in the actual phone call situation, the caller has the opportunity to know who he is talking to, but in a text he does not, so the two are distinguishable.

The same divisions of the court are present in both cases, and mostly the same arguments were presented. It appears that Roden had not argued the state constitution in the COA, so the statute is relied on to reach the result.

The dissent argues there was no “interception” because the message had reached its intended target, i.e. the dealer’s phone.

State v. Hinton, NO 87663-1

Prosecution for attempted possession of a controlled substance.

Hinton was arrested when he sent a text message to police who had captured a dealer’s phone and posed as the dealer.

A 5-4 majority of the court holds that under Art. I §7, Hinton had a protected privacy interest in the text messages, and since the state had not gotten a warrant to examine the dealer’s cell phone, it violated Hinton’s constitutional privacy rights. The COA decision upholding the search of the phone is reversed.

The court rejects the analogy suggested by the state to a letter, which loses its protection once it is opened by theperson receiving the letter. The majority notes that this opening of the letter usually takes place in a protected place like the home, whereas phones are carried everyone. There is nice language about protecting privacy interests despite the fact that there are more possibilities of interception of their contents.

The court also distinguishes Athan (DNA envelope case) and Goucher (phone call where police pose as the dealer), also suggested as analogies by the prosecutors. The phone call case is different because there the caller could know the phone was in police hands, whereas with a text message there was no way he could know his message was going to an unintended party.

The dissent by J. Johnson (not C. Johnson) argues that Hinton did not have standing to contest the search of another person’s phone, even though it was his communication with the phone. He is joined by Wiggins, Owens, and Madsen, who had already made her position on this issue clear in Ibarra-Cisneros, decided in 2011.

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