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February 2016 Advance Sheet decisions Summary


Cases decided February 1- February 16, 2016

Prepared by Mark W. Muenster


State v. Fuller, NO. 91193-2, decided February 4, 2016

Issue: Double jeopardy

Prosecution for second degree assault. Two separate counts were charged, one using the deadly weapon alternative and the other the reckless infliction of substantial bodily injury, but there was only a single incident. The jury acquitted on the substantial bodily injury alternative, but was hung on the deadly weapon alternative. The state sought to retry Fuller on the deadly weapon based count. His motion to dismiss on double jeopardy grounds was denied.The court of appeals affirmed. His petition for review was granted, but the Supreme Court affirms the denial of his motion to dismiss, and remands for retrial on the remaining count.

The court holds that jeopardy did not terminate as to the count for which the jury was unable to reach a verdict. The court analogizes to other cases where on appeal the court finds insufficient evidence of an alternate means, and remands for trial on the valid alternate means, eg State v. Garcia, 179 Wn.2d 828, 318 P.3d 266 (2014). The court distinguishes the main US Supreme Court case on point, US v Sanabria, 437 U.S. 54, 65-66, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) and labels as “dicta” language in State v. Wright, 165 Wn.2d 783, 203 P.3d 1027 (2009). In Sanabria, the government had not separated its theory into two counts, so when the one count was dismissed, they could not try again with the new theory. Here, both were presented to the jury, one was rejected and the jury hung on the other.

State v. Miller, No. 91065-1-, decided Feb. 11, 2016

Issue: Time bar for post conviction relief

Miller was convicted of two counts of attempted first degree murder. The trial court ran the two counts consecutively, as required by the statute. After the decision in In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007), which recognized that trial courts could give concurrent sentences as an exceptional sentence downward, Miller went back to the trial court to try to get resentenced concurrently. The trial court granted the motion, and the Court of Appeals affirmed. The state petitioned for review.

The Supreme Court reverses the COA decision, holding that the collateral attack was time barred, and that Mulholland did not represent a “significant change in the law” giving relief from the time bar. Mulholland did not overrule any previous precedent, and was a first decision interpreting the consecutive/concurrent statute in the context of an exceptional sentence request.


State v. Zamudio, No. 32508-3-III, decided February 4, 2016

Partly published decision.

Prosecution for unlawful possession of firearm in the first degree, and second degree assault, with firearm enhancement.

The published part of the decision is about whether Defendant can raise the issue of whether some of his prior Class C convictions would have washed out.

COA panel holds that the issue cannot be raised on appeal, mostly because there was no really clear showing that the priors would have washed out. Looking at his most recent conviction, it seemed unlikely that he would have been released into the community in enough time to have five crime free years. The court does not reach the issue of whether his lawyer’s acknowledgement of his priors would matter.

State v. Kohonen, NO 73339-7-I, decided Feb. 8, 2016

Prosecution for cyberstalking. Defendant posted on her Twitter account two tweets about a classmate, who was not one of her followers on Twitter. She subsequently posted a third tweet, just the word “murder”, in reaction to seeing some red paint on the ground. The school authorities felt the three tweets were connected. The juvenile court convicts her, revision of the commissioner’s decision was sought, and she was convicted again.

COA holds that sufficiency challenge here requires analysis of whether the tweets constituted “true threats”, and concludes that they are not. The classmate who was talked about only heard about them second hand, and did not testify she was scared by them, although she did report them to school authorities. The Court compares them to tweets involving Governor Gregoire in State v. Locke, 175 Wn. App. 779, 790, 307 P.3d 771 (2013) and finds them not to be true threats. This is analyzed not from the perspective of the recipient, but whether a reasonable person in the speaker’s position would think they are threatening. The court considered the media involved and the high school context of the messages in its conclusion.

State v. Homan, No. 42507-2-II, decided February 11, 2016

Prosecution for luring. Court holds that the luring statute is overbroad, and requires a limiting construction, namely an implied intent requirement.

Speech is not protected if it is done with the intent to facilitate criminal conduct. The panel concludes, with the aid of scenarios provided by the ACLU, that the luring statute would prohibit a substantial amount of innocent speech. The court declines to follow Division One’s decision in State v. Dana, 84 Wn. App. 166, 176, 926 P.2d 344 (1996), which upheld the statute against an overbreadth attack. The panel also rejects the idea that the existence of an affirmative defense on which the defendant bears the burden of proof is adequate protection of speech. The limiting instruction would require the state to prove criminal intent, relieving the defendant of the burden of proving the absence of criminal intent. Because Homan had a bench trial, the panel concludes no one could say whether he would have been convicted under an appropriate construction of the statute, so the case is remanded for a new trial.

State v. Gradt, No. 45507-2-II, decided February 11, 2016

Prosecution for possession of less than 40 grams of marijuana.

Gradt argues that the intent of Initiative 502 was to apply to any charges pending at the time of the enactment of the initiative, despite the general “savings clause” of RCW 10.01.040. The panel holds that the wording of the initiative shows its intent to decriminalize any proceedings in progress at the time , and thus vacates the conviction.

State v. Hernandez, No. 72411-8-I, decided Feb. 16, 2016

Issue: Forfeiture by wrongdoing

Prosecution for multiple sex offenses.

The complaining witness was taken by her mom, along with her brother, to Mexico before trial, so no interviews took place. Her hearsay statements were offered in lieu of live testimony over Confrontation Clause objections.

The court holds that the defendant forfeited his Confrontation Clause rights by procuring the absence of the witnesses. The record was solid on this because of tape recorded calls from the jail between the defendant and his girlfriend, the mother of the witness, that made it clear he suggested the witnesses go to Mexico for a long time. Part of the doctrine of forfeiture by wrongdoing also means the defendant forfeits the right to make hearsay objections, so the statements came into evidence and he was convicted.

State v. Robison, No. 72260-3-I, decided February 16, 2016

Prosecution for DUI. The arresting officer did not give warnings that were required at the time about marijuana. These have subsequently been amended, so a repeat of the result here is unlikely. The RALJ court held that the failure to give the statutorily mandated warnings warranted excluding the breath test result, reversing a trial court decision which had denied a motion to exclude the results.

The COA panel affirms the Superior court suppression order, after a review of previous case law regarding either additions or subtractions from the statutory warnings, or arguments based on the need for more information to make an informed decision.The bottom line is the warnings as statutorily mandated must be given despite an officer’s belief that some part of the warning is irrelevant to a given case.

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