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February 2020 Advance Sheet Summaries

ADVANCE SHEET SUMMARIES FOR WACDL

Prepared by Mark W. Muenster

Cases decided February 1 through February 29, 2020

SUPREME COURT CASES

State v. Yishmael, No. 96755-0, decided February 6, 2020

Prosecution for the unlicensed practice of law. The defendant, although not admitted to the bar, gave advice to persons regarding squatting and adverse possession, with the result that many of those who followed his advice suffered economic loss.

The opening paragraph of the opinion notes that people have recourse against lawyers in various ways, but the unlicensed practitioner has no malpractice insurance or client security fund available to those damaged by his advice.

The case turns on what constitutes the “practice of law,” which is not defined by the statute which forbids the unlicensed practice of law, and whether this is a strict liability offense. The “to convict” instructions did not require the jury to find the defendant “knowingly” practiced law.

The decision relies on the factors outlined in State v. Bash, 130 Wn.2d 594, 604, 925 P.2d 978 (1996) for determining whether the legislature intended for an offense to be “strict liability.” After examining them, the court concludes a strict liability offense was intended, and therefore the state was not relieved of its obligation to prove a “knowing” violation.

The court also rejects a separation of powers argument regarding GR 24 which defines the practice of law, and which was used as part of the jury instructions.

The court also rejects a “comment on the evidence” argument, a vagueness argument, and an attack on the sufficiency of the evidence.

The three dissenters, led by Justice Wiggins, argue that the crime is not strict liability, and the state should have had to prove the defendant knew he was practicing law.

State v. Grott, No. 97183-8, decided Feb. 20, 2020

Prosecution for first degree murder. Grott was found guilty of second degree murder.

There was a “first aggressor” instruction given, but Grott did not object.

Part of the decision rejects his argument on appeal that this was manifest error under RAP 2.5 (a). Although the court finds that it was not, it reached the merits to “clarify” the law regarding aggressor instructions.

The majority reverses the COA decision, which had held there was not sufficient evidence to justify giving the instruction, mostly because the COA panel had held, like several others before it, that the initial act of shooting could not be the provoking act, leading to the giving of the aggressor instruction.

The majority takes issue with the statement in numerous decisions that “aggressor instructions are not favored.” In addition, although not specifically disapproving of previous COA decisions which stated that the charged assault cannot be the act of first aggression, the court says this is not a bright line rule. This is how they posit the distinction:

It cannot be applied in cases like this one, where the defendant engaged in a course of aggressive conduct, rather than a single aggressive act.

In cases where the defendant undisputedly engaged in a single aggressive act and that act was the sole basis for the charged offense, we agree that the single aggressive act cannot support a first aggressor instruction.

The court goes on to analyze the specific facts of the case, and holds that the trial court did not err in giving the state’s requested first aggressor instruction.

Because the COA decision had not passed on some of Grott’s other issues, the remand is to the COA to take further action.

State v. Hugdahl, No. 97148-0, decided February 27, 2020

Prosecution for four counts of delivery of a controlled substance, within 1000 feet of a school zone, in this case, a school bus stop. The charging document did not use the word “stop” but instead said “route”. The charging document was challenged after the conviction, and thus under the liberal construction rule, which usually saves the day for the prosecution.

But not here.

The court holds that by using the word “route” instead of “stop” with reference to the school bus, the information was fatally defective, even without a showing of prejudice. The decision vacates the sentence and remands for a new sentence without the school zone enhancement.

The three dissenters would have ruled that the information, under the liberal reading rule for post-conviction challenges, was sufficiently clear to apprise the defendant of the nature and extent of the charge, including the enhancement.

State v. Karpov, No. 95080-6, decided February 27, 2020

Prosecution in District Court for indecent exposure. The district court judge dismissed the charge based on the fact the prosecution did not prove the events happened in Spokane County, which was required to prove jurisdiction for a district court case. The Superior Court reversed the dismissal. The Court of Appeals denied Karpov’s motion for discretionary review, but the Supreme Court granted review and reversed the Court of Appeals, dismissing the case.

The majority holds that double jeopardy applies, barring a retrial after the dismissal by the district court, which it characterized as a “judicial acquittal.” The court says jurisdiction is not an element of the crime, but affects the court’s power to act. The key case here for the majority is Evans v. Michigan, 568 U.S.313, 327, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013). Here, because the district court treated jurisdiction as if it were an element, there was a judicial acquittal under Evans. This holds true even if the trial court is mistaken about whether there is a missing element. The majority notes the narrow basis for its holding and reiterates that not every dismissal for “lack of jurisdiction” will trigger double jeopardy protections.

A concurrence by Justice Gordon-McCloud with three other signers agrees with the conclusion that double jeopardy flowed from the dismissal, but would also hold that jurisdiction is an element that the state has to prove beyond a reasonable doubt.

COURT OF APPEALS CASES

State v. Dillon, No. 78592-3-I ,decided February 3, 2020

Prosecution for felony harassment, third degree assault and unlawful imprisonment.

Defendant challenged the sufficiency of the evidence of unlawful imprisonment, and also the knowledge requirement, and the admission of post-arrest misconduct under ER 404(b).

The panel distinguishes a case involving bounty hunters, who had a legitimate issue regarding their knowledge that their restraint of a prisoner was “without lawful authority” (State v. Warfield) because here, the defendant could not legitimately claim he had lawful authority to restrain anyone in a 7-11 store. The court also rejects an argument that the state had to disprove that the victim had a reasonable avenue of escape, distinguishing State v. Kinchen.

The court briefly discusses whether the ER 404(b) issue was preserved, and concludes it was. It then finds that the trial court correctly admitted the evidence, as its relevance outweighed its prejudicial impact because Dillon had introduced evidence of voluntary intoxication as a defense and the post-arrest behavior in the hospital was relevant to that.

State v. Reynolds, No. 51630-6-II, decided February 4, 2020

Prosecution for failure to register.

This conviction is reversed because the statute delegated to the Legislature of another state the definition of what constituted a “sex offense ” as an offense for which the other state would require registration. The panel agrees with the holding of State v. Batson,

9 Wn. App. 2d 546, 550-54, 447 P.3d 202, review granted, 194 Wn.2d 1009 (2019). The court in Batson held that RCW 9A.44.128(10)(h) is an unconstitutional delegation of the legislative function because it allows another state’s legislature to define an element of the crime of failure to register as a sex offender.

There is a dissent, which may mean this case either will go up, or await the Supreme Court’s review of Batson.

State v. Peterson, No. 52183-1-II, decided February 5, 2020

Defendant entered a plea to selling heroin for profit under RCW 69.50.410 (3) (a) which provides for a mandatory sentence of 2 years. The trial court used the statute to sentence defendant to 24 months, and the state appealed, contending that the guideline range should have been used instead, which would have been 68-100 months.

The panel holds that the sentence is controlled by the specific language of the selling for profit statute, rather then the general language of RCW 9.94A.517 . The panel reaches this result using the language of RCW 9.94A.505(2)(a)(i) which states that the trial court must apply the sentencing grids “[u]nless another term of confinement applies.” Here, the mandatory two year sentence did apply. The court would reach the same result using the rule of lenity in interpreting the statutes.

State v. Stewart, No. 78846-9-I, decided Feb. 10, 2020

Prosecution for indecent exposure. Stewart contested the sufficiency of the evidence. The complaining witness concluded that he was masturbating with his back to her, based on his hand movements.

This case probably would not have been published, other than because of the concurring opinion which agrees in the result, but states that the majority misstates the standard of review for a sufficiency claim.

State v Jieta, No. 77800-5-I , decided February 10, 2020

Prosecution for fourth degree assault and malicious mischief third degree. The defendant needed an interpreter who spoke the Marshall Islands dialect. The court administrator for Snohomish County District Court did not get one who was competent for most if not all of the hearings. Defendant moved to dismiss under CrRLJ 8.3(b) due to government mismanagement. The Superior Court affirmed the District Court’s dismissal, and the state sought discretionary review.

The panel holds that “government mismanagement” under CrRLJ 8.3(b) covers the court administrator’s failure here, and affirms the dismissal of the misdemeanor charges.

State v. AXK, No. 52357-4-II, decided February 11, 2020

Juvenile adjudication for attempted rape of a child in the first degree. There was no capacity hearing, and the evidence suggested the event had taken place before AXK was 12 years old. Persons who are younger than 12 are presumed not to have capacity, and the state never rebutted the presumption.

Although capacity is not an element of the offense, the court reverses and remands to the juvenile court to make a capacity determination. If the defendant is deemed to have capacity, the adjudication would stand. If not, it would have to be dismissed. The panel rejects AXK’s proposed remedy of reversal and dismissal without the remand to determine capacity.

State v. Fairley, No. 35616-7-III, decided February 18, 2020

Prosecution for misdemeanor sex offenses.

A search warrant for an acquaintance’s house led to the seizure of the acquaintance’s cell phone, which was searched. The warrant did not provide authority for the search of the phone, as opposed to its seizure. The phone contained text messages that indicated Fairley was involved in prostitution with the acquaintance’s daughter.

The case arrives at the Court of Appeals on discretionary review of the Superior Court’s denial of the motion to suppress the messages obtained from the search of the phone. The COA specifically says it is not determining the standing issue because that was decided in Fairley’s favor by the Superior Court and apparently the state did not seek cross-review.

The panel holds that a warrant that authorizes the seizure of a phone does not authorize a search of the phone’s contents. A warrant to search the contents must specify what data the police are looking for, to avoid a general rummaging through its contents. The court distinguished the search of blood pursuant to a warrant authorizing the seizure of the blood, State v. Figeroa-Martines.

The remand is to the Superior Court, which may be able to revisit its decision on the standing issue.

State v. Heutink, No. 78033-6-I decided Feb. 18, 2020

Prosecution for stalking. The primary contention on appeal was that the stalking statute had an element the state had to disprove, namely that the stalking was “not under circumstances constituting another felony.” This was not in the charging document or the instructions, and so the defendant contended the conviction had to be reversed on that basis.

The court analyzed the language and concluded it was present to show the Legislature’s determination that a person could not be charged with stalking and other felonies based on the same transaction. In other words, it is a double jeopardy protection:

With these principles in mind, it is clear that the phrase “under circumstances not amounting to a felony attempt of another crime” is the legislature’s way of telling us that it does not intend for circumstances amounting to both stalking and some other felony attempt to lead to punishment for both crimes. A prosecuting attorney may charge a defendant with stalking and some other felony attempt. It may also ask the jury to convict on both charges. But, a defendant cannot be punished for both crimes if the convictions are based on the same conduct.

There were several other arguments regarding testimony by people other than the victim regarding her fear of her husband, the defendant. These were not objected to at trial, and not covered in a motion in limine , so they were deemed waived. The court did consider a preserved hearsay objection, but concluded that the statement in question was not hearsay under the definition.

The panel affirms the judgment, but remands for reversal of the financial obligations.

State v. Quijas, No. 78591-5 -I, decided February 18, 2020

Prosecution for second degree murder, committed at age 15. After a five day decline hearing, Quijas was remanded to adult court. There he entered a guilty plea to the charge.

He presented evidence during the decline hearing that the decision to decline is done in Skagit County in a racially disproportionate manner. The court never addressed this during its decision, although it did discuss the Kent criteria.

On appeal he renewed his argument that the trial court erred in the decline hearing by not addressing his argument regarding racially disproportionate results in decline hearings.

The panel pondered a remedy, since Quijas was now older than 18. A case from 1967 provided the answer, which is to remand for a new hearing on whether declination was proper. If the trial judge says yes, the conviction and sentence stands. If not, then a new trial in adult court is the remedy.

State v. Lang, No. 36397-0-III, decided February 20, 2020

Prosecution for first degree robbery and first degree assault. The jury found Lang guilty of first degree robbery and second degree assault.

After the defendant testified in his own behalf, the prosecutor put on a psychologist who had examined defendant while competency proceedings were ongoing, and the psychologist, who had seen defendant’s testimony in court, labeled him as a malingerer, (faker/liar) and that his only disorder was an anti-social personality. The error was preserved by an objection.

The panel rebukes the prosecutor for offering this testimony, since it constituted improper “vouching” or opinion testimony, but does not reverse, based on its assessment that there was no prejudice since Lang’s testimony denying involvement with the offense was “patently” incredible. It does so under a standard for harmless error for constitutional issues, since the “vouching” related to Lang’s right to a fair trial.

The case is useful for its review of rules regarding opinion testimony, and for rejecting the prosecutor’s arguments that the psychologist testimony was allowable either as “invited error” or under the “open door” doctrine.

On remand, the judgment is revised to eliminate the assault charge entirely as double jeopardy under the facts of this case.

State v. Rushworth, No. 36077-6, decided February 20, 2020

Prosecution for possession of a stolen vehicle.

The two evidentiary issues discussed are the remedy of a motion to strike evidence already in the record, but improperly so. The court finds two instances where the trial court improperly denied motions to strike, but does not reverse.

The second issue is the applicability of the “open door” doctrine. The court differentiates this concept from “curative admissibility” and “invited error”. (These were also discussed in the opinion by the same judge in State v. Lang, above). The court holds it was error to admit hearsay evidence from a police officer, even if the defense had elicited hearsay concerning this same person from the officer. As the court puts it, “The rules of evidence do not envision a tacit quid pro quo when it comes to inadmissible evidence.”

Having found three evidentiary errors, the court nevertheless denies any relief on the basis that the errors were harmless, using the non-constitutional error standard.

State v. Waller, No. 79793-0-I, decided Feb. 24, 2020

This case deals with the complicated procedural history of a CrR 7.8 (b) motion after a prosecution for first degree murder. Defendant was 21 when he killed a man by repeatedly stabbing him with a screwdriver. He was given an exceptional sentence based on the jury’s finding of deliberate cruelty. The mandate from his first round of appeals was in November of 2002.

In March of 2018, Waller then filed a pro se motion under CrR 7.8 to ask for a new sentencing hearing to consider the mitigating circumstances of youth. He argued that State v. O’Dell allowed him to get around the 1 year time limit on collateral attacks as a “significant change in the law.” The trial court originally granted his motion for an evidentiary hearing. This was while the Court of Appeals decision in PRP of Light-Roth was still in force.

The State sought discretionary review from the trial court’s decision to grant an evidentiary hearing, which the Supreme Court granted. Subsequently, it reversed the COA decision in Light-Roth, and held O’Dell was not a “significant change in the law” which justified an exception to the one year time limit for collateral attack.

The superior court then vacated its earlier order granting the evidentiary hearing, since there was no longer a good argument regarding the time bar.

Since the State’s original request for relief was from that order, the case was now moot. The panel nevertheless keeps the case to determine whether the state can appeal a trial court order granting an evidentiary hearing under CrR 7.8 (b). The panel concludes that the State has no right to appeal, unless and until the trial court vacates the judgment.

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