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June 2016 Advance Sheet Summaries


Prepared by Mark W. Muenster

Cases decided in June of 2016


State v. Otten, No. 91669-1, Decided June 9, 2016

Prosecution for second degree assault, domestic violence. The complaining witness, defendant’s girlfriend, made a sworn statement to police at time of complaint. She testified at trial that the statement made to the police was not true. The State then offered her sworn statement as substantive evidence. Otten asked the court to overrule its previous decision allowing such use of the previous sworn statement in State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982). The court declines to find that Smith was incorrectly decided and harmful, the two requirements for overruling a decision under the rules of stare decisis.

State v. Mecham, No. 90598-3, decided June 16, 2016

Issue: Can the state comment upon , and argue “consciousness of guilt” from, a person’s refusal to do “field sobriety tests,” when the person is advised by the officer that these are “voluntary”?

A badly divided court’s lead decision, signed by four justices, apparently affirms a Court of Appeals decision allowing this comment by the state. It concludes that while FSTs constitute a seizure, they do not constitute a search. Hence, there is no constitutional right to refuse, and thus the state can comment on the exercise of the right to refuse.

Three separate dissents argue different aspects of this. Justice Johnson takes the route of fairness, and notes that since the officer told the driver he could refuse, the state could not argue consciousness of guilt from the exercise of this choice. Justice Gordon–McCloud argues the FSTs were a search in the context of this case, since they were conducted after Mecham was arrested for different crime, and thus were not officer safety based, but were designed to collect evidence. Since in her view, this was a search, there was a consitutional right to refuse, and hence the state should not be allowed to comment on the exercise of the right.

Justice Fairhurst’s partial concurrence, partial dissent, apparently provides the majority for the result reached, but not its reasoning. She argues that since the tests were conducted after an arrest, they were not allowable as part of a Terry investigation. Ordinarily, the FSTs would be permitted as part of a Terry investigation, but not since Mecham was already under arrest for a warrant for different crime. So it is hard to see how the conviction is not reversed, given her language.

State v. Farnsworth, No. 91297-1, Decided June 23, 2016

Prosecution for robbery, third strike case. The majority reverses a Court of Appeals decision which had vacated the robbery conviction on the grounds of sufficiency of the evidence, namely that there was insufficient evidence of a threat of force. The court holds that a handwritten note demanding money is an implied threat of force sufficient to convict for robbery.

The second issue decided by the court is whether the actual plea agreement of the co-defendant should have been allowed into evidence. The majority hold that error was not sufficiently preserved in the record , but even it was, it was harmless given the opportunity to cross-examine the co-defendant on the benefits he received by assisting the government.

The court remands to the Court of Appeals to determine whether one of Farnsworth’s prior convictions was comparable to a strike offense in Washington.

State v. KHH, No. 91934-8

A 6-3 majority of the court holds that forcing a juvenile defendant to write an apology letter as part of his sentence does not violate the First Amendment or its Washington analog, Const. Art. I §5, as long as the condition is reasonably related to the goals of rehabilitation.

Justice Gordon-McCloud’s dissent points out that the controlling previous decision in State v. Bahl, 164 Wn. 2d 739 (2008), required both an important government interest and a condition narrowly tailored to effectuate that interest. The apology letter condition does not satisfy the latter requirement.


State v. Johnson, NO. 32834-1 III decided June 2, 2016

Prosecution for second degree assault. In the published part of the decision, Defendant challenges the imposition of a second DNA collection fee (he had already given a sample in his last conviction). Without even getting to a rational basis review, the court finds there was no discriminatory intent in requiring additional fees for subsequent samples and hence no equal protection clause violation.

State v. Anderson, No. 45497-1-II, June 15, 2016

Open court issue. COA had previously ruled in Anderson’s favor regarding jury selection issue at sidebar, but in open court.


The case is on remand from Supreme Court in light of State v. Love, 183 Wn.2d 598, 354 P.3d 841 (2015), which held that sidebar conferences regarding jury selection were not a court closure as long as there was a record of what transpired at the sidebar. The COA now affirms the conviction, following the Love decision.

State v. Effinger, No. 46445-4-II, decided June 15, 2016

Also a remand in light of State v. Love. COA now affirms the conviction, holding no court closure took place where jury selection decisions took place at sidebar, but while court was in session, and a record exists of the challenges made to jurors.

State v Butler, No. 46935-9-II, decided June 14, 2016

Identity theft in the second degree is not an alternative means crime. So a unanimity instruction is not required.

Unpublished portion of decision:

Forgery and identity theft are not the “same criminal conduct” because both the bank and the account holder are “victims” of the forgery.

State v. Cardenas–Flores, No. 46605-8-II, decided June 14, 2016

Assault of a child second degree. Broken femur in newborn. Defendant makes admissions, argues on appeal that her statements should not have been admitted because the state had not proven the corpus delicti other than through her statements. The panel holds that the issue was not preserved for appeal. An IAC claim, which raised the same issue, was also rebuffed. The court holds that there was sufficient independent evidence to support the admission of the statement even if an objection had been made. The panel also holds there was sufficient evidence that the crime occurred in Washington rather than Oregon, and that there was sufficient evidence of second degree assault. The court notes that there is requirement of proof of intent to injure required for battery, just proof of intent to have the causing contact. Finally the court rejects an argument that the prosecutor committed misconduct by arguing that the defendant and her husband had not given a plausible alternative explanation for the child’s injury. Since they had both testified, this was a fair commentary on their credibility.

State v. E.G., No. 32354-4 III, decided June 14, 2016

Prosecution for dealing in depictions of child pornography. Defendant, who is on the Asperger’s spectrum, sent pictures of his penis to a former employee of his mother’s , an adult. The court rejects vagueness challenges to the statute, and also a challenge based on the idea that a minor who sends such pictures can’t be prosecuted because he is the victim and perpetrator. The court notes this is not just a “sexting” case involving two minors, but even if it were , the legislature has not limited the reach of the crime. The court also rejects an attack based on the First Amendment, citing cases that hold child pornography is not protected speech.

State v. Sleator, No. 33149-1-III, decided June 14, 2016

Prosecution for possession of methamphetamine. Defendant was arrested pursuant to a warrant for failing to pay on her LFOs, or failing to schedule a hearing to show why she had not.

The court holds that the warrant was invalid, and reverses the conviction for the new drug charge. The court notes that the basis for issuance of a warrant differs in civil proceedings, which the collection action constitutes. A summons should have been issued to allow Sleator to show why she had not paid. In fact, it turns out that she had, but the clerk had allocated all the payments to just one of her case numbers instead of spreading them out amongst her several cases.

State v. Thysell, No. 33028-1-III, decided June 9, 2016

Prosecution for burglary in the first degree and fourth degree assault, domestic violence. Defendant was found not guilty on the burglary charge. She asked for an instruction on self–defense. The evidence of self–defense came from one of the state’s witnesses, a police officer, who related defendant’s statements to him. The trial court refused the instruction, apparently based on its belief that witnesses called by the defense had to bring some evidence of self-defense before an instruction could be given.

The panel reverses, holding that evidence of self–defense has to be provided in some part of the record, but not necessarily from witnesses called by the defense. Hence cross-examination of a state called witness can provide the factual basis for a self–defense instruction.

State v. Makekau, No. 46929-4-II, decided June 7, 2016

Prosecution for possession of stolen property. This is not an alternative means crime, and the state did not assume the burden of proving the disjunctive means of commission of the crime by including them in the instruction.

State v. Batson, No. 72158-5-I, decided June 6, 2016

Prosecution for failure to register. The defendant lived in a homeless shelter. The state argued he lacked a “fixed residence”, and that the shelter did not come within the exception defined in the statute defining a “fixed residence.” The court disagrees and reversed the conviction for lack of evidence that defendant had not registered by listing the homeless shelter as his residence.

In re Search Warrant for 13811 HIGHWAY 99, No. 73446-6-I decided June 6, 2016

Search warrant issued by Lakewood Municipal Court in Pierce County for real estate in Snohomish County based on alleged connection between the property and an ongoing prosecution for human trafficking. Owners asked for return of property seized in the search in the Snohomish County Superior Court.

COA holds that the Superior Court did have subject matter jurisdiction in the case pursuant to Art IV Sec. 6 of the Washington Constitution, which grants jurisdiction to the Superior Court in a very wide area of cases.

The panel then holds there was not a sufficient nexus between the property and the evidence sought, relying on the factors in State v Thein, 138 Wn.2d 133, 977 P.2d 582 (1999). The panel then affirms the Superior Court order returning the property seized under the warrant.

PRP of Mockovak, NO. 69390-5-I, decided June 6, 2016

IAC claim based on alleged misunderstanding of the law of entrapment, and failure to call witnesses on the petitioner’s “learned helplessness.” The COA panel finds no ineffective assistance due to a reasonable tactical choice about presenting psychological evidence, and also no reasonable probability of prejudice.

State v. Baker, No. 33269-1-III, decided June 21, 2016

Prosecution for escape. Issue presented is how to calculate the offender score. The sentencing statute says only previous escapes count, but another sentencing provision adds a point if a person is on community custody at the time of the commission of the new crime.

Finding the statutory language ambiguous, and likewise the legislative history, the court applies the rule of lenity and remands to the trial court to recalculate the offender score without the point for community custody.

PRP of Troupe, No. 47299-6-II, decided June 21, 2016

PRP challenging conditions of confinement, rather than legality of confinement.

The clerk waived the filing fee. The state appeals the waiver.

In a triumph for fiscal responsibility, or a triumph of mean spiritedness, depending on your point of view, the panel reverses the fee waiver. They rely on RCW 4.24.430, which applies to PRPs and prohibits waiver of the filing fee if the petitioner is challenging the conditions of confinement rather than its legality or length, and has had three previous actions dismissed for being frivolous or malicious.

State v. Shelton, No. 72848-2-I, decided June 21, 2016

Challenge to the imposition of fee for DNA testing.

COA panel holds that the challenge is not ripe for due process analysis unless and until the state tries to collect the fee and the client is unable to pay and is facing contempt proceedings. Court notes that as originally passed, the fee could be waived if conditions warranted, but the statute was amended to delete the language, making it mandatory.

State v. Lewis, No. 72637-4-I, decided June 27, 2016

Challenge to DNA fee and collection of sample for repeat offender.

Following Shelton, the panel again holds that at challenged to the DNA fee is not ripe for due process challenge until the state tries to collect it. The panel does reach the equal protection challenge, finding there is a rational basis for collection of the fee a second time from a repeat offender because 80 % of the funds collected go to the maintenance of the data base, and only 20% are allocated for the cost of collection. The panel also holds that since Lewis did not demonstrate that a sample was actually taken in conjunction with his previous conviction, (other than showing it was previously ordered), the trial court did not err in ordering it again. There is a statute, RCW 43.43.754(2) which says if WSP already has a DNA sample, a second one does not have to be taken.

State v Dunham, No. 46169-2-II, decided June 28, 2016

Prosecution for possession of methamphetamine. Dunham was arrested for shoplifting and had several knives on his person. He also had a backpack, one pocket of which was locked. The store employees had found knives in the backpack. The police who took custody of the backpack felt a hard object that she was concerned might be a knife. Apparently one of the evidence handlers had been cut by an object inside a container on some previous occasion, so the police had a policy to check for knives. The pocket that was locked did not have a knife, but did have evidence of methamphetamine residue.

The panel holds that the inventory search was justified based on the policy, and the reasonable belief that a knife might be in the locked pocket of the backpack, based in part on the fact that there had been other knives in the backpack , one of which was unsheathed.

State v Tedder, No. 47012-8- II , decided June 28, 2016

Prosecution for assault in the second degree. The published part of the decision deals with the imposition of court costs on a mentally ill defendant. The panel holds that the trial court did not make an individual determination of ability to pay for a defendant with a long history of mental illness. RCW 9.94A.777 requires such a determination for the imposition of any LFOs, other than the Victim Impact Penalty or restitution. The court remands for a determination of Tedder’s ability to pay.

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