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October 2014 Decision Summaries

Advance sheet summaries for WACDL for October, 2014

Prepared by Mark W. Muenster


State v. Humphries, No. 88234-7, decided Oct. 23

Issue presented:

Can the trial court accept a stipulation to an element of the crime when the defendant expressly objects to the stipulation?

Prosecution for Assault in the second degree (with firearm) and unlawful possession of a firearm (1st Degree).

Defense counsel offered a stipulation that Humphries had been convicted of a serious offense, rather than expose the jury to his record of several robberies. Humphries objected to the stipulation. The trial court found that he did not have to agree, since it was a matter of trial tactics.

COA affirmed in a split opinion. The Supreme Court reverses on the firearms charge, but not on the assault charge (which had an IAC claim for not offering a limiting instruction as to the effect of the stipulation).

The majority sidesteps the issue of who has the authority to make this trial tactic decision, and focuses on the waiver of an element of the crime. Ordinarily, a trial court can accept a stipulation and assume the defendant agrees. But not here, where there was an express objection. The trial court erred in accepting the stipulation, and the firearm charge gets a new trial. The court rejects a harmless error argument from the state, despite the fact that the state apparently had certified copies of the judgments ready to enter into evidence.

The dissent, by Justice Stephens, points out that this type of decision has typically rested with trial counsel, so that a procedure to formally determine the partial waiver of the right to have every element proven is not needed. She also would have affirmed based on harmless error.

Justice Madsen writes separately to note that if counsel had not tried to offer a stipulation, THAT would have been ineffective assistance.

State v. Williams, No. 89318-7, decided October 30


Is a current sentencing court bound by a prior court’s determination that an earlier burglary and robbery conviction constituted the “same criminal conduct” when calculating the offender score for new offenses?

Prosecution for burglary and trafficking in stolen property. Defendant had a prior burglary and robbery under one cause number. The earlier court may have held that these were the “same criminal conduct.” The present sentencing court said that the burglary anti–merger statute required that the two charges count separately. This was a misapplication of the law, which is reviewable under State v. Aldana Graciano, 176 Wn.2d 531, 295 P.3d 219 (2013) (Same criminal conduct determinations are not reviewed de novo, but only for abuse of discretion or misapplication of the law.)

The court affirms a COA decision which remanded for resentencing, directing the trial court to determine whether or not the prior convictions constitute the same criminal conduct. The burglary anti–merger statute does not prevent this determination.

State v. W.R. , No.88341-6, decided October 30


Does the defendant have the burden to prove consent by a preponderance of the evidence in a second degree rape case based on forcible compulsion?

The court throws State v. Camara overboard, and holds that it violates due process under the 14th Amendment to require the defense to prove consent in a case where the state has to prove forcible compulsion.

The key to the analysis is whether the defense would “negate” an element of the offense. Where it does, as in this case, the defense cannot be saddled with the burden of proof:

“We hold that consent necessarily negates forcible compulsion. For this reason, due process prohibits shifting the burden to the defendant to prove consent by a preponderance of the evidence.”

The state constitution is not argued in this decision.


State v. Rodriguez, No. 44417-8-II decided October 7, 2014

Issue: Calculation of offender score for DV felony charge

Defendant charged with both felony and misdemeanor NCO violations. State concedes the offender score was improperly calculated, but COA does not accept the concession.

Criminal history points for Felony DV cases are governed by 9. 94A.525( 21)( c):

(c) Count one point for each adult prior conviction for a repetitive domestic violence offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.030, was plead and proven after August 1, 2011.

Court holds that prior conviction for misdemeanor NOC violation does not mean earlier in time. It can mean, consistent with RCW 9. 94A.589, an “other current offense.”

Repetitive does not mean repetitive in the sense that it had happened before, it just means on the list of misdemeanor DV offenses in RCW 9. 94A.030( 41)

So defendant’s misdemeanor count was a point for calculating the range for her felony count.

Her misdemeanor sentence is vacated because the court suspended it for five years, in excess of its jurisdiction.

State v. Stark, No. 31215-1-III. Decided October 7, 2014

Issues: Court closure and comment on Defendant’s credibility by witness

Defense argues there was a court closure when the trial judge asked people not to come in and out during closings.

In context, this is determined not to be a total closure, and hence not a violation of the public trial right.

Police officer testimony about defendant’s statement (“she told us what she wanted us to hear” ) is held not to be impermissible comment on her credibility.

State v. Merrill, No. 31722-6-III

Previously unpublished decision has a motion to publish by a “third party” granted. There were actually two motions to publish. One of them was by WAPA, the other by a victim rights group.

Issue: Was contact with witnesses barred by RCW 7.69.030?

Attorney for defendant is sanctioned for contacting witnesses twice. They had invoked the protection of RCW 7.69.030, which says that they can only be interviewed with an advocate present. It is not exactly clear whether the lawyer knew the first time they had signed something requiring him to only interview them with the advocate present. He told the prosecutor he had made the contact, and the prosecutor threatened him with sanctions. The lawyer then contacted the witnesses again, this time to interview them about his first contact. The trial court, after an initial remand from the Court of Appeals, found that the second contact was in “bad faith”, and not within the “safe harbor” exception to the victim contact prohibition , mostly because he knew the prosecutor was seeking sanctions for the first contact. The COA panel upholds the sanctions after these second findings.

Presumably, many prosecutor’s offices will now have witnesses sign something indicating they want the protection of the statute, if they were not already doing so routinely. The publication of the decision puts us all on notice that discovery conducted outside the auspices of the prosecutor’s office has some risks, at least if we know that the victim or family has asked for protection under the statute.

State v. Westvang, No. 42777-0-II , decided October 10, 2014

Issue: Are Ferrier warnings required when officer seek to enter a house to execute an arrest warrant for a potential occupant?

This case was originally decided in Westvang’s favor. The state petitioned for review, and the Supreme court remanded in light of State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 ( 2013), which had held that Ferrier warnings were not required when police were seeking entry to serve an arrest warrant for a potential occupant of the house.

Here the police had a tip that the target of the arrest warrant would be at Westvang’s house and secured her permission, without a full Ferrier warning, to search for the fugitive. They did not find him, but they did find drugs, for which she was prosecuted.

After the remand dictated by Ruem, the court reverses its earlier decision, and reinstated

the conviction.

Ferrier appears now limited to its exact facts, after a promising beginning.

State v. Anthone, No. 69716-1-I decided October 20, 2014

Prosecution for Securities fraud.

Defendant challenges sufficiency on all but one count; state cross–appeals dismissal of three counts on double jeopardy grounds.

Unit of Prosecution issue:

Defendant made the same sales pitch to four investors, all of whom signed a joint agreement to give him money for his real estate development scheme. Panel decision relies on the fact that there were four separate victims, and therefore four separate securities sold, to reverse the dismissals by the trial court.

Sufficiency of the Evidence:

There were at least one false statement or omission made to each of the other investors, which would support convictions on the challenged counts. The court also examines several of them for statute of limitation problems, and finds that “lulling” by the defendant served to extend the start of the statute.

State v. Reeves, 44811-4-II decided October 21

Issue: Statutory interpretation of former Retail Theft with Extenuating Circumstances.

Prosecution for Retail Theft with Extenuating Circumstances under the pre–2013 version of this statute (now renamed as Retail Theft with Special Circumstances). Defendant was accused of using ordinary pliers to remove an anti-theft device at a store. He moved to dismiss the charge, arguing that ordinary pliers were not “an item, article, implement,

or device designed to overcome security systems including, but not limited to, lined bags

or tag removers.” The trial court granted his Knapstad motion and the state appealed.

The panel affirms the dismissal. The statute was at best ambiguous about the definition of the class of tools which created the aggravating factor. The rule of lenity is the basis for upholding the trial court’s decision.

It does not look like the amendment, passed in 2013, has changed this analysis, although the title makes more sense now than the old name.

State v. Hassan, No. 44807-6-II, decided October 21

Prosecution for theft in the second degree and UIBC. The defendant drew checks on a closed account and deposited them in a new one. He then withdrew some, but not all of the money he had “deposited.”

The first issue as framed by the court:

When the defendant fraudulently deposits a bad check in his own bank account, whether the value of the transaction is based on the amount immediately available for withdrawal or on the amount the defendant actually withdraws.

The court holds that the amount immediately available to the defendant after depositing a bad check into his bank account determines the value of the theft transaction. This eliminated Hassan’s argument that the state had to include an aggregation element, that the withdrawals were part of a common scheme or plan, because the amount of the original two “deposits” were both over the statutory limit of $750.

Issue 2: adequacy of UIBC instructions

Hassan argued that the UIBC instructions were defective because the “to convict” instruction did not include in two separate paragraphs that the check had to be drawn on a bank. The court points out that the definitional instruction had this, and even if the element was missing in the to convict, there was overwhelming evidence that the check had been drawn on a bank, so any potential error was harmless.

Issue 3: Restitution

One of the UIBC charges involved Hassan giving a friend a check for $2400, drawn on the closed account. He asked her to give him $1400, with the remainder being a loan to her.

The trial court ordered restitution in the amount of $2400, even though the friend had not lost that much. Hassan also argued that he had repaid her $400.

His trial lawyer did not object. The panel holds that counsel was ineffective for not disputing the restitution amount, since there was no basis for the extra $1,000 in loss, and no tactical reason not to object.

State v. Beaver, No. 700-22-7-I decided October 27

Yossarian: “That’s some catch, that Catch-22.”

Beaver was found not guilty by reason of insanity, and found dangerous, and committed in 2005. He was conditionally released in 2011. In 2012, the state sought to revoke his release, but the court modified the conditions instead. In 2013, the state again moved to revoke his release. Despite expressing some concerns about whether he was currently mentally ill, the court revoked the conditional release. Beaver appealed. While the appeal proceedings were pending he was finally totally discharged. So the case was technically moot.

Issue presented:

As a matter of due process, did the state have to show Beaver was still mentally ill in order to revoke his release?

The panel says the answer is no, despite a recent Supreme Court decision that required a current finding of dangerousness to revoke a conditional release. This is different, because Beaver was already found mentally ill, and that state is presumed to continue. The defendant in Bao Ding Dang, the supreme court case on dangerousness, had never been found dangerous, and hence had been released at the time of his acquittal.

The court holds that the procedures in the statute which allow a person to petition for final discharge satisfy the requirements of due process. To require the state to show at a revocation hearing that a person is still mentally ill would muddy the waters too much. The Catch–22 here is that at a final discharge hearing, the burden is on the petitioner to show he is not crazy. Since this was a revocation hearing regarding conditional release, and since Beaver had not asked the court to make a finding at the revocation hearing that he was not crazy, he had not met his burden to rebut the presumption the court says exists that he was still crazy.

State v. Farnsworth, NO. 43167-0-II, decided October 28

Prosecution for first degree robbery, which was a third strike.

Issue: Sufficiency of the evidence of force in the robbery.

Farnsworth was outside while his accomplice went unarmed into a bank they had staked out for a theft. The accomplice had a note which Farnsworth had authored, which had no overt threats. The accomplice did not pretend to have a gun.When he left, he said “thank you” to the tellers. These facts lead the court to the conclusion that there was insufficient evidence of force. The case is remanded for sentencing on theft in the first degree, which is not a strike offense.

The court distinguishes two fairly recent robbery cases where there was more evidence of implied force:

State v. Shcherenkov, 146 Wn. App. 619 and State v.Collinsworth, 90 Wn. App. 546.

The other portions of the opinion are unpublished.

The dissent vigorously disputes the conclusion that the note itself was not an implied threat to use force..

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