Criminal Law

Washington Appeals Court Considers Application of Multiple Transaction Aggravator in Drug Case Sentencing

January 20, 2025 | by Blair & Kim, PLLC

A court may only impose a sentence above the standard range in a Washington criminal case if it finds substantial and compelling reasons that justify it. This finding must be based on specific aggravating circumstances that have been determined beyond a reasonable doubt by the jury. In drug trafficking cases, a “major violation” of the Uniform Controlled Substances Act (“VUCSA”) can support a sentence greater than the standard range. One factor that may identify a major violation of VUCSA is if the current offense involves multiple transactions. RCW 9.94A.535. A defendant recently challenged her exceptional sentence, based on the multiple transactions aggravator.

According to the appeals court’s opinion, the defendant sold methamphetamine and pills that appeared to be Oxycodone but were actually fentanyl three separate times over a three month period.

The state charged her with a separate charge for each type of drug she sold at each sale and three charges for each sale of counterfeit Oxycodone. The state included a sentence enhancement, arguing each offense was a major violation pursuant to RCW 9.94A.535(3)(e)(i), the multiple transgressions aggravator.

Washington Appeals Court Concludes Physical Control Statute Is Not Unconstitutionally Vague

December 26, 2024 | by Blair & Kim, PLLC

Generally, a Washington criminal law must be sufficiently specific to notify an ordinary person of what conduct it prohibits and provide ascertainable standards of guilt to prevent arbitrary enforcement. In a recent case, a defendant challenged the statute prohibiting being in actual physical control of a motor vehicle while under the influence after she was found sleeping in the passenger seat of her parked vehicle.

The defendant was charged with being in actual physical control of a motor vehicle while under the influence. According to the appeals court’s opinion, an officer found her sleeping in the passenger seat of her vehicle while parked with the engine running. She moved to dismiss, arguing the law was unconstitutionally vague.

The city argued the statute was constitutional and that “actual physical control” can include someone in the passenger seat of a non-moving vehicle.

Washington Appeals Court Overturns Felony Violation of A Court Order Conviction

December 7, 2024 | by Blair & Kim, PLLC

Pursuant to RCW 7.105.450(1)(a), a violation of a Washington domestic violence protection order is generally a gross misdemeanor. A violation can be a felony, however, if it constitutes an assault “that does not amount to assault in the first or second degree.” RCW 7.105.450(4). In a recent unpublished case, a Washington appeals court considered whether a defendant can be convicted of both a felony violation of a no contact order under RCW 7.105.450(4) and assault in the second degree under RCW 9A.36.021(1)(a) for the same acts.

An April 2022 no contact order prohibited the defendant from having contact with the protected person, identified by the appeals court as “C.S.,” or coming within 1,000 feet of her or her residence for 10 years.

According to the court’s opinion, C.S. called 911 in September 2022. She said the defendant had been staying with her and had kicked and “beat [her] up.” She said she had refused to give him a cigarette and he tried to steal her purse. She said there was a struggle when she grabbed it back and he punched her and knocked out her tooth. She said he kicked her and dragged her over rocks.

Washington Appeals Court Addresses Accomplice Liability vs. Rendering Criminal Assistance

November 28, 2024 | by Blair & Kim, PLLC

A Washington appeals court recently addressed the difference between rendering criminal assistance and accomplice liability in a case in which a defendant appealed her convictions for being an accomplice to second degree burglary and third degree theft.

The state alleged the defendant acted as an accomplice to a woman in a burglary and theft of a family heirloom from a barn. According to the appeals court’s opinion, security footage showed “extracts of actions” taken by the woman at the remote property. The video was divided into parts lasting between five and twenty-three seconds, with gaps in the woman’s conduct between the parts.

The Trial

The state did not present any evidence regarding how close their relationship was and the record did not show the defendant knew about any criminal history or propensity of the woman to steal.

Dismissal of Washington Criminal Charges Pursuant to a Knapstad Motion

October 22, 2024 | by Blair & Kim, PLLC

A Washington criminal defendant may file a Knapstad motion to dismiss criminal charges due to insufficient evidence to establish a prima facie case of the crime. Along with the motion, the defendant must submit a supporting affidavit or declaration that alleges there are no material facts in dispute and stating the agreed facts or a stipulation of facts. The defendant may also attach witness statements, police reports, or other documentation. The prosecutor may also submit affidavits or declarations and attach documentation to be considered by the court. If there are no material facts in dispute and the undisputed facts fail to establish a prima facie case of the crime. The court considers the evidence in the light most favorable to the prosecution. Cr. R. 8.

In a recent unpublished case, the state appealed a dismissal of charges pursuant to the defendant’s Knapstad motion.

The appeals court noted that, in deciding a Knapstad motion, the trial court considers the sufficiency of the evidence based on the facts stated in the defendant’s affidavit. Alleged facts that the prosecution does not specifically deny are deemed admitted. The appeals court recited the facts as taken from the evidence produced by the parties.

Washington Appeals Court Reverses Juvenile Adjudication of Interference with a Health Care Facility

October 15, 2024 | by Blair & Kim, PLLC

A juvenile recently challenged guilty adjudications arising from her actions while being detained and forcibly changed into scrubs at the hospital.

According to the appeals court’s unpublished opinion, a deputy went to the high school because the juvenile refused to leave the school. The juvenile made statements about suicide and self-harm. She was transported to the hospital’s emergency department. When she refused to change clothes, she was restrained and forcibly changed into scrubs. Two nurses told the deputy the juvenile assaulted them.

The juvenile was charged with interference with a health care facility and two counts of assault in the third degree.

Washington Appeals Court Reverses Rendering Criminal Assistance Conviction for Insufficient Evidence

September 17, 2024 | by Blair & Kim, PLLC

Video can be important evidence in a Washington criminal case. A defendant recently challenged his convictions in which video surveillance footage played a significant part.

According to the unpublished opinion of the appeals court, the police department received a report of a shot fired at a motel. The person who reported said there were three men standing in the motel parking lot. When the officer pulled into the parking lot, the defendant and two others walked toward the motel rooms. The co-defendant hid behind some cars and tried to run. The officers caught him.

The officers determined what room the defendant entered based on the motel’s surveillance video. They obtained a search warrant for the room, and found a firearm under the mattress in that room.

Washington Breath Test Admissible Despite “Strands” of Tobacco in Defendant’s Mouth

August 30, 2024 | by Blair & Kim, PLLC

To admit evidence of a breath test in a Washington criminal case, the state must produce prima facie evidence of certain facts, including that the tested person did not have any foreign substances in their mouth in the fifteen minutes before the test. RCW 46.61.506. The state can make this showing with evidence a check of the person’s mouth found no foreign substances or evidence that the person denied having anything in their mouth.

According to the appeals court’s unpublished opinion, the defendant was involved in a dirt bike collision. He told the deputy on the scene that he had consumed alcohol a few hours earlier. The deputy said the defendant had chewing tobacco in his mouth but removed it at the scene. The deputy arrested the defendant for driving under the influence and took him to jail.

At the jail, the deputy prepared to give the defendant a breath alcohol test. He asked if the defendant had anything in his mouth and the defendant answered no. The deputy observed strands of tobacco in the defendant’s teeth that were not taken out before the test.

Washington Appeals Court Reverses Juvenile’s Conviction Based on Judge’s Questioning of Witnesses

August 28, 2024 | by Blair & Kim, PLLC

Individuals facing Washington criminal charges have a due process right to a “fair trial in a fair tribunal.” A person’s due process rights may be violated if the court acts as an advocate instead of a neutral arbiter. A juvenile recently challenged his conviction after the trial judge questioned the prosecution’s witnesses.

The 15-year-old juvenile was charged with escape in the second degree. The state alleged he had “knowingly escape[d]” from home custody.

Witnesses

A community placement specialist testified about ankle monitor technology and electronic home monitoring (“EHM”). He was asked on cross examination if he remembered going over the contract with the juvenile or if his answers were based off the reports. He testified that he “felt” like he had, but could not say so for certain.

Washington Appeals Court Overturns Conviction Based on Search of Probationer’s Car

July 31, 2024 | by Blair & Kim, PLLC

The U.S. and Washington Constitutions generally protect individuals from unlawful searches. Although individuals on parole or probation have somewhat diminished privacy rights, there are still limitations on when they can be searched. A defendant recently appealed his conviction, arguing the search of his vehicle was improper.

According to the appeals court’s published opinion, the defendant was pulled over for suspicion of driving on a suspended license in October 2020. When the officer found out the defendant was on probation, he contacted the Department of Corrections and requested a community custody officer (“CCO”). The defendant’s probation arose from a previous firearm conviction.

Upon reviewing the conditions of the defendant’s community custody, the CCO found that the defendant was in violation of a geographic boundary condition which prevented him from being in the Central District of Seattle, where he was pulled over. The CCO testified that the geographic restriction had been requested because the defendant was listed in a police data base as a member of a gang associated with that area.