Criminal Law

Washington Appeals Court Upholds Conviction Based on Drugs Found in Defendant’s Wife’s Purse

April 30, 2024 | by Blair & Kim, PLLC

To convict a defendant of possession of a controlled substance with intent to deliver, the state must prove the defendant possessed the controlled substance and had an intent to deliver it to someone else. Whether the defendant actually possessed the controlled substances is often an issue. A defendant recently appealed his convictions for possession with intent to deliver because the drugs were found in his wife’s purse.

According to the unpublished opinion of the appeals court, the police saw the defendant put a backpack in a vehicle registered to his father-in-law and his wife put a purse in the area of the front passenger seat. The defendant drove. The police subsequently conducted a traffic stop.

The officers observed a purse in the front floorboard. The zipper was open and they could “clearly see a plastic bag containing what they believed to be methamphetamine. They also saw a glass pipe. They got a warrant to search both the car and the purse. They found methamphetamine, heroin, scales, baggies, and $195 cash. There were two phones mounted on the driver’s side and the wife was carrying another.

Washington Appeals Court Rules Against Retroactive Application of Law Excluding Juvenile Adjudications from Offender Score

April 21, 2024 | by Blair & Kim, PLLC

In 2023, the legislature amended RCW 9.94A.535(1)(b) to prohibit the inclusion of most prior juvenile adjudications in an offender score. A defendant recently challenged a sentence imposed in October 2022 because the court had included juvenile adjudications in his offender score.

Following an incident in May 2022, the defendant was found guilty of third degree theft and residential burglary. According to the appeals court’s opinion, the court included six juvenile adjudications in calculating the defendant’s offender score. He was sentenced in October 2022 to 364 days of confinement, which was suspended, for the theft conviction and 45 months of confinement for the residential burglary.

The defendant appealed, arguing that his offender score should be calculated without the previous juvenile adjudications based on RCW 9.94A.535(1)(b).

Washington Appeals Court Reverses Conviction for Violation of a No-Contact Order

March 21, 2024 | by Blair & Kim, PLLC

Washington felony violation of a court order occurs when a person, who has at least two previous convictions for violating a court order, knows a no-contact order exists and knowing violates a provision of it. Willful violation of a court order occurs when a person has willful contact with another that is prohibited by a valid court order and the person has knowledge of the order. Accidental contact is not willful. A person must both know of the no-contact order and intend the contact. Washington case law has held that proof that the defendant acted knowingly constitutes proof they acted willfully. Previous Washington cases have held that the defendant does not have to have specific knowledge of the terms of a no-contact order, but instead must have knowledge of the no-contact order and know that the willful contact violated it.

A defendant recently appealed his conviction, arguing the prosecution had misstated the law regarding the meaning of “knowingly.” He was charged with two counts of violation of a court order – domestic violence. According to the appeals court’s published opinion, the protected party under the no-contact order testified that she heard knocking on her bedroom window and saw the defendant outside. She called the police. She also testified that she received two text messages that she translated and summarized as saying “he hates me for everything I’ve done to him, for not letting him see the kids.” She further stated that he hoped the kids started hating her for not letting them see their father.

The state’s closing arguments included multiple statements about the knowledge requirement of violation of a no-contact order. The state stated “This element does not say [the defendant] knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The state further stated, “What I have to prove to you is that [the defendant] knowingly violated a provision of this order.”

Washington Appeals Court Determines Fenced Yard Is Not Dwelling under Residential Burglary Statute

March 7, 2024 | by Blair & Kim, PLLC

Under Washington criminal law, a defendant commits residential burglary if they enter or unlawfully remain in a dwelling, other than a vehicle, with the intent to commit a crime against a person or property inside. RCW 9A.52.025. To convict a defendant of residential burglary, the state must prove that the defendant entered a dwelling, while other forms of burglary only require the state to prove the defendant entered a building. A defendant recently challenged his conviction of residential burglary, arguing a fenced back yard was not a dwelling.

According to the opinion of the appeals court, which considered the facts in a light most favorable to the prosecution, a homeowner saw the defendant attempting to enter the home’s back door. The homeowner testified the defendant had a hammer and a crowbar and was striking the deadbolt. The defendant saw the homeowner and stopped and ran. The homeowner tripped him in the front yard and he dropped his bag and the crowbar. The homeowner testified the defendant tried to hit him with the crowbar and bite him. The homeowner held his arm around the defendant’s neck until the police got there.

The defendant was ultimately charged with residential burglary, possession of burglary tools, third degree assault, and two counts of bail jumping.

Duty of Prosecution to Preserve Evidence in Washington Criminal Case

February 25, 2024 | by Blair & Kim, PLLC

The Due Process Clause of the Fourteenth Amendment requires criminal defendants to have “a meaningful opportunity to present a complete defense.” The prosecution generally has a duty to preserve evidence, but it is not absolute. State v. Wittenbarger. The state’s failure to preserve “material exculpatory evidence” generally requires dismissal, but a failure to preserve “potentially useful evidence only requires dismissal if the state acted in bad faith. Potentially useful evidence is evidence that could have been subjected to tests which might have exonerated the defendant. State v. Groth.

A Washington criminal defendant recently appealed his drug and gun-related convictions after the police department allowed the vehicle in which he was found to be towed from its lot.

According to the appeals court’s opinion, the defendant was arrested on a warrant after a police officer found him sleeping in a vehicle. The officer testified that he found significant amounts of cash and drugs in the defendant’s pocket in a search incident to arrest. The drugs subsequently tested positive for methamphetamine and fentanyl. The officer found paraphernalia, including a box of baking soda, in the car and a revolver in a bag in front of the driver’s seat.

Corpus Delicti Rule Not Violated when Washington Defendant’s Testimony Corroborated Out-of-Court Statements

January 13, 2024 | by Blair & Kim, PLLC

Generally, Washington’s “corpus delicti” rule requires the state to prove that the crime occurred, independent of the defendant’s own statements. The state must provide sufficient evidence in its case-in-chief. However, if the defendant presents evidence during their case-in-chief, they waive the challenge to the sufficiency of the evidence as of that point and an appeals court may consider all of the evidence to determine if there was sufficient evidence to support an inference that the crime happened.

A defendant recently challenged his conviction for felony violation of a protection order, arguing the state had presented insufficient evidence of the knowledge element of the corpus delicti because it relied on statements he had made to the responding officer.

The defendant’s grandaunt obtained a temporary protection order prohibiting the defendant from coming within 1,000 feet of her home on January 18, 2022. According to the appeals court’s unpublished opinion, the next day she heard someone try to unlock her door and saw the defendant through the peephole. She told him he was not supposed to be there and he had to leave. He first sat down and smoked a cigarette before leaving.

Most Legal Financial Obligations Eliminated for Washington Juveniles

December 21, 2023 | by Blair & Kim, PLLC

Fines, fees, and penalties can add up and result in a significant financial impact on criminal defendants and their families. These legal financial obligations can be particularly burdensome when imposed on juvenile offenders, who in some cases may be too young to work and who often come from low-income families. If they cannot pay, the outstanding debt may affect the juvenile’s ability to obtain credit, housing, or even a job.

Effective July 1, 2023, the legislature amended the penalty assessment statute, RCW 7.68.035, to remove penalty assessments for juveniles and prohibit penalty assessments under that statute for adult defendants found to be indigent. The legislature also enacted a new statute, RCW 13.40.058, which provides that a court cannot impose or collect any fine, administrative fee, cost, or surcharge from a juvenile or their parent or guardian in connection with a Washington juvenile offender proceeding. This prohibition specifically includes, but is not limited to DNA collection fees, diversion fees, and victims’ penalty assessments. The result of these two laws is that a court can no longer impose any legal financial obligations on a juvenile, except restitution.

Prior to the amendment, RCW 7.68.035 required the court to impose a $100 penalty assessment for each case or cause of action for a “most serious offense” or a sex offense under RCW chapter 9A.44 for which a juvenile was adjudicated. “Most serous offenses” include class A felonies, second degree assault, first and second degree manslaughter, a felony with a deadly weapon verdict, and other specified offenses. The amendment also removed the requirement for the court to order up to seven hours of community restitution when a juvenile was adjudicated of an offense with a victim that did not constitute a most serious offense or sex offense, unless the court found the order would not be practicable for the juvenile.

Washington Appeals Court Reversed Vague Community Custody Condition

December 13, 2023 | by Blair & Kim, PLLC

A court sentencing a Washington criminal defendant to community custody generally has broad discretion in imposing conditions. Appeal courts only overturn a community custody condition if it is “manifestly unreasonable.” An unconstitutional condition is manifestly unreasonable. A community custody condition must be sufficiently specific to give the defendant “fair warning” of the conduct that is prohibited in order to satisfy due process requirements. A condition must identify the conduct that is prohibited in a way an ordinary person could understand and set clear standards so enforcement is not arbitrary. See State v. Irwin.

A defendant recently appealed a community custody condition that prohibited “hostile contact” with law enforcement and first responders. According to the published opinion of the appeals court, the defendant went to a hotel for a party and got into an altercation. When a security guard attempted to intervene, the defendant lunged at him with a knife. The guard was able to successfully disarm the defendant and confiscate his knife.

The responding officer arrived to the defendant sitting in the hotel lobby, appearing angry and intoxicated. Although the officer and security guard intended to let him go, the defendant moved toward the security guard aggressively. He tried to elbow a couple of the officers. One of the officers finally subdued him by using his taser.

Washington Court Failed to Properly Consider MHSA in Sentencing Felony No-Contact Order Violation

November 28, 2023 | by Blair & Kim, PLLC

In some circumstances, a Washington criminal defendant may be eligible for a sentencing alternative, including a parenting sentence alternative, a drug offender sentencing alternative (“DOSA”), or a mental health sentencing alternative (“MHSA”). The defendant must meet certain conditions to qualify for these alternatives. A defendant is only eligible for an MHSA if: their conviction is for a felony but is not a sex offense or a serious violent offense, they have a diagnosis for a serious mental illness recognized by the current mental health diagnostic manual, the judge determines the defendant and community would benefit from treatment and supervision, and the defendant is willing to participate. RCW 9.94A.695(1). If the court determines that an MHSA is appropriate, it imposes a term of community custody within a range determined based on the length of the standard range sentence, but the court has discretion in determining the actual length of the community custody within the ranges. RCW 9.94A.695(4).

A defendant recently challenged his sentence for felony violation of a no-contact order, arguing the court did not follow the proper procedure set forth in the statute when it denied his request for an MHSA.

According to the unpublished opinion of the appeals court, the defendant was arrested outside his ex-wife’s apartment in April, 2021. Two active no-contact orders prohibited him from contacting her or being within 1,000 feet of her apartment. He had served a sentence for a prior violation and recently been released. He was also under the conditions of a DOSA.

Washington Appeals Court Determines Fenced Pasture Not Protected by Ferrier Rule

November 14, 2023 | by Blair & Kim, PLLC

Article I, section 7 of the Washington Constitution protects a person from having their “home invaded, without authority of law,” which generally requires a valid warrant. There is, however, an exception to the warrant requirement when officers obtain a valid consent to search. The consent except applies only when the consent is voluntary, the person has the authority to consent, and the search is within the scope of the consent.

Pursuant to State v. Ferrier, before entering a home when conducting a “knock and talk,” an officer must inform the person they have the right to refuse consent, revoke consent, and limit the scope of their consent to certain locations in the home. An important aspect of the court’s analysis in Ferrier was the constitutional protection of a person’s home. The court also expressed concerns about officers using the knock and talk to avoid getting a search warrant. The Ferrier court concluded officers violate article I, section 7 if they fail to inform a resident of the right to refuse consent to a warrantless search of the home.

The state recently appealed an order suppressing evidence officers obtained in multiple warrantless searches of a fenced pasture after the trial court suppressed the evidence based on the Ferrier rule.