Criminal Law

“Knowing” Element of Violation of a No-Contact Order

December 28, 2022 | by Blair & Kim, PLLC

To convict a person of a Washington crime, the state must prove each element of that crime. In a recent case, a defendant appealed a conviction for felony violation of a domestic violence no-contact order, arguing the state had not shown he had knowingly violated a no-contact order.

According to the appeals court’s opinion, the defendant went to his grandmother’s home on September 24, 2020. He asked to come in for a shower and some food. The grandmother let him in, but told him she would call the sheriff because he was “not supposed to be [t]here.” When officers arrived, they arrested the defendant.

A domestic violence no-contact order had been entered against him on June 14, 2019, prohibiting from contacting his grandmother or coming within 1,000 feet of her home. The order was still in effect in September 2020. The defendant had been convicted of violating a court order two previous times, so he was charged with felony violation of the no-contact order.

Washington Residential Burglary Conviction Upheld Despite Necessity Defense

December 21, 2022 | by Blair & Kim, PLLC

Necessity may be available as a defense in a Washington criminal case when “physical forces of nature or the pressure of circumstances” cause a defendant to do something illegal to avoid a harm that is greater than the harm resulting from the unlawful act. A defendant recently challenged her conviction for residential burglary, arguing the jury had wrongly rejected her common law necessity defense.

According to the appeals court’s unpublished opinion, the defendant ran out of gas in an unfamiliar area. She walked to a museum. The defendant claimed she slipped in snow and injured her back. She claimed she called out, but no one responded and the museum was closed for the winter. She did not have a phone with her.

Witnesses testified about the bad weather that night. The defendant claimed it was “super windy” and “freezing.” There was evidence of six to eight inches of snow on the museum property. The defendant claimed she was lying in the snow for hours. She ultimately went to the doublewide manufactured home where the museum caretaker lived.

Washington Appeals Court Upholds Juvenile Criminal Trespass Adjudication

November 27, 2022 | by Blair & Kim, PLLC

Washington second degree criminal trespass is a misdemeanor. To convict a person of second degree criminal trespass, the state must show that they knowingly entered or remained unlawfully on someone else’s property. A juvenile recently challenged a guilty adjudication for second degree criminal trespass, arguing there was insufficient evidence that he had knowingly entered and unlawfully remained on Port property.

According to the appeals court’s opinion, the police received a complaint from a Port employee that the thirteen-year-old juvenile was skateboarding on Port property. The property was posted with several signs prohibiting skateboarding. The employee stated Port employees has contacted the juvenile and asked him to stop, but he had responded with profanity.

The officer issued the juvenile a no trespassing notice and told him he was trespassed from Port property for life. The juvenile, the officer, and the employee all signed the notice.

Washington Firearm Possession Conviction Based on Snapchat Video

November 13, 2022 | by Blair & Kim, PLLC

A person posting a video of illegal activity on social media may find themselves facing Washington criminal charges. In a recent case, a man challenged a firearm possession charge arising from a video he had posted on Snapchat.

According to the unpublished opinion by the appeals court, the defendant posted a 20-second video of himself on Snapchat. The video, as described by the court, depicted the defendant smoking marijuana and listening to music. At one point in the video, the defendant pointed a handgun at the camera and simulated firing it.

The defendant was in a relationship with a woman with two children. The children’s father saw the video and called the police due to concerns for the safety of his children.

Court Can’t Revoke Washington DOSA for Violations Before Community Custody Begins

October 16, 2022 | by Blair & Kim, PLLC

In certain non-violent, drug-related cases, offenders may be eligible for a “drug offender sentencing alternative,” frequently referred to as “DOSA.” While serving the community custody portion of a Washington DOSAd, an offender must comply with the conditions imposed by the court. A defendant recently challenged the revocation of his DOSA before the term of his DOSA community custody started.

According to the appeals court’s unpublished opinion, the defendant was convicted of unlawful possession of a controlled substance with intent to deliver and unlawful possession of ammonia with intent to manufacture methamphetamine in April 2017. The trial court imposed a DOSA sentence of 55 months of confinement and an equal amount of time in community custody. Conditions included participation in drug evaluation and treatment during community custody and prohibition of consumption or unlawful possession of controlled substances. The defendant was also required to obey all laws.

Community custody for the DOSA was scheduled to begin in February 2021. The defendant was serving community custody for other cases when he was first released from prison, so he was out of confinement for a period before his DOSA community custody began.

Washington Appeals Court Reverses Conviction Due to Race-Based Prosecutorial Misconduct

September 29, 2022 | by Blair & Kim, PLLC

A Washington appeals court recently reversed a conviction due to prosecutorial misconduct, despite finding there was sufficient evidence to support the conviction. The defendant was convicted of possession of a controlled substance with intent to deliver. On appeal, he argued that the prosecutor had engaged in race-based misconduct by using the phrase “Mexican ounce” to describe the packaging of the heroin for which he had been charged. He argued the prosecutor used this language to tie him to the drugs and to use “stereotypes of Mexican drug-dealing and dishonesty” against him.

Prosecutorial misconduct occurs when a prosecutor uses arguments to arouse the jury’s passions or prejudices. Raising race when it is not relevant can affect the jurors’ impartiality and appeal to their prejudice, resulting in a conviction that is not based on the evidence.

The defendant did not object to this language at trial. Generally, when a defendant first raises prosecutorial misconduct on appeal, they must show improper conduct, prejudice, and that a jury instruction could not have cured the prejudice. Washington treats race-based misconduct differently from other types of prosecutorial misconduct, however. The court instead considers if the prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” State v. Zamora (quoting State v. Monday). The test is whether an objective observer could view the comments as an appeal to potential bias, prejudice, or stereotypes. The court should consider the context of the comments. The conviction must be reversed if the appeals court finds the prosecutor flagrantly or apparently intentionally appealed to racial or ethnic prejudice.

Washington Juvenile Deferred Disposition and Loss of Driving and Firearms Rights

September 25, 2022 | by Blair & Kim, PLLC

In a Washington deferred disposition in a juvenile case, the juvenile stipulates to the admissibility of the facts in the police report, acknowledges the report will be entered a used to support a finding of guilt and impose disposition if they do not comply with the terms of supervision, waive the rights to speedy disposition and to call and confront witnesses, and acknowledge the direct consequences of a finding of guilty and of a disposition, if entered. The court then defers entry of an order of disposition and places the juvenile on community supervision, with any conditions deemed appropriate by the court. At the end of the period of community supervision, the court determines if the juvenile is entitled to dismissal based on statutory requirements. If so, the conviction is vacated and the court dismisses the case with prejudice. If the court vacates the conviction, and the juvenile is at least 18 years old and has paid the full amount of restitution owed to the individual victim, the court also orders the case to be sealed. If the juvenile is not yet 18, the court will schedule an administrative sealing hearing within 30 days of the juvenile’s 18^th birthday. If the juvenile is not entitled to dismissal, the court revokes the deferred disposition and enters an order of disposition. RCW 13.40.127.

A juvenile who entered a deferred disposition for attempting to elude a pursuing police vehicle recently challenged the driver’s license suspension and firearms right revocation imposed upon him. Pursuant to RCW 46.20.285, the department of licensing revokes the license or permit of a person convicted of attempting to elude a police vehicle. A juvenile’s right to possess a firearm is revoked if they are adjudicated guilty of any felony under RCW 9.41.040, including attempting to elude. Case law has held that a juvenile is considered to be convicted when they enter into a deferred disposition. A juvenile in deferred disposition who meets the requirements will have their license suspended or firearms rights revoked until the adjudication is vacated.

Washington counties may create alternative therapeutic court programs pursuant to RCW 2.30.030. Therapeutic court programs allow juveniles to have their case dismissed after completing the program. The case is removed from prosecution and the juvenile is not adjudicated guilty. Because they are not adjudicated guilty, juveniles in therapeutic court programs do not face driver’s license suspension or firearms rights revocation.

Use of Recording without All Parties’ Consent in Washington Criminal Case

August 25, 2022 | by Blair & Kim, PLLC

Washington’s privacy act generally prohibits recordings of communications obtained without consent of all parties from being admitted as evidence at trial. RCW 9.73.030. In some circumstances, however, they may be admissible. A law enforcement officer can intercept, record, or disclose a conversation with the consent of one party and authorization of a judge. The judge must approve the application for authorization if there is probable cause the other party committed, is committing, or is about to commit a felony. RCW 9.73.090(2). The requirements for the application are set forth in RCW 9.73.130, and if the application is not in compliance with those requirements, the order is unlawful and the recording cannot be admitted into evidence. A defendant recently challenged admission of a video of him and his brothers discussing the crime.

According to the appeals court’s unpublished opinion, five young men in masks and dark clothes killed two people and shot three others in an encampment for people without housing. One of the victims identified the person who shot her as a man called “Juice.”

A man called “Lucky” contacted the police the following day and said his 17-year-old nephew, the defendant, had admitted to the shooting. Lucky and a relative went to the police department for an interview. They told the detective the defendant and his brothers owned three guns. Lucky agreed to try to record a conversation with the defendant.

Jury Instructions for Lesser-Included Offenses in Washington

August 14, 2022 | by Blair & Kim, PLLC

Washington criminal defendants have the right for the jury to be instructed on applicable lesser-included crimes if each of the elements of the lesser offense is a necessary element of the charged offense and the evidence supports an inference the lesser crime was committed instead of the greater offense. There must also be affirmative evidence of the defendant’s theory.

A defendant recently challenged her conviction because the trial court denied her request to instruct the jury on lesser-included offenses. According to the appeals court’s unpublished opinion, the defendant told another sophomore student that a senior, identified by the court as “RV,” had inappropriately touched her and other girls. She had complained to the administration, but did not receive a response. She and the other student, identified as “JC” developed a plan to “take out” or “kill” RV, according to statements she gave the police. She said she was to convince RV to meet her at a market across from the school and JC would attack him.

The state presented evidence of messages associated with the defendant’s social media account convincing RV to her. JC went behind the market with a knife and a red t-shirt over his face. RV and the defendant went inside the market to buy lunch. The defendant testified she only intended to get lunch and return to school. As they were leaving the market, other students were “talkin’ about a guy in the field with a red mask.” They went behind the store and RV saw someone in a red mask stand up and point at him. He decided to go back to school. JC and the defendant spoke, and then both went back to school, too.

Washington Harassment and True Threats

July 10, 2022 | by Blair & Kim, PLLC

To convict a defendant of Washington harassment, the state must show that the defendant knowingly threatened to cause bodily injury, physically damage someone else’s property, or physically confine or restrain another person, without the authority of law, and placed the threatened person in reasonable fear that they would carry out the threat. Harassment is a class C felony if the threat was to kill the threatened person or someone else. RCW 9A.46.020. Since it criminalizes a pure form of speech, the harassment statute implicates the First Amendment. Washington courts therefore interpret it as criminalizing only “true threats.”

A defendant recently challenged his felony harassment conviction, arguing the state had not produced evidence of a true threat. A man was renting a room in defendant’s home from April to October of 2020. According to the appeals court’s opinion, the defendant yelled at the renter and called him names during a conflict that summer. He also would throw things in his bedroom. The renter heard the defendant having a “tantrum” in the garage on August 23. The defendant told the renter his boxes should be taken out of the garage. The renter said he had misunderstood a text message about when he should remove the boxes. The defendant pointed at him and said he had a gun and would shoot the renter in the head. After the defendant walked away, the renter went back to his own room and called the police.

The defendant was charged and ultimately convicted of one count of felony harassment with a domestic violence enhancement.