Criminal Law

Washington Appeals Court Affirms Admission of 911 Call as Excited Utterance

May 28, 2023 | by Blair & Kim, PLLC

Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.

According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.

The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.

Washington Appeals Court Affirms Juvenile’s Adjudication Despite Self-Defense Claim

May 14, 2023 | by Blair & Kim, PLLC

A Washington criminal defendant can raise a self-defense claim by offering some evidence that their actions occurred in circumstances of self-defense. Once the defendant meets this low burden, the burden shifts to the state to prove, beyond a reasonable doubt, the absence of self-defense.

According to the appeals court’s opinion, the juvenile’s mother came into the 15-year-old juvenile’s room and saw her hide a cell phone under the covers. The juvenile refused to give it to her mother, and they scuffled over it. The juvenile ultimately kicked her mother twice.

The state charged the juvenile with fourth degree assault with notice of a domestic violence allegation. The juvenile testified , saying, “. . . the only reason I kicked her was to . . . get her off of me,” and “. . . I kicked her because she was on my leg, and it hurt. And—because I knew at that point I knew I wasn’t going to get the phone back . . . .”

Washington Appeals Court Holds Occupant Can’t Consent to Search of Someone Else’s Bag

April 13, 2023 | by Blair & Kim, PLLC

Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution make warrantless searches unlawful unless they meet an exception. Valid consent is an exception to the warrant requirement. When premises are shared, a person who has equal control over has the authority to consent to a search of the premises when the other person is absent. Law enforcement must, however, also obtain the consent of the other person with equal control if they are present. State v. Morse. This rule does not apply to someone who does not have common authority over the premises. A host’s consent is effective against a guest in common areas of the premises. A person with authority over the premises does not necessarily have the authority to consent to a search of everything inside the premises. A Washington criminal defendant recently challenged a search of a bag in a motel room after the room’s occupant gave consent to search.

A confidential informant informed the sheriff’s office the defendant and another man were at a motel for a drug deal. A detective detained the other man and the room’s occupant when they left the motel. The defendant was still in the room. The occupant said there were bags belonging to the defendant and the other man in the room. He gave the police written consent to search the room.

The detectives removed the defendant from the room and brought the occupant back in. The occupant acknowledged owning a bag on the bed containing drugs and paraphernalia.

Washington Appeals Court Rejects Juvenile’s Claim of Self Defense

March 28, 2023 | by Blair & Kim, PLLC

Washington self-defense is an affirmative defense. A person may lawfully use force when they are about to be injured to prevent or try to prevent an offense against their person, when the force used is not more than necessary. RCW 9A.16.020(3). Force is necessary when there does not appear to be a reasonably effective alternative and the force used is reasonable to the lawful purpose. RCW 9A.16.010(1). A juvenile recently appealed his adjudication of guilt of second degree assault, claiming the state failed to disprove he acted in self-defense.

The appeals court’s unpublished opinion stated the juvenile got into a verbal altercation at school with another juvenile, identified by the appeals court’s opinion, as “J.S.” The juvenile called the other student a homophobic slur. J.S. filed an incident report at the office.

They had a second altercation in the courtyard later that day. The juvenile again called the other student a homophobic slur. The other student advanced toward the juvenile. The juvenile tried to walk away. The juvenile started recording on his phone. The juvenile extended his arm as the other student approached, and the other student slapped him. They both went to the ground. The other student was on top and started hitting the juvenile. The other student did not have or threaten to use a weapon, but the juvenile pulled a knife from his pocket and stabbed the other student six times in eight seconds. The juvenile had not responded by pushing or hitting back, but just stabbed the other student. The two did not really know each other and had not spoken before the altercations.

Washington Appeals Court Reverses Possession of Stolen Property Conviction

March 21, 2023 | by Blair & Kim, PLLC

To convict a defendant in a Washington criminal case, the state must prove every element of the crime, including any knowledge intent element. In a recent unpublished case, a defendant challenged whether the state had sufficiently proven he had the requisite knowledge to support a first degree possession of stolen property conviction.

The sheriff’s office got a search warrant for the defendant’s vehicle and a deputy later stopped him. They took the defendant into custody and his car was impounded. On the lanyard with the vehicle key was a key to a storage unit. Deputies obtained a warrant for that storage unit to search for stolen property. They found a John Deere GPS device and antenna with a market value between $11,000 to $11,500.

The defendant was charged with possession of stolen property in the first degree and trafficking in stolen property in the first degree, but the state dropped the trafficking charge before trial.

Washington Appeals Court Affirms Stalking Conviction Related to Violation of a CPO

February 26, 2023 | by Blair & Kim, PLLC

Violation of a Washington civil protection order can result in serious criminal charges. A woman recently challenged her conviction for stalking and sentence for convictions for violation of a protection order, stalking, and malicious mischief.

The defendant was in a romantic relationship with a man for several years. According to the appeals court’s opinion, she made a number of allegations against him and his ex-wife after the relationship soured. The ex-boyfriend sought a protection order shortly after they broke up in 2015.

He testified the protection order did not stop her from continuing to harass him and his children. He said she kept making false allegations related to pornography. He obtained another protection order in July 2017 and a third in August 2018.

Merger Doctrine in Washington DUI Case

February 8, 2023 | by Blair & Kim, PLLC

During a Washington criminal sentencing proceeding, an offender generally cannot challenge the constitutional validity of a previous conviction. If, however, a conviction that is “constitutionally invalid on its face,” the court cannot consider it during sentencing. A Washington appeals court recently considered whether a defendant’s prior conviction was facially invalid under the merger doctrine.

The merger doctrine applies when the state has to prove the occurrence of an act that is defined as a separate crime to prove a particular degree of the charged crime. In such circumstances, the crimes “merge.” The merger doctrine does not apply if the legislature intended to allow multiple punishments.

If the legislature did not clearly intend to allow multiple punishment for the same act under different laws, the court determines its intent through application of the same evidence test, merger, and the independent purpose test.

Proposed Changes to Washington DUI Laws

January 29, 2023 | by Blair & Kim, PLLC

Two bills in the Washington legislature propose significant changes to Washington’s impaired driving laws. SB 5002 proposes to lower the legal limit for a driver’s alcohol concentration. SB 5032 would extend the felony DUI lookback period and create a sentencing alternative for certain impaired driving convictions.

If passed, SB 5002 would lower the legal alcohol concentration from .08 to .05. The change would apply to the DUI statute at RCW 46.61.502 and to the physical control statute at RCW 46.61.504. According to SB 5002, there were 540 fatal crashes in Washington in 2021, killing more than 600 people. The bill states that there was a 31.3% increase in crashes resulting from an impaired driver between 2020 and 2021. The bill points to a Utah law that lowered the legal alcohol concentration limit from .08 to .05 and a subsequent 19.89% drop in fatal crashes and an 18.3% drop in the fatality rate. The bill estimates such a change in Washington would result in an 11.1% decrease in alcohol-related fatalities and between 538 and 1,790 lives saved annually.

If SB 5032 passes, a person could be convicted of felony DUI or felony physical control instead of a gross misdemeanor if they have three or more previous convictions within the past 10 years. The current law has a lookback period of 15 years. Similar bills proposing to expand the lookback period over the past few years have failed.

Washington Court Can’t Seal Juvenile Record Before Individual Restitution Is Paid

January 18, 2023 | by Blair & Kim, PLLC

A Washington juvenile record may be sealed if certain circumstances are met. The court schedules an administrative sealing hearing at the disposition hearing, if the juvenile is eligible. The hearing is to occur after the last of the following: the juvenile’s 18^th birthday, the anticipated end of the juvenile’s probation, and the juvenile’s anticipated release from confinement or completion of parole. Certain offenses, including “most serious offenses,” certain drug offenses, and certain sex offenses, are not eligible for a sealing hearing. The court is to seal the record if it finds at the time of the hearing that the juvenile is no longer on supervision for the case and has fully paid restitution to the person named in the order, excluding any restitution owed to an entity providing insurance or health care coverage. If the court finds the juvenile is still on supervision, then it is to continue the hearing within 30 days after the anticipated completion of the supervision. If the court finds the juvenile is not still on supervision for the case but has failed to fully pay restitution to the person named in the order, the court is to deny sealing the record and issue an order that specifies the restitution that is unpaid to the person and directs the juvenile on how to pursue sealing the record. RCW 13.50.260. The state recently appealed the sealing of a juvenile record, arguing the juvenile had failed to fully pay restitution.

According to the appeals court’s opinion, the juvenile pleaded guilty to second degree malicious mischief and agreed to pay restitution. The court ordered him to pay $1,233.17 in restitution and set a date for a hearing to seal the record.

The state argued at that hearing that the juvenile failed to fully pay restitution so the record could not be sealed pursuant to RCW 13.50.260(1)(d). The juvenile court still sealed the record, finding the juvenile was eligible for the record to be sealed because he had “paid in full the amount of restitution owing,” but also that “the remaining amount of restitution . . . is $613.17.”

“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.