Articles Posted in Criminal Law

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.

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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 According to the appeals court’s unpublished opinion, the next day she heard someone try to unlock her door and saw the defendant through the peephole.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.

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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.

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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.

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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.

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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.

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Washington law provides special protections to children in criminal investigations.  Pursuant to RCW 13.40.740, which became effective January 1, 2022, a juvenile being questioned in a custodial interrogation, detained based on probable cause of involvement in criminal activity, or asked to consent to an evidentiary search can only knowingly, intelligently, and voluntarily waive their Miranda rights after consulting with an attorney.  This consultation cannot be waived.  A Washington juvenile defendant recently challenged his convictions, arguing in part the consultation requirement should apply even though he was interviewed before the statute’s effective date.

The Fires

According to the unpublished appeals court opinion, the thirteen-year-old juvenile told his father there was a fire at the dumpster of their apartment complex when he returned from taking out the trash on May 7.

He was home alone on the morning of May 16 and two more fires occurred.  He was home alone again that afternoon and three more fires were set.  No one saw how the fires started or who started them.

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RCW 9.94A.753(5) requires a court to order restitution when a defendant is convicted of a Washington criminal offense that results in injury or damage to or loss of property, unless there are “extraordinary circumstances.” The state must prove the damages by a preponderance of the evidence. Restitution cannot include intangible losses like mental anguish or pain and suffering. The restitution cannot be more than double the amount of the defendant’s gain or the victim’s loss.  RCW 9.94A.753(3)(a).  A defendant recently challenged a restitution order, arguing the state had not sufficiently proven he had caused the damages.

According to the unpublished opinion of the appeals court, the pleaded guilty to a single count of vehicle prowl and three counts of possession of a stolen vehicle.  He agreed to pay restitution for in an amount to be determined for two of the charged crimes and three uncharged crimes, including possession of a pick-up truck.

In addition to damages to the truck for which the defendant was charged, the state requested $12,605.84 for damage to the uncharged truck.   The state argued the defendant was responsible for all of the damage to the uncharged truck because he was “the person that caused the victim to lose possession of the vehicle. . .”  and asked the trial court to find that the defendant was responsible for all of the damages associated with the vehicle.

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Under RCW 46.20.285, a Washington driver license must be revoked upon conviction of certain offenses.  The statute requires the Department of Licensing to revoke the driver license when conviction of one of the listed offenses becomes final.  A defendant recently challenged his judgment and sentence, arguing the court had applied the wrong version of the statute.

The appeals court obtained the details of what occurred from the affidavit of probable cause.  It stated the defendant and another person took fragrances from a beauty store without paying.  The store manager described the individuals and the vehicle they left in to police.  An officer stopped a car matching that description.  He saw several fragrance boxes in the floor and the back seat passenger had store alarm sensors in their lap.  The defendant reached a plea agreement with the state and  entered a guilty plea on one count of possession of stolen property in the second degree.

The only disputed issue at the sentencing hearing was whether the court should find that the vehicle was used in commission of the offense, leading to suspension of the defendant’s driver license for one year, pursuant to RCW 46.20.285(4).

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To succeed in an entrapment defense, a Washington criminal defendant must show that the “criminal design” originated with law enforcement or someone acting under law enforcement’s direction and the defendant was induced to commit a crime he otherwise did not intend to commit. It is not sufficient for the defendant to show that law enforcement provided him an opportunity to commit the crime.  RCW 9A.16.070.  Pursuant to Washington case law, the test focuses on whether the defendant was predisposed to commit the crime.  A defendant recently appealed his conviction, arguing entrapment.

A Sergeant with the Whitman County Sheriff’s Office created a Facebook profile under the name of “Pauline Niner” to meet people online who would be willing to sell drugs.  At trial, the sergeant said he used a female identity because “[i]t attracts more people.” The sergeant had recently attended a training that addressed drug dealers and users communicating through social media and how officers could create a profile and engage in communication over social media.

According to the appeals court’s opinion, the defendant contacted “Pauline” and they discussed meeting.  Pauline wanted methamphetamine and the defendant said he could get some.  Various issues prevented him from providing her with the drugs on three occasions, but he stated he had a “little bit” on February 16, 2022.  The sergeant arrested him when he got to the address.

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