Articles Posted in Domestic Violence

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Romantic and familial relationships can grow contentious and sometimes become violent.  Sometimes relationships can become so contentious that one party seeks to have a court intervene and issue a civil protection order to prevent the other party from contacting them or engaging in other activities.  Washington civil protection order attorneys know that a victim does not have to wait until they are seriously injured to seek a civil protection order.  In some cases, a court may issue a civil protection order even if there has not been a physical assault, as seen in one recent case.

gavelThe former husband appealed a domestic violence protection order (DVPO) issued in favor of his ex-wife.  In her petition, the ex-wife stated her ex-husband had violated the no-contact order entered after the divorce.  She stated that he had threatened to kill her when she filed the protection order and that he had threatened her many times.  She stated he had told her she could either be with him, or he would keep harassing her.  She alleged he had a history of both suicidal and violent behaviors.  The court granted her a temporary order and scheduled a hearing.

At the hearing, the ex-wife testified that she was afraid for her safety.  She said she wanted the DVPO because the restraining order that was already in place was not working.  The ex-husband also testified at the hearing and either denied or tried to explain the allegations.

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Some evidence, though relevant, may be unfairly prejudicial.  A court must balance the probative value of evidence against the risk of unfair prejudice.  If the risk of unfair prejudice substantially outweighs its probative value, the evidence must be excluded.  Washington domestic violence attorneys know that some facts about an alleged victim could be prejudicial to their client.

phone receiverA Washington appeals court recently considered whether the trial court erred in allowing limited evidence of the alleged victim’s pregnancy when the defendant appealed his conviction of a misdemeanor violation of a court order with a special finding of domestic violence.

There was a domestic violence no-contact order prohibiting the defendant from contacting or coming within 500 feet of the mother of his child.  The woman was pregnant at the time with another child that was believed to be the defendant’s.

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A person has a fundamental right to parent his or her own natural children.  When a court places a sentencing condition on a person that limits those fundamental rights, it must consider whether there are reasonable alternatives that will further the state’s interest.  If there are no reasonable alternatives, the court must narrowly tailor the condition.  Washington domestic violence attorneys handling these cases must understand the family law implications of any sentencing conditions imposed by the court. This issue recently arose in a case before the Washington Court of Appeals.

windowThe couple had three children together.  In 2015, there were no-contact orders in place keeping the husband from contacting the wife of the six-year-old daughter.  Sheriff’s deputies believed the husband was at the wife’s residence.  They did not receive a response when they first knocked on the door, but the wife ultimately answered and let them in.

One of the deputies found a locked door and heard noises from inside the room.  He forced the door open and found men’s clothing and shoes.  The window was open, but the deputies had observed it to be closed when they walked around the house before entering.

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Washington defendants are entitled to a unanimous jury verdict.  Washington criminal defense attorneys know, however, that this general rule can become complicated when there are multiple acts underlying the charges.  If multiple acts could each form the basis of a charge, and the state presents evidence of each, either the state must elect which act is the basis of the charge, or the jury must be instructed on unanimity.  If the multiple acts are all part of a continuing course of conduct, there is no requirement for an election or instruction.  Additionally, multiple acts may be presented as alternative means of committing the crime.  If there is sufficient evidence to support each means, express unanimity is not required.  A Washington appeals court recently addressed these issues in a case in which a man was charged with residential burglary after allegedly violating a no-contact order and assaulting his wife.

handcuffsThe defendant was charged with three counts of felony violation of a court order, along with two assault charges, residential burglary, and third-degree malicious mischief.  The charges stemmed from allegations that the defendant violated a no-contact order and assaulted his wife, sister, and mother. The defendant and his wife were separated, and she had obtained a no-contact order that prohibited him from coming within 1,000 feet of her or her home.  The defendant had several misdemeanor convictions for violating the order.

The defendant’s wife testified that he came to her home twice in April 2015, but he left when she called the police.  He came back in July 2015 and came in through the back door.  She testified that he was intoxicated and called her names.  She also testified that he kicked her, threw her on the couch, and struck her.  The defendant’s parents and sister lived with his wife.  The defendant started to leave when his sister told him she was calling the police.  She grabbed his shirt to stop him, and he bit her hand until she kicked him.  He pushed his mother to the ground and stepped on her chest as he left.

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Washington civil protection order attorneys understand that domestic violence can be a complex issue that reaches beyond the couple. Children may become involved by witnessing the violence or by being threatened.  Washington law allows a person to petition for a protection order on behalf of himself or herself, or on behalf of minor family or household members.

empty cribA Washington Court of Appeals, however, recently held that a mother could not obtain a protection order on behalf of her child when the child was not “present” for the violence and did not have fear of imminent harm, bodily injury, or assault.  The Washington Supreme Court disagreed.

In this case, the mother petitioned for a domestic violence protection order against her son’s father on behalf of herself and her children following a history of domestic violence.  According to the Washington Supreme Court opinion, the man had repeatedly physically and emotionally assaulted his son’s mother.  He pushed her to the ground while she was pregnant, had tried to smother her with a pillow, pulled a knife on her, threatened to kidnap their son, and threatened to do something horrible to her daughters.  He also threatened to kill her, her children, and himself.

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Threats of domestic violence should be taken seriously.  However, not all statements that suggest potential violence are true threats that can form the basis of a criminal conviction.  A Washington appeals court recently considered whether a statement that was made to a third party and that did not include a specific statement of an intent to harm was a true threat.

handcuffThe husband was convicted of two gross misdemeanor counts of harassment – domestic violence.  One of the counts was based upon a statement by the defendant to a third party.

According to the court’s opinion, there were issues of infidelity by both parties, and  the opinion references two extramarital relationships of the wife.  The first involved a neighbor in the same apartment complex as the couple who had also served in the military with the defendant.  The neighbor told the defendant about the affair and subsequently cut off most contact with the couple until the incident leading to the husband’s arrest.

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Pursuant to Washington ER 404(b), evidence of other crimes, wrongs, or acts may not be admitted to prove the defendant’s character to show that he acted in conformity with his character.  Evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent.   Washington courts have also allowed such evidence to be admitted under a “res gestae” or “same transaction” exception, allowing the evidence “if it is so connected in time, place circumstances, or means employed that proof of such other misconduct is necessary for a complete description of the crime charged, or constitutes proof of the history of the crime charged.” State v. Schaffer.  The purpose is to allow the jury to see a complete picture.

doorA court can only admit evidence under an exception to ER 404(b) if it first finds by a preponderance of the evidence that the misconduct occurred, determines that the evidence is relevant to a material issue, puts the purpose for the admission of the evidence into the record, and balances the evidence’s probative value against the risk of unfair prejudice.  The court must conduct the analysis on the record.

A Washington appeals court recently reviewed a case in which the trial court admitted some evidence of prior incidents.  The defendant was charged with residential burglary, fourth-degree assault, and interfering with domestic violence reporting, based on allegations that he had entered his wife’s residence, assaulted her, and prevented her from calling the police.  He was convicted of fourth-degree assault and residential burglary.  He appealed, arguing that the trial court abused its discretion by admitting evidence about prior incidents.

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In a recent opinion, the Court of Appeals of Washington decided the issue of whether a defendant is entitled to a self-defense instruction when only the state produces evidence of self-defense. In State v. Thysell (Wash. Ct. App. June 9, 2016), the defendant was charged with fourth-degree assault, domestic violence, after a physical altercation between the defendant and her daughter. At trial, the defendant requested a jury instruction on self-defense. The prosecution objected, arguing that the defendant presented no evidence of self-defense, and any testimony that could arguably support such an instruction came through the state’s witness, the defendant’s daughter. The trial court ruled in favor of the state and denied any instruction to the jury on self-defense. The jury subsequently found the defendant guilty of fourth-degree assault, domestic violence.domestic violence

On appeal, the defendant contended that the trial court erred by denying a self-defense instruction on the basis that she failed to produce the evidence on which her instruction was based. She argued that it was irrelevant who produced the evidence, as long as the evidence is sufficient to warrant a jury instruction on self-defense.  The prosecution, in response, argued that a defendant is not entitled to a self-defense instruction unless she produces the evidence based on which the instruction would be warranted.

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In a recent opinion, the Court of Appeals of Washington decided a case in which a defendant appealed his jury trial conviction for fourth-degree assault involving domestic violence. In City of Tacoma v. Driscoll (Wash. Ct. App. Mar. 22, 2016), the defendant argued that the lower court violated his right to present a defense when it excluded his testimony regarding two prior incidents of the victim attacking him. The Court of Appeals agreed with the defendant, reversed the conviction, and remanded for a new trial.OLYMPUS DIGITAL CAMERA

In City of Tacoma, a witness called police officers to a bus shelter after observing the defendant kneeing the victim in the head. The defendant told officers he had acted in self-defense. At the time, the defendant had a no-contact order against the victim. The defendant was subsequently charged with one count of fourth-degree assault involving domestic violence. At trial, the defendant asserted the act was in self-defense, and he offered evidence of three prior incidents in which he alleged the victim had attacked him. One of the attacks resulted in a charge of second-degree assault against the victim, and the other two attacks could not be corroborated by documentation or evidence other than the defendant’s testimony. The trial court allowed the defendant to present evidence of the first attack because it was documented, but not the others. On appeal, the defendant argued that his constitutional right to present a defense was denied when the trial court excluded his testimony regarding the two incidents.

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January is a busy time for family law attorneys.  The stress of the holidays seems to make an already unhappy marriage even unhappier, and in January, people vow to never spend another holiday with their soon-to-be-former spouse.  While we understand that this issue can feel very urgent, and sometimes it is, we also hope people consider how best to prepare their children, finances, and themselves for what is to come.  Below please find some issues to consider before rushing to the courthouse to file your petition. Continue reading