Articles Posted in Domestic Violence

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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.

The 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.

A 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.

The 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.

A 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.

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.

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

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The Washington Court of Appeals recently reviewed a defendant’s conviction for violating a no-contact order, evaluating whether evidence should have been suppressed. In State v. Burks (Wash. Ct. App. Nov. 3, 2015), the police officer conducted a traffic stop of a vehicle for speeding. The police officer obtained the driver’s information and entered it into a search, which indicated that the driver was a protected party in a no-contact order. The police officer noticed that the description of the respondent in the no-contact order matched the defendant, who was riding as a passenger in the driver’s vehicle. The officer requested identification from the defendant, which he did not have on him. The police officer returned to the computer in his vehicle and located a photograph of the respondent in the no-contact order, which matched the defendant. The officer then arrested the defendant for violating the no-contact order.

The defendant was charged with one count of a felony violation of a court order with a special allegation of domestic violence. The defendant moved to suppress the evidence obtained during the traffic stop, arguing that it was an illegal invasion of privacy pursuant to the Washington Constitution. The trial court denied the motion, finding that the police officer had a reasonable suspicion to believe that the defendant was violating the no-contact order, there was an independent reason to request the defendant’s identification, and the traffic stop was lawful. The trial court convicted the defendant as charged, and the defendant appealed on the basis that the trial court erred in allowing the evidence of the traffic stop.

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The Court of Appeals of Washington recently reviewed a jury verdict that found a defendant guilty of second-degree assault against a member of his household. On appeal in State v. Moreno-Valentin (Wash. Ct. App. Sept. 29, 2015), the defendant argued that the trial court erred by admitting evidence of his prior acts of domestic violence and permitting the jury to consider that evidence for improper purposes. The appeals court agreed, reversing the conviction and remanding the case for a new trial.

Generally, evidence of other crimes, wrongs, or acts is not admissible to show that the defendant acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before admitting such evidence, the trial court must find by a preponderance of the evidence that the acts occurred, identify the purpose for which the evidence is sought to be introduced, determine whether the evidence is relevant to prove an element of the crime charged, and weigh the probative value against the prejudicial effect. If a trial court admits the evidence, it must provide a limiting instruction to the jury explaining that the evidence is to be used only for the purpose identified, not to prove that the defendant acted in conformity.

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Protection orders may be granted in a number of circumstances.  They can be agreed upon by the parties.  They can also be ordered by the court after a hearing of the parties.  In some cases the need for a protection order decreases, or the protection order unnecessarily impacts the restrained party from employment or other opportunities.  If one or both parties believe that the protection order should be modified, they can seek that modification or termination by motion.

Termination or modification of an order of protection is governed by RCW 26.50.130.  This statute provides the process for how to request that a court modify or terminate a protection order.  What follows is a summary of that process.   Continue reading