Washington Arson Convictions Reversed Due to Admission of Hearsay Evidence

Generally, hearsay is excluded from evidence, though there are some exceptions.  Hearsay is a statement made outside court and offered into evidence to prove the truth of the matter asserted. ER 801.  If, however, the prosecution in a Washington criminal case wants to present an out-of-court statement for a purpose other than its truth, the court must consider whether that purpose is relevant.  If the purpose is not relevant, the statement should be excluded.

A defendant recently challenged his convictions after the trial court admitted a statement from dispatch over his objection.  According to the appeals court’s opinion, officers responded to a call from a father who reported being involved in an argument with his son, the defendant.  The caller said his son had put gasoline into two paper cups.  When the officers arrived at the gas station, they could not find either the father or the defendant. One officer drove toward the father’s house.  He saw the defendant walking along the road with a grocery bag.

The officer called out to the defendant by name over the car’s speaker and the defendant lay on the ground.  When the other officer arrived, the defendant was sitting on the ground. The bag in his hand was leaking something that smelled like gas.  He asked if he was free to go. When the officers told him he was, he started walking toward his father’s home.

The father’s neighbors heard yelling and breaking glass.  They saw the defendant making growling noises and throwing things at a vehicle. They saw the defendant dump something in the car and throw a burning paper inside.  The neighbor called 911 when the car exploded.

The call came in about 10 or 15 minutes after the officers’ previous encounter with the defendant. They saw a car on fire when they got to the father’s property.  They arrested the defendant.

The fire ultimately spread to two more cars and a boat before the fire department extinguished it.

The defendant was charged with arson in the second degree and arson in the first degree.  He moved to exclude all of the statements the officers received from dispatch. He particularly wanted to exclude any mention that the officers were responding to a “domestic dispute.”

The state argued the statements were admissible to explain why the officers went to the gas station.  The defendant argued that the content of the statement was relevant because it could be used to support a finding that he had acted maliciously.  The trial court denied his motion.

One of the officers testified that he had received a call regarding “a verbal disturbance between father and son at a gas station.” The other officer testified she went to the gas station in response to a “domestic situation.”

The defendant testified he had been working on his vehicle before unintentionally starting the fire.  He testified he was not at the gas station with his father and that he did not recall or believe he had a dispute with his father.

In addressing the element of malice in its closing argument, the state pointed to three things. The state argued the defendant effectively admitted to having an argument with his father. It also argued the officers testified the defendant seemed “agitated” when they first encountered him and the neighbors testified he looked angry.  Finally, the state argued the defendant acted with malice because he set the fire intentionally.

The defendant was convicted of both second degree arson and first degree arson.  He appealed.

Although he raised several claims of error, the appeals court found the hearsay argument dispositive.  The defendant argued the trial court erred by denying his motion and admitting prejudicial hearsay.

The state argued the dispatch statement was relevant because it showed why the officers went to the gas station.  The appeals court noted, however, that the reason the officers went to the gas station did not matter. The only relevance the argument had was to show the defendant had a motive to set fire to the car intentionally. The appeals court found the trial court erred in admitting the evidence.

The appeals court “urge[d] trial courts to objectively consider why the hearsay evidence is truly being offered.” The appeals court noted that if a statement is actually being offered for a nonhearsay purpose, it will retain that purpose even if the statement is not true.

In determining whether the error was harmless, the appeals court considered the jury instructions on the meaning of “malice” and “maliciously.” The appeals court found the hearsay evidence the defendant had argued with his father was the only direct evidence he “had an evil intent to vex or annoy another person. . .” The defendant testified the car was his, although it was not registered to him. The appeals court noted setting his own car on fire would not be a willful disregard of the rights of another person.  Although the jury could have inferred malice from the act of setting the fire, that inference was insufficient to overcome the improper evidence of the argument.  The appeals court found a reasonable probability that the trial’s outcome was materially affected by the error.

The appeals court reversed both convictions without prejudice.

The defendant objected to the hearsay statement and preserved the error for appeal.  If you are facing criminal charges, an experienced Washington criminal defense attorney with a thorough knowledge of the rules of evidence can fight to protect your rights.  Contact Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.


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