Washington Courts: Press Release Detail
Court of Appeals to hear local cases at South Kitsap High School October 23rdOctober 17, 2002
In a community visit on Wednesday, October 23, the Washington State Division Two Court of Appeals will hold court in
“We’re delighted to be hearing local cases at
Starting at , Chief Judge Hunt and Judges David Armstrong and Christine Quinn-Brintnall will hear arguments on the following criminal cases before students, teachers and observers:
The Court will hear argument on the first four cases in the morning hours, recessing for lunch at 11 a.m., when they will be available to answer questions from students. The court will reconvene at to hear argument on the last three cases of the day. Summaries of each case, are listed below.
Division Two of the Washington State Court of Appeals has made community visits throughout its geographic area since 1993, most recently hearing cases at Bremerton High School in March. The court hears appeals from trial courts throughout Western Washington, Pierce County south to the Oregon border and the Olympic Peninsula, and has the authority to overrule, remand, or modify or affirm decisions of the lower courts.
For media interviews with judges participating in this visit, contact the number listed above prior to the event or Chief Judge Hunt at the number listed below.
CONTACT: Chief Judge J. Robin Hunt, Court of Appeals Division II, 253-593-2976.
Division Two Case Summaries
Wednesday, October 23, 2002
J.j. Hunt, Armstrong, Quinn-Brintnall
South Kitsap High School, Port Orchard, Washington
No. 27781-6, STATE OF WASHINGTON, RESPONDENT v. DEAN W. HOWE, APPELLANT
Nature of Case:
Criminal appeal of sentence for forgery, challenging imposition of an exceptional sentence and claiming use of an incorrect offender score.
On April 18, 2001, the State charged Howe with forgery, later amending the information to include two counts of forgery and one count of third-degree possession of stolen property. The jury returned guilty verdicts on all three counts.
At the sentencing hearing, the State and the Community Corrections Officer recommended an exceptional sentence. Howe requested a DOSA sentence.
The court imposed an exceptional sentence concluding that the multiple offense policy of the Sentencing Reform Act made the presumptive range sentence too lenient. The court found that counts I and III involved the same criminal conduct and calculated Howe’s offender score as 14. The standard range for an offender score of 9+ was 22-29 months. The court sentenced Howe to two 44-month concurrent sentences.
Howe argues that since counts I and III involved the same criminal conduct, they should not each count as a prior offense in calculating his offender score.
In his pro se supplemental brief, Howe claims that his offender score is nine, alleging that various prior offenses involved the same criminal conduct and that his Alaska convictions washed out.
1. Did the trial court err in concluding that an exceptional sentence was justified?
2. Did the trial court properly calculate Howe’s offender score?
Pro Se Issues:
1. Was Howe entitled to a properly calculated offender score before the court could deviate from the SRA standard range sentence?
2. Did the trial court improperly rely on the aggravating factor that the current multiple offense sentencing policy made the presumptive range too lenient?
3. Did the court violate the prohibition against double-counting offenses when it counted each current conviction separately in reaching the offender score and then declared that Howe would receive a "free crime" under the presumptive sentence range?
4. Did the court err in finding that the two were the same criminal conduct and then finding that he had a "free crime?"
5. Did the trial court abuse its discretion in sentencing for the "free crime" and in imposing the exceptional sentence based on the multiple offense policy of the SRA?
6. Did the trial court the trial court abuse its discretion in taking multiple prior convictions sentenced under one cause number, sentenced concurrently, and using each prior conviction separately to calculate the offender score?
7. Did the sentencing court exceed its statutory authority in imposing a sentence based on a miscalculated offender score?
No. 27979-7, STATE OF WASHINGTON, RESPONDENT v. KINA CLARK, APPELLANT
Nature of Case:
Criminal appeal of bench trial conviction on stipulated facts for unlawful possession of methamphetamine, claiming that the court erred in not suppressing evidence.
On the afternoon of July 29, 2001, Bremerton Police Officer Frank Shaw was on routine patrol when a young girl flagged him down. The girl said there were two guys walking near her house and scaring her. Shaw drove down the driveway to investigate.
At the end of the driveway, he saw two white males, one carrying a white briefcase. Shaw discovered a handgun in one of the male's pockets. Shaw called for backup, and Officers Butler and Vertefuille arrived at the scene.
The two males said they had been dropped off in a blue car. About ten minutes later, a blue car pulled into the driveway. There were two males in the front seat and Clark was in the back seat behind the passenger. Butler contacted the driver and ran a warrants check. The driver was arrested and placed in a patrol vehicle.
Once the warrant for the driver was discovered, the police conducted a search of the car incident to arrest. The offices asked the passengers to get out of the car. There was a small blue toiletries bag on the floor where Clark was sitting. Shaw removed the bag and placed it on top of the vehicle. Vertefuille was standing behind Shaw, saw that the bag was partially open, and saw syringes through the opening. Vertefuille picked up the bag and saw a spoon and plastic bag containing a white powder he believed to be methamphetamine. He arrested
After the trial court denied Clark’s motion to suppress, the court tried her on stipulated facts.
1. Does substantial evidence support the trial court's findings of fact?
2. Was the warrantless search of Clark’s bag illegal under State v. Parker and not justified by the plain view doctrine or the "search incident to lawful arrest" exception?
No. 27826-0, STATE OF WASHINGTON, RESPONDENT v. ADAM NELSON CRAIG, APPELLANT
Nature of Case:
Criminal appeal of conviction for unlawful possession of methamphetamine, claiming the trial court erred in not suppressing physical evidence obtained during a search.
On June 13, 2001, Poulsbo police recognize a car driving by as registered to a suspended driver. They stopped the car and arrested Craig for third-degree driving while suspended. They took him into custody with the understanding that he would not be detained at the jail after the booking. In a search incident to arrest, the officer discovered a controlled substance in Craig’s coat pocket. The officer then arrested Craig again and transported him to jail.
Poulsbo police instituted an "administrative booking" procedure in September 1999. Defendant alleges the procedure was a response to State v. McKenna, 91 Wn. App. 554 (1998). The procedure would give the officer the power to search an arrestee even though certain offenses would not be booked. The trial court denied defendant's motion to suppress.
The court found Craig guilty at a stipulated facts trial
1. Did the trial court err in not suppressing the physical evidence based on State v. McKenna?
No.27738-7, STATE OF WASHINGTON, RESPONDENT v. BRIAN WILEY, APPELLANT
Nature of Case:
Criminal appeal of jury conviction for two counts of third-degree domestic violence child molestation, claiming that evidentiary errors, prosecutorial misconduct, and cumulative error denied him a fair trial.
While staying with his sister and her family, Wiley entered her sister’s girls’ bedroom and fondled three of the four girls. Based on interviews with school counselors and an child interviewer with the prosecutor’s office, the State charged Wiley with two counts of third degree domestic violence child molestation and one count of third-degree child rape.
At trial, Wiley objected to several of the trial court’s evidentiary rulings. He challenged the admission of (1) his sister’s testimony that she was in danger of losing her job as a school bus driver because she was a mandatory reporter of abuse, (2) the counselor’s testimony that a man came to her office to report the abuse, and (3) the child interviewer’s testimony about her education and training even though she did not testify as an expert. He also disputed the court’s exclusion of (1) testimony that one of the victim had been sexually abused at age two and (2) about her reputation among her family and friends.
The jury convicted Wiley on the molestation charges, but it acquitted him of the rape charge.
1. Did the trial court err in its evidentiary rulings noted above?
2. Did the prosecutor engage in misconduct by discussing one child’s allegations that Wiley touched her, his sister’s job difficulties, and the child interviewer’s training?
3. Did cumulative error deprive Wiley of a fair trial?
No. 28061-2, STATE OF WASHINGTON, RESPONDENT v. JOHN BOLLINGER, APPELLANT
Nature of Case:
Criminal appeal of conviction for unlawful possession of a controlled substance, claiming that the trial court erred in not suppressing evidence seized because there was insufficient articulable facts pointing to criminal activity to justify police action.
On July 29, 2001, Bollinger was standing in front of Rob's Quick Stop talking on a pay phone and a cell phone. Officer Litts of the Bremerton Police Department drove by, noticing Bollinger and a car in the parking lot with Oregon license plates. The officer regarded Bollinger as suspicion and ran a license plate check, which showed the car as registered to Jose Andrada. The officer then drove to a nearby alley where he could secretly observe Bollinger. He stayed there until a passerby yelled to Bollinger that the police were watching him.
The officer then approached Bollinger and, when Bollinger asked if he was in trouble, the officer told him to finish his phone conversation. The officer stood near Bollinger until he finished his phone calls. The officer then asked Bollinger if he owned the car with the Oregon license plates. Bollinger replied that it belonged to a friend. The officer asked Bollinger if he had ever been arrested before, and Bollinger said that he had. Bollinger again asked if he was in trouble, and the officer told him that his activity was very suspicious.
The officer asked Bollinger if he would mind showing him his ID. When Bollinger offered it to the officer, the officer took it and ran a records check, which revealed two outstanding arrest warrants. The officer later testified that he only had Bollinger's ID card for a few minutes. Bollinger later testified that the officer never gave it back. In a search incident to Bollinger’s arrest on the outstanding warrants, the officer discovered methamphetamine in Bollinger's wallet.
The trial court found Bollinger guilty on stipulated facts after it denied his motion to suppress.
1. Did the trial court err in not finding that the officer illegally seized Bollinger when the officer asked for identification yet had no articulable suspicion of criminal activity?
No. 27346-2, STATE OF WASHINGTON, RESPONDENT v. MARGARET ANNE COMISKEY, APPELLANT
Nature of Case:
Criminal appeal of conviction for second-degree burglary and felony bail-jumping, claiming ineffective assistance of counsel and trial court error in admitting evidence to show motive.
On Friday, August 25, 2000, Ms. Brown fired Comiskey from her position as a recruiter at Michael J. Hall & Company, a "head hunting" firm for architectural and environmental firms. Ms. Brown told Comiskey that she would help her gather her things. Comiskey said that she was too upset, so Brown suggested she come back on Monday. Brown asked for Comiskey's key to the office but Comiskey gave her the wrong key. Brown later realized this but did not call Comiskey because she thought Comiskey would be back on Monday.
On Sunday, August 27, Comiskey entered the offices. She took some client files and some office supplies. The company maintained files for each client in written and electronic form. The company maintained three kinds of files: contract and general correspondence, advertising files that Hall placed for the client, and a candidate file with candidate summaries and resumes. It was against company policy to take files home, although Comiskey had often done so in the past.
On Monday morning, Brown and Hall, the company president, called Comiskey at home on their speakerphone. Comiskey told them that she could not bring the files in because she had loaned out her car. She told Brown that she would return the files on Tuesday. Later, she and Brown arranged for her to bring the files in on Thursday, when she could also pick up her paycheck. But on that first Monday, Mr. Hurd, a company owner, filed a complaint with the Poulsbo Police Department, estimating the value of the files at thousands of dollars.
Officer Sabato of the Poulsbo Police Department called Comiskey and asked her to bring the files and office supplies to the Police Department on Thursday. When she brought in the items, they arrested her. The police neither tagged nor inventoried the files and other materials Comiskey returned and Brown picked them up from the police department.
The State charged Comiskey with one count of second-degree burglary on September 27, 2000. She was released on the condition that she appear before the court on
1. Did trial court err in admitting testimonial evidence of the contents of a specific document, allegedly contained within a box of files, in order to show motive, where it was not established that the document was in the files at the time they were taken and where the same information was available from another source?
2. Was Comiskey denied her right to effective assistance of counsel when her defense theory was "mistake", but counsel failed to request a bill of particulars and propose instructions on the underlying crime?
3. Was Comiskey denied her right to effective assistance of counsel when her defense theory was "mistake", but counsel failed to propose an instruction on the lesser included offense of criminal trespass?
4. Was Comiskey denied her right to effective assistance of counsel when, on the date defendant was required to appear, counsel contacted the court by telephone to inform it that Comiskey was out of state instead of setting up a telephonic appearance when it is customary for the court to allow such telephonic appearances?
5. Was the evidence sufficient to support a second-degree burglary conviction, since the State failed to establish beyond a reasonable doubt that the Comiskey intended to commit a crime while inside the building?
No. 27254-7, STATE OF WASHINGTON, RESPONDENT/CROSS-APPELLANT v. JEFFREY B. PAYNE, APPELLANT/CROSS-RESPONDENT
Nature of Case:
Criminal appeal of jury conviction for first-degree child molestation, claiming that the trial court should have suppressed the evidence and claiming that court erred in relying on a 1998 Canadian sexual assault conviction to impose a life sentence. The State cross-appeals from the sentencing court’s refusal to consider Payne's other Canadian convictions, which include a 1995 sexual assault.
Payne babysat a friend’s two children over the 2000 Labor Day weekend. One child awoke when she felt Payne’s hand underneath her pants while she slept on the living room couch. Payne asked the child not tell anyone what had happened and gave her $5.00 to keep quiet. The next day, Payne was helping his friend’s sister move furniture. At one point, the sister claimed to have seen Payne molest her daughter with a screwdriver. The State charged Payne with two counts of first-degree child molestation.
Following a child hearsay hearing, the trial court found both children’s statements admissible. Following a CrR 3.5 hearing, the trial court found that Payne’s admission that he had touched his friend’s daughter was admissible. A jury found him guilty of this count, but not guilty of the second count.
At sentencing, the State sought to have two Canadian convictions of sexual assault included in Payne’s criminal history. The court disallowed one, ruling that it did not meet constitutional requirements, but it allowed the other as equivalent to
1. Did the sentencing court err by considering Payne's 1998 Canadian conviction for sexual assault while calculating Payne's offender score and classifying him as a persistent offender?
2. Was there sufficient evidence to prove the 1998 Canadian conviction for sexual assault when the State submitted a certified transcript of proceedings, an uncertified warrant of committal, and testimony from Crown Counsel regarding these documents?
3. Did the trial court err by not suppressing Payne's post-Miranda interrogation statements, when he asserted his right to not talk but the officers threatened him with jail and asked him if he was willing to talk?
Issues on Cross Appeal:
1. Was the Canadian rap sheet inadmissible to prove Payne's prior Canadian convictions?
2. Was there sufficient evidence to prove Payne's prior Canadian convictions?
3. Is Payne's 1995 Canadian conviction for sexual assault comparable to the Washington crime of first-degree child molestation?
4. Did the trial court err in not considering the 1995 Canadian conviction when it was a summary proceeding and Payne was not afforded the right to a jury trial?
Issues in Pro Se Supplemental Brief:
1. Did the State fail to disclose evidence?
2. Did the State tamper with witness testimony?
3. Did the trial court allow its personal feelings to influence its decision to find the victim competent to testify at the child hearsay hearing?
4. Did the trial court err in finding the victim's disclosure spontaneous?
5. Was there ineffective assistance of counsel?
6. Was there sufficient evidence to prove count one of first-degree child molestation when the jury acquitted on count two?
7. Did the trial court have jurisdiction
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