Washington Courts: Press Release Detail
Court of Appeals to hear local cases at Peninsula College October 16thOctober 09, 2002
In a community visit on October 16th, the Washington State Division Two Court of Appeals will call
“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 other community observers:
The Court will hear argument on the first five cases in the morning hours, recessing for lunch at when they will be available to answer questions from students and the public. The court will reconvene at to hear argument on the last two 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. The court hears appeals from trial courts throughout
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.
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Division Two Case Summaries
Wednesday, October 16, 2002
J.j. Hunt, Armstrong, Quinn-Brintnall
Peninsula College, Port Angeles, Washington
No. 27390-0, STATE OF WASHINGTON, RESPONDENT v. HARVEY JAMES JR., APPELLANT
Nature of Case:
Criminal appeal of sentencing for convictions of two counts of first-degree assault, three counts of first-degree kidnapping and one count of unlawful possession of a firearm, claiming the court improperly relied on the elements of the charged crimes as factors that warranted exceptional sentence.
Harvey James was convicted in a bench trial of two counts of first-degree assault, three counts of first-degree kidnapping, and unlawful possession of a firearm. He appealed, and the notice of appeal specifically noted that he intended to appeal his exceptional sentence. At some point during the appeal, James' appellate counsel was replaced with a new attorney, unbeknownst to James. The new attorney never communicated with James and never challenged James' exceptional sentence.
James filed a pro se motion entitled "Motion for Resentencing under Apprendi" on August 29, 2000. With the assistance of counsel, James filed an "Amended Motion and Memorandum for Resentencing" on December 12, 2000. The amended motion focused primarily on the sentencing court's application of a statute that has been repealed. The amended motion also included a challenge to James' exceptional sentence based on the denial of an opportunity to appeal. The motion urged the court to consider this claim in light of the ineffective assistance of counsel. The motion also noted that "future dangerousness" and ordinary "lack of remorse" could not justify the exceptional sentence.
In an evidentiary hearing on the issue of whether James had notice of the amendment of RCW 10.73, the court determined that James had received constructive notice, but held that his challenge to the calculation of the standard range could proceed anyway. The court also held that James was not entitled to challenge the basis for his exceptional sentence.
The court calculated James' offender score as three. The court determined his standard range as 85-113 months on counts I and II, 91-113 months on counts III, IV, and V, and 0-12 months on count VI. The court concluded that an exceptional sentence was appropriate and imposed a total of 300 months' confinement.
This sentence was based on two additional aggravating factors: that the crimes involved multiple victims and that the defendant intended to harm law enforcement officers. The original findings were that (1) the defendant did not exhibit deliberate cruelty, (2) the defendant expressed no remorse, (3) the defendant had not indicated that he would "desist from his attempts to kill law enforcement officers in the future," (4) the defendant had been imprisoned in the past and "that incarceration has not deterred the defendant from committing [new] crimes," (5) the defendant "represents an extreme and continuing danger to the lives of law enforcement officers," and (6) the defendant "has exhibited no inclination to change his desire to kill law enforcement officers."
1. Does the exceptional sentence improperly rely on an aggravating factor that is an essential element of the crime charged?
2. Does the exceptional sentence improperly rely on a factor that the legislature necessarily considered in setting the standard range?
3. Does the exceptional sentence improperly rely on “future dangerousness”, a factor only appropriate for sex offenses?
4. Does the exceptional sentence improperly rely on ordinary lack of remorse?
5. Does the exceptional sentence improperly rely on James’ prior imprisonment?
No. 27379-9, STATE OF WASHINGTON, APPELLANT v. MICHAEL D. OUSLEY, RESPONDENT
Nature of Case:
State's criminal appeal from an order suppressing evidence of a marijuana grow operation, claiming that probable cause existed to issue both a search warrant and a supplementary search warrant.
Several search warrants were involved in the case. An original search warrant was issued for a Clallam County property on September 13, 2000. Execution of that search warrant revealed information that was used to obtain additional search warrants on September 17, 2000. The first of these warrants was for the Kitsap County residence of the person found on the property, Byron Gerke, Dicenzo's father. The second warrant was issued for the Jefferson County residence of the owner of the property, Lisa Dicenzo, to search for documents. That warrant included the outbuildings on the property. Based on information discovered there, a supplemental search warrant was issued over the telephone to search for marijuana and evidence of marijuana at the Jefferson County residence. Defendant was residing at the Jefferson County residence.
In the OPNET (Olympic Peninsula. Narcotics Enforcement Team) authorities' initial search of Dicenzo's Clallam County property, authorities found marijuana plants on the property, as well as cranberry bogs. They also found fertilizer in a package addressed to Dicenzo at the Jefferson County address, 171 Embody Road, Port Ludlow, and a box from "American Hydroponics" marked "for Forrest." Authorities met Byron Gerke and a companion on the property. Gerke and the companion told authorities that his daughter Dicenzo owned the property, paid for it by way of a contract with Ocean Spray Cranberry Company, who purchased cranberries from Dicenzo, and that Dicenzo lived with Forrest Richardson and their children elsewhere. Relying on various county records and the phonebook, authorities determined Dicenzo's address to be 171 Embody Road, the Jefferson County property in question. Based on the information obtained in the Clallam County search, warrants were issued as described above. The warrant for the Jefferson County property was issued in order to search for documents "relating to the acquisition of the property [in Clallam County] as well as any contracts, agreements, or other correspondence related to that property . . . and any documents or written recordings that may show the growing or cultivation of marijuana. . .. " (language from search warrant). Identical language was included in the affidavit supporting the warrant. The search warrant also covered the outbuildings of the property.
When authorities arrived at the house on the Jefferson County property, they discovered a building with covered windows (the "sealed building"). Authorities believed that they could detect an order of marijuana near the building. Defendant Michael Ousley resided in the house and informed the authorities that he did not know Dicenzo and that he had been renting the house for two months. Authorities obtained a supplemental search warrant over the phone in order to search for marijuana. Inside the outbuilding, authorities found the growing marijuana, which was the basis for the charge against the defendant.
By memorandum opinion and order, the court suppressed the evidence and found that an evidentiary hearing was not required.
1. When officers search property with a search warrant and find evidence of a marijuana growing operation and discover the owner’s identity and the resident’s relationship to the owner does that amount to probable cause to search the owner's residence at a different location for documentation of how the owner is financing the property?
2. Did the original issuing magistrate abuse his discretion in finding probable cause to search the Clallam County property owner's residence in Jefferson County for documentation of how the property was being financed?
3. Did the superior court apply an incorrect probable cause standard?
4. When officers are executing a valid search warrant of a residence, can they perform a cursory search of the property for officer protection?
5. When officers have a valid search warrant for a residence, must they accept an occupant's explanation that he does not know the original target of the search?
6. Regarding the issuance of the supplemental warrant for the search for marijuana on the Jefferson County property, does the record before the issuing magistrate establish probable cause to believe that the odor of marijuana was present at the "sealed building" on the Jefferson County property?
7. Did the magistrate issuing that supplementary warrant abuse his discretion in extending the search warrant?
8. Did the reviewing judge give proper deference to the issuing magistrates when reviewing their decisions to issue the search warrants?
No. 26484-6, STATE OF WASHINGTON, RESPONDENT v. GARITH CLARK, APPELLANT
Nature of Case:
Criminal appeal following conviction for first-degree assault with a deadly weapon, claiming the improper admission of custodial statements, improper jury instructions, and ineffective assistance of counsel.
Appellant and Tom Duvall got into a fight at the Schell residence. Appellant was badly beaten, and Duvall was stabbed in the neck with a knife. Officer Viada responded to the Schell residence to investigate a reported stabbing. When he arrived, Duvall had already been taken to the hospital and Appellant was in the garage. The officer identified himself, arrested Appellant, and advised him of his Miranda rights. Officer Viada later testified that although Appellant was badly injured, smelled of alcohol, and had slurred speech, he acknowledged his rights and seemed to understand them. Appellant told the officer that two unknown men broke into the house and cut him over a drug deal. After making a statement, Appellant was taken to the hospital.
Officer Raymond interviewed Appellant at the hospital. While Appellant was being treated, Officer Raymond overheard Appellant say, "If I ever get free, I’m going to hurt someone." Appellant then looked directly at Officer Raymond and said, "Are you listening to me? I'm going to hurt someone when I get loose." Officer Kovatch also interviewed Appellant at the hospital, and Appellant acknowledged entering the kitchen at the Schell residence while holding the knife that ended up in Duvall's neck. At the hospital, Appellant tested positive for cocaine. Appellant also testified that he had consumed less than two beers the day of the assault.
Appellant was charged with first-degree assault with a deadly weapon. The question at trial was who instigated the fight. Following a CrR 3.5 hearing to determine the admissibility of Appellant's statements to the officers, the court held that Appellant knowingly and intelligently waived his right to remain silent and that all his statements were admissible. Appellant argued that he did not knowingly waive his rights because he was intoxicated and in pain from the beating.
At trial, Appellant requested an aggressor instruction and a self-defense instruction using the phrase "great bodily harm," both based on the WPICs. The jury found Appellant guilty and, by special verdict, that he was armed with a deadly weapon.
1. Did the trial court err in finding that Appellant knowingly and intelligently waived his right to remain silent?
2. Did the trial court err in admitting statements Appellant made to responding officers after they had advised Appellant of his Miranda rights?
3. Was Appellant's counsel ineffective for requesting an aggressor instruction?
4. Did the trial court err in giving the aggressor jury instruction even though Appellant requested it?
5. Was Appellant's counsel ineffective for requesting an instruction using the phrase "great bodily harm" rather than "great personal injury?"
6. Did the trial court err in giving the instruction using the phrase "great bodily harm" rather than "great personal injury" even though Appellant requested it?
No. 27104-4, STATE OF WASHINGTON, RESPONDENT v. CHARLES H. ROBINSON, APPELLANT
Nature of Case:
Criminal appeal of conviction and sentence for first-degree child molestation, claiming improper exclusion of testimony and improper classification of Robinson as a persistent offender.
Charles H. Robinson was convicted of touching the genitals of a three-to-four-year-old boy. Robinson was a regular babysitter for the boy. The child's mother, C.G., testified that the boy told her that Robinson touched his genitals. She also testified that the boy had begun to have nightmares around the same time and became sexually aggressive with his younger sister.
The trial court excluded Robinson’s proffered testimony from Barry Wang. Robinson contends that Wang would have testified that C.G. told him that she had fabricated the allegations. During C.G.’s testimony, the State never asked C.G. about Wang. It did ask, however, if she had any reason to lie or make up the allegations.
At sentencing, the State presented evidence that Robinson had been convicted in California of a lewd and lascivious act with a child under the age of 14. Based on this prior conviction, the court found Robinson to be a persistent offender and sentenced him to life in prison without the possibility of parole.
1. Should the trial court have allowed Wang to testify under ER 613 to rebut C.G.’s trial testimony?
2. Did the trial court err in finding Robinson to be a persistent offender and sentencing him to life in prison without the possibility of parole?
No. 27527-9, STATE OF WASHINGTON, RESPONDENT v. JESSE T. MILLS, APPELLANT
Nature of Case:
Criminal appeal of convictions for three counts of third-degree assault, claiming there was insufficient evidence to support two of the three alternative means of committing assault given in the jury instruction.
A superior court commissioner denied Mill’s motion for an order restraining his girlfriend from having an abortion. On March 8, 2001, after she had an abortion, Mills went back to the court and told the commissioner what had happened. After the Commissioner shrugged his shoulders and turned away, Mills spit at him. A warrant then issued for Mills' arrest.
Detectives Winfield and Hall met Mills on foot on March 9. Winfield identified himself, showed Mills his identification, and told Mills he was under arrest. Winfield stated that Mills dropped his bag of groceries, put up his fists and took an aggressive boxing stance, saying, "all right; let's go." When Mills advanced, throwing punches and kicks, Winfield kicked Mills in the stomach to deflect a punch aimed at Hall. A fight ensued, during which Mills punched, spit on, and kicked both Hall and Winfield.
Several other officers arrived to help. Mills kicked Deputy Velie twice in the head while Velie attempted to help arrest Mills. Mills told Velie, “Well, all you f------ are going to be sorry. I’m going to get you and you helped kill my baby.” With the extra help, officers were finally able to handcuff Mills and hobble him. Hall, Winfield, and Velie all suffered injuries from the fight, including bumps, scrapes, back, neck, and hand pain, red marks, bruises, and headaches.
At trial, Mills requested a jury instruction that resisting arrest is a lesser-included offense of third-degree assault. The court refused the proposed instruction.
The court’s instructions described three ways of committing an assault:
"An assault is an intentional touching or striking of another person with unlawful force that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would not offend an ordinary person who is not unduly sensitive.
"An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
"An assault is also an act, with unlawful force, done with the intent to create in another an apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
"An act is not an assault if it is done with the consent of the person alleged to be assaulted."
The jury convicted Mills as charged.
1. Should the jury's general verdict of guilty be reversed because there was insufficient evidence on two of the three alternate means of committing assault given in the jury instruction?
No. 27829-4, STATE OF WASHINGTON, RESPONDENT v. PHILLIP RAY BOLING, APPELLANT
Nature of Case:
Criminal appeal of revocation of suspended sentence for second-degree child rape, claiming that the trial court improperly relied on hearsay, on coerced statements, on his failure to meet a payment obligation that was not court-ordered and was unconstitutional, and on non-material violations.
In 1999, the State charged Boling with two counts of second degree child rape for having sexual intercourse with two twelve year old girls. Boling pleaded guilty to one count and, in exchange, the State dismissed the other and recommended a Special Sexual Offender Sentencing Alternative (SSOSA). The sentencing court followed the recommendation, imposing a 90-month suspended sentence conditioned in part on requirement that Boling provided notification prior to any address or employment change, that he complete a sex offender treatment program, and that he pay his legal financial obligations (LFOs), which included legal fees and treatment costs.
In January 2001, CCO Richard Morehouse filed a violation report against Boling. The violation report listed five infractions. These included Boling’s failure to report to the DOC, failure to attend his treatment program, failure to keep current on his treatment program balance, his possession of pornographic material, and his failure to pay LFOs. The court sanctioned Boling to sixty days in jail and ordered him to get current on his treatment payments.
On June 5, 2001, CCO Morehouse again filed a violation report against Boling. The violation report listed three infractions. These included Boling’s failure to notify DOC of a change of address, failure to pay his LFOs, and failure keep current on his payments to his treatment program counselor. RP 23. CCO Morehouse recommended a SSOSA revocation.
Boling’s therapist recommended against revocation. The trial court revoked Boling’s SSOSA and later denied his motion for reconsideration.
1. Did the trial court’s reliance on hearsay statements, constituting the key evidence supporting the SSOSA revocation, violate Boling's due process and confrontation rights?
2. Did the trial court improperly rely on Boling's response to a community corrections officers' interrogation regarding his living situation, when he gave this response while in custody and without Miranda warnings?
3. Did the State prove by a preponderance of the evidence that Boling had moved, when the only evidence was based statements and hearsay, despite other witnesses’ statements that Boling had not moved?
4. Can a SSOSA be revoked for the failure to pay for treatment, where neither the judgment and sentence nor the supervision conditions required treatment payments?
5. Does it violate due process and equal protection to revoke a SSOSA for failing to pay for treatment, without regard to ability to pay?
6. Did the State prove by a preponderance of the evidence that Boling failed to pay treatment fees, when payment was not a condition of his suspended sentence?
7. Did the trial court abuse its discretion in revoking Boling's SSOSA based solely on hearsay and failure to pay for treatment, when hewas a non-violent offender, had no prior criminal history, was being successfully rehabilitated, and posed no danger to the community?
No. 27986-0, STATE OF WASHINGTON, RESPONDENT v. CECIL M. DUDGEON, APPELLANT
Nature of Case:
Criminal appeal of jury conviction of indecent liberties, claiming a violation of his right to speedy trial, pre-accusatorial delay, double jeopardy, and ineffective assistance of counsel in failing to move to dismiss based on the State's violation of mandatory joinder rules and failing to present evidence that would have disproved the forcible compulsion element.
On July 23, 2001, Dudgeon entered his girlfriend’s daughter’s bedroom naked. When he began fondling her breasts and placing his hands in her pants, she ordered him to leave her alone. But Dungeon continued to fondle her and began taking off her pants. She continued to resist, but Dudgeon persisted. At one point, Dudgeon left the room, slammed doors around the house in anger, and then returned. After 35 to 45 minutes of struggling, the victim gave into Dudgeon and he engaged her in sexual intercourse. She later explained that she grew tired of the fighting.
1. Did the State violate Dudgeon’s rights under CrR 4.3A (the mandatory joinder rule) by trying him for rape during his first trial, which ended in mistrial, and trying him for rape and indecent liberties in a subsequent second trial?
2. Was Dudgeon denied his right to effective assistance of counsel when trial counsel failed to move to dismiss the indecent liberties charge as allowed under CrR 4.3A?
3. Did the trial court err in failing to dismiss charges for pre-accusatorial delay?
4. Did the trial court err for dismissing the case because the charging information was defective?
5. Did the State violate Dudgeon’ right to a speedy trial under CrR 3.3?
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