January 14, 2015

Washington v. McClure - Conviction, Life Sentence for Child Sex Assault Challenged

by The Law Office of Timothy L. Healy

A Washington man previously convicted of first-degree child rape was subsequently convicted of second-degree child rape in the alleged four-year-long abuse of his stepdaughter and was thus sentenced to life without the possibility of parole.
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He challenged his convictions and sentences in Washington v. McClure on the following grounds:


  • Violation of public trial right by addressing numerous issues at sidebar conferences

  • Allowance of state expert witness testimony that did not meet appropriate standards

  • Prosecutorial misconduct in making comments regarding victim testimony and sexual assault victims in general

  • Lack of sufficient evidence to prove the defendant knowingly possessed images of the victim engaged in sexually explicit conduct

  • Violation of due process for finding him a persistent offender for sentencing purposes

  • Abuse of discretion for imposition of a sentence condition barring him from any conduct with his minor son

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January 7, 2015

Washington v. Lawson - Voyeurism Conviction Upheld

by The Law Office of Timothy L. Healy

In Washington State, voyeurism is a crime defined in RCW 9A.44.115. It is when a person, for the express purpose of arousing or gratifying sexual desire, knowingly views, photographs, or films another person without his or her consent when there is a reasonable expectation of privacy or seeing the intimate areas of another person in circumstances where the expectation of privacy is reasonable. officetoilet.jpg

Recently, a voyeurism charge was challenged by the defendant in Washington v. Lawson, who argued before the Washington Court of Appeals, Division II, that voyeurism does not constitute a "crime against a person or property" such as what would be needed to justify a related charge of burglary.

The appellate court rejected the defendant's argument and affirmed his convictions.

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December 26, 2014

State v. Cardenas-Padilla - No-Contact Order Conviction Upheld

by The Law Office of Timothy L. Healy

Violations of no-contact orders in Washington can result in serious penalties, even if the alleged contact was not violent, and, in some cases, even absent direct contact.
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Technology has advanced to the point where contact is immediate, requiring little effort, time, or forethought. Everyone has cell phones, and most people are connected to social media, and anyone can fire off a missive in a matter of seconds. However, if there is a no-contact order in place, the consequences can be profound, even when there is no ill intent.

Such was the defendant's claim in State v. Cardenas-Padilla, where the defendant was sentenced to 14 months incarceration for a series of text messages he sent to his former mother-in-law in attempts to reach her daughter, his ex-wife, who had a no-contact order against him.

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December 19, 2014

Washington v. Vance - Child Porn Charges Reinstated

by The Law Office of Timothy L. Healy

It is not uncommon in computer-based sex crimes, such as child pornography, for local, state, and federal authorities to work in concert in the investigation and subsequent prosecution. Rules of evidence may vary depending on the jurisdiction, however, which is why it's critical to hire a defense attorney who understands all applicable legal frameworks.gavel5.jpg

In the recent case of Washington v. Vance, before the Washington State Court of Appeals, Division II, prosecutors appealed a trial court's decision to dismiss with prejudice the child pornography charges against a man who was denied the opportunity to depose federal agents who worked on the investigation.

The appellate court reversed the trial court on the grounds the state had no obligation to produce federal agents not under its control and had not violated discovery rules.

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December 12, 2014

Washington Supreme Court: Burden of Proof in Rape Cases Shifted

by The Law Office of Timothy L. Healy

The Washington Supreme Court found it a violation of constitutional due process rights to require a rape case defendant to prove consent during trial. What this means is the burden of proof is now rightly shifted to the state, reversing a decades-old court practice (and by extension, those of criminal investigators) of requiring defendants to shoulder the proof burden to show their innocence.
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The underlying case, Washington v. W.R. Jr., involved a minor who was convicted in a juvenile court bench trial of having committed rape in the second degree (by forcible compulsion) against another minor, identified as J.F., while the girl resided with an aunt.

Throughout the investigation, the defendant insisted the pair did not have sex. Later at trial, the defendant conceded they engaged in sexual intercourse but insisted it was consensual. The trial court found his testimony and the statements offered by his witness to be inconsistent and therefore not credible. Since the defendant failed to prove the sex was consensual, the court convicted of rape beyond a reasonable doubt.

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December 5, 2014

Washington v. Trice - Calculating Prior Out-of-State Felonies on Offender Score

by The Law Office of Timothy L. Healy

For defendants in any criminal case, one of the first questions asked is how much time they may be facing. The answer is going to depend on a host of factors.
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There are some crimes to which minimum mandatory sentences are attached, meaning you will serve at least a certain amount of prison time. But most crimes allow judges broad discretion in determining a sentence, as long as they adhere to guidelines set forth in the offender score sheet.

The offender score sheet takes into account things like:


  • The seriousness of the crime

  • Prior convictions

  • Mitigating or aggravating circumstances

  • Availability/appropriateness of sentencing alternatives

Continue reading "Washington v. Trice - Calculating Prior Out-of-State Felonies on Offender Score" »

November 24, 2014

Washington v. Garza - Sex Abuse Conviction Affirmed Despite Trial Missteps

by The Law Office of Timothy L. Healy

While many criminal cases are resolved prior to trial in the form of a plea bargain, in which the defendant pleads guilty, but to lesser charges or in exchange for a lighter sentence, those that do make it to trial may endure a few missteps. Many of those are minor, but in some cases, they can be grounds for a new trial.
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An appeal requesting a new trial may be the only shot a defendant has to have the case re-heard and possibly receive a different outcome.

Courts are generally not eager to grant a new trial except in the most egregious of circumstances, such as serious prosecutorial misconduct, or the improper admission or omission of key evidence. For someone who has been convicted of a felony sex crime, particularly one against a child, it's worthwhile to explore every possibility.

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November 17, 2014

Washington v. Fey - Child Molestation Conviction Affirmed Despite Hearsay Objection

by The Law Office of Timothy L. Healy

The defendant in a recent child molestation case appealed his conviction on the grounds the trial court improperly admitted as evidence statements made by the alleged victim to her therapist. Such statements, he asserted, were the equivalent of hearsay per Evidence Rule 803(a)(4).
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The Washington Court of Appeals, after weighing the defendant's assertions in Washington v. Fey, rejected them and affirmed his conviction.

Hearsay is often an issue that arises in child molestation cases because courts are often reticent to press a child into making more statements regarding a reportedly traumatic event or series of events. Certainly, protecting the well-being of children is a valid interest for the court. However, sometimes these protections can infringe on the constitutional due process rights of the accused. Specifically, the concern is there will not be an opportunity to directly confront witnesses and evidence presented to his detriment.

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November 10, 2014

Washington v. Endres - Rape Conviction Affirmed, Victim Mental Health Records Barred

by The Law Office of Timothy L. Healy

A Washington appellate court ruled a trial court did not err in prohibiting the admission of an alleged rape victim's mental health records during trial, when the defendant was facing a charge of second-degree rape stemming from a 2005 encounter. The court also rejected the defendant's argument that the evidence resulting in his conviction was insufficient.
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The case of Washington v. Endres started in 2005 in Yakima, a city in the southeastern part of the state. The victim allegedly attended a party, was not enjoying it, and was then taken by a friend to the home of a man known as "Angel."

The alleged victim didn't know Angel. She said soon after her friend left, Angel locked the door and raped her, despite her repeated protestations. She soon after fled to her mother's home, and her mother took her to a hospital where evidence was collected. However, the defendant was not located.

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November 3, 2014

Washington v. Bato - Domestic Violence Conviction Upheld

by The Law Office of Timothy L. Healy

The Washington Court of Appeals, Division One, ruled a prosecutor's repeated references during closing arguments to facts outside the record did not warrant a new trial. The statements were subject of a motion for mistrial at the lower court level, but the court denied the motion, choosing instead to offer curative instruction to jurors on the issue.
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The case reveals that successful appeals of jury convictions are difficult to obtain, even when there is clear evidence of prosecutorial misconduct. That's why having a good criminal defense lawyer from the very beginning of the case is critical, particularly in domestic violence allegations, where the stakes are so high.

In Washington v. Bato, the defendant was convicted of multiple felony counts, including unlawful imprisonment, third-degree assault, and violation of a court order. He was acquitted of interfering with domestic violence reporting.

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October 22, 2014

Washington v. Smith - Felony Charge For Text Message Harassment

by The Law Office of Timothy L. Healy

"New technology creates new ways to terrorize. Text messaging is one such technology."
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These were the words penned recently by Washington Court of Appeals, Division II Judge George B. Fearing in review of a man's conviction for felony harassment with enhancements for domestic violence after the defendant repeatedly sent text messages threatening to kill his wife and her father, mother, and stepmother. Fearing and two other judges on the appellate panel affirmed the trial court's conviction of the defendant. They were unswayed by his arguments of insufficient evidence, or alternatively that improper testimony and evidence strongly influenced the jury's decision.

It's difficult to comprehend that text messages alone could result in felony charges that could result in years behind bars. Since the technology is so accessible and so immediate, there is a tendency to forget that its use may have real and lasting consequences. But the truth is, a person facing these charges is in serious trouble and needs to consult with an attorney immediately.

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October 15, 2014

Warrantless Computer Search Deemed Impermissible, Child Pornography Case Remanded

by The Law Office of Timothy L. Healy

When a person takes a computer or other electronic device to a technician for service, he or she should recognize that anything illegal found in the course of completing that work could be turned over to police. Private citizens are not necessarily bound by the same constitutional code as the government when it comes to searches of property, as long as they have legal access to the property.
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However, that does not mean law enforcement, relying on such information, can bypass the owner's constitutional rights.

The recent case of People v. Evans illustrates this point, as the California Court of Appeal, First Appellate District, Division Two, reversed a trial court ruling that denied a motion to suppress evidence of video files found by a computer technician after he called police.

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October 8, 2014

Washington v. Kozey - Violation of Domestic Violence No-Contact Orders

by The Law Office of Timothy L. Healy

If a no-contact order exists in Washington State, it does not matter if it is the alleged victim who initiates contact. If the offender does not immediately hang up, refuse to engage, shut it down, or walk away, he or she could be facing serious consequences, up to and including felony charges that could result in years behind bars.
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That was the case for the defendant in Washington v. Kozey, recently before the Washington Court of Appeals, Division II. Although both the defendant and the state agreed the repeated violations of the no-contact order, as alleged, did not constitute domestic violence under RCW 26.50.010, the state argued proof of such was not necessary to impose enhanced penalties. Defendant argued proof of this as well as RCW 10.99.020 was necessary to impose enhanced penalties for violation of the domestic violence no-contact order.

Initially, the trial court agreed with the defendant and refused to impose severe sanctions. Instead, he was sentenced to 14 months for one violation and 12 months for another, both to run concurrently. However, the appellate court reversed this finding on appeal, ruling there was merit to the state argument that the no-contact orders, although violated through initiation by the victim, still warranted a more severe penalty as a matter of law because it wasn't necessary to prove the order was violated through another act of domestic violence.

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October 1, 2014

Ninth Circuit: Rape Lawsuit Against Website to Proceed

by The Law Office of Timothy L. Healy

An internet company operating more than 100 websites will have to face a civil lawsuit claiming its leaders knew rapists were trolling one site for victims and failed to warn its users of the danger.
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The plaintiff, an aspiring model referred to in the case as "Jane Doe No. 14," said she posted a profile to a site advertising for models, was lured to Miami for a phony audition, and was drugged and raped by two men who filmed the sexual assault for pornographic release. A lower court rejected the plaintiff's claim for liability in Jane Doe No. 14. v. Internet Brands, Inc., DBA Modelmayhem.com, saying the Communications Decency Act shields websites from lawsuits over material posted by others. However, the Ninth Circuit Court of Appeals in San Francisco recently reversed this ruling, finding merit in the argument the company could be held liable for failing to warn users of potential danger through posting or email.

The crux of the lawsuit wasn't over the material posted on the site, but rather the defendant's alleged failure to warn plaintiff of the risks of posting her photos. Her attorney called the reversal a "landmark opinion" because for the first time, websites might be held liable for failure to protect users from known dangers.

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September 24, 2014

Washington v. Andlovec - Jury Unanimity in Accusation of Multiple Acts

by The Law Office of Timothy L. Healy

In Washington criminal cases where a defendant faces charges stemming from multiple criminal acts extending over a period of time, it's important that jurors be instructed on the specific acts they are considering. Otherwise, there is a risk that juror unanimity could be compromised. That is, some jurors might agree to convict on the basis of evidence presented for one act, while others may convict on the basis of evidence presented for another.
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Our Pierce County criminal defense attorneys know this would amount to a constitutional violation. This is why, in the 1984 case of State v. Petrich, the Washington Supreme Court ruled prosecutors may elect which act in a series they rely upon for conviction. Otherwise, a jury should be instructed that all 12 must agree that the same specific underlying act has been proven beyond a reasonable doubt. This is referred to as a "Petrich instruction."

However, there are sometimes exceptions, as illustrated in the recent case of Washington v. Andlovec before the Washington Court of Appeals, Division Three. Jurors in this case heard evidence of many separate sexual assaults, and they were never instructed on which specific act they were considering. Defendant raised this issue on appeal.

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