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.
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.
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

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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.
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).
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.
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.
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."
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.
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.
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.
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, 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.
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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September 17, 2014

Washington v. Slocum - Appeals Court Reverses Molestation Conviction

by The Law Office of Timothy L. Healy

Courts in Washington recognize that, while there may be some value in consideration of the prior bad acts of the accused, there is also danger a defendant may be found guilty not on the strength of evidence supporting the current charge, but rather on the jury's over-reliance on those past acts.
In the 1982 case of State v. Saltarelli, the Washington Supreme Court noted that nowhere is potential for this type of prejudice higher than for those accused of sex offenses. This is why our Tacoma criminal defense attorneys fight vigorously where possible to prevent the admission of past crimes into evidence.

In the recent case of Washington v. Slocum, before the Washington Court of Appeals, Division Three, the court was asked to consider whether evidence of past crimes unduly influenced the jury in its conviction on the most recent charges.

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September 10, 2014

Washington v. Peltier - Be Wary of Waiver of Rights in Plea Agreement

by The Law Office of Timothy L. Healy

The Washington Supreme Court recently ruled a defendant in a child rape case has the ability to expressly waive the criminal statute of limitations in a pretrial agreement, as long as the clock hasn't yet run out on the underlying charge at the time the defendant enters the agreement.
But why would anyone agree to open themselves up to a criminal conviction that would otherwise be time-barred? The court explains in Washington v. Peltier. Our Tacoma sex crimes defense lawyers believe this case underscores the need for defendants in these serious cases to secure strong legal representation prior to entering a plea agreement with the state.

Let's start by first explaining the theory of the statute of limitations in criminal cases, which is that defendants shouldn't be convicted on the basis of information and testimony that is stale, dated, and therefore likely unreliable. Some crimes have a short statute of limitations lasting just a few years, while others, like murder, have no statute of limitations.

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September 3, 2014

Washington v. Daniels - Appellate Court Upholds Child Prostitution Charge

by The Law Office of Timothy L. Healy

A Tacoma man recently appealed his conviction on numerous charges, including promotion of commercial sexual abuse of a minor (PCSAM) and second-degree promotion of prostitution. As part of the appeal, the defendant argued the two charges were one and the same, and that conviction on both amounted to double jeopardy.
However, the Washington Court of Appeals for Division II rejected this argument, reasoning the legislature intended separate punishments for these two crimes, even though they are virtually the same thing.

The legislature's crackdown on sex crimes against children, and society's reluctance to challenge it, are primary reasons why those accused need the intervention of an experienced Tacoma sex crimes defense attorney early in the case.

In Washington v. Daniels, the accused reportedly met a 15-year-old girl as she walked home from a gas station. She reportedly told him she was 19. The pair exchanged phone numbers, and several days later they met up at the home of the defendant's cousin. There, he taught her how to post advertisements online to sell her body and recruited her as a prostitute. Advertisements were posted online, and he also had her walking the streets of Seattle at certain points.

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