Opinions: attempted child rape and nonparental custody

Posted on November 10, 2010 by Michael Reitz

The Supreme Court issued opinions in three cases today.

Humphrey Indus. LTD v. Clay St. Assocs. LLC, No. 82687-1. Humphrey Industries, Ltd. (through several business partners) created Clay Street Associates, LLC, to hold a single real estate asset located in Auburn, Washington. In order to break a deadlock with principal George Humphrey regarding the sale of the property, the other members of Clay Street agreed to merge the company into a new limited liability company to facilitate the sale. Humphrey dissented from the merger and demanded payment pursuant to the dissenters’ rights provisions of the Washington Limited Liability Company Act, chapter 25.15 RCW. Clay Street agreed to pay Humphrey the fair market value of his interest as of the merger date but did not pay until the property sold.

Humphrey rejected the value calculation and sued. The trial court found that the property was worth more than Clay Street had calculated, and awarded Humphrey the difference plus interest. However, the court awarded Clay Street attorneys fees, finding that the dissenting Humphrey had acted arbitrarily, vexatiously, or not in good faith. The Court of Appeals (Div. I) affirmed.

The Supreme Court (Justice Jim Johnson writing) reversed the Court of Appeals and remanded for reconsideration of the attorney fee award. The court held that the lower courts erred in finding that Clay Street “substantially complied” with the LLCA.

In re Custody of S.C.D.-L., No. 84186-1. In a per curiam decision, the Supreme Court reversed a trial court’s order awarding custody of S.C.D-L. to her grandmother, Edna Littell. The court wrote that Ms. Littell failed to allege or offer facts at the show cause hearing conducted under RCW 26.10.030 that S.C.D-L. was not in the physical custody of one of her parents or that neither parent was a suitable custodian.

“A nonparent may petition for custody of a child if the child is not in the physical custody of a parent or if the petitioner alleges that neither parent is a suitable custodian. RCW 26.10.030(1). The trial court must deny a hearing on the petition unless the nonparent submits an affidavit (1) declaring that the child is not in the physical custody of one of the child’s parents or that neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. S.C.D-L. was in [her father] Mr. Littell’s physical custody at the time Ms. Littell filed her petition, and the petition
does not allege that he is an unfit parent. Instead, the petition implies it would be in the child’s best interest to reside with Ms. Littell, but the ‘best interests of the child’ standard does not apply to nonparent custody actions."

State v. Patel, No. 82649-8. The Supreme Court upheld a conviction for attempted child rape where the “victim” was actually a police officer posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of second degree attempted rape of a child. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The trial court and Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

The Supreme Court (Justice Tom Chambers writing the four-vote lead opinion) agreed, holding that “a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police.” The court reasoned that unlike convictions for actual child rape, which require a showing that the child was underage, attempt crimes do not depend on the ultimate harm that would have resulted from commission of the crime. Rather, the person is guilty of an attempt “if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020(1).

Chief Justice Madsen and Justice Richard Sanders wrote separate concurring opinions.

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Today's arguments - March 16, 2010

Posted on March 16, 2010 by Jonathan Bechtle

The Court will hear four arguments today concerning gun possession, rental agreements, child rape and metadata in emails. (Docket, briefs)

Morning session, starting at 9:00 a.m.

Rivard v. State, No. 82431-2. This case concerns whether the current statutory prohibition on possessing firearms for felons who commit a "serious offense" can be applied retroactively.

James Rivard was convicted of vehicular homicide in 1994. At the time, vehicular homicide was a class B felony, and only class A felons permanently forfeited their right to possess firearms. But a judge mistakenly sentenced Rivard to forfeiture of this right.

The legislature subsequently amended the firearm statute to prohibit firearms to anyone convicted of a “serious offense,” including vehicular homicide.

After he was released from prison, Rivard petitioned for restoration of his firearm rights. The trial court granted the petition, applying the 1994 law and holding that the original forfeiture was invalid. Division Three Court of Appeals, however, held that the firearm regulations are regulatory rather than punitive, and so can be applied retroactively.

Little Mountain Estates Tenant Assoc. v. Little Mountain Estates, No. 82574-2. Argument in this case centers around whether the Manufactured/Mobile Home Tenant Act requires a 25-year fixed rate deal in a mobile home lease to be freely transferrable, or if it can be limited to the first signer.

Little Mountain Estates, a mobile home park, offered a 25-year fixed rate lease deal to attract tenants. The lease agreements provided that if a tenant assigned (transferred) his lease to someone else, it would convert to a one or two year lease.

Several tenants sued, claiming that the assignment clause violates the Manufactured/Mobile Home Landlord Tenant Act. The MHLTA requires all leases to be assignable, and the tenants claim that this means they must be able to transfer all their rights under the lease, including the “fixed rent for 25 years” provision.

Plaintiffs lost at Skagit County Superior Court, but successfully appealed to Division One Court of Appeals.

Afternoon session, starting at 1:30 p.m.

State v. Patel, No. 82649-8. Here the Court must decide whether a person can be convicted of attempted child rape when the victim was only posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of attempted rape of a child.

Child rape is a strict liability crime, meaning that the state must prove that the victim was underage, but not that the defendant knew she was underage. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The Spokane County Superior Court and Division Three Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

O'Neill v. City of Shoreline, No. 82397-9. This case revolves around whether email "metadata" is subject to disclosure under the Public Records Act.

During a public meeting, the mayor of Shoreline referred to an email alleging misconduct by council members, and claimed erroneously that the email was sent by Beth O'Neill. O'Neill requested a copy of the email. The mayor provided O'Neill with a copy of the email without its header information (to, from, etc.), then deleted the original email. O'Neill filed several requests trying to get an electronic copy of the email, including all the metadata. Since the message had been deleted, the City never could produce the metadata.

The Division One Court of Appeals held that the metadata was a public record which the City was obligated to provide. But it also ruled that O'Neill's first request, which was simply for "a copy of the email," did not imply a request for the metadata. Only her subsequent requests, in which she was more specific about wanting an electronic copy of the email and its associated metadata, put the City in violation of the PRA when they did not provide those records. The City argues that at most, the metadata is “a public record with no retention value,” like an envelope. 

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New cases accepted UPDATED

Posted on June 3, 2009 by Michael Reitz

The Washington Supreme Court has agreed to review several new cases.

  • Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2
  • State v. Afana, No. 82600-5
  • State v. Osman, No. 82671-4
  • State v. Hall, No. 82558-1
  • State v. Jones, No. 82613-7
  • State v. Patel, No. 82649-8
  • McGuire v. Bates, No. 82659-5

Case details after the jump:

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. The Court of Appeals (Div. I) affirmed the ruling in part, and reversed in part, and remanded the caes for further proceedings.

State v. Afana, No. 82600-5. The question here is whether a police officer unconstitutionally seized a driver and passenger in a legally parked car when the officer approached and requested identification. Here, Deputy Miller approached Joseph Afana's car and asked Mr. Afana and his passenger, Jennifer Bergeron, what they were doing and requested identification. After Mr. Afana began to drive away, Deputy Miller discovered a warrant for Ms. Bergeron and stopped the car. A search incident to Ms. Bergeron's arrest uncovered illegal drugs. The trial court suppressed this evidence, concluding that Ms. Bergeron was unlawfully seized when Deputy Miller asked for identification. The Court of Appeals (Div. 3) disagreed, ruling that the officer’s request for identification did not constitute a seizure. The appeals court reversed the suppression of the drug evidence.

State v. Osman, No. 82671-4. Abdinasir Osman was convicted in a jury trial of driving while under the influence of alcohol. In preparing Osman's appeal, his attorney discovered that a portion of the electronic record from the pretrial hearing was missing. Osman argued he was entitled to a new trial because of the missing portion of the record. The Superior Court ordered a new trial. The State appealed, and the Court of Appeals (Div. I) held the missing portion of the record was not so significant as to warrant a new trial.

State v. Hall, No. 82558-1. Whether convictions for tampering with a witness violate double jeopardy.  Isiah Hall was initially charged with burglary and assault. The prosecution later amended the charging document to add several counts of tampering with a witness, when it was discovered that Hall attempted to convince his girlfriend to either refuse to testify or to testify falsely. Hall was convicted of several crimes including three counts of tampering with a witness. Hall appealed, arguing that multiple counts of tampering with a witness violated the double jeopardy clause. The Court of Appeals (Div. I) affirmed the convictions, holding that the unit of prosecution for tampering with a witness is any one instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120.

State v. Jones, No. 82613-7. Christopher Jones was convicted of the second degree rape of his niece, K.D. The trial court imposed an exceptional minimum term sentence based on a jury finding that Mr. Jones abused a position of trust to commit the offense. The Court of Appeals (Div. III) upheld the conviction, but reversed the exceptional minimum sentence because of errors on the jury instruction form. The court ordered a new sentencing proceeding.

State v. Patel, No. 82649-8. Mitel Patel challenged his conviction for attempted second degree rape of a child. On appeal, Mr. Patel contended that the trial court erred by: (1) denying his motion to suppress transcripts of his instant messaging conversations with an undercover detective posing as a fictitious 13-year-old girl, and (2) denying his motion to dismiss for failure to prove an essential element of the crime. The Court of Appeals (Div. III) affirmed Mr. Patel's conviction.

McGuire v. Bates, No. 82659-5. Whether attorneys fees can be recovered in addition to a settlement amount. In May 2005, Julianne McGuire hired Robert Bates, B & H Construction Services, Inc. to remodel her kitchen. Bates completed the work in September 2005. A few months later, McGuire noticed water stains and other problems resulting from the remodel. McGuire reported the defects to Bates who denied any responsibility after inspecting the property. McGuire hired another contractor who repaired the defects for $2,166.00. After the matter was transferred to mandatory arbitration, Bates offered in writing to settle “all claims” for $2,180.00 pursuant to RCW 4.84.250-.280. McGuire accepted. McGuire then moved for attorney fees, claiming she was entitled to such an award as the prevailing party under RCW 18.27.040. The arbitrator denied the motion, ruling that the parties' agreement to settle “all claims” necessarily included attorney fees. On appeal, the trial court ruled in McGuire’s favor, awarding her attorneys fees, and the Court of Appeals (Div. I) affirmed the ruling.
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