Court of Appeals Coming for Law Day

UPDATE: As an event unique to the celebration of law day in Kitsap County May 2, the division II court of appeals will hear cases at the Kitsap County Courthouse. (Note: Court of Appeals Judge Robin Hunt emailed to say the cases will actually be heard in the Kitsap County Commissioners’ chambers across the street in the Kitsap County Administration Building. Sorry for the mistake.)

The court, which hears appeals of superior court cases from around the Kitsap and Olympic peninsulas, typically stays in Tacoma.

Below you’ll find summaries of each of the cases the appeals court will hear on law day in Port Orchard.


Court of Appeals, Division II
Oral Argument Summaries
Hearing of Friday, May 2, 2008
10 a.m.

Location: Port Orchard
Appeals Judges Marywave Van Deren, J. Robin Hunt, Joel Penoyar

Cases:

State of Washington, Respondent v. James Dee Newton, Appellant

Nature of Action:
James Dee Newton appeals his conviction on four counts of unlawful delivery of a controlled substance, with school bus route stop and school grounds aggravating factors.
The Bremerton Police Department set up four controlled buy situations in which an informant, Edwina Stokes, bought crack cocaine from James Dee Newton. Based on four separate controlled buy situations, the Bremerton Police Department charged Newton with four counts of unlawful delivery of a controlled substance. Originally, the State charged school grounds enhancements for Counts I, III and IV, but the State withdrew the allegation of a school grounds enhancement in Count III. On January 12, 2007, Newton stipulated that Count I had been carried out within 1,000 feet of a school bus route stop and Count IV had been carried out within 1,000 feet of school grounds. The jury found Newton guilty on all four counts and found that the sentencing enhancements on Counts I and IV applied. The court sentenced Newton to 90 months’ incarceration on all counts, with a 24 month school zone enhancement on counts I and IV.
Issues:
1. Did trial counsel deprive Newton of his right to effective assistance of counsel when he stipulated to a school zone enhancement?
2. Did the prosecutor commit misconduct in his closing argument when he argued that finding the defendant innocent would require the jurors to find that the police and confidential informant were lying?
3. Did these two errors cumulate such as to deprive Newton of a fundamentally fair trial?

State of Washington, Respondent v. Renata Lee Abramson, Appellant

Nature of Action:
Renata Abramson appeals her conviction for unlawful delivery of a controlled substance, methamphetamine, unlawful possession of a controlled substance, methamphetamine, unlawful possession of a controlled substance, methamphetamine, with intent to manufacture or deliver, and second degree unlawful possession of a firearm. The convictions included firearm enhancements on Counts II and III, and a school zone enhancement on count IV.

Issues:
1. Did the trial court err in denying appellant’s motion to suppress evidence when the search warrant affidavit may not have supported the court’s decision to grant the officer’s request for a warrant?
2. Does substantial evidence support Abramson’s convictions on all counts where the record does not show that Abramson knew about the firearms, that Abramson attempted to deliver methamphetamine, or that the crime took place within 1000 feet of a school bus stop?
3. Did trial counsel deny Abramson her right to effective assistance of counsel when trial counsel failed to call a witness who could have offered potentially exculpatory testimony?
4. Did the trial court err in refusing to hear Abramson’s motion for a new trial alleging the improper admission of unduly prejudicial testimony?
5. Did the trial court adequately instruct the jury when it failed to define any of the “special verdict” enhancements or the term “accomplice?”

Unifund CCR Partners, Respondent v/ Jim I. Ayhan, Appellant
Nature of Action:
Jim Ayhan, pro se, appeals the entry of summary judgment on a delinquent Providian credit card account.

After Jim Ayhan became delinquent in making payments on his Providian credit card,, Unifund sued Ayhan but he did not respond or answer the complaint. Unifund moved for a default judgment, which the court granted on July 20, 2005. Ayhan still refused to pay, and the court set a show cause hearing on January 20, 2006. Unifund then agreed to voluntarily vacate the judgment on February 24, 2006 but filed a second motion for a default judgment. Ayhan answered the complaint and filed a counter-motion for findings and conclusions on the order vacating default judgment, and a hearing was set for March 31, 2006. Unifund then struck its second motion for a default judgment.

Unifund moved for summary judgment on May 16, 2006. The trial court granted the motion and Ayhan appeals, seeking reversal of the summary judgment, an order dismissing the complaint with prejudice, and an award of costs, fees, and sanctions in the amount of $2,000.

Issues:
1. Did the trial court err in granting summary judgment?
2. Did the trial court fail to consider all facts in the light most favorable to the non-moving party?
3. Whether the trial court unconstitutionally violated Ayhan’s right to a jury trial?
4. Did the trial court err in denying Ayhan’s motion for denial of summary judgment or continuance until plaintiff complies with discovery and disclosure?
5. Did the trial court err in denying Ayhan’s motion to compel discovery?
6. Did the trial court err in denying Ayhan’s motion to dismiss?
7. Did the trial court err in denying Ayhan’s motion to strike affidavits and declarations of plaintiff?
8. Did the trial court award excessive attorney fees to Unifund?
9. Did the trial court err in failing to consider Ayhan’s various defenses?
10. Did the trial court err in entering summary judgment based in part on plaintiff’s claim of default evidence obtained by Unifund’s requests for admissions or for production?

State of Washington, Respondent, v. Cecil Dudgeon, Appellant

Nature of Action:
Cecil Dudgeon appeals his commitment to the Special Commitment Center based on a jury finding that he was a sexually violent predator. Cecil Dudgeon molested or made unwelcome sexual advances to at least six underage girls over a thirty year period. In 2001, Dudgeon was convicted of indecent liberties with forcible compulsion. In 2005, Dudgeon was assigned a release date, but the Department of Corrections (DOC) reviewed his case to determine if he was a sexually violent predator liable for commitment. Dudgeon stayed incarcerated while the DOC pursued his commitment. After a psychological evaluation, the DOC moved to have Dudgeon involuntarily committed.

At trial, expert Amy Phenix testified that Dudgeon suffered from pedophilia, though she based this opinion on the accuracy of the victims’ statements. The jury returned a verdict finding that the State had established the statutory criteria for commitment. Dudgeon appeals.

Issues:
1. Did the court’s failure to require the State to plead and prove a recent overt act violate Dudgeon’s right to due process?
2. Did the admission of expert witness testimony relying on an evaluation of other witnesses’ credibility invade the jury’s province?
3. Did the State fail to prove the elements necessary for commitment beyond a reasonable doubt?

State of Washington, Respondent v. Richard Brown, Appellant

Nature of Action: Appeal from conviction of one count of unlawful delivery of cocaine. A police informant purchased cocaine from Brown in three separate controlled buy situations using prerecorded money. When the police arrested Brown several months after the third buy, they did not find any of the prerecorded money. They did, however, find $750 in Brown’s shoes while booking him in the jail. At trial, a canine handler testified without Brown objecting that the dog alerted on the money, indicating that it had been exposed to narcotics. The officer then testified that based on the canine alert, he believed that the money was the proceeds of a narcotics sale.

Issues:
1. Did trial counsel deprive Brown of his right to effective assistance of counsel by failing to object to unfairly prejudicial propensity evidence?

State of Washington, Respondent v. Mark Smith, Appellant

Nature of Action:
Appeal from conviction of one count of felony violation of a no-contact order.

Issues:
1. Did the trial court err in overruling Smith’s objection to possibly irrelevant evidence?
2. Does substantial evidence support Smith’s conviction for violating a no-contact order?
3. Did trial counsel’s failure to object to the admission of exhibits C, D, and E (documents showing that Smith had at least two prior convictions for violating no-contact orders), constitute ineffective assistance of counsel?

State of Washington, Respondent v. Christopher Patrick Hourihan, Appellant

Nature of Action:
Appeal of court’s revocation of Hourihan’s special sex offender sentencing alternative sentence (SSOSA).

Issues:
1. Did the State fail to provide adequate notice in seeking a SSOSA revocation and thereby deprive Hourihan of due process right to notice?
2. Did the trial court act outside its authority when it revoked Hourihan’s SSOSA?
3. Did the SSOSA and community custody conditions restricting Hourihan’s contact with his two sons violate his fundamental right to parent?

State of Washington, Appellant v. K.C. Sheldon O’Meara, Appellant

Nature of Action:
The State appeals from the trial court’s suppression of evidence in a CrR 3.6 hearing in its prosecution of O’Meara for possession of marijuana. The State seeks costs and fees under RAP 14.3, 18.1 and RCW 10.73.

Issues:
1. Did the trial court err in concluding that law enforcement had no right to search O’Meara’s backpack?
2. Did the trial court err in finding that law enforcement had no right to retain possession of O’Meara’s backpack?
3. Did the trial court err in finding there were no grounds for obtaining a search warrant?
4. Did the trial court err in finding the threat to obtain a search warrant invalidated any consent?

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