State Of Washington, Resp. v. Alan J. Sinclair Ii, App.27 , 192 Wash. App. 380 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 72102-0-1
Respondent,
ORDER GRANTING MOTION
v. FOR RECONSIDERATION,
WITHDRAWING OPINION, AND
ALAN JAMES SINCLAIR, II, SUBTITUTING PUBLISHED
OPINION
Appellant.
Appellant, Alan Sinclair II, has moved for reconsideration of this court's
opinion filed on December 7, 2015. Respondent, State of Washington, has filed
an answer to appellant's motion for reconsideration.
The court has determined that appellant's motion for reconsideration
should be granted, the opinion filed on December 7, 2015, should be withdrawn,
and a published substitute opinion should be filed. Now, therefore, it is hereby
ORDERED that appellant's motion for reconsideration is granted, the
opinion filed on December 7, 2015, is withdrawn, and a published substitute
opinion is filed and shall be printed in the Washington Appellate Reports.
DATED this ff7 day of ITPTHAT U 2016. f
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W CO
en
•J
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
) No. 72102-0-1
Respondent,
no
) DIVISION ONE
v.
CO
ALAN JAMES SINCLAIR, II, ) PUBLISHED OPINION
OD
Appellant. ) FILED: January 27, 2016
Becker, J. —Appellant, convicted of sexually abusing his granddaughter,
contends the trial court improperly admitted a recording of an incriminating
communication obtained without the consent of the participants in the
communication. The recording resulted from an inadvertent "pocket dial" from
appellant's cell phone to the recipient's voice mail. Finding that any statutory
violation was harmless, we affirm.
A jury found appellant Alan Sinclair guilty of two counts of second degree
rape of a child, two counts of third degree child molestation, and one
misdemeanor count of communication with a minor for immoral purposes. All
charges arose from Sinclair's sexual abuse of his granddaughter. According to
her testimony at trial, Sinclair began kissing her "tongue to tongue" when she
was 11 or 12 years old and progressed to oral sex when she was 13 or 14.
The recording at issue occurred one afternoon when the granddaughter
was home alone and Sinclair was visiting her. The granddaughter testified that
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Sinclair kissed her "tongue to tongue" and then she and Sinclair went outside and
continued a conversation. During the conversation, Sinclair unintentionally dialed
the girl's mother with his cell phone. The mother did not answer. Her cell phone
transferred the call to voice mail. The voice mail system recorded Sinclair
saying, "I love that tongue. ... I don't know if you love mine." The conversation
continued with Sinclair making veiled threats that his dead ancestors would inflict
physical injury on the girl for not being "nice." The mother later listened to the
voice mail recording on her phone and heard the conversation. This led to the
filing of the criminal charges against Sinclair.
Sinclair moved to suppress the voice mail under the Washington privacy
act, chapter 9.73 RCW. The privacy act makes it unlawful for any "individual" to
record any private conversation "without first obtaining the consent of all the
persons engaged in the conversation." RCW 9.73.030(1 )(b). There is an
exception for conversations "which convey threats," which "may be recorded with
the consent of one party to the conversation." RCW 9.73.030(2). Neither
Sinclair nor his granddaughter consented to the recording.
Sinclair contends the lack of consent made the recording inadmissible at
trial. The trial court considered a number of issues in connection with Sinclair's
motion to suppress. Was the conversation private? Did an "individual" record it?
Does an individual incur criminal liability for an inadvertent recording, or must
someone be acting with a criminal mens rea to engage the prohibitions of the
act? It was undisputed that the call was made inadvertently. The trial court
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denied the motion to suppress, concluding the privacy act did not apply because
of "the absence of any unlawful act by anybody."
The issues are interesting and novel. But we conclude it is unnecessary
to resolve them in this case because any error was harmless. We refrain from
attempting a "definitive construction" of the statute in a case involving somewhat
"bizarre" facts. State v. Smith, 85 Wash. 2d 840, 846, 540 P.2d 424 (1975).
Admission of evidence in violation of the privacy act is a statutory
violation, not a constitutional one. An error is not prejudicial unless the
erroneous admission of the evidence materially affected the outcome of the trial.
State v. Courtney. 137 Wash. App. 376, 383-84, 153 P.3d 238 (2007), review
denied, 163 Wash. 2d 1010 (2008). Here, there is no reasonable probability that the
outcome of Sinclair's trial would have been different if the recording of the
pocket-dialed voice mail had been excluded.
The granddaughter's testimony at trial provided independent,
unchallenged evidence of the contents of the inadvertently recorded
conversation. Her account was corroborated by sexually explicit photographs
and a video seized from Sinclair's cell phone and computer. During his closing,
Sinclair admitted guilt as to the charges of child molestation in the third degree
and communicating with a minor for immoral purposes. The only charges
Sinclair disputed were the two counts of second degree child rape. He argued
that the State presented insufficient evidence to prove that he engaged in sexual
intercourse with the girl before her 14th birthday. He does not make this
argument on appeal.
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It is unlikely that the jury's verdict of guilt on the two disputed counts was
affected by the admission of the recorded conversation. There was no allusion in
that conversation either to sexual intercourse or to the age of the granddaughter.
Assuming the recording to be inadmissible, we conclude Sinclair has not shown
that the error materially affected the outcome at trial.
We now address Sinclair's motion for reconsideration regarding the issue
of appellate costs. He asks this court to exercise discretion to amend the
decision terminating review by determining that an award of appellate costs to
the State is not warranted.
Neither the State nor Sinclair raised the issue of costs in their appellate
briefs. Generally, to timely raise an issue for review, a party must present
argument in the appellate briefs, with citation to supportive authority and
information in the record. Nevertheless, we will consider Sinclair's motion for
reconsideration because the issue of appellate costs is systemic in nature, it
needs to be addressed, and both parties' positions are well briefed.
Under RCW 10.73.160(1), appellate courts "may require an adult offender
convicted of an offense to pay appellate costs." (Emphasis added.) The statute
provides that appellate costs "shall be requested in accordance with the
procedures contained in Title 14 of the rules of appellate procedure." RCW
10.73.160(3). Under the Rules of Appellate Procedure, the State may simply
present a cost bill as provided in RAP 14.4. State v. Blank. 131 Wash. 2d 230, 251,
930 P.2d 1213 (1997). The State is not obliged to request an award of costs in
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its appellate briefs, although it does not appear there is any rule preventing the
State from doing so. See Blank. 131 Wash. 2d at 251.
The commissioner or clerk "will" award costs to the State if the State is the
substantially prevailing party on review, "unless the appellate court directs
otherwise in its decision terminating review." RAP 14.2 (emphasis added).1
Consequently, it appears that a clerk or commissioner has no discretion under
the rules to deny an award of costs when the State has substantially prevailed on
review. See State v. Nolan, 141 Wash. 2d 620, 626, 8 P.3d 300 (2000). The
appellate court, however, may "direct otherwise in its decision." Nolan, 141
Wash. 2d at 626.
An award of appellate costs becomes part of the judgment and sentence.
RCW 10.73.160(3). A defendant may petition the sentencing court at any time
for the remission of costs if the amount due "will impose manifest hardship on the
defendant or the defendant's immediate family." RCW 10.73.160(4).
We filed our opinion affirming Sinclair's conviction on December 7, 2015.
On December 9, 2015, the State filed a cost bill requesting an award of
$6,983.19 in appellate costs. Of this amount, $6,923.21 would be paid to the
Washington Office of Pubic Defense for recoupment of the cost of court
appointed counsel ($2,917), preparation of the report of proceedings ($3,907),
copies of clerk's papers ($90), and appellate court copying charges ($9.21). The
remainder, $59.98, would be paid to the King County Prosecutor's Office.
1 The definition of "a decision terminating review" is found in RAP 12.3(a).
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No. 72102-0-1/6
On December 21, 2015, Sinclair filed both an objection to the cost bill and
a motion for reconsideration of the opinion. Sinclair's objection to the cost bill
characterized Division One's current system of handling appellate costs as "a
blanket refusal to exercise discretion after a cost bill is filed" (Objection to Cost
Bill, at 10). Sinclair cited the policy concerns identified in State v. Blazina, 182
Wash. 2d 827, 344 P.3d 680 (2015). He argued that notwithstanding Nolan,
commissioners should exercise discretion to deny a cost bill even if the court has
not so directed in the decision terminating review. Alternatively, he requested
that we direct the trial court to hold a hearing regarding his ability to pay. A ruling
on Sinclair's objection to the cost bill was deferred pending resolution of the
motion for reconsideration.
In his motion for reconsideration, Sinclair again asserts that Division One's
commissioners routinely decline to exercise discretion to deny costs and that the
court routinely denies motions to modify. It is unclear, he says, what must
happen for this court to exercise discretion. "Must a party raise anticipatory cost
objections in his or her opening brief based on the assumption the party's
substantive arguments will fail? Or will elected judges exercise appropriate
discretion following an indigent party's motion to modify a commissioner's ruling
awarding costs?" Motion for Reconsideration at 2. "To the extent that a
challenge to appellate costs must be raised in the briefs so that the court can
exercise discretion in the decision terminating review, Sinclair asks this court to
reconsider and amend its decision terminating review so that it can exercise this
discretion." Motion for Reconsideration at 3.
No. 72102-0-1/7
On January 15, 2016, at the court's request, the State answered the
motion. The State takes the position that the appellate court should not consider
a cost award until after the decision terminating review is filed. The State
acknowledges that an appellate court's failure to exercise discretion in the
decision terminating review, coupled with the commissioner's lack of discretion
under RAP 14.2, generally results in the award of costs to the State as the
prevailing party. In the State's view, this is because a motion to modify a
nondiscretionary commissioner's ruling awarding costs "is likely to fail, unless the
commissioner has overlooked a flaw in the cost bill, or unless the objecting party
has correctly identified some discrepancy between the cost bill and the
information available to counsel." Answer to Motion for Reconsideration at 10.
The State maintains that a virtually automatic award of appellate costs
upon request by the State is preferable to this court's exercise of discretion in the
decision terminating review. The State claims there is not enough information
available to this court to facilitate an exercise of discretion. Without specifically
mentioning Blazina, the State argues that a future trial court remission hearing
under RCW 10.73.160(4) is the solution to the problem of indigent offenders who
upon release from confinement face a substantial and compounded repayment
obligation in addition to the difficulties of finding housing and employment. The
State points out that in Blank, 131 Wash. 2d at 246, the court rejected a due
process challenge to RCW 10.73.160 in part because an offender always has the
right to seek remission from an award of costs.
No. 72102-0-1/8
The problem with the State's argument is that it requires this court to
refrain from exercising the discretion that we indisputably possess under RCW
10.73.160 and Nolan. Contrary to the State's suggestion, our Supreme Court
has rejected the proposition that the broad discretion to grant or deny appellate
costs under RCW 10.73.160(1) should be exercised only in "compelling
circumstances." See Nolan, 141 Wash. 2d at 628.
The future availability of a remission hearing in a trial court cannot
displace this court's obligation to exercise discretion when properly requested to
do so. The statute vests the appellate court with discretion to deny or approve a
request for an award of costs. Under RAP 14.2, that discretion may be exercised
in a decision terminating review.
In his objection to the cost bill, Sinclair proposed as an alternative that we
remand the cost bill to the trial court to conduct an inquiry into his current and
future ability to pay $6,983.19 in appellate costs. As a model for that alternative,
Sinclair submitted a cost bill ruling from Division Two. The Division Two
commissioner ruled that the State, as prevailing party, was entitled to its costs,
but also ruled that an award of appellate costs is a discretionary legal financial
obligation that can be imposed only as provided in Blazina. The commissioner
ruled that under Blazina, the costs would be imposed only upon the trial court
making an individualized finding that the defendant had "the current or likely
future ability to pay his appellate costs." Sinclair's Objection to Cost Bill,
Appendix C.
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No. 72102-0-1/9
The problem with Sinclair's suggested remedy of a remand to the trial
court is twofold. Not only would it delegate the issue of appellate costs away
from the court that is assigned to exercise discretion, it would also potentially be
expensive and time-consuming for courts and parties. We disagree with the
Division Two commissioner's statement that an award of appellate costs is a
discretionary legal financial obligation controlled by Blazina's decision to "remand
the cases to the trial courts for new sentence hearings." Blazina, 182 Wash. 2d at
839. The statute considered in Blazina, RCW 10.01.160, does not govern
appellate costs. For costs that "may" be imposed upon a convicted defendant at
the trial court level, it specifically sets forth parameters and limitations,
prominently including the defendant's ability to pay and financial resources.
RCW 10.01.160(3).
Our statute, RCW 10.73.160, does not set forth parameters for the
exercise of discretion. Ability to pay is certainly an important factor that may be
considered under RCW 10.73.160, but it is not necessarily the only relevant
factor, nor is it necessarily an indispensable factor. Factors that may be relevant
to an exercise of discretion by an appellate court under RCW 10.73.160 can be
set forth and factually supported at least as efficiently in appellate briefs as in a
trial court hearing.
To summarize, we are not persuaded that we should refrain from
exercising our discretion on appellate costs. Nor are we attracted to the idea of
delegating our discretion to a trial court. We conclude that it is appropriate for
No. 72102-0-1/10
this court to consider the issue of appellate costs in a criminal case during the
course of appellate review when the issue is raised in an appellant's brief.2
We recognize that this approach is not without some practical
inefficiencies. The State historically does not ask for an award of costs in every
case. Appellate defense counsel may decide it is necessary to include a
preemptive argument against costs in every case, only to find that the State does
not intend to request costs. And as Sinclair points out, raising the potential issue
of appellate costs in the brief of appellant puts appellate defense counsel in the
position of assuming the client may not prevail on substantive claims.
A rule change requiring the State to include a request for costs in the brief
of respondent would eliminate these problems, but even under the current
system, it is feasible for the parties and the court to address costs in the course
of appellate review. In the somewhat analogous situation created by RAP
18.1(b), a party who wishes to recover attorney fees under applicable law must
"devote a section of its opening brief to the request for fees or expenses.3
Typically, a short paragraph or even a sentence is deemed compliant with the
rule. Sinclair's motion for reconsideration devotes only half a page to outlining
the reasons why this court should exercise its discretion not to impose costs, and
2 Sinclair's motion for reconsideration does not ask us to decide, and we
do not decide, whether the appellate court has discretion to deny or substantially
reduce an award of costs when asked to do so by a motion to modify a
commissioner's award of costs under RAP 14.2.
3We say "somewhat" analogous because the costs the State is entitled to
request are awardable under RAP Title 14, not under RAP 18.1. Under RAP
Title 14, the State is not required to request costs in its appellate brief. Blank.
131 Wash. 2d at 251. The State may simply present a cost bill as provided in RAP
14.4.
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No. 72102-0-1/11
the State's response is similarly brief, so we are not concerned that this approach
will lead to overlength briefs. We also point out that where the State knows at
the time of receiving the notice of appeal that no cost bill will be filed, a letter so
advising defense counsel would be courteous.
The State has the opportunity in the brief of respondent to make
counterarguments to preserve the opportunity to submit a cost bill. The State
complains that it lacks access to pertinent information at the stage of appellate
briefing. This is not a persuasive assertion. The State merely needs to articulate
the factors that influenced its own discretionary decision to request costs in the
first place. Both parties should be well aware during the course of appellate
review of circumstances relevant to an award of appellate costs. A great deal of
information about any offender is typically revealed and documented during the
trial and sentencing, including the defendant's age, family, education,
employment history, criminal history, and the length of the current sentence. To
the extent current ability to pay is deemed an important factor, appellate records
in the future may also include trial court findings under Blazina. And the
foregoing list of factors is not intended as an exhaustive or mandatory itemization
of information that may support a decision one way or another.
As a general matter, the imposition of costs against indigent defendants
raises problems that are well documented in Blazina—e.g., "increased difficulty in
reentering society, the doubtful recoupment of money by the government, and
inequities in administration." Blazina, 182 Wash. 2d at 835. It is entirely appropriate
for an appellate court to be mindful of these concerns. Carrying an obligation to
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No. 72102-0-1/12
pay a bill of $6,983.19 plus accumulated interest can be quite a millstone around
the neck of an indigent offender. Still, exercising discretion means making an
individualized inquiry. See Blazina, 182 Wash. 2d at 838 ("the court must do more
than sign a judgment and sentence with boilerplate language stating that it
engaged in the required inquiry.") To decide that appellate costs should never be
imposed as a matter of policy no more comports with a responsible exercise of
discretion than to decide that they should always be imposed as a matter of
policy.
When this court reviews a trial court's ruling on attorney fees in a civil
case, we generally require the trial court to explain its reasoning based on the
specific facts of the case, or the award will be remanded "to ensure that
discretion is exercised on articulable grounds." Mahler v. Szucs, 135 Wash. 2d 398,
435, 957 P.2d 632, 966 P.2d 305 (1998). Similarly, when this court decides the
issue of appellate costs, it behooves us to explain the basis for the ruling. Both
parties can be helpful to the appellate court's exercise of its discretion by
developing fact-specific arguments from information that is available in the
existing record.
In the present case, both parties focus on the factor of ability to pay.
Sinclair makes the following argument:
There are several reasons this court should exercise its
discretion not to impose costs. Sinclair is currently 66 years old.
CP 6. He was sentenced to a minimum term of incarceration of
280 months in June 2014. CP 142, 146. His sentence is
indeterminate. CP 146. The trial court made no determination that
Sinclair was able to pay any amount in trial court LFOs [legal
financial obligations] and in fact waived all nonmandatory LFOs in
the judgment and sentence. CP 144. The trial court appointed
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No. 72102-0-1/13
appellate counsel because Sinclair was "unable by reason of
poverty to pay for any of the expenses of appellate review." See
Appendix C (Indigency Order). Under the circumstances, there is
no reason to believe Sinclair is or ever will be able to pay $6,983.19
in appellate costs (let alone any interest that compounds at an
annual rate of 12 percent). This court should accordingly exercise
discretion and deny appellate costs in the decision terminating
review.
Motion for Reconsideration at 3. Attached to the motion for reconsideration is the
trial court order authorizing Sinclair to appeal in forma pauperis and to have
appointment of appellate counsel and preparation of the record at State expense.
The order states that Sinclair "is unable by reason of poverty to pay for any of the
expenses of appellate review" and "the defendant cannot contribute anything
toward the costs of appellate review."
The State counters with a citation to the record at sentencing, where
Sinclair's attorney stated that Sinclair was retired after 20 years of employment
with a substantial local manufacturing company. Thus, the State argues it is
"likely" that Sinclair is eligible for retirement income. The State also points out
that the indigency order was submitted and signed ex parte, so that there is no
independent check on the accuracy of the information on which the order was
based.
The procedure for obtaining an order of indigency is set forth in RAP Title
15, and the determination is entrusted to the trial court judge, whose finding of
indigency we will respect unless we are shown good cause not to do so. Here,
the trial court made findings that support the order of indigency. Important to our
determination, the Rules of Appellate Procedure establish a presumption of
continued indigency throughout review:
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No. 72102-0-1/14
A party and counsel for the party who has been granted an order of
indigency must bring to the attention of the trial court any significant
improvement during review in the financial condition of the party.
The appellate court will give a party the benefits of an order of
indigency throughout the review unless the trial court finds the
party's financial condition has improved to the extent that the party
is no longer indigent.
RAP 15.2(f).
We have before us no trial court order finding that Sinclair's financial
condition has improved or is likely to improve. No evidence supports the State's
speculation that Sinclair has undisclosed retirement benefits. We therefore
presume Sinclair remains indigent. Sinclair is a 66-year-old man serving a
minimum term of more than 20 years. There is no realistic possibility that he will
be released from prison in a position to find gainful employment that will allow
him to pay appellate costs. Under these circumstances, we exercise our
discretion to rule that an award to the State of appellate costs is not appropriate.
The motion for reconsideration is granted. The conviction is affirmed.
Appellate costs will not be awarded. The pending cost bill and objection are
stricken.
WE CONCUR:
J^d^utA\x
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