State Of Washington, Respondent V. Joshua J. Bessey, Appellant (civil) (Majority and Order)

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Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHINGiber 1, 2015 DIVISION IT No. 46233 -8 -II STATE OF WASHINGTON, AMENDED ORDER GRANTING Respondent, MOTION TO PUBLISH OPINION ME JOSHUA JOHN BESSEY, Appellant. The Appellant, Joshua John Bessey, filed a motion to publish the opinion that was filed in that matter on September 22, 2015. After consideration, it is hereby ORDERED that the final paragraph, which reads as follows, shall be deleted: " A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is so further ORDERED that this opinion is now published. DATED this PANEL: 1st day of 2015. December , Jj. Maxa, Lee, Sutton FOR THE COURT.: 44 _ hm I U TTON, J. We concur: I ordered." It is Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASEEINCK'EQNber 17, 2015 DIVISION H No. 46233- 8- 1I STATE OF WASHINGTON, ORDER GRANTING Respondent, MOTION TO PUBLISH OPINION V. JOSHUA JOHN BESSEY, Appellant: The respondent, Department of Labor and Industries, filed a motion to publish the opinion that was filed in that matter on September 22, 2015. After consideration, it is hereby ORDERED that the final paragraph, which reads as follows, shall be deleted: " A majority of the panel having determined that this opinion will not be .printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is further ORDERED that this opinion is now published. DATED this day of .. st.. r , 2015. PANEL: ' Jj. Maxa, Lee, Sutton. FOR THE COURT: SUTTON, J. W concur: 10V OIL NLAYarp.j. LSE, J. so ordered." It is Filed Washington State: Court of Appeals. Division Two 4 201.5 WASHINdipbew- STATE OF* IN THE COURT' OF,APPEALS OF THE - DIVISION 11 No. 46233=8 -II N. TON, G TE STATE OF WASHINGTON; Respondent; V.: VN]? UBL5RED:OPINION JOSHUA. JOHN BES- SYY S) Appellant. Joshua J. SUTTON, I. — BosseY appeals. thQ superior ourt, order mh1 reducing his reimbursement for - ttorney fees and costs by .$' 000 under R- W9A.1-6. 110 -as. a, sanotion.-for a. a 5, C discovery violation because he did not produce text messages. in his possession before trial. -W.e hold That because Bes8ey w- g- under .no obligation. to• produce the * a text aessagos, the. trW - -- t' 0 0t abused its,-' its:discretion. We Aw- rdg reverse-and remand to theArial. court to: restore the: $5,000 reduction in. - e ; fp,.s: -md co costs.. And-bpc4uspl ess Q y prpvailson4p, Q 4 p we award Ir on reasonable. attorney foe8,,atid-o.osts:'on.appeaL. FACTS The State charged Bossey with first. degreo burglary, second. de eo assault; fourth assault, and interfering with the reporting:of a. domestic violence -offense, as axesu'ft-of an incident that occurred,.on May 2;3', :2;0'13: The State. alleged that, on.May 23, Besspy entered. the home. of . his:. x=girlfri'eod; Kri8ti. Mbrggn, - ssaulted hQr-.andhet-boyft-end, and,broke her.cellphone. e e a i The case -went to trial and, - t,the .end of the second day of trial,,Ms. Morgan. testified that: a she and Bes.sev had. no 6ontactbefoxe May 23. Bessey then iAfbimed hisatiorney that he. had text messages sent to him by Ms,.Morgan a 3 few days before May 2. that would contradict Motgaii"s No,.46233 -8 -II testimony that she had.terminated th6ifxelationship: on April,'19 and that he had moved out b6f6rdhe . May 23, Counsel instructed Bessey to find the text messages,and bring them to pQurt,the.next.day: The next morning .Bessey brought ,printout's of'a namber of t-ext messages that Ms.. Morgan had sent him on May 181 and May 19. Counsel gave copies of these printouts to the State.. The State mored to exclude the: text messages; atguihg, tji4t Bessoy'-* fadjqre 'to PrQV s them until. the seowid day of t.rial con8tituteda dlgcbVery Violation, VRPwatl- -7- 558., In regpofise', 5 Bq ls sey- w did..' not-kno. counsel explained: that thein.the previous evonifig, (2) $ ince-the of their.- until his clientmentione.d, defei),se 7iac1. notbeen able to bator6ew'Ms. Morgan, they' had - o 'idea. that she would be -claiming,n that she had broken up with the defendant on April .1-9..', well before the alleged incident on May; 23, % -(3) as a result, the text messages did-not:eyea and become relevant until s M' -;. Morgan testified, Thus;, Bessey :argued, Ther.6, was. no discovery ze, violation and no basis upon - hich to suppress this evidence. w The trial. court gravedthe. State' s:motion and - uppressed the text:rhessage 5, .stating?. s .. Iam. going. to..eXdludd [ the text messages],. - Trial is not byambush. Thisi, phone was -n.possession of.' Defendant. Re . ad.access to-these -: all.times.. AG. i the h at Gould havb.proyided any of these texts-to Counsel prior to today' s date.. To bring, these in.now, after State has rested their case,,we:have discovery, we:have deadlines rejudicial - it, ambush. Qvsmpriso, and that it isby.p. so-that' wedQ. not.: have trial by. is. prejudicial to another party to suddenly come up with Sometiffiag, after the f4a. And,.- these text messages will be excluded. They1remaiked. They' ll be-madea so,' part of the re.cord*... 2A. VQr- atU_ . Report _ b A sanctions against 9( of' Prop. edin 9: e Bessey for f4ifing P): VR'- at .362, The. - ate. St 1 did. not :request. any monetary to produce the text. messages before. trial began.. The Vial, continued and Bessey took the witness stand, testifying,that he acted -n so1f-defenE;e. i 2 No. 46233 -8 -II The jury found'Bessey not guilty on all counts and ieturned.:9 special verdict, finding "by, a. preponderance of the evidence" that Bessey acted in selfdefense, And that. lie bad not engaged in any criminal conduct -substantially telated to theevents that gave rise to the, charges brought against I Am. Clerk's. P* pers. (C. - at. 74. a P) ve After being found not gLuity by the jury; B essey-mQ- d f: - fees f ' and ticosts - ader RC. 9A. 16. 110, The. State. responded that W. oder fOrTe4son dble-aftoimoy er Begsey S Eiihiref to produce the. I text.messages constitate.&A discovery violation and Be. se.yshould.b e sanctionedby-reduqing his s award of attorney fees, The trial. court agreed;. ruling, I dont fault:Mr. Crandall *or this; . fault his client because hewas the one thathad f I ontrol control of that cellphone. He knew what,the charges were - hat he was facing,,he.. t knew in what was being alleged here, and it was, Mr. Bessey-who,. just on the last. worhent, decides .to, tell his attorney about these listing of text messages that, had. they been brought forward, probably would have been a vory. different, as '.I say,. . looking trial. lliit that' s not to say a trial wouldn' t have. goneforward on. either. different charges or other . changes.. So although..I am not. going to zero out these -ee,&as, some land of penalty, that I f I also. don: . see that M. -B.Qggey -ghouid.bonofit by having all Of his. attorney' s fees. . t es.paid when: there Was fatilt on his as to the amount of attornoy' s fees., and was it somewhat, Su P m-.going to reduce :it - I'm.gQing to reduce it by $: , 000W As. a. penalty -or fir. 5 f - had. he- turned reasonable, but nQt. a lot. over those, documents Bessey,.and .so -the total : 2B.- P at 5.55- 56. VR. The trlal-court. award ed. Bessey attorney fees and costs of $ . 4.%206. 1 3.-,but then -educed his, r award by $ 5, OOQ, QO CP 1.05- 06, at as a discovery " penalty," p 8essey appealed. thus total bringing.'Bessqs.. award to $ 3,--,' 06. 1.3. Not 4623- - 8- 11 3 ANALYSIS . L ROW 9At 16..l 10 The Washington legislatotehas. exempted persons from facing:criminal liability for-a0ing I defense in.s6, f* when faced with imminent dangen RCW 9A. 16. 110.(1). Further; if a - erson who p Time. prevails on certain crimes .. ....... . ., .... a.self-defense affirmatlye defense, - he - erson is entitled_, t D entitle d, 8 charged grg I I. .. to r6imbursernent for legal, fees and expenses-. When; a-person charged with a crimeJisted in. [ CW 5A. 16. 11-0*(1)] R iis found not: guilty by,reason of self-defense;, thestate of Washington shall reimburse the: defendant for all reasonable costs;. including loss of th-no, -egal fees focillred, and ' l other expenses in his or her -defense. This reimbursement is ) Iot an independent cause of action. To.award these reasonable costs the trier of fact must. find t-hat the defendant' s claim : f self-defense was sustained by a preponderance ,of o the evidence, If the trier of fact makes -a determination of self-defense',.the judge shall deternaine the ainoua of the award. RCW9A.. 6. 110( 2) 1 The jury' s special-ver4fet findingthatBessqyacteaiself defense entitled'him to: an award. : A;. 6. W-9,.. I-, 2,.).. O.*(,.- Agaiesult. Elie ttial.court-awaMed ill. him.reasonable attorney fees and costs. H. ALLEGEDDISCOVERY VIOLATION Bessy argues that the: touft OfTod by reducing his. attorney .fee -award for the: purported, discovery - iolation of failing to.produce the text messages, We agree.. v We review sheimposition. of discovery sanctions. for axi. abuso, of discretion., Blair v, `TA ' E t Seattle,. as, No. when discretion A 176, 1. 71 W. . 2d 342., 34.8, 254 P. 3d 797 ( 2011). A trial,court abuses its% it - xercises it ' n o e untenable for grounds- or - A.- 3A. pp, 78-',385,,.27,lP.3.d. 2.80,''(2012-..),. trial 0 untenable reasons. State. v. Lawrence, 1, 66 WiII - : ourt, abuses its discretion only - hen no reasonable. c w M No, 46. 33 -8 -IT 2 person would take the position adopted by the trial court.. Pub. UtiL Dist. No.. 1' of Okanogan - Caqnty v. S`iqte, 182 Wn,2d519, 531; 542 P.3d 308 ( 2015), UR 4. 7, which prosecutor' s and criminal proceedings,,provides a reciprocal,list of the. governs. discovery defendant' s obligations.. CrR-4. 7( b)( I.) provides the: defendant?'&6bligations as fdllows- Excopt.as is otherwise provided as to matters not subject to: disclosure and protective orders, the defendant shall disclose to the prosecuting attorney the f6floving material and information within the defendant' s control no later than the orw-ibnghearing: the naioesaad addresses of persons. whom the defendantintends i to -Q4 as witnesses at the. h. ar* g or trial, -ogether with aijywritten or - ecorded e m t r statements. and the: substance of any oral statements of.such witnoss.. CrR 4, 7( b)( 1). Thi&rule does not obligate a defendant;toproduce documentary evidence of his: or her ow- accord- orpta- osas ofiiripeaching a? n f p State wiuless. CrR4.7( b)( 2)( x).allowgtho-pro8ecutor to inspect- d6cum&nta:ry evidence in the: defendant.'s: - possession, but only - I' oja inotion.11 - CrX4.7 Opecific.oral Here;. the. State, did,ftot, Make any : or written dhcovety requests, for , of the infor. ation.. n.'!3essey''s-cel.1 phone.- Andthe prosecutor did not file a motion.under CrP, 41(b m o to-inspectBess.eys eviden evidence.. Therefore, messages to the State. obligation s Bq- gey had.no - to prow printouts! of the P telt In fact, Bessey went.'beyond his discovery obligatoo, by v.0.1untanly providing the State with the printouts'. I Bessey also argues that he did not know that the text messageswere relevant beoausehe. was unaware that Ms. Morgan would claim at trial that sho.had r10 contact with him for the -wo weeks t prior toMay 23. But even if Bessey would have known tliat the text:messages Were relevant,.he ligatim to produce. them absent court order. CrR 4.7( b)( 2). w un di ob a 5* formal wri Ii request the pros cu t Qr: or 4 No.... 46233- 8- 11 , We. hold thAttlie trial court abused its disdetion,infeducing-Bessdy' 8. attorney f6e award. by $5,-000 for 4, pu;rpQred discovery violation,. 'We reverse, the -trial - ourt' s order -rem. nd. and c a ordet1he cobxt, to- re. tore. the $ 5, 0001. - s III. ATTORNEYTEES AND . OSTS Oi4APPEAL C Bessey : also RC. W- 9A .16. 110.(2). roqgests' reasonable tosts and - attorney , fees on . appeal - orider. Under RC. 9A. 16. 110( 2:), an acquitted crirhimaJ :defenclarit is entitled to W peirnbursement for-attorney fees trPawndbly -ncLuTed in connection with Ms. criminal - efense. and i d a 9:. a e App. 3.36, 346, 919 - -. P 2d reasonably inmtedupoa prevail mg.i n. his - ppeal., 'Si. f. . v; U6 W.-& - 458 ( 1999); . S-a.t. .v.,Jbnes,.92Wt..A. .' 555.,.565,.9.64,P 2d' 398 ( 1998). Because we hold That: the t e p P.' trial :court- abused its dis.cretion,' Belsey prevails in. bis appeal and wv award. him reasonable attorney fees and cosis on appeal. CONCLUSION tiVe. hold that because Belsey dial not Violate a: dscovery:rule-or eourt•'grder, the trial court abused its discretion in saftetionih. .- essey for failing to., r6duce. text messages during tn'41 and in gB p reducin gBewpy' s, reimbursemontbY$ 5, 0.00. ' WeTe. erse,andremand to: tlie.t.h-:l... v ' a dourtto-restore m 51 No... 46233- 8- H 3essey'§'.$ 5, 000 reduction iii:its..orde'r awarding fees and costs. - And because: B e§ s&y ptevails on appeal, we ward Bessey.- i5 -: h reasonable a,ttpmeyfee. and. cOstIs:-Qn:-4Ppeal' s A fnqjoi:ity of the panel having. deteitnined- t-hat.,ihig opinion. will not 'be printed in the Washington.Appellate Reports, but will be filed.for public record in accordance with RCW 106.040, it.is so. ordered.. SUTTON,. .. We concur: lap, 7

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