FILED MARCH 10, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 36428-3-III Respondent, ) ) v. ) ) TIMOTHY BRYANT BLOCHER, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Timothy Blocher appeals convictions of three counts of felony
violation of a no-contact order and two counts of bail jumping. We affirm his
convictions for felony violation of a no-contact order, reverse his convictions for bail
jumping, and remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
Timothy Blocher was romantically involved with Jeanne Malinosky for a time but
it ended badly, and Ms. Malinosky obtained a no-contact order against Mr. Blocher in
November 2015. He violated the order several times. An April 2016 violation—his
third—was charged in Kittitas County Superior Court cause no. 16-1-00102-4 (hereafter
“the 102-4 matter”). Ms. Malinosky’s report of additional violations in August 2016 led
to the four felony violations charged below. No. 36428-3-III State v. Blocher
The charges in this case were filed after Ms. Malinosky called police to report that
Mr. Blocher had contacted her through Facebook, a social media platform. Ellensburg
Patrol Officer Josh Ingraham confirmed that the no-contact order in place against Mr.
Blocher prohibited electronic communication and responded to her complaint.
Officer Ingraham used Ms. Malinosky’s cell phone to look at her news feed,1
which contained an August 3 notification of a Facebook group called “Hope you guys are
alright!” whose members were initially Ms. Malinosky, “Timothy Bryant Blocher,” and
Don Glenn, a mutual friend of Ms. Malinosky’s and Mr. Blocher’s. Her news feed
included several postings to the group thereafter, as well as a notification that Mr. Glenn
left the group on August 4. Ms. Malinosky claimed she had not joined the “Hope you
guys are alright!” Facebook group and later testified it had just “pop[ped] up on [her]
screen.” Report of Proceedings (RP) at 328.
Officer Ingraham took several photographs as he scrolled through messages and
postings in Ms. Malinosky’s news feed. The officer also phoned Mr. Blocher, who
confirmed that “Timothy Bryant Blocher” and the profile picture that appeared in the
1 Facebook uses the term “news feed” to describe a constantly updating list of status updates, photos, videos, links, app activity, and likes from people, pages and groups that a user follows on Facebook. See How News Feed Works, FACEBOOK, https://www.facebook.com/help/1155510281178725 [https://perma.cc/A3S9- LZN2].
2 No. 36428-3-III State v. Blocher
group posts in Ms. Malinosky’s news feed were the name and profile picture Mr. Blocher
used on Facebook.
Based on the information provided by Ms. Malinosky and obtained from her
cellphone, the State charged Mr. Blocher with the following four counts of violating the
no-contact order:
Date of offense Offense conduct
Count 1 August 3, 2016 Setting up a Facebook group, “Hope you guys are alright!” and establishing himself, Ms. Malinosky, and Don Glenn, a mutual friend, as group members
Count 2 August 3, 2016 Posting song lyrics to the group
Count 3 August 4, 2016 Posting “miss ya” to the group
Count 4 August 5, 2016 Posting a thumbs-up emoji to the group
Clerk’s Papers (CP) at 1-2.
Mr. Blocher’s trial dates in this matter and the 102-4 matter were continued many
times for several reasons. One reason was medical care for a severe bone infection Mr.
Blocher suffered in his toes and foot. On February 27, 2018, the 102-4 matter proceeded
to a two-day jury trial at the conclusion of which he was found guilty as charged. On
February 28, following the jury’s verdict, the trial court set the sentencing in that matter
for March 5, 2018, and ordered that this case would also be called on that date.
At the outset of proceedings on March 5, the lawyers notified the trial court that
Mr. Blocher, who had been in jail on City of Ellensburg charges pending in district court,
3 No. 36428-3-III State v. Blocher
had been taken to the emergency room and then transferred to Harborview Medical
Center. The prosecutor reported that the district court released Mr. Blocher with an order
to contact the probation office when he was released from Harborview. Based on defense
counsel’s report that he expected Mr. Blocher to be in the hospital for a couple of weeks,
the trial court granted the defense request to continue this matter and the 102-4 matter for
three weeks, to March 26.
When the trial court called Mr. Blocher’s case on March 26, Mr. Blocher was
absent. His lawyer told the court:
I confirmed with Dr. Fiorito’s nurse this morning that Mr. Blocher is still at Harborview. I—Mr. Blocher doesn’t know about this hearing today. He has been okay at calling me and left a message last Monday. I tried to— tried to call him on Wednesday and today the phone that he’s got in his room doesn’t have a message thing.
RP at 193 (emphasis added). The trial court issued bench warrants requested by the
prosecutor, who complained that Mr. Blocher had a history of not following court orders.
Months later, in August 2018, Mr. Blocher appeared in court and the bench
warrant issued following the March 26 hearing was quashed. The prosecutor and a
probation officer informed the court that Mr. Blocher had been receiving treatment and
medical monitoring off and on during the prior several months, but there were times
4 No. 36428-3-III State v. Blocher
when he was released from medical care and could have contacted his probation officer,
but failed to do so.2
Mr. Blocher’s lawyer responded that his client had “kept in very consistent contact
with me,” although he told the court again, as he had on March 26, that “as far as when
the warrant was issued last March, he didn’t know about that date.” RP at 201. He
added, “I hope I don’t have to become a witness in the . . . case; but I—I certainly will.”
Id. At the hearing’s conclusion, the trial court ordered Mr. Blocher held without bail in
the 102-4 matter and held on $100,000 bail in this matter. It set sentencing in the 102-4
matter for the following week and set the charges in this case for a status hearing and trial
in October.
At or shortly after that August hearing, the State evidently informed Mr. Blocher’s
lawyer that it would move to add a charge of bail jumping for Mr. Blocher’s failure to
appear on March 26. On September 4, Mr. Blocher’s lawyer moved for leave to
withdraw as counsel, for the reason that he “had not advised Mr. Blocher of the court
date” and “is a witness to the charge of Bail jumping.” CP at 161. The court granted the
2 The probation officer, to whom Mr. Blocher was assigned on his city charges, reported to the court that Mr. Blocher had been at Harborview from March 2 to April 2, when he left against medical advice. He had been readmitted to Harborview on April 10 and released on April 13, and was admitted to the University of Washington on April 30 until about the beginning of June, when he was released to home. The probation officer stated that she had made it very clear to Mr. Blocher’s lawyer that he needed to contact her upon any release from the hospital, and “I have not heard from Mr. Blocher at all.” RP at 206.
5 No. 36428-3-III State v. Blocher
motion and appointed new counsel for Mr. Blocher. The State thereafter amended the
information to add two charges of bail jumping for the nonappearance on March 26: one
count for the nonappearance in the 102-4 matter and another for the nonappearance in
this case.
This case proceeded in October to a two-day jury trial. The State called Ms.
Malinosky and Officer Ingraham as witnesses to the no-contact order violation charges.
It called the Kittitas County deputy clerk to testify to Mr. Blocher’s absence from court
on March 26, and to his presence in court on February 28, 2016, when he was ordered to
appear in court on March 5 in this matter and the 102-4 matter. When cross-examined,
the clerk admitted that she did not know whether Mr. Blocher knew about the March 26
hearing. She admitted that according to court minutes, his lawyer claimed Mr. Blocher
was in the hospital that day.
Mr. Blocher was the sole defense witness. He testified that he had not
communicated with Ms. Malinosky since January 2016. He told jurors that his and Ms.
Malinosky’s mutual friend, Don Glenn, started the “Hope you guys are alright!”
Facebook group in 2014, and included the two of them as members. Mr. Blocher
testified that he believed he posted the lyrics that appeared on Ms. Malinosky’s phone on
August 3, but he had been posting them for Mr. Glenn. He said he did not specifically
recall posting to the Facebook group, but he would not have expected Ms. Malinosky to
see the post if he had: he claimed he had “unfriended” her on Facebook in January 2016
6 No. 36428-3-III State v. Blocher
and “blocked” her sometime thereafter. RP at 429. Mr. Blocher testified that the “miss
ya” message was also meant for Mr. Glenn. As for the thumbs up emoji, Mr. Blocher
testified he inadvertently sent that message when turning off his phone.
The jury found Mr. Blocher guilty of the first three counts of violating the no-
contact order and acquitted him of the fourth. It answered no to special verdicts asking if
Mr. Blocher and Ms. Malinosky were members of the same household. It found Mr.
Blocher guilty of both bail jumping charges.
At sentencing, Mr. Blocher moved the court to arrest judgment of the bail jumping
counts on grounds there was no evidence he knew his appearance was required on March
26. Mr. Blocher’s lawyer explained that he could have called Mr. Blocher’s prior lawyer
to testify that Mr. Blocher was unaware of the March 26 date, but stated, “[W]hy would I
need to? The State had absolutely failed to meet its burden.” RP at 545. After reviewing
the to-convict instruction and hearing the arguments of counsel, the trial court concluded
that it was enough for the State to prove that Mr. Blocher was released with knowledge of
the requirement of an appearance on March 5.
The State asked the trial court to run Mr. Blocher’s sentence in this matter
consecutive to his sentence in the 102-4 matter, while the defense asked for the sentences
to run concurrently. Following both requests, the following exchange occurred:
THE COURT: . . . I have one question for Ms. Hammond. You—when you were presenting your argument a moment ago you made it sound like I can’t impose—that there was a legal impos—a legal prohibition of me
7 No. 36428-3-III State v. Blocher
imposing concurrent sentence. Did I mishear that? Were you saying I should not—not that I cannot? [PROSECUTOR] HAMMOND: I’m—I am saying that the law presumes that when somebody is sentenced on two different cause numbers on different dates the presumption is consecutive. THE COURT: I think that’s true. [PROSECUTOR] HAMMOND: And not that you can’t order concurrent sentences; but the law presumes that they’re consecutive.
RP at 558.
The court sentenced Mr. Blocher to a total of 41 months with credit for time
served and stated that the sentence would run consecutive to the sentence in the 102-4
matter. Mr. Blocher appeals.
ANALYSIS
Mr. Blocher makes seven assignments of error. We have reorganized them and
address only those that are dispositive.
I. THE STATE’S EVIDENCE OF THE ESSENTIAL “KNOWLEDGE” ELEMENT OF ITS BAIL JUMPING CHARGES WAS INSUFFICIENT
Several of Mr. Blocher’s assignments of error challenge his bail jumping
convictions. His challenge to the sufficiency of the evidence to prove the required
knowledge element is dispositive.
Bail jumping has a knowledge element, but it falls short of intentional failure to
appear. RCW 9A.76.170(1) defines the crime of bail jumping:
Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before
8 No. 36428-3-III State v. Blocher
any court of this state . . . and who fails to appear . . . as required is guilty of bail jumping.
The knowledge element the State must prove is that the defendant was “released . . . or
admitted to bail with knowledge of the requirement of a subsequent personal
appearance.” Id.
The State is not required to prove that when the hearing date arrives, the defendant
still has it in mind. See State v. Ball, 97 Wn. App. 534, 536-37, 987 P.2d 632 (1999)
(finding knowledge where defendant signed a document that set the date for his next
court appearance). “‘I forgot’ is not a defense to the crime of bail jumping.” State v.
Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004). The State must prove that a
defendant has been given notice to appear at his required court dates, however. State v.
Cardwell, 155 Wn. App. 41, 47, 226 P.3d 243 (2010) (citing State v. Fredrick, 123 Wn.
App. 347, 353, 97 P.3d 47 (2004)); cf. State v. Bryant, 89 Wn. App. 857, 870, 950 P.2d
1004 (1998) (“[B]ail jumping is not a per se offense. The State must prove beyond a
reasonable doubt that Bryant knew, or was aware that he was required to appear at the
hearing on December 8, 1994.”).
“‘The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt.’” State v. Witherspoon, 180 Wn.2d
875, 883, 329 P.3d 888 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
9 No. 36428-3-III State v. Blocher
1068 (1992)). A defendant’s claim of insufficient evidence admits the truth of the State’s
evidence and “‘all inferences that reasonably can be drawn [from it].’” State v. Condon,
182 Wn.2d 307, 314, 343 P.3d 357 (2015) (alteration in original) (quoting Salinas, 119
Wn.2d at 201). For a fact finder to reasonably draw inferences from proven
circumstances, the inference must be rationally related to the proven fact and reason and
experience must support the inference. State v. Bencivenga, 137 Wn.2d 703, 707, 974
P.2d 832 (1999). “‘A presumption is only permissible when no more than one
conclusion can be drawn from any set of circumstances.’” Id. at 708 (quoting State v.
Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989)).
In the 10 years since Cardwell was decided, this court has repeatedly applied its
holding that to prove bail jumping, the State must prove a defendant was given notice of
the required court date. E.g., State v. Boyd, 1 Wn. App. 2d 501, 517, 408 P.3d 362
(2017) (order stating defendant’s presence was required on a particular date, signed by
defendant, was sufficient evidence).3 The State cites no authority to the contrary. The
3 And see State v. Chappelle, No. 63416-0-I, 2011 WL 2775591 at *5, noted at 162 Wn. App. 1044 (2011) (evidence that defendant signed an order requiring him to appear on January 22, 2008, was insufficient to prove bail jumping on January 23; no evidence was presented that defendant knew his case had been held over for a day); State v. Johnson, No. 51227-1-II, slip op. at 4 (Wash. Ct. App. Aug. 7, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051227-1-II%20Unpublished %20Opinion.pdf; State v. Leffler, No. 49788-3-III, slip op. at 12 (Wash. Ct. App. Jan. 23, 2019) (unpublished) (order setting a date for trial, signed by defendant, was sufficient evidence), https://www.courts.wa.gov/opinions/pdf/D2%2049788-3-II%20Unpublished %20Opinion.pdf; State v. Clark, No. 44642-1-II; slip op. at 12-13, (Wash. Ct. App. Dec.
10 No. 36428-3-III State v. Blocher
closest decision for the State, but ultimately not persuasive on these facts, is Division
Two’s unpublished decision in State v. Johnson, in which the State’s witness on the bail
jumping charge—the prosecutor who was present at the defendant’s arraignment—
testified that Johnson’s defense attorney was “good about” providing copies of court
orders to his clients and, while the prosecutor did not specifically recall that happening at
Johnson’s arraignment, he could not recall a time when defense counsel did not provide a
client with an order. No. 51227-1-II, slip op. at 4 (Wash. Ct. App. Aug. 7, 2018)
(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051227-1-II
%20Unpublished%20Opinion.pdf. The Division Two panel found that evidence to be
sufficient.
Here, the State offered no evidence that it was the practice of the lawyer
representing Mr. Blocher in March 2016, to notify his clients of court dates. It could not
have offered such evidence, knowing as it did that the lawyer had twice stated that he did
not inform Mr. Blocher of the date—and even withdrew as counsel in order to testify as a
defense witness. Without more, proof that a lawyer was aware of an appearance date is
not circumstantial evidence that his or her client was aware of the appearance date.
30, 2014) (unpublished) (evidence that trial court’s usual practice was to notify defendants of court date when set was sufficient), https://www.courts.wa.gov/opinions /pdf/D2%2044642-1-II%20Unpublished%20Opinion.pdf. Under GR 14.1, unpublished opinions have no precedential value, but may be cited as nonbinding authorities and accorded such persuasive value as the court deems appropriate.
11 No. 36428-3-III State v. Blocher
The State’s suggestion that a defendant who fails to appear for one required court
date can be guilty of bail jumping for failing to appear, without notice, on a continued
date, is not supported by statutory language. RCW 9A.76.170(1) makes it a crime for a
person to fail to appear if he or she has knowledge of “the requirement of a subsequent
personal appearance”—not general knowledge that once charged, future court
appearances will be set and, if necessary, reset. There is no textual basis in RCW
9A.76.170(1) for making it the duty of a criminal defendant, on penalty of committing a
felony, to determine his or her next required court appearance.
Because insufficient evidence supports Mr. Blocher’s knowledge of the
requirement that he appear on March 26, the bail jumping convictions must be reversed.
II. THE STATE PRESENTED SUFFICIENT EVIDENCE THAT THE CONTACT WITH MS. MALINOSKY CHARGED AS COUNT ONE WAS A NO-CONTACT ORDER VIOLATION, AND DISTINCT FROM THE VIOLATION CHARGED AS COUNT TWO
Mr. Blocher argues for the first time on appeal that creating a Facebook group that
included Ms. Malinosky was not a violation of the no-contact order; alternatively, he
argues that the count one charge for creating the group cannot be distinguished from the
count two charge for posting lyrics, and convictions on both counts constitute double
jeopardy. In support he states, conclusorily, that “[a]dding a person’s name to a
[Facebook] group does not indicate that there has been a communication” and “the
creation of the group and the posting of the song lyrics are so interrelated as to constitute
a single offense.” Br. of Appellant at 21, 23.
12 No. 36428-3-III State v. Blocher
Violation of a no-contact order “has three essential elements: ‘the willful contact
with another; the prohibition of such contact by a valid no-contact order; and the
defendant’s knowledge of the no-contact order.’” State v. Washington, 135 Wn. App.
42, 49, 143 P.3d 606 (2006) (quoting State v. Clowes, 104 Wn. App. 935, 944, 18 P.3d
596 (2001)); see also RCW 26.50.110; RCW 10.99.050(2)(a).
At trial, Mr. Blocher did not contend that creating a Facebook group and making
the first post to the group would be a single act, constituting a single contact. See RP
512. His theory at trial was that the “Hope you guys are alright!” group was created by
Mr. Glenn in 2014, and when Mr. Blocher used the already-created group to
communicate with Mr. Glenn, he did not believe that Ms. Malinosky would receive the
posts. Given that defense theory, witnesses were not examined about the lapse of time, if
any, between what the State contended was Mr. Blocher’s creation of the Facebook group
on August 3, 2016, and the posting of the lyrics that occurred on the same day. Neither
lawyer spent much time having Ms. Malinosky or Officer Ingraham explain the acts on
Mr. Blocher’s end or the perceptions on Ms. Malinosky’s that made them two distinct
contacts.
Given the defense theory at trial, there was not much evidence on these matters,
but there was enough. Ms. Malinosky testified that when groups are created on
Facebook, “[T]hey will pop up on your message feed.” RP at 286. She identified the
State’s exhibit 7 as a photograph of a group page that appeared in her Facebook account
13 No. 36428-3-III State v. Blocher
for the “Hope you guys are alright!” group, identifying the members (after Mr. Glenn left
the group) as herself and Mr. Blocher. In cross-examining Ms. Malinosky, Mr. Blocher’s
lawyer elicited her confirmation that “according to [her] phone” Mr. Blocher created the
group on August 3, as well as her testimony that “[y]ou just all of a sudden you’re in this
group and then you can—you—it pops up on your screen and then you can leave the
group.” RP at 315, 328.
The no-contact order imposed on Mr. Blocher prohibited him, among other things,
from contacting Ms. Malinosky indirectly, through others, by electronic means. As
earlier explained, the test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt. Witherspoon, 180 Wn.2d at 883.
Viewing the evidence in the light most favorable to the State, reasonable jurors could find
that the creation of the Facebook group, in and of itself, caused a notification to appear in
Ms. Malinosky’s news feed, and the posting of the song lyrics appeared separately.
Turning to Mr. Blocher’s double jeopardy challenge, both the federal and state
constitution “protect a defendant from being punished more than once for the same
offense.” State v. Sutherby, 165 Wn.2d 870, 878, 204 P.3d 916 (2009); see also U.S.
CONST. amend. V; WASH. CONST. art. I, § 9. Protection from double jeopardy
encompasses three aspects and Mr. Blocher invokes the third: a person cannot “receive
multiple punishments for the same offense.” State v. Villanueva-Gonzalez, 180 Wn.2d
14 No. 36428-3-III State v. Blocher
975, 980, 329 P.3d 78 (2014). An allegation that a conviction constitutes double
jeopardy can be raised for the first time on appeal. State v. Adel, 136 Wn.2d 629, 631-32,
965 P.2d 1072 (1998). Claims of double jeopardy present questions of law that we
review de novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009).
“When a defendant is convicted for violating one statute multiple times, the proper
inquiry is ‘what “unit of prosecution” has the Legislature intended as the punishable act
under the specific criminal statute.’” State v. Reeder, 184 Wn.2d 805, 825, 365 P.3d
1243 (2015) (quoting Adel, 136 Wn.2d at 634). “The unit of prosecution for a crime may
be an act or a course of conduct.” State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728
(2005).
RCW 26.50.110(1) provides that when a person restrained by a no-contact order,
knowing of the order, commits “a violation” of certain provisions, it is a gross
misdemeanor. (Emphasis added.) RCW 26.50.110(5) makes such “a violation” a class C
felony if the offender has at least two previous convictions for violating the provisions of
a valid foreign protection order or an order issued under certain Washington statutes.
(Emphasis added.) This court has long held that the unit of prosecution under RCW
26.50.110 is each individual prohibited contact. State v. Allen, 150 Wn. App. 300, 313,
207 P.3d 483 (2009); State v. Brown, 159 Wn. App. 1, 10-11, 248 P.3d 518 (2010). As
this court observed in Brown, “The Supreme Court ‘has consistently interpreted the
legislature’s use of the word “a” in a criminal statute as authorizing punishment for each
15 No. 36428-3-III State v. Blocher
individual instance of criminal conduct, even if multiple instances of such conduct
occurred simultaneously.’” Id. at 11 (quoting State v. Ose, 156 Wn.2d 140, 147, 124
P.3d 635 (2005)).
Since counts one and two charged separate instances of criminal conduct, Mr.
Blocher’s conviction for both did not constitute double jeopardy.
III. IN RESENTENCING MR. BLOCHER, HIS SENTENCE IN THIS MATTER WILL PRESUMPTIVELY RUN CONCURRENTLY WITH HIS SENTENCE IN THE 102-4 MATTER, NOT CONSECUTIVELY
Finally, Mr. Blocher argues that the trial court erred when it stated it would run his
sentence in this case consecutive to the sentence imposed in the 102-4 matter. He argues
that under RCW 9.94A.589(3), the sentences presumptively run concurrently, with
discretion in the court to impose consecutive sentences. He further argues that RCW
9.94A.589(3) is subject to RCW 9.94A.589(1), under which a court can impose
consecutive sentences only under the exceptional sentence provisions of RCW
9.94A.535. We agree in part.
RCW 9.94A.589(3) applies “whenever a person is sentenced for a felony that was
committed while the person was not under sentence for conviction of a felony.” It
applies here, since the no-contact violations were committed in August 2016, a time
when Mr. Blocher had been charged in the 102-4 matter, but was not yet serving a
sentence in that or any other felony matter. Under RCW 9.94A.589(3):
16 No. 36428-3-III State v. Blocher
the sentence shall run concurrently with any felony sentence which has been imposed by any court . . . subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
The State argues on appeal that the trial court correctly applied the statute, since it
expressly ordered that Mr. Blocher’s sentence run consecutive to that imposed in the 102-
4 matter. But when the court imposed consecutive sentences, it was being told by the
State that the sentences were presumptively consecutive. It is not clear that the trial court
would have done the same thing had it realized that the sentences were presumptively
concurrent.
Mr. Blocher also argues that under RCW 9.94A.589(1)(a), the court could impose
consecutive sentences only under the exceptional sentence provisions of RCW
9.94A.535. Here, we disagree. RCW 9.94A.589(1)(a) applies “whenever a person is to
be sentenced for two or more current offenses.” “While the [Sentencing Reform Act of
1981, chapter 9.94A RCW,] does not formally define ‘current offense,’ the term is
defined functionally as convictions entered or sentenced on the same day.” In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 507, 301 P.3d 450 (2013). The convictions in the
102-4 matter were not entered or sentenced on the same day as the convictions in this
matter. RCW 9.94A.589(1)(a) does not apply.
17 No. 36428-3-III State v. Blocher
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Blocher raises three. The
third relates to the bail jumping convictions, which we reverse. We address the first and
second.
Insufficient evidence. Mr. Blocher contends the State failed to present sufficient
evidence of the no-contact violations charged in counts 1, 2 and 3, because it failed to
prove he knowingly contacted Ms. Malinosky or that he created the Facebook group.
The jury was correctly instructed that “[t]he law does not distinguish between
direct and circumstantial evidence in terms of their weight or value,” and that
“circumstantial evidence” refers to “evidence from which, based on your common sense
and experience, you may reasonably infer something that is at issue in this case.” CP at
225. The jury received the following correct instruction on its role in weighing the
evidence:
You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness’s testimony, you may consider . . . the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; . . . the reasonableness of the witness’s statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.
CP at 221.
18 No. 36428-3-III State v. Blocher
The jury was presented with evidence from which it could infer that Mr. Blocher
created the Facebook group and knew that its creation would appear in Ms. Malinosky’s
Facebook news feed, as would messages posted to the group. Among that evidence was
Ms. Malinosky’s and Officer Ingraham’s testimony and the content of the messages,
which the jury could reasonably find were intended for Ms. Malinosky, not Mr. Glenn.
The jury was not required to believe Mr. Blocher.
Hearsay. During trial, defense counsel objected to the photographs of the screen
of Ms. Malinosky’s cell phone on hearsay grounds. While the State argued that it was
not offering the photographs for the truth of the content of the messages, the defense
argued that the State was relying on language generated by Facebook that “Timothy
Bryant Blocher created this group.” Ex. P-8. Mr. Blocher argued that to admit the
content generated by Facebook, the State would need to present a record custodian from
Facebook to qualify the news feed copies as a business record.
Here, however, the content that Mr. Blocher found objectionable was not a
statement made by a human being who could be cross-examined. Throughout the
argument of Mr. Blocher’s objection and during testimony it was agreed that the
statement “Timothy Bryant Blocher created this group” would have been generated by
computer code, not a Facebook employee. See, e.g., RP at 299 (defense counsel
characterizing the statement as made “by Facebook or Facebook’s algorithm, or
19 No. 36428-3-III State v. Blocher
whatever”); RP at 363 (Officer Ingraham testifying that the information was
“automatically generated.”).
Our Supreme Court has described the reasons for the hearsay rule:
Some of the reasons why hearsay evidence is not ordinarily admissible are, that the person quoted is not before the court and not subject to cross- examination, a right which all courts have held to be inviolate except in certain instances arising largely because of the necessities of the situation; that the person quoted was not under oath; and the probability that the person testifying has misunderstood, misinterpreted, or colored what had been told him. In other words, hearsay evidence is ordinarily refused by the courts because of the manifest inherent dangers in connection with it. . . . The appellants should have the right to search out these matters by means of cross-examination.
State v. Gibson, 115 Wash. 512, 513-14, 197 P. 611 (1921).
What is at issue when a statement such as the one at issue here is generated by
computer code is not truth, but design and accuracy. What was needed was not to
explore whether someone misunderstood, misinterpreted, or mischaracterized what they
were told, but to explore what triggered computer generation of the statement, “Timothy
Bryant Blocher created this group,” and the other content Ms. Malinosky saw in her news
feed. Ms. Malinosky offered her inference, based on her experience with Facebook
groups, that such a message is generated when a group is created, and, in her experience,
it identifies the Facebook user who created the group. No objection was made under ER
701. Officer Ingraham offered his understanding as an expert qualified by experience
and training that such a message is generated when a group is created and identifies the
20 No. 36428-3-111 State v. Blocher
Facebook user who created the group. No objection was made under ER 702. While a
software engineer from Facebook might be the gold standard to explain what triggered
the generation of the statement in Ms. Malinosky's news feed, the State was not required
to present the gold standard.
We reverse Mr. Blocher's convictions for bail jumping and remand for
resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
?;~(M~·ff- doway,J.
WE CONCUR:
Pennell, J.