State v. Carver

122 Wash. App. 300
CourtCourt of Appeals of Washington
DecidedJuly 7, 2004
DocketNo. 30078-8-II
StatusPublished
Cited by22 cases

This text of 122 Wash. App. 300 (State v. Carver) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carver, 122 Wash. App. 300 (Wash. Ct. App. 2004).

Opinion

Bridgewater, J.

George Michael Carver appeals a conviction for bail jumping for failing to appear at a CrR 3.5 hearing, arguing that he “forgot” that he was to appear. We hold that forgetfulness is not a defense. We also hold that the prosecutor did not commit prosecutorial misconduct by responding to defense counsel’s arguments that forgetfulness was a defense. We affirm.

On September 19, 2002, George Michael Carver was charged with one count of second degree malicious mischief. Trial was initially set for December 23, 2002. An omnibus hearing was held on November 6, which set a CrR 3.5 status/further arraignment hearing for December 3. At the omnibus hearing, Carver signed an omnibus order, requiring him to appear for the CrR 3.5 hearing on December 3.

Carver failed to appear at the December 3 CrR 3.5 hearing. On December 4, Carver appeared with counsel, and trial was reset for February 18, 2003. A bench warrant was never issued. On February 4, 2003, the State filed an amended information adding a bail jumping charge. On February 19, the State filed a second amended information dismissing the malicious mischief charge, and the case proceeded to trial on the bail jumping charge.

During the pretrial motions, defense counsel stated that Carver would likely take the stand and testify that he “forgot [he] was supposed to be in court.” 1 Report of Proceedings (RP) (Mots, in Limine & Opening Statements) (Feb. 19, 2003) at 7. Defense counsel further argued that “[t]he State has to prove that [the defendant] knowingly failed to appear,” and he believed that the defense “I forgot” was relevant to the “knowingly” element because “the State has to prove that on the day in question, [the defendant] knew he was supposed to be there.” 1 RP at 7. The defense also submitted a proposed jury instruction requiring that the State prove: “That on or about the 4th [sic] day of December, 2002, Defendant, GEORGE MICHAEL CARVER, knowingly failed to appear before a court.” Clerk’s Papers (CP) at 28.

[303]*303In response, the State argued that Carver was referring to an old version of the bail jumping statute,1 and the State was no longer required to prove that the defendant “knowingly” failed to appear. Rather, as the amended statute currently reads, the State must prove that the defendant had “knowledge of the requirement of a subsequent personal appearance” and failed to appear. The State further argued that under the current version of RCW 9A.76.170, the State must prove only that Carver was given notice of his court date — not that he had knowledge of this date every day thereafter, and that “I forgot” is not a defense to the crime of bail jumping.

The court declined to give defense counsel’s proposed instruction and stated: “there are some very specific cases talking about forgetting is not a defense. . .. the statute doesn’t require that the State prove knowledge on each and every day. And the claim to have forgotten about the duty is not a defense.” 2 RP (Feb. 19, 2003, Jury Trial) at 15. Instead, the court used the State’s proposed to-convict instruction,2 which provides that the State must prove “[t]hat the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court.” CP at 23, 41.

At trial, Carver testified that he had appeared at the omnibus hearing on November 6, 2002, and that he was given notice that he was to appear again on December 3. [304]*304When questioned by counsel as to why he did not appear on that date, Carver stated, “I forgot.” 2 RP at 48.

During the State’s closing arguments, the prosecutor argued that the jury instructions did not permit a defense of “I forgot.” 3 RP (Feb. 19, 2003, Mots. & Closing Arguments) at 6. Defense counsel objected and the court overruled his objection. During the defense’s closing arguments, defense counsel argued, “Mr. Carver did not knowingly fail to appear on December 3. He forgot. That’s a mistake. It’s not a criminal act.” 3 RP at 18. Defense counsel did not refer to the amended version of the bail jumping statute during his closing.

During the State’s rebuttal, the prosecutor argued:

[T]he Defense kind of states the burden a little bit differently — not the burden — the intent element. They say he didn’t knowingly fail to forget. That’s not what it says. It’s Number 9. He has to know about the date, and then he has to fail to appear. If he knew about that date in November when he got notice of it, there’s no denying he knew about that. Nowhere does it say he has to know about the date on December 3. That’s not an accurate statement of the instructions.

3 RP at 20.

The prosecutor also noted that the court’s instructions directed the jury to “[d]isregard any remark, statement, or argument that is not supported by the evidence or the law.” 3 RP at 22. Consequently, he argued, “Every word — almost every word out of the Defendant’s attorney’s mouth in the closing argument is not supported by the law .... You have to ignore that entire closing argument, that entire call for sympathy.” 3 RP at 22. Defense counsel again objected, and the court overruled his objection. The jury found Carver guilty as charged.

Carver contends that the prosecutor committed prejudicial misconduct when he argued to the jury during the State’s closing arguments that “I forgot” is not a defense to the crime of bail jumping and that the jury should “ignore” [305]*305defense counsel’s entire closing argument.3 Br. of Appellant at 9. Specifically, he argues that the current bail jumping statute still requires “knowledge” by the defendant, and the State must be required to prove that Carver had “knowledge” of the requirement of a subsequent personal appearance on December 3, 2002, or else RCW 9A.76.170 will become a “strict liability” statute. Reply Br. of Appellant at 1. In addition, he argues that, because the prosecutor instructed the jury to ignore defense counsel’s closing argument, the prosecutor was suggesting to the jury that “only the prosecutor has the truth and that words from ‘the mouth’ of the defense attorney are not supported by law or facts.” Br. of Appellant at 9. These arguments are without merit.

In State v. Ball, 97 Wn. App. 534, 987 P.2d 632 (1999), the defendant was convicted of bail jumping under former RCW 9A.76.170(1) (1998). He argued that the State failed to prove the knowledge element of bail jumping because it did not prove that he was aware of his duty to appear on the precise date of the scheduled hearing. Ball, 97 Wn. App. at 536. We affirmed his conviction, holding that knowledge on the specific date of the hearing is not an element of the crime. Ball, 97 Wn. App. at 536-37. Moreover, we held that if there were such a requirement: “[t]he defendant could admit knowledge on every previous day but claim to have forgotten about his duty to appear on the hearing day. The statute does not require this, only proof that Ball was aware of his obligation to appear.” Ball, 97 Wn. App. at 537.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

COMMONWEALTH v. RICHARD M. CORBETT.
101 Mass. App. Ct. 355 (Massachusetts Appeals Court, 2022)
State v. Bergstrom
502 P.3d 837 (Washington Supreme Court, 2022)
State Of Washington v. James W. Clark
Court of Appeals of Washington, 2021
State of Washington v. Zachary P. Bergstrom
474 P.3d 578 (Court of Appeals of Washington, 2020)
State Of Washington v. Eli Mansour
470 P.3d 543 (Court of Appeals of Washington, 2020)
State of Washington v. Timothy Bryant Blocher
Court of Appeals of Washington, 2020
State Of Washington v. Dewaylon Marquese Lacy
Court of Appeals of Washington, 2020
State Of Washington v. Paul Mcdonald, Jr
Court of Appeals of Washington, 2019
State Of Washington v. Sarah M. Browning
Court of Appeals of Washington, 2019
State of Washington v. Stephen R. Jackson
Court of Appeals of Washington, 2018
State Of Washington v. Scot Christopher Cupples
Court of Appeals of Washington, 2017
State of Washington v. Charles Donovan Cole
Court of Appeals of Washington, 2016
State Of Washington v. Samuel Troy Burris
Court of Appeals of Washington, 2015
State Of Washington v. Andre Taylor
Court of Appeals of Washington, 2015
State Of Washington v. Joseph Jones
Court of Appeals of Washington, 2013
State v. Jackson
209 P.3d 553 (Court of Appeals of Washington, 2009)
Graves v. DEPARTMENT OF EMPLOYMENT SEC.
182 P.3d 1004 (Court of Appeals of Washington, 2008)
Graves v. Employment Security Department
144 Wash. App. 302 (Court of Appeals of Washington, 2008)
State v. Fredrick
123 Wash. App. 347 (Court of Appeals of Washington, 2004)
State v. Carver
93 P.3d 947 (Court of Appeals of Washington, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
122 Wash. App. 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carver-washctapp-2004.