State v. Rempel

785 P.2d 1134, 114 Wash. 2d 77, 1990 Wash. LEXIS 11
CourtWashington Supreme Court
DecidedFebruary 8, 1990
Docket56161-3
StatusPublished
Cited by119 cases

This text of 785 P.2d 1134 (State v. Rempel) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rempel, 785 P.2d 1134, 114 Wash. 2d 77, 1990 Wash. LEXIS 11 (Wash. 1990).

Opinions

Brachtenbach, J.

— There are two issues: (1) Is the evidence sufficient to support defendant's conviction of tampering with a witness, RCW 9A.72.120; and (2) should the petition for review be dismissed when defendant has served his time, his whereabouts is unknown, he has not reported to a community corrections officer after release as ordered, and a bench warrant has been issued for his arrest?

Defendant was convicted of criminal trespass, second degree attempted rape, and tampering with a witness. The Court of Appeals affirmed. State v. Rempel, 53 Wn. App. 799, 770 P.2d 1058 (1989). Defendant challenges only the witness tampering conviction in the petition for review. We reverse.

Before reciting the facts and reaching the merits, we consider whether to dismiss the petition for review. In its answer to the petition, the State urges that we not consider this matter on the grounds that the defendant has waived his right to review by his disappearance and by being subject to an unexecuted bench warrant for arrest.

It has long been the rule that when a defendant flees the jurisdiction pending appeal he thereby waives his right to prosecute the appeal, unless within a time fixed he surrenders himself into custody of the proper officer or gives bail for his appearance. State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). In State v. Mosley, 84 Wn.2d 608, 610, 528 P.2d 986 (1974), we explained that if the conviction is affirmed, defendant is unlikely to appear to submit to his sentence. If a new trial is ordered, defendant may or may not choose to appear.

[80]*80In Mosley, the argument was made that the general rule might be subject to modification if the challenge were to the sufficiency of the evidence thereby obviating the necessity of a new trial. The facts in Mosley did not require resolution of the issue. The facts in this case, however, raise the issue. We conclude that we will consider whether the defendant’s challenge is to the sufficiency of the evidence in deciding whether to exercise our discretion to review a case despite the defendant's having fled the jurisdiction.

We decline, however, to adopt a blanket rule which would entitle a defendant who has fled the jurisdiction to pursue an appeal in all cases where the sufficiency of the evidence is challenged. Rather we will exercise discretion on a case to case basis while strongly affirming the general rule. State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984); State v. Johnson, 105 Wn.2d 92, 711 P.2d 1017 (1986); State v. Ortiz, 113 Wn.2d 32, 33, 774 P.2d 1229 (1989).

We will review the substantive issue in this case. We note that because the challenge is to the sufficiency of the evidence, our decision will not require retrial. Moreover, our decision will not affect whether defendant chooses to submit to proper authority. Defendant has served his time on three convictions, two of which he does not now challenge. The sentences on the three charges were concurrent. According to the record, the sole basis for issuance of the bench warrant was defendant's failure to report as ordered to his assigned community corrections officer after release from custody.

We have recognized a second reason underlying the general rule: a defendant who has fled the jurisdiction should not be entitled to review, having scorned the court's authority over him. Ortiz, at 34. Despite our disapproval of defendant's failure to report, however, our fundamental disagreement with the Court of Appeals' analysis, discussed hereafter, warrants our review.

Turning to the facts in this case, defendant and Diane DuBois had been friends for some years; they had been intimate once early in their acquaintanceship. In December [81]*811986, defendant stayed at DuBois's apartment while she was out of town. Upon her return, defendant stayed on. Defendant resisted DuBois's attempts to have him move out. Defendant testified that he wanted to marry her and that they had a sexual relationship throughout his stay; DuBois denied this. On the night of February 18, 1987, the events occurred which led to defendant's convictions; defendant and DuBois offered different versions of the events, but the jury believed that defendant attempted to rape DuBois. The police were called; defendant and DuBois were struggling when the police arrived. Defendant was arrested.

That same evening defendant called DuBois from jail. DuBois accepted the collect call, but hung up without talking to defendant.

Over the next 4 days, defendant called DuBois many times, but she accepted only two or three of the collect calls. Those two or three telephone calls constitute all the evidence about tampering with the potential witness, DuBois.

All of the relevant testimony from the State's case on the tampering charge is as follows:

Q. When he called, say, the first time after that night, the first time, do you remember anything that he said?
A. Yeah.
Q. Tell me.
A. I — that he was sorry.
Q. Excuse me?
A. That he was sorry.
Q. Anything else?
A. That he'd never do it again, that it was going to ruin his life. I don't know.
Q. Did he ask you to do anything for him?
A. Yes, he asked me to drop the charges.
Q. What was your response to that?
A. I told him I didn't have any control over it, you know, at that — you know, as far as I knew that the policemen had already filed their report. They had taken him to jail, that there wasn't anything I could do about the whole thing.
Q. Were you willing to do that if you could?
A. No.
Q. Why not?
[82]*82A. Because he was wrong. He did something wrong.
Q. How many times do you think you actually talked to him?
A. I don't know. Maybe two, three times maybe.
Q. Was there — How about any of the other phone calls other than that first one, do you remember anything else that was said?
A. It was — it's pretty much the same things each time that I did talk to him. I told him — it was pretty much the same things every time.
Q. Which is—
A. That he was sorry, you know, "Don't ruin my life,” you know, "I didn't mean it." That kind of thing.
Q. Did getting those phone calls concern you?
A. He was in jail so it didn't really, you know.

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

Related

State of Washington v. Anthony D. Singh
Court of Appeals of Washington, 2024
State Of Washington, V. Juan Gabriel Fregoso Uribe
Court of Appeals of Washington, 2024
John Faulkner v. State of Arkansas
2024 Ark. 2 (Supreme Court of Arkansas, 2024)
State Of Washington, V. Bradley Shaw
Court of Appeals of Washington, 2023
State Of Washington v. David Smalley
Court of Appeals of Washington, 2021
State Of Washington v. Yeshak K. Bedada
463 P.3d 125 (Court of Appeals of Washington, 2020)
State Of Washington v. Andre R. Sargent
Court of Appeals of Washington, 2019
State of Washington v. Rudy E. Williams
Court of Appeals of Washington, 2018
State Of Washington v. Eric Christian Arneson
Court of Appeals of Washington, 2018
State v. Armstrong
Washington Supreme Court, 2017
State Of Washington v. Sebastian Haller
Court of Appeals of Washington, 2016
Joel Soto-Rodriguez v. Eric Holder, Jr.
607 F. App'x 648 (Ninth Circuit, 2015)
State of Washington v. Glenn Eugene Sapp
Court of Appeals of Washington, 2014
State v. Sapp
332 P.3d 1058 (Court of Appeals of Washington, 2014)
State v. Koch
157 Wash. App. 20 (Court of Appeals of Washington, 2010)
State v. Fleming
155 Wash. App. 489 (Court of Appeals of Washington, 2010)
State v. Morales
225 P.3d 311 (Court of Appeals of Washington, 2010)
State v. Thompson
223 P.3d 1165 (Court of Appeals of Washington, 2009)
Rantala v. State
216 P.3d 550 (Court of Appeals of Alaska, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
785 P.2d 1134, 114 Wash. 2d 77, 1990 Wash. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rempel-wash-1990.