State v. Dreewes ( 2019 )

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SUSAN L. CARLSON
SUPREMEreOURT GLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 95551-4
Petitioner, (consol w/95571-9)
En Banc
JENNIFER CATHRYN DREEWES
Respondent. Filed JAN 1 0 21)19
MADSEN,J.—This case concerns the interplay ofthe law of the case doctrine and
accomplice liability: specifically, whether the State's assumption ofthe burden to prove
an element added to the "to convict" instruction for second degree assault also altered the
State's burden of proof as to accomplice liability. Under the circumstances of this case,
we hold that the Court of Appeals improperly applied the State's assumed burden under
the law ofthe case context to the State's burden to prove accomplice liability, we reverse
the Court of Appeals and reinstate defendant's conviction for accomplice to second
degree assault.
This case also concerns whether the Court of Appeals properly denied defendant's
motion to seal portions ofthe State's response brief and defendant's reply brief that
No. 95551-4 (consol. w/95571-9)
contained information about defendant's financial matters. We affirm the Court of
Appeals on this issue.
FACTS
Jennifer Dreewes was the victim of property theft when a laptop, an iPhone,
checks, credit cards, and other items were stolen from her truck. She reported the theft to
law enforcement. After one of her credit cards was used at a store, Dreewes contacted
the store to get a description ofthe person who had used her card. A store employee
described the person as a skinny white girl with pink hair and a black eye. Dreewes
contacted the detective working on her case to give him the description and also informed
him that she had put the information on Facebook and communicated it through her
nephew and his friends to see if anyone knew the pink-haired girl.
Michelle Thomas, a high school friend, responded to Dreewes's Facebook post
and told Dreewes that her boyfriend, Don Parrish, knew a lot of people and could help
identify the girl. Thomas later informed Dreewes that she had obtained several
photographs ofthe pink-haired girl and that her name was Ness. Dreewes provided the
information to the detective working her case and told the detective that Ness was staying
at 10501 56th Drive Northeast in Marysville. Dreewes also provided the detective with a
license plate of a sport utility vehicle(SUV)parked in the driveway and a phone number
for Ness. Dreewes informed the detective that a friend of her nephew had seen
Dreewes's belongings at the house in Marysville.
The detective identified Ness as Vanessa Miller and the registered owner of the
license plate for the SUV as Marty Brewer-Slater. The detective was not able to find a
No. 95551-4 (consol. w/95571-9)
link between Vanessa Miller and Marty Brewer-Slater. He called the telephone number
for Ness and left a voice mail message asking her to contact the police.
Meanwhile, Dreewes and Thomas exchanged over 170 Facebook messages about
retrieving Dreewes's stolen property and bringing the pink-haired girl to Dreewes so she
could harm her. Dreewes said she would pay Thomas and Parrish $300 to track down the
girl with pink hair. Dreewes later sent Thomas a Facebook message confirming that her
stolen property was in the Marysville house. Thomas asked Dreewes to clarify exactly
what she wanted Thomas and Parrish to do. Dreewes responded that she wanted her
property and wanted Ness to have two black eyes and to go to jail. Dreewes told Thomas
to grab Ness and bring her to Dreewes's barn in Arlington. Thomas asked Dreewes how
many people and weapons were in the Marysville house. Dreewes told Thomas that her
nephew said there would be four to five people in the house and to not go unless they
were "packing." 2 Report ofProceeding(RP)313-14, 335; Ex. 52, at 3810. In addition
to the Facebook messages, Dreewes and Thomas also talked on the phone and exchanged
several text messages.
Thomas later sent Dreewes a Facebook message informing Dreewes that she and
Parrish had gone to the house in Marysville and that no one had answered the door, but
that they would return to the house later that day. When Thomas and Parrish returned,
Marty and her husband, Rohen Brewer-Slater, who resided in the house, were home,
along with Eenone Johnson-McDonell and James Meline. Parrish carried a
semiautomatic rifle under his coat, and Thomas carried a pistol and had duct tape and zip
ties in her backpack.
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Parrish and Thomas forcefully entered the Brewer-Slater home. Thomas and
Parrish pointed their guns at Rohen, demanded all ofthe computers and laptops in the
home, and said that if Rohen did not do what they asked they would kill him. Rohen
yelled for someone to call 911. Johnson-McDonell and Meline heard the shouting.
Meline ran upstairs from the basement, and Thomas pointed her gun at Rohen and
Meline. Parrish went downstairs, pointed his rifle at Johnson-McDonell, and told her to
give him her phone. Meanwhile, Marty ran down from the upstairs bedroom carrying
bear mace. Rohen grabbed Thomas's pistol and threw it into the fireplace in the next
room, and Thomas ran out the front door. Parrish hit Rohen in the face with the butt of
his rifle and then aimed his rifle at Marty and pulled the trigger, but the gun did not fire
because the safety was on. Marty sprayed Parrish in the face with the bear mace.
Rohen, Johnson-McDonell, and Meline tried to wrestle the rifle away from Parrish, who
dropped the rifle and ran. Rohen chased and caught Parrish, and Rohen and Meline held
him until the police arrived.
Immediately after the incident, Thomas called Dreewes and told her that
everything had gone wrong, summarizing what had happened. Dreewes told Thomas to
go to Dreewes's mother's home and wait for her, and to delete all of their
communications from her phone. Instead, Thomas contacted law enforcement. Law
enforcement officers interviewed Thomas and Parrish and obtained a search warrant for
Thomas's cell phone records. During a police interview, Dreewes stated that she had
deleted all text messages with Thomas, but she admitted that most of their
communication was on Facebook. Responding to a law enforcement warrant, Facebook
No. 95551-4 (consol. w/95571-9)
produced a 25-page printout ofthe messages that occurred between Thomas and Dreewes
in the days leading up to and including the incident in the Brewer-Slater home.
The State charged Dreewes as an accomplice to first degree burglary and second
degree assault with a deadly weapon of Marty. Parrish and Thomas were identified as
codefendants. A number of witnesses testified at trial, and the court admitted over 60
exhibits into evidence, including Facebook and phone records. Exhibit 52 contained the
Facebook communications between Dreewes and Thomas with data fields identifying the
date and time sent, recipients, and author. Cell phone records showed that Dreewes and
Thomas exchanged 183 cell phone calls and text messages, and that approximately an
hour before Thomas and Parrish entered the Brewer-Slater home, Thomas called Dreewes
and Dreewes later sent Thomas a text message.
The trial court instructed the jury that Dreewes was guilty as an accomplice and
legally accountable for the conduct of another person in the commission ofthe crime if,
with knowledge, she solicited, promoted, or facilitated the commission ofthe crime.
Clerk's Papers(CP)at 30. The court also instructed the jury that to convict the defendant
of the crime of assault in the second degree as charged it must be proved beyond a
reasonable doubt that on or about January 23, 2014, the defendant assaulted Marty with a
deadly weapon, and that this act occurred in the state of Washington. Id. at 27.
The jury found Dreewes guilty as an accomplice to first degree burglary and as an
accomplice to second degree assault of Marty. By special verdict, the jury found
Dreewes was armed with a firearm.
No. 95551-4 (consol. w/95571-9)
Dreewes appealed, and in a partially published opinion, the Court of Appeals
affirmed her conviction as an accomplice to first degree burglary but reversed her
conviction as an accomplice to second degree assault. State v. Dreewes,2 Wn. App. 2d
297, 300, 409 P.3d 1170(2018). Dreewes also moved in the Court of Appeals to seal
pages 22 to 24 ofthe State's response brief and section 5 of her reply brief, which
discussed her financial situation with respect to the State's contemplated request for
appellate costs in the event the judgment and sentence was affirmed. The State filed a
supplemental designation of clerk's papers, designating Dreewes's declaration from her
unrelated dissolution action, on which the financial information in the State's response
was based. In her reply brief, Dreewes filed section 5 of her reply under seal. A
commissioner of the Court of Appeals denied Dreewes's motion to seal, indicating
Dreewes could renew her motion to seal if the underlying documents were sealed in her
dissolution proceedings. The commissioner also struck the State's supplemental
designation of clerk's papers. Thereafter, the superior court sealed the financial
declarations in Dreewes's dissolution proceeding. Dreewes again moved to seal pages 22
to 24 ofthe State's response brief and section 5 of her reply brief. The clerk of the Court
of Appeals denied Dreewes's motion because pages 22 to 24 ofthe State's brief and
section 5 of her reply brief did not include any financial account numbers or other
personal identification numbers. Dreewes moved to modify the clerk's ruling, but a
panel of the Court of Appeals denied the motion.
The State sought this court's review of the Court of Appeals' decision reversing
the second degree assault conviction. Dreewes filed an answer opposing review ofthe
No. 95551-4 (consol. w/95571-9)
State's issue and asking the court to review other portions of the Court of Appeals'
decision. Dreewes additionally filed a motion for discretionary review ofthe Court of
Appeals' decision denying her motion to seal, which the commissioner referred to a
department of this court to be considered with the petitions for review. This court
granted the State's petition for review, denied review of Dreewes's issues asserted in her
answer, and granted review of Dreewes's motion for discretionary review regarding the
denial of her motion to seal. State v. Dreewes, 190 Wn.2d 1019 (2018).
ANALYSIS
Standard of Review
Appellate courts review jury instructions, statutory interpretation, and other
questions of law de novo. See State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136(2006); Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000); EdNowogroski Ins. v.
Rucker, 137 Wn.2d 427, 436-37, 971 P.2d 936 (1999).
Second Degree Assault. Law of the Case. Accomplice Liabilitv. and Sufficiencv
The State contends that the Court of Appeals erred in reversing Dreewes's
conviction for second degree assault based on accomplice liability. We agree.
In the Court of Appeals, Dreewes argued that the evidence was not sufficient to
support finding her guilty as an accomplice because she had no knowledge that Thomas
and Parrish would commit the crime of assault in the second degree of Marty with a
deadly weapon. Dreewes's argument, however, improperly conflated this court's law of
the case doctrine with the requirements of accomplice liability.
No. 95551-4 (consol. w/95571-9)
Here, the "to convict" instruction on the second degree assault charge stated, in
part:
To convict the defendant of the crime of assault in the second degree
as charged in Count II, each ofthe following elements ofthe crime must be
proved beyond a reasonable doubt:
(1) That on or about the 23rd day ofJanuary, 2014, the defendant
assaulted Marty{]Brewer Slater with a deadly weapon.
CP at 27 (Instr. 15)(emphasis added). The instructions also defined "assault" as follows:
An assault is an act done with intent to inflict bodily injury upon
another, tending but failing to accomplish it and accompanied with the
apparent present ability to inflict the bodily injury if not prevented. It is not
necessary that bodily injury be inflicted.
An assault is also an act done with the intent to create in another
apprehension and fear of bodily injury, and which in fact creates in another
a reasonable apprehension and imminent fear of bodily injury even though
the actor did not actually intend to inflict bodily injury.
Id. at 28 (Instr. 16). There is no dispute that the above "to convict" instruction included
as an element the victim's name,"Marty[] Brewer Slater."^
"[0]ur Taw ofthe case' doctrine . . . requires the State to prove every element in
the to-convict instruction beyond a reasonable doubt." State v. Johnson, IBS Wn.2d 742,
762, 399 P.3d 507(2017). The law of the case is "an established doctrine with roots
reaching back to the earliest days of statehood." State v. Hickman, 135 Wn.2d 97, 101,
954 P.2d 900(1998). "Under the doctrine jury instructions not objected to become the
law of the case." Id. at 102. "In criminal cases, the State assumes the burden of proving
'In most cases, use of the victim's name in the elements instruction helps ensure that the jury
decides whether the defendant is guilty of the exact crime charged—the crime against a
particular, named individual. In fact, the Washington Pattem Instructions Committee's pattern
instructions provide a blank for the victim's name to achieve that goal. See, e.g., 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 35.19, at 509
(4th ed. 2016)(the second degree assault instruction given in this case).
8
No. 95551-4 (consol. w/95571-9)
otherwise unnecessary elements ofthe offense when such added elements are included
without objection in the 'to convict' instruction." Id.
The State concedes that under the law of the case doctrine, it assumed the burden
to prove the additional element, arguing that it did so. Indeed, there is ample evidence in
the record that a coparticipant forced his way into the residence and, as Marty descended
the stairs, he pointed a firearm at her and pulled the trigger several times. The attempts to
shoot Marty were thwarted only because the gun's safety was on.
When addressing a claim of insufficient evidence, a reviewing court considers
'"whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements ofthe crime beyond a
reasonable doubt.'" Johnson, 188 Wn.2d at 762(internal quotation marks omitted)
(quoting State v. Green,94 Wn.2d 216, 221,616 P.2d 628(1980)(plurality opinion)).
"'When the sufficiency of the evidence is challenged in a criminal case, all reasonable
inferences from the evidence must be drawn in favor of the State and interpreted most
strongly against the defendant.'" Id.(quoting State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992)). Here, a jury could rationally conclude that a coparticipant assaulted
Marty with a firearm.
Regarding accomplice liability, the jury was instructed as follows:
A person is guilty of a crime if it is committed by the conduct of
another person for which he or she is legally accountable. A person is
legally accountable for the conduct of another person when he or she is an
accomplice ofsuch other person in the commission ofthe crime.
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission ofthe crime, he
or she either:
No. 95551-4 (consol. w/95571-9)
(1) solicits, commands, encourages, or requests another person to
commit the crime; or
(2) aids or agrees to aid another person in planning or committing
the crime.
The word "aid" means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
and ready to assist by his or her presence is aiding in the commission ofthe
crime. However, more than mere presence and knowledge ofthe criminal
activity of another must be shown to establish that a person present is an
accomplice.
A person who is an accomplice in the commission of a crime is
guilty of that crime whether present at the scene or not.
CP at 30 (Instr. 18). This instruction tracks the language of the accomplice liability
statute, which provides in relevant part:
A person is an accomplice ... in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission
of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other person to
commit it; or
(ii) Aids or agrees to aid such other person in planning or
committing it.
ROW 9A.08.020(3).
Here, a jury could reasonably find that Dreewes both solicited and aided in the
home invasion and assault. She offered the coparticipants $300 to go to the identified
residence, retrieve her items, give the pink-haired girl two black eyes, and abduct her and
bring her to Dreewes's property. Dreewes told the coparticipants that four to five adults
were at the residence and they should go there armed. She talked with a coparticipant
just before and after the home invasion and afterward told a coparticipant where to go to
10
No. 95551-4 (consol. w/95571-9)
hide from police.^ A jury could reasonably conclude that Dreewes both solicited the
home invasion and aided in the events that occurred there.
Instate V. Roberts, 142 Wn.2d471, 510-13, 14P.3d713 (2000), this court
reiterated "our long-standing rule that an accomplice need not have specific knowledge of
every element ofthe crime committed by the principal, provided he has general
knowledge of that specific crime." See also State v. Hoffman, 116 Wn.2d 51, 104, 804
P.2d 577(1991)("the accomplice liability statute predicates criminal liability on general
knowledge ofthe crime and not on specific knowledge ofthe elements ofthe
participant's crime"). In State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984), this
court held,"[Wjhere criminal liability is predicated on the accomplice liability statute,
the State is required to prove only the accomplice's general knowledge ofhis
coparticipant's substantive crime. Specific knowledge of the elements ofthe
coparticipant's crime need not be proved to convict one as an accomplice." (Emphasis
added.)
Further, in State v. Teal, 152 Wn.2d 333, 338, 96 P.3d 974 (2004), this court held
that "[ajlthough a 'to convict' instruction must provide a complete statement of the
elements of the crime charged, accomplice liability is not an element ofthe crime for
which [defendant] was charged, nor is accomplice liability an element of, or alternative
means of, committing a crime." "The rule requiring that all elements of a crime be listed
^ Dreewes communicated with Thomas via Facebook. When Thomas arrived at the house, she
messaged Dreewes that there were "[m]ass people here in this neighborhood." Ex. 52, at 3814.
Dreewes immediately messaged back, directing Thomas to "[n]ab her and run." Id.11
No. 95551-4 (consol. w/95571-9)
in a single instruction is not violated when accomplice liability is described in a separate
instruction." M at 339.
This court has also explained that in the context of premeditated first degree
murder by accomplices,"the law of accomplice liability allows the jury to reach a
conviction by splitting the elements of[the charged offense]." State v. Walker, 182
Wn.2d 463, 483, 341 P.3d 976 (2015). "A conviction based on split elements may be
affirmed '[s]o long as the State proved beyond a reasonable doubt to the satisfaction of
all ofthe jurors that at least one ofthe participants [had the requisite intent] and at least
one but not necessarily that same participant [committed the criminal act].'" Id.(alterations in original)(quoting State v. Haack, 88 Wn. App. 423,429, 958 P.2d 1001(1997)). Similarly, here all that the State need prove for accomplice liability to attach is
that a coparticipant assaulted Marty with a deadly weapon and that Dreewes solicited and
"aided" in the assault. "[T]he accomplice liability statute predicates criminal liability on
general knowledge ofthe crime and not on specific knowledge ofthe elements ofthe
participant's crime." Hoffman, 116 Wn.2d at 104 (citing v. Davis, 101 Wn.2d 654,
657-58, 682 P.2d 883 (1984); State v. Carothers, 84 Wn.2d 256, 261-62, 525 P.2d 731(1974)). "Accomplice liability represents a legislative decision that one who participates
in a crime is guilty as a principal, regardless of the degree of the participation." Id."'The accomplice statute implicitly demonstrates that the State need not prove that the
principal and accomplice share the same mental state.'" State v. Guloy, 104 Wn.2d 412,
431, 705 P.2d 1182(.1985)(quoting State v. Bookman, 37 Wn. App. 474, 491, 682 P.2d
925 (1984)).
12
No. 95551-4 (consol. w/95571-9)
In State v. Trout, 125 Wn. App. 403, 105 P.3d 69(2005), Division Three ofthe
Court of Appeals affirmed defendant's conviction for first degree robbery and second
degree assault based on accomplice liability even though the object ofthe intended
robbery and assault changed between the time it was planned and when it occurred (i.e.,
when the intended victim was not found in the apartment as expected, coparticipants
robbed and attacked other occupants). As the Court of Appeals explained, defendant may
not have actually physically stolen the property or actually physically harmed the victims,
but he knew coparticipants were armed with weapons and he knew they were going to the
victims' apartment to take property by force. The jury could and did find that defendant
(who was present) promoted or facilitated the others in this robbery and assault. The
evidence, considered in a light most favorably to the State, amply supported the jury's
finding that defendant acted as an accomplice to charges of first degree robbery and
second degree assault. /J. at 413. The same is true here. Dreewes knew the plan was to
go to the victim's presumed residence, retrieve Dreewes's laptop and other property by
force, and assault and kidnap the pink-haired girl. Dreewes encouraged her
coparticipants to arm themselves and informed them that four to five adults were at the
residence. Just before the home invasion, Dreewes directed Williams to "[n]ab her and
run." Ex. 52, at 3814. While an accomplice must have actual knowledge that a principal
was engaging in the crime eventually charged,"Washington's culpability statute provides
that a person has actual knowledge when 'he or she has information which would lead a
reasonable person in the same situation to believe' that he was promoting or facilitating
the crime eventually charged." State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268(2015)
13
No. 95551-4 (consol. w/95571-9)
(quoting RCW 9A.08.010(l)(b)(ii)). Again, a jury could reasonably conclude that
Dreewes both solicited the home invasion and aided in the events that occurred there—
including the assault on Marty. Dreewes did not need to know the names of all potential
victims for accomplice liability to attach; it was enough that she had general knowledge
of her coparticipant's substantive erime.
Here, the Court of Appeals, relying on Hickman and Johnson, ruled that the State
had failed to establish that Dreewes knew that Marty was going to be assaulted. But
Hickman and Johnson do not control here. Neither addressed (or even mentioned)
accomplice liability. Those cases apply the law ofthe case doctrine, but not in the
accomplice liability setting. As described above, both the law ofthe case doctrine and
accomplice liability can be harmoniously applied here. A jury could reasonably find that
the State met its burden under the second degree assault to conviet instruction showing
that a coparticipant assaulted Marty and that Dreewes solieited and aided in the burglary
and assault as described in the accomplice instruetion.
Motion To Seal
Dreewes primarily eontends that under GR 15(g) and Seattle Times Co. v.
Ishikawa, 97 Wn.2d 30,640 P.2d 716(1982), this court should seal those portions ofthe
response and reply briefs that incorporate information from sealed superior eourt
documents. Under the circumstances of this case, we disagree.
GR 15(g) provides.
Use of Sealed Records on Appeal. A court record or any portion of it,
sealed in the trial court shall be made available to the appellate eourt in the
event of an appeal. Court records sealed in the trial court shall be sealed
14
No. 95551-4 (consol. w/95571-9)
from public access in the appellate court subject tofurther order ofthe
appellate court.
(Emphasis added.) Dreewes contends that this rule eontrols and, by its plain language,
applies to any appellate proceeding. She cites no supporting authority. Further, a plain
reading ofthe rule suggests it applies in an appeal of the same case, referring to "the trial
court" and "the appellate court" rather than referring to a, an, or any trial or appellate
court. See id.But more to the point, this court has explained that even if the requirements of GR
15 are satisfied,^ "a court considering whether to seal a court record also must determine
whether the sealing would violate Washington Constitution article I, section 10. To make
this determination, a court must analyze the five factors set forth in Ishikawa." In re
Dependency ofM.H.P., 184 Wn.2d 741, 765, 364 P.Bd 94(2015)(citing Allied Daily
Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 209-11, 848 P.2d 1258 (1993)).
The five Ishikawa factors are
"1. The proponent of closure [and/]or sealing must make some
showing of the need for doing so, and where that need is based on a right
other than an accused's right to a fair trial, the proponent must show a
'serious and imminent threat' to that right.
"2. Anyone present when the closure [and/or sealing] motion is
made must be given an opportunity to object to the closure.
"3. The proposed method for curtailing open access must be the least
restrictive means available for protecting the threatened interests.
"4. The court must weigh the competing interests of the proponent of
closure and the public.
^ GR 15 also contains subsection (c)(2), which authorizes a court to seal or redact court records
and files where the court "makes and enters written findings that the specific sealing or redaction
is justified by identified compelling privacy or safety concerns that outweigh the public interest
in access to the court record."
15
No. 95551-4 (consol. w/95571-9)
"5. The order must be no broader in its application or duration than
necessary to serve its purpose."
Id. at 765-66 (alterations in original)(quoting Eikenberry, 121 Wn.2d at 210-11 (citing
Ishikawa, 97 Wn.2d at 36-39)). Here, despite Dreewes's contrary assertions, the
Ishikawa factors do not support the sealing she requests.
Concerning the first Ishikawa factor (serious and imminent threat), while Dreewes,
like everyone else, has a personal interest in keeping her financial information private,''
she does not show that the particular financial information that is contained in the
portions ofthe briefs that she seeks to seal would result in a "serious and imminent
threat" to her interest if such information remained in these public documents. Such a
threat might be shown if the information at issue included personal identifiers, which
could be used to facilitate identity theft.^ But no such information is included in the
passages at issue.
Regarding the second Ishikawa factor (opportunity to object), the State has
consistently opposed Dreewes's motion to seal.
Concerning the third and fifth Ishikawa factors, Dreewes's proposed sealing must
be the "least restrictive means available" to protect her asserted interest and "no broader
than necessary" to effect that goal. But Dreewes motion sought to strike entire pages
'"Personal financial information, such as one's income or bank account balance, is universally
presumed to be private, not public.'" M.H.P., 184 Wn.2d at 777(Gordon McCloud, J.,
concurring)(quoting In re Boston Herald, Inc., 321 F.3d 174, 190 (1st Cir. 2003)).
^ Court rules expressly provide for the exclusion of"personal identifiers." See GR 31(e)
("parties shall not include [or] . . . shall redact, the following personal identifiers from all
documents filed with the court," listing financial account numbers. Social Security number, and
driver's license number).
16
No. 95551-4 (consol. w/95571-9)
from the respondent's brief and an entire section from her reply brief. The targeted
passages contain legal argument as well as references to the financial information she
finds offensive. Notably, Dreewes expressly argues for sealing rather than redaction even
though GR 15(c)(3) provides that "[a] court record shall not be sealed . .. when redaction
will adequately resolve the issues before the court."
As for the fourth Ishikawa factor (balancing competing interests), this court has
recognized that "our state's constitution firmly establishes that the public has a
fundamental interest in the open administration ofjustice. Wash. Const, art. I, § 10,"
M.H.P., 184 Wn.2d at 771, and also that "the expenditure of public funds" is of interest to
both the State and the public. Id. Accordingly, as discussed, in light ofthe absence of
any showing of serious and imminent threat by Dreewes, weighed against the public's
fundamental interest in the open administration ofjustice and oversight of public fund
use, the balance tips in favor ofthe public's stronger interest.
In her supplemental brief, Dreewes cites Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d
861 (2004), and Division One's decision in Hundtofte v. Encarnacion, 169 Wn. App.
498, 280 P.3d513 {20\2), aff'd, 181 Wn.2d l,330 P.3d 168 (2014), as support, but these
cases do not assist her. In Dreiling, this court observed that "any material submitted to
the trial court.. . is presumptively accessible to the public and may be sealed only in
accordance with Ishikawa." 151 Wn.2d at 918. In Hundtofte, Divison One similarly
observed,"'[I]n determining whether court records may be sealed from public disclosure,
we start with the presumption of openness.'" 169 Wn. App. at 516 (quoting Rufer v.
Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182(2005)).
17
No. 95551-4 (consol. w/95571-9)
In her response to amici,® Dreewes argues that the public's interest is minimal in
this case because due to a court rule amendment, the issue of appellate costs has yet to be
determined, so there is not yet any expenditure of public funds for the public to oversee.^
But the absence of a cost award (thus far) does not diminish the public interest in the
ultimate oversight ofthe appropriateness of public funding—including funding for
Dreewes's appellate counsel. In any event, Dreewes's argument does not diminish the
public's remaining fundamental interest in the open administration ofjustice under article
I, section 10. See M.H.P., 184 Wn.2d at 771.
Dreewes further contends that upon her release from incarceration, the presence of
the financial information in the briefs could make her reentry into society more difficult
because such information could affect her ability to obtain housing, employment, or a
mortgage, and could affect her credit score and stigmatize her. But under the
circumstances of this case, Dreewes's assertions do not convince us that sealing is
warranted. Here, Dreewes raised the issue of whether the court rule imposing costs
applied to her due to her claimed indigeney, thus putting at issue her ability to pay costs
and prompting the State's response addressing that issue. Further, her indigent status is
already part of the open court record in this case.
®The brief of amici Allied Daily Newspapers of Washington and Washington Coalition for Open
Government focused in part on the public's interest in overseeing courts.
^ In the course of this case, the court rule addressing appellate costs, RAP 14.2, was amended to
permit the commissioner or clerk the discretion to determine an adult offender's "current or
likely future ability to pay" when determining an award of appellate costs to the substantially
prevailing party.
18
No. 95551-4 (consol. w/95571-9)
Finally, under revised court rule RAP 14.2, in deciding appellate costs, the
commissioner or clerk "may consider any evidence offered to determine the individual's
current or future ability to pay." Under the circumstances of this case, Dreewes has not
convincingly argued that sealing is warranted.
Motion Passed to the Merits
In this court, Dreewes has also recently filed a "Motion To Seal Limited Portions
of Answer to Amici If Court Seals Corresponding Briefing," which was passed to the
merits. There, she asked that this court "seal five sentences from her Answer to Brief of
Amici Curiae if, following oral argument, the Court seals corresponding sections ofthe
parties' briefing in the Court of Appeals." Mot. at 1 (emphasis added). As noted, we
affirm the Court of Appeals' denial of Dreewes's motion to seal portions of the appellate
briefing. Accordingly, we deny Dreewes's current contingent motion to seal limited
portions of her answer to amici.
CONCLUSION
The State's assumed burden in the law of the case context did not apply to the
State's burden to prove accomplice liability. We reverse the Court of Appeals and
reinstate defendant's conviction for second degree assault with a deadly weapon as an
accomplice.
The Court of Appeals properly denied defendant's request to seal portions of the
State's response brief and defendant's reply brief that contained information about
defendant's financial matters. We affirm the Court of Appeals on this issue.
19
No. 95551-4 (consol. w/95571-9)
Finally, we deny Dreewes's Motion To Seal Limited Portions of Answer to Amici
If Court Seals Corresponding Briefing, which was passed to the merits.
20
No. 95551-4 (consol. w/95571-9)
WE CONCUR:
21