State of Washington v. Timothy Bryant Blocher ( 2020 )

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. 36318-0-III
Respondent, )
)
v. )
)
TIMOTHY BRYANT BLOCHER, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Timothy Blocher appeals legal financial obligation (LFO) terms
imposed in his judgment and sentence on convictions for felony violation of a no-contact
order and bail jumping. He contends he was indigent at the time of his August 2018
sentencing and the court lacked authority to impose a $200 criminal filing fee and an
obligation to pay interest on his LFOs. In a pro se statement of additional grounds
No. 36318-0-III
State v. Blocher
(SAG), Mr. Blocher challenges the sufficiency of the evidence and alleges prosecutorial
misconduct.
We affirm the convictions and remand with directions to strike the criminal filing
fee and interest payment obligation from his judgment and sentence.
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. The prosecution below began with
a charge for his third no-contact order violation.
Mr. Blocher was arrested and charged after Ellensburg Patrol Officer Andrew Hall
saw him walking on Ruby Street at around 3:00 a.m. on a morning in April 2016, and
stopped to question him. Upon making contact, Officer Hall recognized Mr. Blocher,
who he knew to be subject to an order prohibiting him from being within 1,000 feet of
Ms. Malinosky’s nearby residence. Mr. Blocher admitted being aware of the order.
After confirming that the order was in effect, and confident that Mr. Blocher was well
within 1,000 feet of Ms. Malinosky’s residence, Officer Hall placed him under arrest.
Mr. Blocher was charged with felony violation of the no-contact order.
At Mr. Blocher’s arraignment on the charge in May 9, 2016, the trial court entered
a scheduling order that included a status conference the following month, on June 16.
When Mr. Blocher’s case was called on the morning of June 16, his lawyer was present,
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but Mr. Blocher was not. Mr. Blocher’s lawyer told the court that his client informed his
office that “he was scheduled to have some surgery on his foot today and that’s why he’s
not here.” Report of Proceedings (RP) at 6. At the State’s request, the trial court issued a
bench warrant for his failure to appear.
Mr. Blocher appeared about a week later and the bench warrant was quashed. The
State was allowed to amend the information to include a charge of bail jumping for Mr.
Blocher’s failure to appear on June 16.
The case eventually proceeded to a two-day jury trial in 2018. At trial, Mr.
Blocher testified on his own behalf, telling jurors that on the morning of his arrest in
April 2016, he was suffering both from a bone infection in his foot and from diabetes.
He testified he had been trying to walk to Kittitas Valley Hospital to get help for a
diabetic episode he was experiencing and, being in a delusional state, was not fully aware
of his location when Officer Hall contacted him. To support his diminished capacity
defense, Mr. Blocher presented testimony from two doctors who addressed the effect that
his medical conditions and medications could have on his cognitive functioning.
Mr. Blocher testified that missing his June 16 court date was also due to a medical
emergency. He testified that early that morning he went to the emergency room because
he was having trouble with his blood glucose meter, and the issue was not resolved until
the end of the day, after visits to both Kittitas Valley Hospital and Yakima Valley
Memorial Hospital.
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The jury found Mr. Blocher guilty as charged. At his sentencing, which took
place in August 2018, the court imposed standard range sentences and imposed $800 in
LFOs that included a $200 criminal filing fee. Its judgment and sentence provided that
Mr. Blocher’s LFOs bear interest from the date of judgment. Mr. Blocher appeals.
ANALYSIS
The only issue raised by Mr. Blocher’s opening brief is whether the trial court
erred in imposing the $200 criminal filing fee and including a provision in his judgment
and sentence that his LFOs (which do not include restitution) bear interest.
Engrossed Second Substitute House Bill 1783, 65th Leg., Reg. Sess. (Wash.
2018), which became effective June 7, 2018, prohibits trial courts from imposing a
criminal filing fee on a defendant who is “indigent” at the time of sentencing as that term
is defined by RCW 10.101.010(3)(a)-(c). It also eliminated interest accrual on
nonrestitutionary LFOs as of June 7, 2018. RCW 10.82.090(1). Although Mr. Blocher
failed to object to these terms at sentencing and has not demonstrated that his indigence
falls within the definition provided by RCW 10.101.010(3)(a)-(c), the State concedes
error and does not object to his request for relief. We accept the State’s concession and
will order the relief.
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STATEMENT OF ADDITIONAL GROUNDS (SAG)
Mr. Blocher filed a SAG raising two grounds for relief: (1) the State presented
insufficient evidence of both the no-contact order violation and bail jumping, and (2)
prosecutorial misconduct.
Insufficient evidence: bail jumping. Mr. Blocher contends the State presented
insufficient evidence of bail jumping because his evidence showed his failure to appear
on June 16 was due to uncontrollable circumstances.
“To convict a person of bail jumping, the State must prove that the defendant ‘(1)
was held for, charged with, or convicted of a particular crime; (2) was released by court
order or admitted to bail with the requirement of a subsequent personal appearance; and
(3) knowingly failed to appear as required.’” State v. Boyd, 1 Wn. App. 2d 501, 516, 408
P.3d 362 (2017) (internal quotation marks omitted) (quoting State v. Williams, 162
Wn.2d 177, 183-84, 170 P.3d 30 (2007)). “Uncontrollable circumstances” is a statutory
affirmative defense to bail jumping. RCW 9A.76.170(2).
The jury was correctly instructed on the “uncontrollable circumstances” defense:
It is a defense to a charge of bail jumping that:
(1) uncontrollable circumstances prevented the defendant from personally
appearing in court; and
(2) the defendant did not contribute to the creation of such circumstances in
reckless disregard of the requirement to appear; and
(3) the defendant appeared as soon as such circumstances ceased to exist.
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For the purposes of this defense, an uncontrollable circumstance is
an act of nature such as a flood, earthquake, or fire, or a medical condition
that requires immediate hospitalization or treatment, or an act of man such
as an automobile accident or threats of death, forcible sexual attack, or
substantial bodily injury in the immediate future for which there is no time
for a complaint to the authorities and no time or opportunity to resort to the
courts.
Clerk’s Papers at 335. A defendant must establish the affirmative defense of
uncontrollable circumstances by a preponderance of the evidence. See State v. Jeffrey,
77 Wn. App. 222, 225, 889 P.2d 956 (1995).
When reviewing a challenge to the sufficiency of evidence based on an affirmative
defense having a preponderance standard, the inquiry is whether, considering the
evidence in the light most favorable to the State, a rational trier of fact could have found
that the accused failed to prove the defense by a preponderance of the evidence. City of
Spokane v. Beck, 130 Wn. App. 481, 486, 123 P.3d 854 (2005) (citing State v. Lively, 130
Wn.2d 1, 17, 921 P.2d 1035 (1996)). Proof of a defense by a preponderance of the
evidence merely means the greater weight of the evidence. Id. (citing State v. Harris, 74
Wash. 60, 64, 132 P. 735 (1913)).
Mr. Blocher’s evidence of uncontrollable circumstances was not strong. His own
testimony, which the jury was not required to believe, was supplemented by the
testimony of his lawyer’s paralegal, who was in touch with Mr. Blocher on June 16 about
his failure to appear. Mr. Blocher offered and the court admitted electronic mail
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reflecting reports the paralegal had passed along to Mr. Blocher’s lawyer that day. At
10:25 a.m., the paralegal reported:
When I finally got a hold of him this morning he said he was waiting in line
for his “surgical procedure.” He said he doesn’t have any paperwork
because it’s not really a “surgery” but a “surgical procedure” where they’re
cutting dead skin and stuff off his foot. He was told to go there on this day
and it’s first come, first serve. He’ll get us ppwk asap today when he’s
done he says.
Ex. D-102. At 11:05 a.m., she reported:
He called, said they’re admitting him. I told him to have them fax me at
least the ER intake.
Id. At 4:38 p.m., she reported:
He called earlier, said he was released w/o having the procedure cause his
blood sugar was too high. He said they kept him cause it was over the 600s
again but they got it down to 400, released him and said they want a week’s
worth of stable numbers before they do procedure.
Id.Another defense exhibit admitted without objection was a medical record from
Yakima Valley Memorial Hospital that identified Mr. Blocher’s complaint on admission
on June 16 as “r foot problem.” Ex. 103. It identified his triage time as 11:06, and his
“Urgency” as “3-Level Three.” Id.A rational trier of fact could have found that Mr. Blocher failed to prove a medical
problem requiring immediate hospitalization or treatment.
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Insufficient evidence: No-contact order violation. As for the no-contact violation
conviction, Mr. Blocher contends the State failed to prove the essential element that he
“knowingly” entered, remained, or came within 1,000 feet of Ms. Malinosky’s residence
on the early morning of April 22.
Ms. Malinosky testified at trial that Mr. Blocher had lived with her at her Ruby
Street home before they broke up in November 2015. Officer Hall testified at trial that
following Mr. Blocher’s arrest, he traveled back and obtained an accurate measurement
of the distance from his contact with Mr. Blocher to Ms. Malinosky’s home. He testified,
“From the point that I saw him to the—to the edge of her property was two hundred and
sixty-two feet.” RP at 199. The officer also testified that when he spoke with Mr.
Blocher on the early morning of the arrest, Mr. Blocher appeared coherent, behaved
normally, and said nothing about seeking or needing medical attention.
Essentially, Mr. Blocher’s SAG reargues credibility and the weight of the
evidence—matters on which we must defer to the jurors. The State’s evidence of a
“knowing” violation was sufficient.
Prosecutorial misconduct. Mr. Blocher voices a number of complaints about
misconduct by the State, but without sufficient clarity about the nature of the misconduct
or where, in the record, we can determine that it was misconduct. Although Mr. Blocher
is not required to cite to the record in a SAG, he must provide enough information about
the “nature and occurrence of the alleged errors” that we do not have to go searching for
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them. RAP 10.10( c). His identification of the nature and occurrence of the alleged errors
is insufficient for review.
We affirm the convictions and remand with directions to the court to strike the
criminal filing fee and the statement in the judgment and sentence that his legal financial
obligations shall bear interest.
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.
WE CONCUR:
Fearing, J.
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