State Of Washington, Resp/cross-app V. Brett Harold Grimnes, App/cross-resp ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84477-6-I
Respondent, DIVISION ONE
v.
BRETT HAROLD GRIMNES, UNPUBLISHED OPINION
Appellant.
SMITH, C.J. — Brett Grimnes appeals a jury verdict finding him guilty of
robbery in the first degree with a deadly weapon enhancement. On appeal,
Grimnes contends that (1) the trial court erred by denying his CrR 8.3(b) motion
to dismiss after a jail guard read his confidential trial preparation materials,
(2) that the court violated his constitutional rights by failing to conduct an
individualized determination as to whether restraints were necessary at each
pretrial proceeding, (3) that the prosecutor committed misconduct during cross-
examination of Grimnes’s expert witness, and (4) that the combined effect of
these errors denied Grimnes a fair trial. He also contends that the court erred by
requiring Grimnes to submit to a mental health evaluation as a condition of
community custody and by imposing a victim penalty assessment (VPA). We
affirm the convictions. However, we agree that the court erred by requiring the
mental health evaluation and imposing the VPA and remand for the court to
strike both from the judgment and sentence.
No. 84477-6-I/2
On cross-appeal, the State maintains that the trial court erred by
concluding that Grimnes’s prior Montana conviction was not factually similar to a
prior Washington conviction. Because the facts admitted in the Montana case
are insufficient to satisfy the elements of the Washington offense, we agree with
the trial court and affirm its ruling.
FACTS
On May 7, 2021, Brett Grimnes entered an AM/PM convenience store
carrying a metal wrench and proceeded to break items in the store, shout loudly,
and push the store cashier. As Grimnes left the store, he took several bottles of
Gatorade and then picked up a gallon bottle of water and threw it at the cashier.
Law enforcement arrived shortly thereafter and apprehended Grimnes. Grimnes
was later charged with robbery in the first degree with a deadly weapon
enhancement.
At Grimnes’s initial appearance, the State requested that he be restrained,
citing his criminal history, the nature of the offense, and his behavior in custody
as compelling reasons justifying restraints. The trial court granted the State’s
request, noting that Grimnes would be shackled at further proceedings given the
nature of his criminal history and the crimes charged in the present case. The
court also noted Grimnes could move for reconsideration of the court’s decision.
About a year later, in April 2022, Grimnes moved to proceed pro se and to
waive his right to counsel. Following a colloquy with the trial court, Grimnes’s
request to proceed pro se was granted. Over Grimnes’s objection, the court also
appointed standby counsel to assist with his defense.
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Over the next few months, during pretrial proceedings, Grimnes twice
complained about the restraints or asked that they be removed. Despite
Grimnes’s comments and requests, the court denied his request to remove the
restraints. However, before voir dire began, the court ordered that Grimnes
would not be restrained in front of the jury.
In August 2022, Grimnes moved to dismiss the charges against him. In
his motion, Grimnes alleged that after a meeting with his standby counsel and
investigator, jail guards had opened and read confidential legal mail from his
investigator. The trial court held an evidentiary hearing on the motion. At the
evidentiary hearing, the court heard testimony from the defense investigator, two
jail deputies, both prosecutors assigned to the case, the lead investigating law
enforcement officer, and Grimnes.
The trial court ultimately denied Grimnes’s motion. After summarizing the
testimony from the hearing, the court found that the jail deputies’ review of the
documents was “a reasonable review of the record[s], and very, apparently brief.”
The court also found that even if the jail deputy read part of the documents, the
jail’s policy of checking all mail for safety purposes, even legal mail, was
reasonable. The court concluded that no Sixth Amendment1 violation of
Grimnes’s right to confer privately with his counsel occurred.
The case proceeded to trial and a jury convicted Grimnes as charged.
Before sentencing, the State submitted a memorandum and declaration
contending that this conviction was a third strike offense. The State maintained
1 U.S. CONST. amend. VI.
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that Grimnes’s Montana conviction for aggravated assault was factually
comparable to an earlier Washington conviction for assault in the second degree.
The court determined that the two convictions were not factually comparable and
imposed a standard range sentence of 84 months.
Grimnes appeals.
ANALYSIS
CrR 8.3(b) Motion to Dismiss
Grimnes contends that the jail deputies violated his Sixth Amendment right
to confer privately with his counsel by reading his confidential legal materials and
therefore, that the trial court erred by denying his CrR 8.3(b) motion to dismiss.
CrR 8.3(b) provides that the trial court “may dismiss any criminal
prosecution due to arbitrary action or governmental misconduct when there has
been prejudice to the rights of the accused which materially affect[s] the
accused’s right to a fair trial.” Dismissal of charges under CrR 8.3(b) is an
“ ‘extraordinary remedy.’ ” State v. Rohrich, 149 Wn.2d 647, 658, 71 P.3d 638(2003) (quoting State v. Baker, 78 Wn.2d 327, 332, 474 P.2d 254 (1970)).
To prevail on a CrR 8.3(b) motion to dismiss, a defendant must show by a
preponderance of the evidence (1) arbitrary action or governmental misconduct
and (2) prejudice affecting the defendant’s right to a fair trial. State v. Kone, 165
Wn. App. 420, 432-33, 266 P.3d 916 (2011). The governmental misconduct
does not need to be of an evil nature; simple mismanagement is sufficient. State
v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). “However, the
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defendant must show actual prejudice, not merely speculative prejudice[,]
affected [their] right to a fair trial.” Kone, 165 Wn. App. at 433.
“We review the trial court’s decision to deny a motion to dismiss under
CrR 8.3 for abuse of discretion, that is, whether the decision was manifestly
unreasonable, based on untenable grounds, or made for untenable reasons.”
Kone, 165 Wn. App. at 433.
Here, Grimnes’s CrR 8.3(b) motion was premised on an alleged Sixth
Amendment violation. To determine whether a Sixth Amendment violation
occurred, we look to whether (1) a state actor participated in the infringing
conduct alleged by the defendant; (2) if so, whether the state actor(s) infringed
on a Sixth Amendment right of the defendant; (3) if so, whether prejudice to the
defendant resulted, that is whether the State failed to overcome the presumption
of prejudice arising from the infringement by not proving the absence of prejudice
beyond a reasonable doubt; and (4) if so, what the appropriate remedy is to
select and apply, considering the totality of the circumstances. State v. Irby, 3
Wn. App. 2d 247, 252-53, 415 P.3d 611 (2018).
1. State Actor
The first prong is not at issue because neither party disputes that the jail
deputies were state actors.
2. Jail Deputies’ Conduct
We must next determine whether the jail deputies’ conduct infringed on
Grimnes’s Sixth Amendment rights. We conclude that it did not because the jail
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deputies followed appropriate procedures when inspecting the envelope for
contraband, and the documents in question were not privileged communications.
“The Sixth Amendment guarantees a criminal defendant the right to
assistance of counsel, which includes the right to confer privately with that
counsel.” State v. Peña Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257 (2014);
U.S. CONST. amend. VI. “State intrusion into those private conversations is a
blatant violation of a foundational right.” Peña Fuentes, 179 Wn.2d at 811.
“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated
when the State intrudes into a privileged attorney-client communication. By
implication, a defendant’s Sixth Amendment right is not necessarily infringed on
when the attorney-client information acquired by the State is not privileged.” Irby,
3 Wn. App. 2d at 254.
Criminal defendants also have “an explicit right to self-representation
under the Washington Constitution and an implicit right under the Sixth
Amendment to the United States Constitution.” State v. Madsen, 168 Wn.2d
496, 503, 229 P.3d 714 (2010). Where standby counsel is appointed, statements
between a pro se defendant and standby counsel are privileged. State v.
McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). This privilege, along with
the work-product doctrine, protects communications between a pro se defendant
and standby counsel to the extent that such communications contain the
opinions, theories, or conclusions of the attorney or investigating agencies. State
v. Pawlyk, 115 Wn.2d 457, 477, 800 P.2d 338 (1990) (discussing privileged
communications); State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987)
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(regarding pro se defendants); see also CrR 4.7(f)(1). But the privilege does not
shield facts from discovery, even if they are transmitted in communications
between an attorney and client. Youngs v. PeaceHealth, 179 Wn.2d 645, 653,
316 P.3d 1035 (2014) (“Facts are proper subjects of investigation and discovery,
even if they are also the subject of privileged communications.”).
Further, although incarcerated persons have a Sixth Amendment right to
confidential attorney-client communications, that right must be balanced against
jail officials’ need to maintain safety and security at the jail facility. Wolff v.
McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); see
also Nordstrom v. Ryan, 762 F.3d 903, 910 (9th Cir. 2014). For this reason, jail
staff may not read legal mail, but they may inspect it to determine if contains
contraband or poses a threat to jail safety. Wolff, 418 U.S. at 577.
a. Whether Jail Deputies’ Opening of Grimnes’s Mail Infringed
His Sixth Amendment Right to Counsel
We must first address whether the jail deputies’ opening of Grimnes’s
correspondence infringed on his Sixth Amendment right to confer privately with
his counsel. We conclude that it did not.
Testimony about the jail’s procedure for reviewing incoming mail indicates
that jail deputies followed the standard procedure of checking for contraband and
did not unnecessarily pry into Grimnes’s materials. During the evidentiary
hearing on Grimnes’s motion to dismiss, Sergeant Theresa Dorcy testified about
the jail’s policy of searching and processing mail. She explained that legal mail
and discovery materials are typically labeled as such by the sender and, per jail
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policy, are set aside by jail staff. Legal mail is opened by jail staff in front of the
inmate, checked for contraband, and then handed to the inmate without staff
reading it. Discovery materials are similarly handled. Discovery materials are
stored in a secure room until an inmate requests to see their documents. At that
point, the inmate is brought to the secure room at which time jail staff take the
requested material out of the envelope and hand it to the inmate. Inmates are
not permitted to take discovery materials with them due to security risks. Like
with legal mail, jail staff check envelopes labeled as discovery for contraband but
do not read the materials inside. If jail staff cannot determine from the envelope
if mail is legal mail or discovery materials, jail policy is for staff to stop scanning
the contents as soon as they recognize a document is legal mail. Attorneys and
investigators visiting clients at the jail sign an acknowledgement of the
procedures for seeing someone in jail at each visit; the discovery policy is one of
the procedures described on the form.
Sergeant Dorcy testified that after a meeting between Grimnes and his
standby counsel and investigator in one of the jail’s meeting rooms, she called for
Deputy Sherry Kness, a classifications deputy who handles mail for pro se
inmates, to process an unmarked, unsealed manila envelope given to Grimnes
by his investigator. Sergeant Dorcy recalled that Deputy Kness “opened [the
envelope] in less than five seconds and said that it needed to go into [Grimnes’s]
discovery.”
Deputy Kness testified to the same set of facts. She testified that she was
called to review the materials in the unmarked envelope before Grimnes could
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take them out of the room. Deputy Kness explained that, per jail policy,
classifications deputies are allowed to skim some of the material to determine
what type of document it is. She testified that before she picked up the envelope,
Grimnes told her that the envelope contained “legal confidential information.”
After looking at the documents for “[p]robably five seconds or less,” Deputy
Kness concluded that the documents were neither legal mail nor discovery. She
noted that the documents looked “like a commissary order.” Deputy Kness told
Sergeant Dorcy that Grimnes could take the documents but Grimnes informed
them that he did not want them. Deputy Kness commented that if the documents
were discovery materials, they would need to go to the secure discovery room.
Grimnes replied, “[I]t’s not discovery. You can just take it.” Deputy Kness then
wrote Grimnes’s name on the envelope and the word “discovery.”
Grimnes’s defense investigator Lana Reichert testified that, at some point
during her meeting with Grimnes, she handed him an unsealed, unmarked
manila envelope. Despite being familiar with the jail’s policies, Reichert testified
that she did not label the envelope as legal mail or as discovery materials.
Reichert then explained that the envelope contained four pages of documents
received through a subpoena duces tecum from Mark Hill, the Department of
Social and Health Services (DSHS) Electronic Benefits Transfer (EBT) records
physical manager, and sent via e-mail. Reichert also testified that there were no
handwritten notes, no attorney communications, and no communications from
her written on or attached to the documents.
Grimnes testified that Deputy Kness read portions of the documents “out
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No. 84477-6-I/10
loud” to Sergeant Dorcy and another jail staffer. He also stated that the incident
undermined his confidence in his ability to communicate with his investigator and
standby counsel.
Given the context and surrounding circumstances, we conclude that the
jail deputies did not violate Grimnes’s Sixth Amendment right to confer privately
with his counsel by checking his mail for contraband. Testimony from Sergeant
Dorcy and Deputy Kness supports the court’s finding that the jail staff followed
procedure and only opened the envelope to check for contraband. Because the
envelope was unmarked and unsealed, it was reasonable for the jail deputies to
do so. Also, Deputy Kness’s review of the documents was so short that she
would not have gained anything of significance from these particular documents.
Deputy Kness’s short review indicates that she was following procedure by briefly
scanning the documents in order to properly characterize the kind of documents
left behind. Given these circumstances, we conclude that no Sixth Amendment
violation occurred.
b. Whether the Documents Were Privileged
We must next address whether the information exposed to the scrutiny of
the jail deputies included privileged attorney-client communications. Neither
party disputes that the communication between Grimnes and his defense
investigator was privileged based on the context of the meeting. We must
determine then, whether the records at issue were privileged communications.
We conclude that they are not.
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No. 84477-6-I/11
The records at issue, a list of Grimnes’s EBT transactions, were facts and
did not reveal any privileged information about his defense or trial strategy.
Grimnes’s assertion that the documents were prepared in anticipation of litigation
is also unavailing. The records were prepared by the DSHS, which routinely
prepares and maintains public records related to the programs it administers.
WAC 388-01-030. Moreover, none of the documents in the envelope had notes
from Grimnes, his defense investigator, or his standby counsel. Because the
documents did not contain communications from standby counsel or the
investigator, they were not privileged. Therefore, we conclude that the trial court
did not abuse its discretion in denying Grimnes’s motion to dismiss.
3. Prejudice
Because the state actors at issue here did not infringe on Grimnes’s Sixth
Amendment right, we disagree with Grimnes that any prejudice resulted. But
even if the jail guards’ conduct did constitute a Sixth Amendment violation, the
State has still proved the absence of prejudice beyond a reasonable doubt.
The testimony from the evidentiary hearing is sufficient to meet this
burden. Deputy Kness testified that she looked at the documents for “[p]robably
five seconds or less” and that she followed the jail’s policy for examining legal
mail and discovery materials. She also testified that she did not tell anybody
what was contained in the documents. Sergeant Dorcy testified that Grimnes
told her and Deputy Kness that the documents were not discovery and that they
could keep the documents. Both prosecutors assigned to Grimnes’s case
testified that they did not know what was in the envelope, that no one from the jail
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No. 84477-6-I/12
told them about the documents, and that law enforcement never discussed the
documents in question with them. The lead law enforcement investigator also
testified that he did not know what the documents in the envelope were and that
he was only made aware that Grimnes had allegedly had legal mail taken from
him when he was subpoenaed to appear in court. Because no one involved in
Grimnes’s prosecution knew anything about the documents, the State met its
burden of proving Grimnes was not prejudiced beyond a reasonable doubt. And
because Grimnes was not prejudiced, the court did not err by denying his
CrR 8.3(b) motion to dismiss.2
4. Evidentiary Hearing
Grimnes also asserts that the evidentiary hearing held by the court to
determine whether a Sixth Amendment violation occurred was an additional
violation of his confidentiality. We disagree.
When a defendant raises a Sixth Amendment violation on a CrR 8.3(b)
motion to dismiss, an evidentiary hearing is proper to determine whether such a
violation occurred. See Irby, 3 Wn. App. 2d at 263 (remanding for evidentiary
hearing on CrR 8.3 motion to dismiss); Peña Fuentes, 179 Wn.2d at 822(discussing importance of discovery and factfinding to determine
2 In its reply brief as cross-appellant, the State offered additional
argument on the Sixth Amendment issue. Grimnes subsequently moved to strike
the portion of the State’s reply brief that addressed this issue, arguing that it is
not an issue raised on cross appeal. RAP 10.1(c) provides that “[i]f the
respondent is also seeking review, the respondent may file a brief in reply to the
response the appellant or petitioner has made to the issues presented in the
respondent’s review.” Because the State did not raise a Sixth Amendment issue
in its cross appeal, we agree that the portion of the State’s reply brief addressing
the Sixth Amendment issue should be stricken.
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No. 84477-6-I/13
prejudice); State v. Garza, 99 Wn. App. 291, 301-02, 994 P.2d 868 (2000)
(noting need for specific factfinding to determine whether constitutional violation
occurred and if prejudice resulted).
Here, the trial court properly conducted an evidentiary hearing after
Grimnes moved to dismiss on the grounds of government misconduct. The
evidentiary hearing was not a violation of Grimnes’s confidentiality.
Restraints at Pretrial Hearings
Grimnes asserts that the trial court violated his constitutional rights by
forcing him to appear in restraints during pretrial proceedings without conducting
an individualized inquiry at each appearance. Grimnes also argues that the
State cannot establish beyond a reasonable doubt that the unconstitutional use
of restraints was harmless. Although it is unclear whether Grimnes was shackled
at all pretrial proceedings, the record clearly reflects that Grimnes was shackled
at some proceedings and the court failed to conduct an individualized inquiry.
But because Grimnes fails to demonstrate how being restrained at some of the
proceedings resulted in prejudice, we conclude that though the restraint was
unconstitutional, the error was harmless.
A criminal defendant’s right to a fair trial is protected by the Sixth and
Fourteenth Amendments to the United States Constitution and article I,
section 22 of the Washington State Constitution. State v. Jackson, 195 Wn.2d
841, 852, 467 P.3d 97 (2020). “It is well settled that a defendant in a criminal
case is entitled to appear at trial free from all bonds or shackles except in
extraordinary circumstances.” State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 96713
No. 84477-6-I/14
(1999) (plurality opinion). This constitutional right to a fair trial is also implicated
by restraints at nonjury pretrial hearings. Jackson, 195 Wn.2d at 852. But the
right to be free from restraints is not absolute; trial judges are vested with
discretion to determine measures that implicate courtroom security, such as
whether to restrain a defendant. State v. Hartzog, 96 Wn.2d 383, 396, 400, 635
P.2d 694 (1981). Therefore, “[a] trial court must engage in an individualized
inquiry into the use of restraints prior to every court appearance” to determine
whether the restraints are necessary. Jackson, 195 Wn.2d at 854 (emphasis
omitted).
We review a trial court’s decision of whether to shackle a defendant for an
abuse of discretion. Jackson, 195 Wn.2d at 850. A trial court abuses its
discretion when its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d
1159 (2002).
1. Whether Grimnes Was Unconstitutionally Restrained
At Grimnes’s first appearance, the trial court granted the State’s request
that Grimnes be restrained in the courtroom because of the nature of the charges
against him and his criminal history. The court’s order noted that it was subject
to a motion for reconsideration by Grimnes. Over a year passed between
Grimnes’s first appearance and the case proceeding to trial. Over the course of
that year, Grimnes appeared for more than 20 pretrial hearings, either remotely
or in-person. Of those proceedings, shackling was discussed or mentioned on
four occasions.
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On May 19, 2022, Grimnes stated: “I can request to be unshackled during
these hearings so I can actually write things down and make notes and stuff. It’s
nearly impossible to do with the shackles on.” In response, the court told
Grimnes that it would address his request at the next hearing.
Then, on July 7, 2022, when asked by the court if he was ready to
proceed, Grimnes replied: “I’m struggling with the restraints over here trying get
my paperwork here.” The court responded: “Let me know when you are ready.”
No further discussion of restraints took place that day.
On August 8, 2022, Grimnes inquired about whether he would be
shackled during trial. The court told Grimnes that it would address that issue
after they finished discussing the pretrial motions.
On August 30, 2022, the court informed Grimnes that it would not order
him to be restrained at trial. The court stated: “Mr. Grimnes, I’m not going to
order restraints in the courtroom before the jury. I think that has been
appropriate for all the hearings pretrial, but I see no reason for that. Obviously,
you will be transported down, however, by jail staff before you come in the
courtroom in restraints.”
Though restraints were only discussed at these four hearings, the court’s
comment about restraints having been appropriate for “all the hearing pretrial”
indicates that Grimnes was shackled throughout pretrial proceedings. Still,
Grimnes bears the burden of proving that he was unconstitutionally restrained at
each of the pretrial hearings. Because restraints were not discussed at each
hearing, it is unclear from the record whether Grimnes was shackled at all pretrial
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proceedings. However, it is clear that on the two occasions that Grimnes stated
he was shackled, the court did not conduct an individualized inquiry as to
whether shackling was still appropriate. Because the court failed to conduct the
relevant inquiry as to whether restraints were necessary, we conclude that
Grimnes was unconstitutionally restrained on these occasions.
2. Harmless Error
Although Grimnes was unconstitutionally restrained, such error was
harmless because Grimnes was not shackled in front of the jury and because
there is no evidence that his being restrained during pretrial proceedings
prejudiced the judge against him during pretrial proceedings, over the course of
the trial, or at sentencing.
Once an appellant demonstrates that they were unconstitutionally
restrained during a court proceeding, the State must establish that any error was
harmless. Jackson, 195 Wn.2d at 855-56. To do so, the State must
demonstrate, from an examination of the record, that the error was harmless
beyond a reasonable doubt or that the evidence against the defendant was so
overwhelming that no rational finder of fact could find the defendant not guilty.
State v. Clark, 143 Wn.2d 731, 775-76, 24 P.3d 1006 (2001). Although the
likelihood of prejudice is “significantly reduced” in proceedings without a jury,
judges, too, are not immune from the risk of prejudice from implicit bias. State v.
Lundstrom, 6 Wn. App. 2d 388, 395 n.2, 429 P.3d 1116 (2018); Jackson, 195
Wn.2d at 856 (noting that judges may be unconsciously prejudiced by seeing a
defendant in restraints). There is a presumption that the trial court properly
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No. 84477-6-I/17
discharged its official duties without bias or prejudice. In re Pers. Restraint of
Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).
a. Motion to Dismiss Hearing
Grimnes first asserts that he was unconstitutionally restrained during the
hearings on his motion to dismiss and that this error was not harmless because
the State cannot prove that the shackles did not affect the court’s decision on the
motion to dismiss. We disagree.
As an initial matter, we note that the State maintains that Grimnes failed to
meet his burden to perfect the record because the record does not reflect that
Grimnes was restrained at the motion to dismiss hearing. Although the record is
somewhat unclear as to whether Grimnes was shackled at these hearings, the
trial court’s later statement that it believed restraints were necessary at all pretrial
proceedings alludes to the fact that Grimnes was shackled during the hearing on
the motion to dismiss. Therefore, we disagree that the record does not reflect
that Grimnes was restrained at this particular hearing. We next turn to whether
this unconstitutional restraint constituted harmless error.
At the August 30, 2022 hearing, the trial court determined that the jail
staff’s conduct in processing Grimnes’s discovery materials did not violate his
Sixth Amendment right to confer privately with his counsel. The record clearly
supports the trial court’s determination.
Over the course of a two-day evidentiary hearing, the court heard
testimony about the incident from jail deputies, the prosecutors assigned to the
case, the lead law enforcement officer on the case, and Grimnes. At the hearing,
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No. 84477-6-I/18
Grimnes expressed concern that the jail staff could read his confidential legal
materials while he prepared his case by using cameras in his cell. Despite
testimony that the jail cameras did not possess the zoom capabilities to read
materials in an inmate’s cell, the court instructed the State to perform a
simulation, with Grimnes’s involvement, to confirm that jail staff could not view
Grimnes’s case materials via the surveillance cameras. At another hearing, the
court considered the results of the simulation and determined from photo
evidence that the cameras were too pixilated to see details of Grimnes’s legal
materials. After considering the testimony from the hearings, a video of the
entire incident, and the additional evidence from the simulation, the court
concluded that the jail deputy’s review of Grimnes’s legal materials was “so short
that [the deputy] wouldn’t have gained anything of significance from this
particular document” and that it was “certainly reasonable” for the jail to have a
policy for safety purposes to review any incoming mail. Given the court’s in-
depth consideration of Grimnes’s motion, the record does not support that the
court exhibited any bias in conducting the hearing or that its decision was
negatively influenced by the fact that Grimnes was restrained. The court’s
decision was reasonable and we conclude that the unconstitutional restraint was
harmless error.
b. Sentencing Hearing
Grimnes next asserts that being restrained during pretrial proceedings in
front of the same judge that sentenced him affected the court’s decisions at his
sentencing hearing. The record reflects, and the State concedes, that Grimnes
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was restrained during at least two pretrial proceedings. But because no
prejudice resulted, we conclude that such error was harmless.
State v. Jarvis, 27 Wn. App. 2d 87, 530 P.3d 1058, review denied, 537
P.3d 1027 (2023), is instructive here. In Jarvis, this court concluded that the
defendant was unconstitutionally restrained during his sentencing hearing and
that the error was not harmless. 27 Wn. App. 2d at 97-98. In its harmless error
analysis, the court pointed to two decisions by the sentencing judge that could
indicate potential prejudice as a result of seeing Jarvis in restraints. Id. at 102-
03. The first was the sentencing court’s determination that the State had proven
that the two prior strike offenses were committed by Jarvis on fingerprint and
photograph evidence. Id. Given the nature of the evidence and the sentencing
court’s role in evaluating the evidence, this court explained that the State could
not prove beyond a reasonable doubt that Jarvis’ appearance in restraints at
sentencing had no impact on the sentencing court’s determination that Jarvis had
committed the two prior offenses. Id.The second decision was the sentencing court’s determination to
sentence Jarvis at the top end of the standard range for the first degree unlawful
possession of a firearm conviction. Id. at 102. Because that determination
involved an exercise of discretion, this court noted that Jarvis’ appearance in
restraints at the sentencing hearing could have influenced the sentencing court’s
decision. Id.
Jarvis is distinguishable from the present case. Here, like in Jarvis, the
State argued that Grimnes was a persistent offender and that this conviction was
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No. 84477-6-I/20
a third strike offense. But unlike in Jarvis, the sentencing court disagreed that
the State had proven the two prior strike offenses. In reaching this decision, the
sentencing court had to make factual determinations, much like the court in
Jarvis, about whether Grimnes’s Montana conviction was factually comparable to
his prior Washington conviction. Moreover, when Grimnes refused to appear in
court for the comparability analysis hearing, the court denied the State’s motion
to proceed without Grimnes’s presence and continued the hearing. Finally, the
sentencing court here chose to sentence Grimnes to a mid-range sentence of 84
months even though the State requested the statutory maximum sentence of 92
months. The nature of the court’s decisions indicates that Grimnes’s appearance
in restraints during pretrial proceedings had no impact on the court’s sentencing
determinations. Therefore, we conclude that the use of unconstitutional
restraints was harmless error.
Prosecutorial Misconduct
Grimnes maintains that the prosecutor committed misconduct while cross-
examining his expert witness by insinuating that Grimnes prevented his witness
from accessing documents provided by the State. Because Grimnes fails to
demonstrate how the prosecutor’s conduct was so flagrant or ill-intentioned that a
jury instruction could not have cured the resulting prejudice, he waived any error.
To prevail on a claim for prosecutorial misconduct, a defendant who timely
objects must prove that the prosecutor’s “ ‘conduct was both improper and
prejudicial in the context of the entire trial.’ ” State v. Zamora, 199 Wn.2d 698,
708, 512 P.3d 512 (2022) (internal quotation marks omitted) (quoting State v.
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No. 84477-6-I/21
Loughbom, 196 Wn.2d 64, 70, 470 P.3d 499 (2020)). But where a defendant
fails to object, “the defendant is deemed to have waived any error, unless the
prosecutor’s misconduct was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741,
760-61, 278 P.3d 653 (2012). “In other words, the defendant who did not object
must show the improper conduct resulted in incurable prejudice.” Zamora, 199
Wn.2d at 709.
On cross-examination, the State asked Grimnes’s expert, Dr. David Dixon,
a series of questions about the expert’s conclusions and the materials he relied
on in making those conclusions. One line of questioning focused on whether
Dr. Dixon had reviewed reports from the State about Grimnes’s demeanor under
the influence:
[STATE]: You’ve talked about needing a baseline. Were you
provided any baseline about Mr. Grimnes while under
the influence of methamphetamine?
[DIXON]: No, I never observed him under the influence, just the
effect of methamphetamine.
[STATE]: Were you provided potential reports with that
information?
[DIXON]: No.
[STATE]: Were you provided reports with that information from
myself from my office?
[DIXON]: I don’t believe so.
[STATE]: Okay. Were you told not to review those reports at
the request of the defendant?
[DIXON]: I don’t believe so.
[STATE]: Several hundreds of pages in an email?
[DIXON]: I don’t recall that.
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No. 84477-6-I/22
The State then showed Dr. Dixon a transcript of his interview with the
prosecutor and asked if the transcript refreshed his recollection about receiving
additional information. Dr. Dixon indicated that it did not refresh his recollection.
The State then asked Dr. Dixon again whether the expert had reviewed the
additional information from the prosecutor’s office. Dr. Dixon indicated that he
did not believe so and that he could not recall. The State then asked Dr. Dixon
whether Grimnes had requested he change his expert report. Grimnes did not
object to this line of questioning or to any of the State’s questions about the
additional records.
Considered in the context of the entire trial, these questions were not so
flagrant or ill-intentioned as to result in incurable prejudice. Rather, these
questions were part of a larger series of questions meant to assess the credibility
of Dr. Dixon and the basis and reliability of his report. When Dr. Dixon indicated
he did not recall parts of his interview with the prosecutor, the State attempted to
impeach him with a transcript of that interview. But when Dr. Dixon indicated that
the transcript did not help him refresh his recollection, the State moved on to ask
the witness other questions. It appears that the purpose of this brief exchange
during cross-examination was not, as Grimnes asserts, to mislead the jury into
believing that there were hundreds of pages of reports about Grimnes’s past
behavior while using methamphetamine or that Grimnes had intentionally
prevented Dr. Dixon from considering that information. Instead, the purpose of
this questioning was to impeach the witness after he testified that he could not
recall whether he reviewed any additional records from the prosecutor and that
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No. 84477-6-I/23
he did not recall any direction from Grimnes about the records. The prosecutor’s
conduct was not so flagrant or ill-intentioned that a jury instruction could not have
cured the resulting prejudice and therefore, we conclude that Grimnes waived
any error related to the prosecutor’s conduct.
Cumulative Error
Grimnes contends that he is entitled to a new trial because the cumulative
effect of all his asserted errors denied him a fair trial. We disagree.
“Under the cumulative error doctrine, a defendant may be entitled to a new
trial when cumulative errors produce a trial that is fundamentally unfair.” Emery,
174 Wn.2d at 766. Cumulative error “is limited to instances when there have
been several trial errors that standing alone may not be sufficient to justify
reversal but when combined may deny a defendant a fair trial.” State v. Greiff,
141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Here, Grimnes being unconstitutionally restrained at some pretrial
proceedings is the only error. But because we determined this error to be
harmless, we also conclude that reversal is not appropriate under the cumulative
error doctrine.
Community Custody
Grimnes asserts that the court erred by requiring him to submit to a mental
health evaluation as a condition of community custody without first making
findings that Grimnes is a mentally ill person. Grimnes argues that the
requirement that he submit to an evaluation should be stricken from the judgment
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No. 84477-6-I/24
and sentence. The State does not oppose remand to strike the evaluation
provision.
A court may order a mental health evaluation only if it finds “that
reasonable grounds exist to believe that the offender is a mentally ill person as
defined in RCW 71.24.025, and that this condition is likely to have influenced the
offense.” RCW 9.94B.080.
Here, neither party disputes that the court made no such finding and that
remand is appropriate to strike the evaluation requirement from the judgment and
sentence. We agree that remand is necessary to correct the judgment and
sentence.
Victim Penalty Assessment
Grimnes argues that the trial court erred in imposing a victim penalty
assessment because it found him to be indigent. The State does not oppose
remand for Grimnes to move to strike the assessment.
As of July 1, 2023, trial courts may no longer impose the crime victim
penalty assessment on indigent defendants. Former RCW 7.68.035 (2018),
amended by LAWS OF 2023, ch. 449, § 1(4). This change in statute applies
prospectively to defendants whose cases are not yet final, including those whose
cases are pending on appeal. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d
714 (2018).
Here, neither party disputes that Grimnes is indigent and that remand is
proper for Grimnes to move to strike the assessment. We agree that remand is
appropriate.
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No. 84477-6-I/25
Montana Conviction
On cross-appeal, the State asserts that the trial court erred by determining
that Grimnes’s Montana conviction for aggravated assault was not factually
comparable to his prior Washington conviction for assault in the second degree.
We disagree. Because the elements of the Montana offense are broader than
those of the Washington offense and because Grimnes’s guilty plea did not
stipulate or admit facts that would satisfy the Washington offense, the trial court
correctly determined that the Montana conviction was not comparable.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, creates a grid
of standard sentencing ranges calculated based on a defendant’s offender score
and the seriousness level of the current offense. RCW 9.94A.505, .510, .520,
.525; State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014). A defendant’s
offender score is the sum of points accrued as a result of their prior convictions.
RCW 9.94A.525. We review de novo a sentencing court’s calculation of an
offender score. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).
Out-of-state convictions for offenses may be included in the offender score
calculation and must “be classified according to the comparable offense
definitions and sentences provided by Washington law.” RCW 9.94A.525(3).
Only comparable out-of-state convictions can be included in the offender score.
State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). The State bears
the burden of proving by a preponderance of the evidence the existence and
comparability of all out-of-state convictions. Olsen, 180 Wn.2d at 472.
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No. 84477-6-I/26
We employ a two-part analysis to determine whether an out-of-state
conviction is comparable to a Washington conviction. Thiefault, 160 Wn.2d
at 414-15. First, we determine whether the convictions are legally comparable by
comparing the elements of the out-of-state conviction to the relevant Washington
statute. Thiefault, 160 Wn.2d at 415. If the out-of-state conviction is identical to
or narrower than the Washington statute and contains all the most serious
elements of the Washington statute, then the out-of-state conviction is legally
comparable and counts toward the offender score. Thiefault, 160 Wn.2d at 415.
But if the out-of-state statute is broader than the Washington statute, the
offenses are not legally comparable. In re Pers. Restraint of Lavery, 154 Wn.2d
249, 258, 111 P.3d 837 (2005).
Second, even if the offenses are not legally comparable, the out-of-state
conviction may still be included in the offender score if the offenses are factually
comparable. Thiefault, 160 Wn.2d at 415. To determine if the offenses are
factually comparable, we analyze whether the defendant’s conduct underlying
the out-of-state conviction would have violated the comparable Washington
statute. Thiefault, 160 Wn.2d at 415. The sentencing court may “look at the
defendant’s conduct, as evidenced by the indictment or information, to determine
if the conduct itself would have violated a comparable Washington
statute.” Lavery, 154 Wn.2d at 255. “In making this factual comparison, the
sentencing court may rely on facts in the out-of-state record only if they are
admitted, stipulated to, or proved beyond a reasonable doubt.” State v. Arndt,
179 Wn. App. 373, 379, 320 P.3d 104 (2014). The elements of the charged
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No. 84477-6-I/27
crime remain the cornerstone of this inquiry. Arndt, 179 Wn. App. at 379. In the
factual comparability analysis, the court may only consider facts which are
admitted or proved beyond a reasonable doubt in the out-of-state conviction.
Lavery, 154 Wn.2d at 258.
If the out-of-state conviction is neither legally nor factually comparable to a
Washington offense, it may not be included in the defendant’s offender score.
Thiefault, 160 Wn.2d at 415.
Here, the State concedes that Grimnes’s Montana conviction is not legally
comparable to his Washington conviction. We must instead determine whether
the two convictions are factually comparable.
Under Montana Code, “[a] person commits the offense of aggravated
assault if the person purposely or knowingly causes serious bodily injury to
another or purposely or knowingly, with the use of physical force or contact,
causes reasonable apprehension of serious bodily injury or death in another.”
MCA 45-5-202. Montana defines “serious bodily injury” as bodily injury that:
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or
impairment of the function or process of a bodily member or organ;
or
(iii) at the time of the injury, can reasonably be expected to result in
serious permanent disfigurement or protracted loss or impairment
of the function or process of a bodily member or organ.
MCA 45-2-101(66)(a).
Under MCA 45-2-101(35), to act “knowingly” means
a person acts knowingly with respect to conduct or to a
circumstance described by a statute defining an offense when the
person is aware of the person’s own conduct or that the
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No. 84477-6-I/28
circumstance exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an offense when
the person is aware that it is highly probable that the result will be
caused by the person’s conduct. When knowledge of the existence
of a particular fact is an element of an offense, knowledge is
established if a person is aware of a high probability of its
existence. Equivalent terms, such as “knowing” or “with
knowledge”, have the same meaning.
Per RCW 9A.36.021(1)(g), a person is guilty of assault in the second
degree by strangulation if they “[a]ssault[] another by strangulation or
suffocation.” “ ‘Assault is an intentional touching or striking of another person
that is harmful or offensive, regardless of whether it results in physical injury.’ ”
State v. Jarvis, 160 Wn. App. 111, 119, 246 P.3d 1280 (2011) (quoting State v.
Tyler, 138 Wn. App. 120, 130, 155 P.3d 1002 (2007)). “Strangulation” is defined
generally as “to compress a person’s neck, thereby obstructing the person’s
blood flow or ability to breathe, or doing so with the intent to obstruct the person’s
blood flow or ability to breathe.” RCW 9A.04.110(26). The plain meaning of
“obstruct” in this context is to hinder or block to some degree a person’s ability to
breathe or to experience blood flow. State v. Rodriquez, 187 Wn. App. 922, 935,
352 P.3d 200 (2015). To “compress” means “to reduce the volume, size,
duration, density, or degree of concentration of by or as if by pressure” or “to
press together.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 467 (2002).
And “suffocation” means “to block or impair a person’s intake of air at the nose
and mouth, whether by smothering or other means, with the intent to obstruct the
person’s ability to breathe.” RCW 9A.04.110(27).
In the present case, the only facts that were admitted or stipulated to from
the Montana conviction are those in Grimnes’s Montana guilty plea. In the plea
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No. 84477-6-I/29
agreement, Grimnes admitted to the following facts:
On or about September 12, 2011, I knowingly with use of physical
force, caused reasonable apprehension of serious bodily injury to
my girlfriend C.K. by placing my hands around her neck and
applying pressure while at our home in Billings, Yellowstone
County, Montana. I further acknowledge that I knowingly struck her
in the face and that it caused her injury.
From the facts admitted in Grimnes’s guilty plea, it is clear that he
intentionally touched another person in a harmful way that likely compressed that
person’s neck. But it is unclear from the plea statement whether such action
actually obstructed that person’s blood flow or ability to breathe or whether
Grimnes intended to so do. Because it is unclear if Grimnes possessed the
requisite intent or whether he obstructed another person’s blood flow or ability to
breathe, the facts admitted by the Montana plea statement do not satisfy the
elements for assault in the second degree by strangulation. Therefore, the trial
court did not err by determining that the Montana conviction was not factually
comparable to the Washington conviction.
Affirmed and remanded for the trial court to remove the mental health
evaluation condition from the judgment and sentence and for Grimnes to move
the court to strike the VPA.
WE CONCUR:
29