State Of Washington, V. Ryan C. Gates ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 86177-8-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
RYAN CORDELL GATES,
Respondent.
COBURN, J. — Gates was charged with crimes related to the sexual abuse of his
11-year-old niece in Thurston County in 2018. Following that investigation, the Pierce
County prosecutor’s office reopened a 2011 case in which it initially declined to file
charges based on the reported sexual abuse of Gates’ then 12-year-old stepdaughter.
Gates argues that the trial court erred in denying his motion to dismiss for prosecutorial
vindictiveness. A jury acquitted Gates of child molestation in the first degree, but
convicted him of child molestation in the second degree. We affirm.
FACTS
In 2011, Gates’ stepdaughter, T.B., then 12 years old, reported to her mother,
K.H., that Gates had sexually abused her. K.H. took no action. T.B. traveled to her
father’s home in California that weekend and reported the abuse to her stepmother.
T.B.’s father subsequently reported the abuse to law enforcement in Pierce County.
T.B. moved to live with her father in California after she disclosed the abuse. Law
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enforcement investigated. K.H. told investigators she thought T.B. had fabricated the
allegations so she would be permitted to live with her father and attend school in
California. Following the investigation, the Pierce County Office of the Prosecuting
Attorney sent a letter to K.H. informing her that “no charges will be filed in this matter”
because it was “determined that this case could not be proven in court.” K.H. and
Gates ended their relationship at some point after T.B. reported the abuse.
Gates later remarried and his new wife, in 2017, reported to the Thurston County
Sheriff’s Office that Gates had had sexual contact with his niece, then 11 years old.
While investigating Gates, the detective became aware of the allegations made by T.B.
years prior. The detective contacted T.B., who told him that she suffered PTSD
following Gates’ abuse and required the use of a service animal. T.B. reported that she
resented her mother’s failure to act after she told her of the abuse and that T.B. would
be willing to cooperate with Pierce County authorities if they were able to reopen the
case and charge Gates. The detective noted that he would provide T.B.’s current
contact information to the appropriate authorities in Pierce County. The Thurston
County Prosecuting Attorney’s Office charged Gates for the alleged abuse of his niece
in December 2018.
Following the contact by the Thurston County detective, both T.B. and K.H.
reached out to the Pierce County prosecutor’s office requesting that the 2011 case be
reopened and that the office consider charging Gates. In April 2019, Thurston County
sent reports from its case to Pierce County at Pierce County’s request. After several
changes in staff in both offices, the assigned Thurston County prosecutor reached out
to Pierce County by email in September 2019 to ask what Pierce County planned to do.
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The assigned Pierce County deputy prosecutor responded that it was on his desk to
review. The Thurston County prosecutor asked the Pierce County prosecutor to give
her a call after his review, as she was “curious what [his] take is.” The Pierce County
prosecutor did not appear to respond until Thurston County followed up in July 2020,
stating in an email
Just checking in with you about Ryan Gates . . . I expect my case is going to get
pushed out a bit; [defense counsel] would like it to go, but my court isn’t doing
special questioning or large veneer [sic] jury trials yet (actually we haven’t done a
small one yet, and we still don’t have a space to do them).
Please let me know when you get the chance.
Three days later, the Pierce County prosecutor responded
I have reviewed our case and the Thurston County case. I believe ours is
chargeable. I think yours is the strongest cases. I will charge mine. I don’t know
if that will change [defense counsel’s] or the defendant’s outlook on your case.
Thurston County responded
I agree that I have the stronger case; my victim was amazing in the defense
interview. I hope that she will be great on the stand as well, even with this much
time between then and now.
Hopefully it will push him to seek a global. I doubt it. I learned that he has a new
girlfriend with a daughter, who is apparently 18.
Let’s keep talking.
Thank you for letting me know.
On August 12, 2020, Gates was charged in Pierce County with one count of child
molestation in the first degree and one count of child molestation in the second degree.
Gates filed a motion to dismiss the charges on the basis of prosecutorial vindictiveness,
arguing that Pierce County charged him with these crimes in an attempt to assist the
Thurston County prosecutor in its own case and in order to force Gates into pleading
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guilty in both cases.
The Pierce County deputy prosecutor who reviewed the case for refiling testified
at an evidentiary hearing on the motion. He testified that he decided to file charges
largely because the victim, T.B. and her mother agreed to cooperate and requested that
the case be reopened. During cross examination by defense counsel, the prosecutor
was asked, “were you aware when you made the charging decision based on your
conversations with [the Thurston County prosecutor] or review of the Thurston case file
that [a Thurston County Superior Court judge] had ruled that the Pierce County incident
that we’re talking about was excluded and not appropriate 404(b) evidence?” The
Pierce County prosecutor responded, “I did not know of any decisions made by
Thurston County as to whether or not ours would be admitted in theirs, but . . . that
decision by that judge would not impact my ability on this case one way or the other. If
she had admitted it, it wouldn’t have changed my review. If she didn’t admit it, it
wouldn’t change my review.”
At the beginning of the hearing, the parties stipulated to the admissibility of a total
of seven exhibits for the sole purpose of the motion to dismiss. The written defense
motion, which did not include a declaration, asserted facts, including the trial date in
Thurston County and a judge’s ER 404(b) ruling, that were not established by any of the
admitted exhibits or witness testimony.
It was the State who elicited the testimony of the Pierce County prosecutor at the
evidentiary hearing. During the hearing the prosecutor confirmed that none of the
alleged facts of the underlying case had changed and no new investigation of the
underlying charge had taken place prior to the refiling of charges. However, the
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prosecutor explained, in his review of the case he concluded there were changes that
supported refiling. He summarized those changes. The mother was now on board with
prosecuting. Previously, the mother believed that T.B. was lying in order to live with her
father. T.B. was 12 at the time and immediately after reporting the incident to her father
was allowed to stay with him. T.B. is now an adult and continues to maintain that Gates
sexually abused her. She reports the incident left her with PTSD and resents her
mother for not previously believing her.
The prosecutor denied charging the case to create leverage for plea bargaining
in the Thurston County case. “[M]y intent was to review our case and determine if we
had a provable case that we could seek justice for our victim.” He further testified that,
regardless of what happened in Thurston, his decision was based on a review of the
case and determination that it was chargeable. The prosecutor acknowledged that it
was not uncommon for prosecutors from different counties to communicate with each
other about a mutual defendant to ascertain the status of charges. The prosecutor
explained
I do inform other counties if I charge a case and we have a similar
defendant in the event people want to seek a global.
I also reached out to other counties where I’m told they have a
pending case on a defendant to try to see if they’re going to charge or not
in order to inform the defense counsel in mine. But it’s never about, oh,
let’s force somebody into a plea because I don’t believe that I have the
ability to do that. The defendant has the right to plea or not. If he wants a
global, then we will consider it and we will make an offer if we think that’s
appropriate. If he doesn’t, then we will proceed with our case.
During argument, defense counsel conceded that it was reasonable for a
prosecutor to alert defendants that if they went to trial they will be facing more charges.
The difference here, defense argued, was that “the prosecutor’s office in this case
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delays nine years and does nothing, does zero, and then at the request of another
prosecuting authority files charges with no new information that they themselves, Pierce
County, said was insufficient to charge the case.” Defense counsel also argued, without
evidentiary support, that the Pierce County charges were filed “five days” before trial in
the Thurston County case was scheduled.
The trial court denied the motion to dismiss, stating “I cannot conclude that
[Pierce County’s] decision to file Pierce County’s case was actually vindictive. Nor am I
persuaded that the totality of the circumstances give rise to a presumption of
vindictiveness. Even if I did presume vindictiveness, the State rebutted it.”
Gates proceeded to trial in Pierce County. A jury found Gates guilty of one count
of child molestation in the second degree and not guilty of child molestation in the first
degree. Gates was sentenced to 20 months’ confinement and 36 months of community
custody.
Gates appeals.
DISCUSSION
Gates argues that the Pierce County prosecutor’s decision to file charges against
him based on the 2011 report by his stepdaughter amounted to prosecutorial
vindictiveness designed to punish him for exercising his right to trial in a separate case
in another county. We disagree.
A trial court’s ruling on a motion to dismiss is reviewed for abuse of discretion.
State v. Miller, 92 Wn. App. 693, 702, 964 P.2d 1196 (1998). “Discretion is abused
when the trial court’s decision is manifestly unreasonable, or is exercised on untenable
grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d
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1017 (1993). Dismissal is an extraordinary remedy and not warranted unless the
defendant shows prejudice. Miller, 92 Wn. App. at 702-03 (citing State v. Marks, 114
Wn.2d 724, 730, 790 P.2d 138 (1990)).
Prosecutors have substantial discretion in determining how and when to file
criminal charges. State v. Stearns, No. 101502-0, slip op. at 8 (Wash. Mar. 28, 2024),
https://www.courts.wa.gov/opinions/pdf/1015020.pdf (citing State v. Lewis, 115 Wn.2d
294, 299, 797 P.2d 1141 (1990)). But that discretion is guided by provisions of chapter
9.94A RCW, which counsels against “overcharg[ing]” by adding additional counts or
charging a higher degree of crime to obtain a guilty plea. RCW 9.94A.411(2)(a)(ii)(A),
(B).
Prosecutorial discretion is limited by constitutional due process principles.
State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006). These principles prohibit
“prosecutorial vindictiveness.” Id. Prosecutorial vindictiveness occurs when “the
government acts against a defendant in response to the defendant’s prior exercise of
constitutional or statutory rights.” Id. (quoting United States v. Meyer, 810 F.2d 1242,
1245 (D.C. Cir. 1987)). A “prosecutorial action is ‘vindictive’ only if designed to penalize
a defendant for invoking legally protected rights.” Id.“There are two kinds of prosecutorial vindictiveness: actual vindictiveness and a
presumption of vindictiveness.” Id. (citing Meyer, 810 F.2d 1246). Actual vindictiveness
requires a defendant to present objective evidence that a prosecutor “acted in order to
punish him for standing on his legal rights.” Meyer, 810 F.2d at 1245. Such a showing
is “exceedingly difficult to make.” Id. “A presumption of vindictiveness arises when a
defendant can prove that ‘all of the circumstances, when taken together, support a
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realistic likelihood of vindictiveness.’” Korum, 157 Wn.2d at 627 (quoting Meyer, 810
F.2d at 1246). The prosecution can rebut this presumption by presenting “objective
evidence justifying the prosecutorial action.” Id. at 627-28 (citing Meyer, 810 F.2d at
1245).
Gates fails to show actual vindictiveness and presents no objective evidence that
the Pierce County prosecutor’s decision to file charges against him was designed to
punish him for exercising any legal right. Gates similarly fails to show that the
circumstances of his charges in both counties support a realistic likelihood of
vindictiveness.
Gates fails to show that he had, in fact, exercised a right for which the Pierce
County prosecutors sought to punish him. First, Gates claims that he was retaliated
against for exercising his constitutional right to a jury trial. But the record establishes
that the Pierce County trial court hearing the motion did not have any evidence before it
to support the claim that Gates exercised his right to go to trial in Thurston County.
Second, in other cases of alleged prosecutorial vindictiveness, courts have evaluated
the prosecutor’s motives in adding criminal charges after a defendant has rejected a
plea offer or withdrawn from a plea agreement. See Korum, 157 Wn.2d at 635(collecting cases) (finding no prosecutorial vindictiveness where the State charged 16
additional counts with a standard range of over 100 years’ confinement after defendant
withdrew from plea agreement in which he would plead guilty to two charges totaling 15
years’ confinement); State v. Lee, 69 Wn. App. 31, 35-38, 847 P.2d 25 (1993) (finding
no prosecutorial vindictiveness where the State amended a charge from robbery in the
second degree to the first degree after defendant refused to plead guilty).
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Here, Gates presents no evidence that he exercised any right by rejecting or
withdrawing a plea offer. He fails to show that any such offer had been presented to
him by either Thurston County or Pierce County prosecutors. In fact, the Pierce County
prosecutor testified that a global resolution was an option “we could talk about” had
Gates wanted to, but did not state that any such offer was made or presented to Gates
before or after he was charged in Pierce County.
Gates relies only on an email sent by the Thurston County prosecutor, referring
to the charges in Pierce County, stating “[h]opefully it will push him to seek a global.”
Moreover, the Pierce County prosecutor testified that he did not know of any evidentiary
rulings in the Thurston County case related to the admissibility of the Pierce County
matter, and his decision to charge was based on review of the Pierce County case
“regardless” of what occurred in his Thurston County case. In this case, Gates has
failed to show that he exercised any right for which Pierce County sought to punish him
by filing charges, precluding his claims of prosecutorial vindictiveness.
Even if Gates had presented evidence giving rise to a presumption of
vindictiveness, the prosecution presented evidence justifying its action sufficient to rebut
such a presumption. The prosecution showed evidence that changed circumstances in
the case justified its decision to file charges years after the victim’s initial report to law
enforcement, including the victim’s continued requests to reopen the case, the fact that
the victim’s mother was now willing to cooperate, the fact that the victim’s claims
remained consistent through adulthood, and the fact defense could no longer suggest
that the victim was motivated to lie in order to be permitted to live with her father.
Moreover, the prosecutor testified that he did not “know of any decisions made by
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Thurston County” or the judge in that case, nor would knowledge of any decisions in
that case change his assessment of the case in Pierce County. “‘Credibility
determinations are for the trier of fact’ and are not subject to review.” State v.
Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017) (quoting State v. Camarillo,
115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
Gates has failed to meet his burden to show that any action undertaken by
Pierce County in deciding to file charges against him was vindictive or designed to
penalize him for invoking any right in his Thurston County case. The trial court did not
abuse its discretion in finding that there was no prosecutorial vindictiveness and
denying Gates’ motion to dismiss.
We affirm.
WE CONCUR:
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