                                                                          FILED
                                                                       APRIL 21, 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. 36060-1-III
                                             )
                     Respondent,             )
                                             )
v.                                           )         PUBLISHED IN PART OPINION
                                             )
ABDUL RAHMAN SWEIDAN,                        )
                                             )
                     Appellant.              )

       FEARING, J. —

              Now when some days had passed, Agrippa the king and Bernice
       arrived at Caesarea to welcome Festus. And as they stayed there many
       days, Festus laid Paul’s case before the king, saying, “There is a man left
       prisoner by Felix; and when I was at Jerusalem, the chief priests and the
       elders of the Jews gave information about him, asking for sentence against
       him. I answered them that it was not the custom of the Romans to give up
       any one before the accused met the accusers face to face, and had
       opportunity to make his defense concerning the charge laid against him.
       ACTS 25:16 (Revised Standard Version) (emphasis added).

       This appeal raises important constitutional questions that Washington trial courts

may increasingly face with the increased use of courtroom technology. Appellant Abdul

Sweidan claims the trial court denied his right to face-to-face confrontation by allowing

an Arabic interpreter, who overheard Sweidan mutter incriminating statements while
No. 36060-1-III
State v. Sweidan


Sweidan received medical treatment at a hospital emergency room, to testify by video

conference. The interpreter resided in Michigan, where she attended to her critically ill

mother.

       In the published section of our opinion, we hold that the trial court failed to

adequately conduct a hearing and explain its ruling when authorizing video conference

testimony. From experience, we recognize the difficulty encountered by superior courts

when confronting unique questions of law during the course of a trial with the lack of

time and resources to study the questions. Because we find any constitutional error to be

harmless, we would otherwise not discuss the underlying merits of Abdul Sweidan’s

challenge to the video testimony, but we do so in this instance to provide guidance for

trial courts asked to permit remote testimony in criminal prosecutions. In the unpublished

portion of our opinion, we explain our ruling of harmless error.

       Abdul Sweidan also assigns error to his daughter’s testifying to his guilt, his

exceptional sentence, the length of a no-contact order with his children, and the extent of

his legal financial obligations. In the unpublished segment of our opinion, we affirm

Sweidan’s conviction for attempted second degree murder and his exceptional sentence.

We remand for further consideration of the no-contact order and for the striking of a

criminal filing fee as a financial obligation.


                                                 2
No. 36060-1-III
State v. Sweidan


                                          FACTS

       The State of Washington prosecuted appellant Abdul Sweidan for repeatedly

stabbing his wife, Dania Alhafeth, on August 30, 2017. We borrow the facts from trial

testimony. We reserve most of the facts for the unpublished section of the opinion.

       Abdul Sweidan and Daniah Alhafeth resided in a Kennewick apartment with their

four children. The couple often quarreled. Sweidan sometimes accused Alhafeth of other

romantic interests. Some arguments ended with Sweidan striking or pushing Alhafeth.

Occasionally, Alhafeth hit back. When Alhafeth suggested divorce, Sweidan responded

that he would rather kill Alhafeth than divorce.

       On the night of August 29, 2017, Abdul Sweidan and Daniah Alhafeth bickered,

after which Sweidan asked Alhafeth to reconcile. Alhafeth responded that reconciliation

meant nothing, because the two would squabble again.

       On August 30, 2017, according to the State’s evidence, Abdul Sweidan returned

home early from work and brutally stabbed Daniah Alhafeth numerous times with a

kitchen knife. During the attack, Sweidan also cut his hand. As she lay bleeding on the

living room floor, Alhafeth called a neighbor, who called 911. An ambulance ferried

Alhafeth to Kennewick’s Trios Hospital.




                                             3
No. 36060-1-III
State v. Sweidan


       Abdul Sweidan drove himself to Trios Hospital for treatment to his hand and

arrived at 1:37 p.m. Abdul Sweidan spoke primarily Arabic. During the course of his

treatment, Trios Hospital called an Arabic interpreter, who assisted Sweidan in

communicating with staff.

       Maisa Haddad serves as a certified medical interpreter who works from her home

in Michigan, where she also cares for her mother. Haddad provided the Arabic-to-

English interpretation, through an iPad, for Abdul Sweidan at Kennewick’s Trios

Hospital. Haddad saw Sweidan and the attending physician on her screen while

interpreting. Haddad observed Sweidan’s cut fingers and heard him tell the treating

physician the injuries occurred while cutting meat. According to Haddad, when medical

staff left the room, she sat silently while Sweidan remained on her screen for fifteen

minutes. Under company practices, Haddad could not ask the patient any questions.

During Haddad’s silence, Sweidan volunteered that his wife had pestered him. Sweidan

cursed his wife and uttered: “may God not bless her.” Report of Proceedings (RP) (April

5, 2018) at 767. Haddad did not respond to the comments.

                                      PROCEDURE

       The State of Washington charged Abdul Sweidan with attempted second degree

murder and first degree assault. We outline now only the procedural background relevant


                                             4
No. 36060-1-III
State v. Sweidan


to the video conference testimony. Before trial, the State presented a motion that asked

permission for Arabic interpreter Maisa Haddad to testify at trial by two-way video

conference. In support of the motion, the State submitted a letter from Haddad sent to the

prosecuting attorney:

              I am writing with regard to the request for me to appear in-person for
      a testimony on the State [v]. Abdul Sweidan - Trios Hospital Medical
      Treatment Interpretation case. I need to highlight that I would be
      unavailable to appear in-person before the court due to inability to travel for
      the following reason:
              I live in Michigan and I am the sole in home care-giver for my senior
      seriously ill mother who is suffering from serious medical conditions that
      require continuous medical care and I have to be available by her side at all
      times attending to her medical and other needs. My mother suffers from
      esophageal cancer and serious heart disease and has recently undergone
      an open heart surgery. This makes it impossible for me to travel and leave
      my mother, to whom I am the sole care provider and support.
              I have attached herein a letter from her doctor testifying to her
      medical condition.

Clerk’s Papers (CP) at 166 (emphasis in original). The physician, Fawaz M. Hasso,

M.D., wrote:

             RE: Heida Yousef Haddad
             To Whom it May Concern:
             This is to certify that Heida Yousef Haddad[,] the mother of Maisa
     Haddad[,] is suffering from Esophageal cancer and heart disease and needs
     continuous medical care for which Maisa[,] her daughter[,] need[s] to be with
     her[,] and she [Maisa] is unable to travel.
             Please feel free to contact my office if you have any questions or
     concerns. Thank you for your assistance in this matter.


                                            5
No. 36060-1-III
State v. Sweidan


CP at 167. Neither Haddad nor Fawaz wrote their respective statements under oath or

under penalty of perjury.

       During oral argument in support of the motion for video testimony, the State noted

that Maisa Haddad was only one of the State’s twenty-five witnesses. The State

characterized Haddad as having no attachment to the case. Thus, according to the State,

her demeanor lacked importance.

       Abdul Sweidan objected to the motion for remote testimony. He argued that the

State failed to show Maisa Haddad’s unavailability. Haddad had no physical impediment

to traveling from Michigan to Washington State. Sweidan emphasized that the State

presented no evidence that Haddad’s mother faced imminent death. Other caregivers

could provide for the mother. Haddad would not be absent from her mother for more

than a few days. Thus, Sweidan contended that any video testimony would violate his

right to confront witnesses under the state and federal constitutions.

       The trial court granted the State’s motion for testimony by video conference. The

court commented that, based on a review of the testimony anticipated from Maisa Haddad

and after balancing the concerns of the confrontation clause and the right of the parties to

cross-examine the witness in court, Skype was an effective way for the witness to testify.

The trial court did not enter any findings related to the granting of remote testimony.


                                              6
No. 36060-1-III
State v. Sweidan


       At trial, Maisa Haddad testified via Skype with both video and audio. The

prosecution examined Haddad, and defense counsel cross-examined her. The trial record

does not describe the setup used for the video conference testimony, including what

screens the State employed and whether the jury and Abdul Sweidan could see the

demeanor of the witness.

       In its closing, the State mentioned interpreter Maisa Haddad’s testimony:

              And while she’s sitting there with him, he starts cursing his wife.
       What do we mean by cursing? May God not bless her.
              So think about this. This is a woman who is a thousand miles away
       from Dania, no connection to her other than they both speak Arabic, and she
       hears him say something just like what Dania heard him say. To Dania he
       said, “May God not bring you back.”

RP (April 13, 2018) at 1344-45.

       The jury convicted Abdul Sweidan of attempted second degree murder and first

degree assault.

                                  LAW AND ANALYSIS

                              Video Conference Testimony

       Issue 1: Should we apply a de novo standard of review or an abuse of discretion

standard of review when assessing whether the trial court erred when permitting Maisa

Haddad to testify by video conference?

       Answer 1: We decline to address this question.

                                            7
No. 36060-1-III
State v. Sweidan


       Abdul Sweidan assigns error to the trial court’s permission for Maisa Haddad

testifying by remote video. He argues that the ruling violated his constitutional right to

confront face-to-face a witness presenting evidence against him.

       The parties raise a threshold question of what standard of review to apply. Abdul

Sweidan asks that we apply a de novo review standard. The State seeks an abuse of

discretion standard at least as to the trial court’s finding of necessity for video conference

testimony. We decline to address this question in part because the trial court never

entered a finding of necessity. Also, our decision would remain the same no matter the

standard of review we employed.

       Issue 2: Did the State identify an important state interest when requesting video

conference testimony?

       Answer 2: Yes.

       The Superior Court Criminal Rules do not address the use of remote testimony.

Washington courts acknowledge that, when the criminal rules fall silent, the Superior

Court Civil Rules provide guidance in determining how to proceed. State v. Cayetano-

Jaimes, 190 Wn. App. 286, 297, 359 P.3d 919 (2015). CR 43(a)(1) directs:

               (1) Generally. In all trials the testimony of witnesses shall be taken
       orally in open court, unless otherwise directed by the court or provided by
       rule or statute. For good cause in compelling circumstances and with


                                              8
No. 36060-1-III
State v. Sweidan


        appropriate safeguards, the court may permit testimony in open court by
        contemporaneous transmission from a different location.

(Some emphasis added). Abdul Sweidan does not argue that the State did not fulfill the

demands of CR 43(a)(1). He relies exclusively on the constitutional right to the

confrontation of witnesses, although we note that the strictures of CR 43(a)(1) echo the

demands discussed below emanating from the confrontation clause. We also focus on the

constitutional right to face one’s accusers, such that our ruling holds no precedence for

civil trials.

        Both the federal and state constitutions afford an accused the right to face

witnesses presenting evidence against him or her. The United States Constitution

declares:

              In all criminal prosecutions, the accused shall enjoy the right to . . .
        be confronted with the witnesses against him.

U.S. CONST. amend. VI (emphasis added). The United States Supreme Court

incorporated Sixth Amendment protections to apply to state prosecutions under the due

process clause of the Fourteenth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.

Ct. 1057, 25 L. Ed. 2d 353 (1970). Under the state constitution,

               In criminal prosecutions the accused shall have the right to . . . meet
        the witnesses against him face to face.




                                               9
No. 36060-1-III
State v. Sweidan


WASH. CONST. art. I, § 22 (amendment 10) (emphasis added). RCW 10.52.060 confirms

the right of every person accused of a crime “to meet the witnesses produced against him

or her face to face.”

       According to the United States Supreme Court, the confrontation clause ensures

the reliability of evidence against a criminal defendant by subjecting the evidence to

rigorous testing in the context of an adversary proceeding before the trier of fact.

Maryland v. Craig, 497 U.S. 836, 845-46, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

The word “confront,” after all, means a clashing of forces or ideas, thus manifesting the

notion of adversariness. Maryland v. Craig, 497 U.S. at 845. The confrontation clause

also serves the symbolic goals of fairness and reliability in a prosecution. Lee v. Illinois,

476 U.S. 530, 540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986).

       The accused deserves the opportunity, not only of testing the recollection and

sifting the conscience of the witness, but of compelling him or her to stand face to face

with jurors so that jurors may look at the witness and judge by the witness’s demeanor on

the stand and manner of testimony whether the witness deserves belief. Mattox v. United

States, 156 U.S. 237, 242-243, 15 S. Ct. 337, 39 L. Ed. 409 (1895). According to judicial

psychology, the risk of a witness wrongfully implicating an innocent defendant wanes

when testifying in the accused’s presence. Maryland v. Craig, 497 U.S. at 845-46 (1990).


                                              10
No. 36060-1-III
State v. Sweidan


A person encounters more difficulty when telling a lie about another to his or her face

than behind his back. Coy v. Iowa, 487 U.S. 1012, 1019-20, 108 S. Ct. 2798, 101 L. Ed.

2d 857 (1988). In light of these considerations, the confrontation clause demands a

witness be under oath, cross-examined, and subjected to observation of demeanor by the

trier of fact. Maryland v. Craig, 497 U.S. at 851 (1990).

       According to the United States Supreme Court, face-to-face confrontation forms

the core value furthered by the constitutional confrontation right. Maryland v. Craig, 497

U.S. at 847 (1990). Thus, the confrontation clause prefers a face-to-face confrontation

during trial. Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980),

abrogated by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). Nevertheless, the right to face-to-face confrontation between the accused and

witnesses is not an indispensable element of the Sixth Amendment’s guarantee of the

right to confront one’s accusers. Maryland v. Craig, 497 U.S. at 849-50. A literal

reading of the confrontation clause would abrogate hearsay exceptions, a result deemed

extreme. Ohio v. Roberts, 448 U.S. at 63 (1980). Considerations of public policy and

necessities of the case, in narrow circumstances, may preempt the right of a physical face-

to-face encounter. Maryland v. Craig, 497 U.S. at 849.




                                            11
No. 36060-1-III
State v. Sweidan


       Maryland v. Craig, 497 U.S. 836 (1990) is the leading decision on the clash

between video conference testimony and the confrontation clause. The United States

Supreme Court addressed whether an exception existed to the confrontation right and held

that it did. The Court determined whether a Maryland statute that permitted a child victim

of abuse to testify by a one-way closed circuit television, in order to avoid seeing his or

her abuser, violated the confrontation clause. The statute allowed a court to arrange for

the accused to remain in the courtroom, while defense counsel and the prosecution

conducted questioning in a separate room. The defendant and jury could see the

testifying child witness on a monitor in the courtroom, but the child could not see the

accused. The United States Supreme Court, in Maryland v. Craig, upheld Maryland’s

statutory procedure and noted that the trial court left intact all other elements of the

confrontation right that safeguarded reliability of the testimony, including the oath, cross-

examination, and the ability for all persons in the courtroom to see the demeanor of the

witness.

       In Maryland v. Craig, 497 U.S. 836 (1990), the United States Supreme Court

announced a two-prong test which, when met, satisfies an accused’s constitutional

confrontation right without a physical face-to-face confrontation. The trial court must

render a case-specific finding that (1) excusing the presence of the witness necessarily


                                              12
No. 36060-1-III
State v. Sweidan


furthers an important public policy, and (2) the procedure otherwise assures the reliability

of the testimony. Maryland v. Craig, 497 U.S. at 850. Since Craig, all federal and state

courts have applied this dual test.

       Despite permitting closed circuit television or video conference testimony, in

Maryland v. Craig, the United States Supreme Court warned about routinely permitting

these substitutes for face-to-face confrontation. A trial court may not easily dispense with

the right to face-to-face confrontation. Maryland v. Craig, 497 U.S. at 850 (1990).

Before dispensing with the accused’s right, the court must engage in a case specific,

individualized determination of the necessity for testimony by other means. Maryland v.

Craig, 497 U.S. at 855-56. In the case of a child witness, the trial court must hear

evidence and determine whether use of the procedure is necessary to protect the welfare

of the particular child witness who seeks to testify. Maryland v. Craig, 497 U.S. at 855-

56. The court must enter a case specific finding.

       Technology continually updates and improves remote communication, including

video conferencing. Nevertheless, technological changes in the courtroom cannot come

at the expense of the basic individual rights and freedoms secured by our constitutions.

Harrell v. State, 709 So. 2d at 1372 (Fla. 1998). Confrontation through a video monitor

is not the same as physical face-to-face confrontation, and the two are not constitutionally


                                             13
No. 36060-1-III
State v. Sweidan


equivalent. United States v. Yates, 438 F.3d 1307, 1315 (11th Cir. 2006). The electronic

medium compromises the Sixth Amendment’s guarantee of the right to confront one’s

accuser. Commonwealth v. Atkinson, 2009 PA Super 239, 987 A.2d 743, 751. Remote

testimony may reduce or eliminate intangible elements of the ordeal of testifying in a

courtroom. United States v. Yates, 438 F.3d at 1313.

       Unlike the United States Constitution, article I, section 22 (amendment 10) of the

Washington Constitution employs the phrase “meet the witnesses against him face to

face.” Some state courts, whose constitutions also contain or contained the wording “face

to face,” have held the use of video conferencing as a means to present testimony is

always unconstitutional. Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281, 283-85

(1991); Brady v. State, 575 N.E.2d 981, 986-89 (Ind. 1991); Commonwealth v.

Bergstrom, 402 Mass. 534, 524 N.E.2d 366, 374 (1988). Pennsylvania has since

amended its constitution to omit the phrase “face to face.” Other states have disagreed

that remote testimony is always violative of the confrontation clause no matter the

wording of the state constitution. State v. Self, 56 Ohio St. 3d 73, 564 N.E.2d 446, 450-

53 (1990); Commonwealth v. Willis, 716 S.W.2d 224, 227 (Ky. 1986); State v. Burns,

112 Wis.2d 131, 332 N.W.2d 757, 764 (1983).




                                            14
No. 36060-1-III
State v. Sweidan


       In State v. Foster, 135 Wn.2d 441, 466, 957 P.2d 712 (1998) (plurality opinion),

four of the Washington Supreme Court justices, including the author of the lead opinion,

held that the language “face to face” did not afford the accused any additional protections

against remote testimony. The four justices emphasized an 1889 dictionary entry that

defined “confront” to mean “to bring face to face.” Thus, the United States

Constitution’s Sixth Amendment, with the phrase “confronted by witnesses,” bears the

same meaning as if the language read “face to face.” A fifth justice, who joined the

majority in holding RCW 9A.44.150 constitutional, disagreed that the State Constitution

never afforded additional protections to the accused. RCW 9A.44.150 is Washington’s

version of the statute that allows a child witness, under limited circumstances, to testify

by one-way video conference rather than in the physical presence of the accused.

       In State v. Foster, the Washington Supreme Court adopted the Craig test for

purposes of Washington Constitution’s confrontation clause, thereby allowing remote

testimony in limited circumstances. The state high court echoed the United States high

court’s perspective when declaring that, though fundamental and important, the defendant

lacks an absolute right to confront a witness under the state constitution. State v. Foster,

135 Wn.2d at 473.




                                             15
No. 36060-1-III
State v. Sweidan


       The Washington Supreme Court, in State v. Foster, and the United States Supreme

Court, in Maryland v. Craig, issued rulings in the context of one-way closed circuit

television, when the victim witness could not see the accused. Neither the United States

Supreme Court nor the Washington Supreme Court has addressed two-way conferencing.

Because two-way video conference testimony allows the jury and the accused to see the

witness and the witness to see the jury and the accused, some States have argued that two-

way conferencing does not implicate the confrontation clause. Nevertheless, a consensus

of state and federal courts has applied the Craig test to two-way conferencing testimony.

United States v. Carter, 907 F.3d 1199, 1208 (9th Cir. 2018); State v. Rogerson, 855

N.W.2d 495, 501-03 (Iowa 2014); State v. Smith, 2013 NMCA 081, 308 P.3d 135, 137;

Harrell v. State, 709 So. 2d 1364, 1368-69 (Fla. 1998). Although two-way video

testimony more closely resembles face-to-face confrontation than one-way video, two-

way video is still not the equivalent of physical face-to-face confrontation. State v.

Rogerson, 855 N.W.2d at 502-04; Harrell v. State, 709 So. 2d at 1368-69. Despite

questioning of the truth of the assumption, courts postulate that the screen and the

physical distance between the witness and the accused reduces the truth-inducing effect of

confrontation. State v. Rogerson, 855 N.W.2d at 504. Virtual presence created by a

television screen falls short of physical presence. United States v. Bordeaux, 400 F.3d


                                             16
No. 36060-1-III
State v. Sweidan


548, 554 (8th Cir. 2005); State v. Smith, 308 P.3d at 137. From the remote witness’s

point of view, the angle and quality of the courtroom camera and the size and quality of

the witness’s viewing screen will necessarily define the courtroom. United States v.

Carter, 907 F.3d at 1207. In Abdul Sweidan’s appeal, the State does not contend Maisa

Haddad’s video testimony automatically passed constitutional muster because of two-way

conferencing.

       Abdul Sweidan argues that the State of Washington failed to satisfy either

requirement of the Craig test. The first prong of the Craig test requires the State to show

denial of Abdul Sweidan’s confrontation rights was necessary to further an important

public policy interest. Sweidan argues that the State demonstrated no public policy

sufficient to permit the dispensing of Sweidan’s right to face-to-face physical

confrontation. The State responds that a large number of jurisdictions have held that the

need to care for a chronic illness serves an important public policy.

       Abdul Sweidan emphasizes that Maryland v. Craig and State v. Foster addressed

state statutes designed to protect child abuse victims, and Sweidan impliedly argues that

only a statutory policy suffices to satisfy the first prong of Craig. The State relies on no

statute in this appeal. Nevertheless, no decision holds that only public policy found in a

statute can outweigh the right to face-to-face confrontation. Also, the issue of permitting


                                             17
No. 36060-1-III
State v. Sweidan


testimony by video most frequently arises with regard to child witnesses because of a fear

possessed by a child victim of seeing his or her abuser. Nevertheless, no decision holds

that only child abuse victims may benefit from being absent from the courtroom.

       Courts define narrowly an “important public policy” for purposes of an exception

to the confrontation clause. State v. Smith, 308 P.3d at 138 (2013); Commonwealth v.

Atkinson, 987 A.2d at 748 (Pa. Super. Ct. 2009). The State’s interest in protecting child

witnesses from the trauma of testifying in a child abuse case justifies the use of a special

procedure that permits a child witness to testify in the absence of face-to-face

confrontation. Maryland v. Craig, 497 U.S. 836 (1990). Outside the context of child

witness cases, courts have permitted the use of video conference testimony in two other

circumstances: when a witness is too ill to travel and when a witness resides outside the

United States. Horn v. Quarterman, 508 F.3d 306, 320 (5th Cir. 2007); People v.

Wrotten, 14 N.Y.3d 33, 923 N.E.2d 1099, 1103 (2009); Commonwealth v. Atkinson, 987

A.2d at 748. The State has a legitimate interest in protecting the witness from physical

danger and suffering. Horn v. Quarterman, 508 F.3d at 320. When the witness is

essential to the case and the witness is located in another country outside the subpoena

authority of the State, the State’s interest in a just and expeditious resolution of the

prosecution trumps face-to-face confrontation. United States v. Abu Ali, 528 F.3d 210,


                                              18
No. 36060-1-III
State v. Sweidan


239-41 (4th Cir. 2008); Harrell v. Butterworth, 251 F.3d 926, 931 (11th Cir. 2001). The

trial court may also permit an overseas active-duty soldier to testify by video conference.

Rivera v. State, 381 S.W.3d 710, 711 (Tex. Ct. App. 2012).

       Courts have deemed other policies or goals insufficient to allow remote video

testimony. The State’s need for video conference testimony to prove or efficiently

present its case is not a sufficient public policy to outweigh the accused’s right to

confront an accuser face-to-face. United States v. Yates, 438 F.3d at 1316 (11th Cir.

2006); United States v. Carter, 907 F.3d at 1208 (9th Cir. 2018); State v. Rogerson, 855

N.W.2d 495, 502 (Iowa 2014). Convenience and cost saving do not suffice. State v.

Rogerson, 855 N.W.2d at 507; State v. Smith, 308 P.3d at 138; Commonwealth v.

Atkinson, 987 A.2d at 751. Convenience for the witness’s employer also does not

preempt face-to-face confrontation. State v. Smith, 308 P.3d at 138. Nor do security

concerns eclipse the right to face-to-face confrontation. Commonwealth v. Atkinson, 987

A.2d at 750. The fact that the witness is helpful to the prosecution does not add another

category for permitting video conference testimony. Melendez-Diaz v. Massachusetts,

557 U.S. 305, 313-14, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Unwillingness to travel

is not a sufficient reason to dispense with the physical presence requirement, and a court

should consider reasonable alternatives permitting face-to-face testimony. United States


                                             19
No. 36060-1-III
State v. Sweidan


v. Carter, 907 F.3d at 1208 (9th Cir. 2018); United States v. Yates, 438 F.3d 1307, 1317-

18 (11th Cir. 2006). We recognize transportation of Maisa Haddad to Washington and

back would expend fuel, but no court has validated video conference testimony by the

reduction of the witness’s carbon wheelprint.

       The State of Washington’s witness, Maisa Haddad, resided in Michigan. That

distance alone does not create a necessity for video testimony. Haddad remained within

the subpoena power of Washington State. Washington has adopted the Uniform Act to

Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, under

which the Washington court could direct a Michigan court to command the presence of

Haddad to testify in Washington State. RCW 10.55.060. The State of Michigan

reciprocates. MICH. COMP. LAWS ANN. § 767.92.

       The State may impliedly suggest that the importance of Maisa Haddad as a witness

may support a finding of an important public policy. Based on precedent holding that the

convenience of important witnesses does not qualify as a sufficient public policy, we rule

that the importance to the State of Maisa Haddad’s testimony failed to support a finding

of an important public policy.

       The State mentions that, in State v. Cayetano-Jaimes, 190 Wn. App. 286 (2015),

this court held that the trial court committed error when refusing to permit telephonic


                                            20
No. 36060-1-III
State v. Sweidan


testimony by an adult witness unavailable to testify in the courtroom due to deportation to

Mexico. Nevertheless, the defendant sought to introduce the testimony of the critical

witness, who could not return to the United States. The State successfully argued before

the trial court for the preclusion of the testimony. The high court based its ruling on an

accused’s Sixth Amendment right to present a complete defense, not on the confrontation

clause. The opponent of the remote testimony, the State, probably lacked any

constitutional right to confront the accused’s witnesses.

       Many decisions support the proposition that an illness of the witness suffices to

permit a witness to testify by video. In Horn v. Quarterman, 508 F.3d at 313 (5th Cir.

2007), a Texas jury convicted Patrick Horn with capital murder and sentenced him to

death. Horn filed a petition for habeas relief claiming in part that the trial court denied

him the opportunity to confront a witness when the witness testified via two-way closed-

circuit television. The appeals court denied relief because the state court correctly

permitted a terminally ill witness, whose doctor advised against travel, to testify remotely.

       In Harrell v. Butterworth, 251 F.3d at 931 (11th Cir. 2001), David Harrell argued

the trial court violated his write to confrontation when the court permitted two witnesses

to testify via satellite from Argentina. On habeas review, the court reviewed the trial

court’s decision to excuse in-person confrontation of two witnesses essential to the


                                              21
No. 36060-1-III
State v. Sweidan


State’s case. The trial court had found the witnesses lived beyond the subpoena power of

the court, there was no way to compel them to appear, and one of the witnesses was ill

and could not travel.

       In State v. Sewell, 595 N.W.2d 207 (Minn. Ct. App. 1999), Jeffrey Sewell

challenged his conviction for second degree felony murder, while arguing that the trial

court improperly permitted the testimony of witness William Hurt through interactive

television. The State alleged that Sewell admitted to the murder when speaking with

fellow inmate Hurt. At the time of trial, Hurt suffered from medical problems, and he

was under a medical restriction not to travel. The reviewing court upheld the use of the

video testimony.

       In Stevens v. State, 234 S.W.3d 748 (Tex. App. Fort Worth 2007), the state Court

of Appeals held that video testimony of a 75-year-old witness suffering from medical

problems did not violate the confrontation clause. The witness’s cardiologist wrote a

letter to the court explaining the witness had a well-documented medical history

demonstrating a tenuous health status. The cardiologist wrote that testifying could have

ramifications on his health.

       Contrary to the witnesses in the cited decisions, Maisa Haddad was not too ill to

travel. Instead, this appeal presents the unique situation of the witness declining to travel


                                             22
No. 36060-1-III
State v. Sweidan


because of the need to care for a suffering family member. Abdul Sweidan contends that,

since exceptions to face-to-face confrontation are narrow and no court has identified the

illness of a mother warranting an exception, we should deny the State’s promotion of an

important public policy.

       The parties forward no appellate decision addressing these circumstances. We also

find no decision directly relevant. Nevertheless, we conclude that the important policy of

alleviating physical pain and suffering can extend to the circumstances when the witness

would attend to another’s needs resulting from such suffering. No reason exists to

distinguish between the aching of the witness and the hurting of a witness’s close family

member. Whether Maisa Haddad needed to care for the mother, however, poses a

different question.

       Issue 3: Did the State establish the necessity to present the testimony of Maisa

Haddad by video in order to further an important state interest?

       Answer 3: No. If we held the video conference testimony to be harmful, we would

reverse the conviction or at least remand for an evidentiary hearing on the necessity of

the video conference testimony.

       We continue to address the first of the two Craig prongs. Under the first element,

the State must show that excusing the presence of the witness necessarily furthers an


                                            23
No. 36060-1-III
State v. Sweidan


important public policy. Maryland v. Craig, 497 U.S. at 850 (1990). Viewed in this

light, Maryland v. Craig actually establishes a three-part test: (1) the presence of an

important public policy, (2) remote testimony necessarily furthers the public policy, and

(3) the procedure otherwise assures the reliability of the testimony. Reported decisions

focus on whether the government identifies an important public policy and only

incidentally address the necessity portion of the first prong.

       The word “necessity” can bear an emphatic connotation. For example, Black’s

Law Dictionary defines the companion word “necessary” as “essential.” BLACK’S LAW

DICTIONARY 1192 (11th ed. 2019). Nevertheless, the word has shades of meaning, from

absolute physical necessity to convenience. McCulloch v. State, 17 U.S. 316, 413-15, 4

L. Ed. 579 (1819). The law rarely, if ever, requires absolute or indispensable necessity in

any setting. Central Puget Sound Regional Transit Authority v. WR-SRI 120th North

LLC, 191 Wn.2d 223, 245, 422 P.3d 891 (2018). Generally, the word “necessary” means

reasonable necessity, under the circumstances of the particular case. Central Puget Sound

Regional Transit Authority v. WR-SRI 120th North LLC, 191 Wn.2d at 245.

       Because the use of video conference testimony implicates an accused’s critical

constitutional right, we do not consider the word “necessity” to connote mere

convenience, particularly in light of reported decisions that declare convenience does not


                                             24
No. 36060-1-III
State v. Sweidan


qualify as an important public policy. We may be unable to circumscribe the meaning of

necessity in this appeal’s context beyond concluding that the word means something more

than “convenient,” although something less than “absolute physical necessity.”

       The trial court never entered a finding or commented in its oral ruling about the

necessity of Maisa Haddad’s testifying remotely. Abdul Sweidan raised legitimate

questions at trial, and he repeats those questions on appeal, about the purported need for

Haddad to remain in Michigan. The letters of Maisa Haddad and the mother’s physician

beg the question of whether another caregiver could have cared for the mother in the

absence of Haddad for three days. We also wonder if the mother would have recovered

in the near future or if the mother was terminally ill and would have died in the near

future such that the court could have postponed trial for Haddad to later appear in

Washington State.

       In United States v. Carter, 907 F.3d 1199 (9th Cir. 2018), the Ninth Circuit Court

of Appeals overruled the district court when that court failed to look for alternatives to an

adult witness’s testifying remotely. The State charged Laron Carter with fourteen counts

of trafficking and prostituting seven minor girls. One victim witness stated she could not

travel to the trial due to her late pregnancy. The Ninth Circuit overturned the district

court’s decision to permit the remote testimony of this witness, while reasoning that


                                             25
No. 36060-1-III
State v. Sweidan


pregnancy is a temporary disability and therefore alternatives existed to ensure the

witness faced Carter in person. These alternatives included granting a continuance or

severing the counts involving the witness.

       The decision most analogous is Bush v. State, 2008 WY 108, 193 P.3d 203 (Wyo.

2008), which decision addresses necessity. In a prosecution for first degree murder, the

trial court allowed the prosecution to present testimony of an elderly couple who

recognized David Bush’s pickup truck as the truck that passed them at a high rate of

speed shortly after the murder. The couple also saw two large plastic bags in the bed of

the truck. The husband developed congestive heart failure and renal failure one week

before trial and could not travel from his home in Colorado to Wyoming. The wife did

not wish to leave the husband alone. The decision does not disclose whether the wife

helped to care for the husband. The trial court found that the wife would suffer great

stress if she left her husband of sixty years to travel to Wyoming. The Wyoming Supreme

Court affirmed the trial court’s ruling permitting the husband to testify by video

conference. The state Supreme Court reversed the trial court’s ruling permitting the wife

to testify remotely. The wife was not ill. The court, however, held the error to be

harmless.

       Issue 4: Was the reliability of Maisa Haddad testimony assured?


                                             26
No. 36060-1-III
State v. Sweidan


       Answer 4: Yes.

       On appeal, Abdul Sweidan argues that the State did not satisfy the second prong of

the Craig test because the remote video conferencing did not ensure truthful testimony to

the same extent as live testimony. In so arguing, Sweidan merely repeats his previous

contention that video testimony inherently reduces the trustworthiness of trial testimony.

Sweidan identifies no difficulty in the video or audio transmission or in the ability of the

jury and him to observe the demeanor of Maisa Haddad or for Haddad to see Sweidan.

       Assuming the trial court allows video conference testimony, this court assesses

whether other components of the confrontation clause were left intact, including “oath,

cross-examination, and observation of demeanor by the trier of fact” to determine if

testimony is reliable. Maryland v. Craig, 497 U.S. at 837. These components ensure the

reliability of testimony in the absence of physical presence.

       Maisa Haddad testified under oath, the defense cross-examined her, and, according

to the State, the jury could observe Haddad’s demeanor. Abdul Sweidan does not argue

to the contrary. The State also highlights that it never asked Haddad to identify Abdul

Sweidan. Therefore, we hold the reliability of the evidence was assured.

       Despite our ruling, we encourage the trial court or the State, with the court’s

concurrence, to verify on the record the structure and the mechanics of the video


                                             27
No. 36060-1-III
State v. Sweidan


conference presentation. Such details should include the number and location of the

video screens in the courtroom, the technology present at the location of the witness, the

dimensions of the respective screens, and what sections of the witness’s body that the jury

can see on the screen. The record should confirm that the jury and the defendant see the

witness and the witness’s body language, and that they hear the witness. The record

should also verify that the witness sees the jury and the defendant. Finally, at the

conclusion of the testimony, the trial court or the State should substantiate that no errors

in the transmission occurred. We do not hold, however, that any of these suggestions

must necessarily be followed to fulfill the strictures of the confrontation clause.

       In United States v. Bordeaux, 400 F.3d at 555 (8th Cir. 2005), the federal appeals

court commented that, before approving of two-way video testimony, the court would

wish to know answers to a myriad of logistical questions. Important concerns included

the size of the monitor, placement of the monitor, and placement of the cameras.

       Issue 5: Must the trial court enter findings of fact when granting a request for

video conference testimony?

       Answer 5: Because of the lack of a formal assignment of error from Abdul Sweidan

and because we find any error to be harmless, we do not resolve the question. Without

issuing a ruling, we encourage trial courts to enter findings.


                                             28
No. 36060-1-III
State v. Sweidan


       Abdul Sweidan emphasizes that the trial court entered no findings identifying the

important state public policy on which the court relied or the need for video conference

testimony to support the policy. He impliedly assigns error to the lack of findings.

Nevertheless, because of the lack of a formal assignment of error and because of the

lack of briefing directly on point, we decline to decide whether findings are essential.

RAP 10.3(a)(4); Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589 (1968).

       In the context of child abuse victims, the United States Supreme Court, in

Maryland v. Craig, 497 U.S. 836 (1990), has required specific findings to demonstrate

necessity. The findings must include (1) remote testimony being necessary to protect the

child, (2) the presence of the defendant traumatizing the witness, and (3) the emotional

distress suffered by the child witness in the presence of the defendant was more than

minimal.

       Other courts have followed the United States Supreme Court, in contexts outside

child abuse cases, in directing lower courts to enter findings as to an identified important

public policy and the need for video conference testimony to advance the policy. In

Commonwealth v. Atkinson, 987 A.2d at 748 (2009), the Pennsylvania high court held

that the trial court breached the accused’s confrontation rights, when conducting a motion

to suppress, because the trial court failed to enter case specific findings when permitting


                                             29
No. 36060-1-III
State v. Sweidan


video testimony during the motion hearing. The court also failed to conduct an

evidentiary hearing to determine if video testimony was warranted based on the specific

facts relating to an individual witness. The court held the constitutional error to be

harmless. In State v. Rogerson, 855 N.W.2d at 499 (Iowa 2014), the court wrote that the

trial court must enter a fact specific finding of the necessity to substitute video for live

testimony.

       In a prosecution for obtaining property by false pretenses, the court allowed a

witness to testify by two-way, closed circuit internet broadcast from Nebraska to North

Carolina. State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427 (2013). The State alleged

that Paul Seelig falsely advertised his bread as gluten free. The witness testified to tests

he performed on samples of Seelig’s bread products. The court indicated that, to decide

the necessity question, the trial court must hold an evidentiary hearing and make case

specific findings as to the necessity of allowing the witness to testify outside the

defendant’s physical presence in order to fulfill the important state interest. The trial

court conducted a hearing, after which the court found that the witness had a history of

panic attacks, had suffered a severe panic attack on the day he planned to fly from

Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel




                                              30
No. 36060-1-III
State v. Sweidan


to North Carolina because of his medical condition. The record showed that the

defendant and the jury could see the witness while he testified.

          In People v. Buie, 285 Mich. App. 401, 775 N.W.2d 817 (2009), the reviewing

court remanded to the trial court for a specific finding because the record was devoid of

any evidence or any findings by the trial court regarding the necessity of the video

conferencing procedure implemented. In Horn v. Quarterman, 508 F.3d 306 (5th Cir.

2007), the Fifth Circuit Court of Appeals on habeas review held the lower court properly

permitted remote testimony based on the court’s case specific finding of necessity. The

reviewing court looked to the record and found the trial court took efforts to confirm the

illness of a witness and his inability to travel and concluded in its findings that extreme

circumstances made it necessary for the witness to give his testimony remotely. The trial

court’s findings also included a specific overview of the procedural safeguards

implemented to ensure the other components of his Sixth Amendment right remained

intact.

          One court strongly suggested that the trial court conduct an evidentiary hearing

before deciding whether to permit video conference testimony. The federal appeals court

in United States v. Yates, 438 F.3d at 1315 (11th Cir. 2006) stated that generally the trial

court must hold an evidentiary hearing to determine whether it is essential in the


                                               31
No. 36060-1-III
State v. Sweidan


particular case to deny a defendant his constitutional rights in order to further a

compelling state interest. The court reversed convictions because the district court failed

to make “case-specific findings of fact that would support a conclusion that this case is

different from any other criminal prosecution in which the Government would find it

convenient to present testimony by two-way video conference.” United States v. Yates,

438 F.3d at 1316.

       We note that neither the physician nor Maisa Haddad signed their respective letters

or otherwise provided testimony under oath or penalty of perjury. We encourage trial

courts to require affidavits or even testimony on the phone under oath before ruling on the

necessity to further an important public policy.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.

                                      FACTS REDUX

       Dania Alhafeth and Abdul Sweidan, originally from Homs, Syria, married in 1996.

In 2012, the couple fled the Armageddon in Syria and moved to Jordan. In May 2016,

Sweidan and Alhafeth moved to the United States as refugees with four of their children.

Married daughter, Marisha, remained in Jordan. The couple and their four children


                                              32
No. 36060-1-III
State v. Sweidan


resided in a Kennewick apartment. We give the pseudonyms of Amal to their teenage

daughter and Kashif to their youngest child, a boy. Amal was seventeen years old on

August 30, 2017. Kashif was two years old on that date.

       During trial, Dania Alhafeth and Amal described the marital relationship between

Alhafeth and Abdul Sweidan as permeated with quarrels about finances and Alhafeth’s

socializing. Some arguments ended with Sweidan pushing or punching Alhafeth.

Alhafeth sometimes struck back. The disputations occurred daily once the family arrived

in the United States. If divorce ever entered the conversation, Sweidan threatened that he

would rather kill Alhafeth than divorce her.

       During trial, Abdul Sweidan disagreed with his wife’s and his daughter’s

characterization of the marriage. Sweidan testified that he and Dania Alhafeth

maintained a good relationship. Sweidan conceded the couple faced marital problems in

Jordan when he discovered Alhafeth’s relationship with another man. According to

Sweidan, when he threatened to expose the relationship, she threatened to kill herself.

Sweidan told Alhafeth not to kill herself because of the children, and he forgave her

dalliance for the children’s benefit.

       Abdul Sweidan acknowledged that two and a half months before August 30, 2017,

he and his wife quarreled. Dania Alhafeth screamed at Sweidan, so he spat on Alhafeth.


                                               33
No. 36060-1-III
State v. Sweidan


She scratched him in return. Sweidan denied ever striking Alhafeth. As a result of the

scratching, Sweidan retorted to Alhafeth: “you are cursed in this life and the hereafter.”

RP (April 13, 2018) at 1245-46.

       A month before August 30, 2017, Amal confronted her father and suggested that

he and her mother separate. Abdul Sweidan responded with agitation and by approaching

close to Amal as if to strike her.

       On August 29, 2017, the day preceding the stabbing, Dania Alhafeth took her three

youngest children to a ubiquitous McDonald’s, where Amal worked. Alhafeth and the

children planned to eat at the restaurant and give Amal a ride home after her shift.

Unbeknownst to Alhafeth, Abdul Sweidan followed her to the restaurant. After Sweidan

entered the restaurant, he grasped Alhafeth’s hand and directed her to sit. Alhafeth told

Sweidan not to grab her hand. Alhafeth warned that the restaurant camera would capture

his behavior and a restaurant employee would phone the police. Sweidan responded that

he did not care. Alhafeth sat and the two conversed. Sweidan wanted to make peace.

Alhafeth remarked:

              [W]hat we make peace about? We always fight and we always have
       the quarrels. And then we make the issue short, brief, and we close the
       subject.

RP (April 11, 2018) at 1133.


                                             34
No. 36060-1-III
State v. Sweidan


      According to Abdul Sweidan, he and Dania Alhafeth quarreled the night of August

29 about Alhafeth’s side job of cooking for other families. Alhafeth sent all income from

the cooking to her mother in Syria for use in anti-government operations. On that same

day, he learned that Alhafeth had renewed contact with a romantic interest in Jordan.

      We present the conflicting accounts of Abdul Sweidan and Dania Alhafeth as to

the events on August 30, 2017. Alhafeth testified that Sweidan surprised her by returning

home in the afternoon early from work. Alhafeth and her two-year-old son, Kashif,

reposed in the living room. Sweidan commented that the Tyson plant, where he worked,

had exhausted its meat supply. Sweidan queried Alhafeth: “are we going to make up?”

RP (April 11, 2018) at 1140. Alhafeth responded that she foresaw no benefit of

reconciling because they constantly disagreed. Sweidan entered the kitchen, where

Alhafeth assumed he intended to prepare food. Sweidan returned to the living room with

a knife and repeatedly stabbed Alhafeth. Sweidan exclaimed: “‘[d]ie, die.’” “‘May God

not bring you back.’” RP (April 11, 2018) at 1140-42.

      Dania Alhafeth testified that Kashif sat with her when Abdul Sweidan initiated

the stabbing. Kashif yelled, “Momma, Momma,” and attempted to push his father. RP

(April 11, 2018) at 1142. Sweidan took the toddler to a back bedroom and locked him

inside the room. Kashif suffered no physical injuries.


                                            35
No. 36060-1-III
State v. Sweidan


        According to Dania Alhafeth, Abdul Sweidan returned to the living room, changed

clothes, and stuffed his disrobed clothes into a bag. Sweidan noticed that Alhafeth still

breathed. Sweidan questioned: “‘you haven’t died yet?’” RP (April 11, 2018) at 1144.

Sweidan then stabbed Alhafeth in the thigh. Sweidan left the apartment and locked the

door.

        Dania Alhafeth testified that, as she heard Kashif crying and kicking the door, she

located her phone. She called a neighbor, who called 911. When police arrived, Alhafeth

alerted them to the locked bedroom holding her son. RP 682.

        Abdul Sweidan recounted different facts that transpired on August 30, 2017.

Sweidan testified that, on August 30, he returned from work early because of a dental

appointment. He wanted to bathe and nap before the appointment. On his arrival home,

Dania Alhafeth confronted Sweidan and called him a traitor. Sweidan assumed Alhafeth

found a story he wrote and hid about a Jewish man he met in Jordan who thought

Sweidan was of Jewish descent. The Jewish man gave Sweidan a gold chain, star, and

card with an Israeli flag thereon, which Sweidan kept. Alhafeth threatened to tell others

that Sweidan was Jewish and a traitor. Sweidan retorted that he would inform Alhafeth’s

family about her illicit relationship. During this argument, Kashif wandered out of his

bedroom, and Alhafeth returned him to the bedroom and locked the door.


                                             36
No. 36060-1-III
State v. Sweidan


       Abdul Sweidan, bored by Dania Alhafeth’s behavior, went to the bathroom to

brush his teeth. Alhafeth called him into the kitchen and surprised him by displaying a

large knife. Sweidan tried to snatch the knife from Alhafeth, but she slashed his fingers.

She then stabbed her chest and neck. Sweidan asked Alhafeth why she insisted on

hurting herself, and she replied that she wanted Sweidan to go to jail for a long time.

       According to Abdul Sweidan, after Dania Alhafeth inflicted cuts on his fingers and

wounds to herself, he searched several rooms for items given him by the Jewish man in

Jordan. He feared for his safety if Alhafeth’s family learned he harbored pro-Israel

sentiments. While searching, he left blood from his fingers. He donned rubber gloves

from the kitchen to control the bleeding from his fingers. The gloves did not stem the

bleeding, so he threw them on the ground. Sweidan noticed blood splotches on the

pajama pants he wore, so he removed the pants.

       Abdul Sweidan testified that he returned to Dania Alhafeth and saw her lying on

the living room floor. He left the apartment and once outside remembered the locked

bedroom held Kashif. He attempted to reenter the residence, but Alhafeth had positioned

herself at the door, and she engaged the lock every time he tried to unlock the door.

Sweidan told Alhafeth that he wanted to take Kashif and her to the hospital, but she

refused to open the door.


                                             37
No. 36060-1-III
State v. Sweidan


      Abdul Sweidan drove himself to Trios Hospital in Kennewick and arrived at

1:37 p.m. Medical staff first assisted him at 1:49 p.m. He sustained large lacerations on

his right hand. Abdul Sweidan spoke primarily Arabic. During the course of his

treatment, Trios Hospital called an Arabic interpreter, who assisted Sweidan in

communicating with staff. During the treatment, Sweidan told the treating physician the

injuries occurred while cutting meat.

      Law enforcement officers arrived at Dania Alhafeth’s home at 1:42 p.m., and they

ferried Alhafeth to Trios Hospital. At the emergency room, Dr. Brandon Thomas

observed Alhafeth with two stab wounds on her face, multiple wounds on the right side of

her back, wounds on the anterior and posterior abdomen, wounds on her left side flank,

and wounds in her upper groin. Dr. Thomas classified Alhafeth’s condition as critical.

Thomas concluded that Alhafeth could not have inflicted the wounds to her back.

Thomas also noted she had defensive wounds between her thumb and second finger.

Dania Alhafeth’s principal language is also Arabic. Trios Hospital employed an Arabic

interpreter by phone also to communicate with Alhafeth.

      Nurse Debbie Logan noticed the use of two Arabic interpreter lines in the

emergency room, one for use by a male patient and the other for use by a female patient.

Amateur detective Logan pondered the implications of an Arabic-speaking woman,


                                            38
No. 36060-1-III
State v. Sweidan


suffering from stab wounds, being present in the same emergency room as an Arabic-

speaking man, with large cuts on his hand. Logan deemed Abdul Sweidan’s changing of

clothes unusual for one who suffered injuries. Logan also saw a large amount of blood

spatter on his feet. She alerted the police, who approached Abdul Sweidan.

      During a search of the couple’s apartment, law enforcement seized Abdul

Sweidan’s shirt, Kashif’s shirt, knives from the kitchen sink, and rubber gloves from

under the sink. Law enforcement spotted blood throughout the apartment and took swabs

from various locations.

      Swab testing confirmed the presence of Dania Alhafeth’s blood on Abdul

Sweidan’s shirt, with the odds of a random match at 1 in 10 nonillion. The knives tested

positive for blood, but tests could not discern if the blood was human blood. The rubber

gloves had damp blood. The blood on the gloves matched Abdul Sweidan’s DNA, as the

major contributor, with the odds of a random match at 1 in 2.1 nonillion. Blood found on

Abdul Sweidan’s right calf matched the DNA of Dania Alhafeth as a major contributor

with the odds of a random match at 1 in 10 nonillion.

      Kashif’s shirt contained blood on the bottom matching Abdul Sweidan’s DNA as a

1 in 2.1 nonillion odds of a random match. The blood on the hood of Kashif’s shirt




                                            39
No. 36060-1-III
State v. Sweidan


contained a mixture of blood, making it 2.4 undecillion times more likely to be a mixture

of Sweidan’s and Dania Alhafeth’s DNA than that of a random person’s.

       Other testing revealed blood on the apartment’s entryway floor, entryway wall,

doorway, a coffee table, a brown couch, pillows on the couch, a telephone, a television

stand, the bathtub, and the kitchen floor and counter. Bloodstains in the living room

indicated that an injured party bled while lying on the living room floor. The master

bedroom and bathroom also contained blood. The bathroom contained blood on a light

switch and on toilet paper, such that it dripped on the wall and the floor. Blood on the

light switch included a single source, matching Abdul Sweidan with the odds of a random

match at 1 in 2.1 nonillion.

       Law enforcement officers also took blood swabs from inside Abdul Sweidan’s car.

Testing of the samples revealed blood on the exterior driver door, a white plastic bag,

a purple towel in the passenger side of the center control panel, and a cigarette box.



                                  PROCEDURE REDUX

       In addition to charging Abdul Sweidan with second degree murder and first degree

assault, the State of Washington sought an exceptional sentence because Sweidan




                                             40
No. 36060-1-III
State v. Sweidan


committed the crimes in front of his minor son, Kashif. The State also charged Sweidan

with committing the crimes with a deadly weapon other than a firearm.

       During trial, Abdul Sweidan’s daughter, Amal, testified. The prosecution asked

her about a statement given to a detective on August 30, 2017.

              Q. And without saying anything that you heard or what anybody else
       said, do you remember what you told that detective?
              A. I said that—well, I don’t know exactly because it just depended
       on what questions he asked, so just depended on what questions were asked.
        I remember that I said that my family, they were having an argument or
       arguments, and I said that I think that, I think that was him who did that, I
       mean my dad.

RP (April 4, 2018) at 632 (emphasis added).

       In addition to convicting Abdul Sweidan of attempted second degree murder and

first degree assault, the jury also ruled Sweidan to have engaged in an aggravated

domestic violence offense. The court later dismissed the first degree assault charge based

on the prohibition on double jeopardy.

       At sentencing, Abdul Sweidan requested a sentence of no more than 189 months.

The State sought an additional 147 month sentence, beyond a 189 month standard range

sentence, because the stabbing occurred within sight and hearing of the couple’s child.

Sweidan responded that, considering Kashif’s age at the time of the incident, he likely

would have no memory of the event. The trial court imposed a sentence of 336 months,


                                            41
No. 36060-1-III
State v. Sweidan


which represented a standard range of 189 months plus 147 months for the sentencing

enhancement.

      The sentencing court entered eighteen findings of fact and one conclusion of law.

The findings of fact included:

              4. The facts presented at trial included evidence that the defendant
      came home early from work. His wife, Dania Alhafeth, was present with
      their two-year-old child. The defendant and Ms. Alhafeth had a brief
      conversation and the defendant grabbed a knife from the kitchen and began
      stabbing Ms. Alhafeth numerous times.
              5. At trial Ms. Alhafeth testified that the defendant, while stabbing
      her, said, “Die, Die and may God never bring you back.”
              ....
              12. The Court considered what punishment is proportionate to the
      criminal acts and the criminal history of the defendant for purposes of
      sentencing within the standard range. The Court also considered the
      seriousness level of the crime and the testimony of the victim.
              13. The Court considered the testimony of the victim and the impact
      to her and her family based on the horrific and brutal attack.
              14. The Court considered the number of stab wounds upon the
      victim, 23 to 30, and found this demonstrates the level of violence initiated
      during the attack by the defendant.
              15. The Court found that there were no mitigating factors the
      defendant presented. The Court also found the defendant did not show
      remorse or take any responsibility for the attack.
              16. The Court considered the facts presented at trial detailing the act
      being committed within the sight and sound of the young child and the
      impact it would make on this child for purposes of sentencing the defendant
      outside of the standard range. The Court considered the amount of trauma
      the child witnessed at such a young age[,] which the Court found may have
      long lasting effects. The Court finds that based on the conduct being within
      the sight and sound of the child that a standard range sentence is not
      sufficient punishment and not in the best interest of justice.

                                            42
No. 36060-1-III
State v. Sweidan



CP at 152-53. The sole conclusion of law states:

              Based on the above findings of fact, the jury’s finding of guilt on
       Attempted Murder in the Second Degree with a Domestic Violence
       Allegation, an Aggravated Circumstance Allegation of Aggravated
       Domestic Violence, a Deadly Weapon Enhancement, the evidence
       presented at the hearing, and testimony at trial, the Court concludes that
       there are substantial and compelling reasons justifying an exceptional
       sentence of 147 months for a total of 336 months.

CP at 153-54.

       The State of Washington sought a fifty-year ban on all contact between Abdul

Sweidan, on the one hand, and Dania Alhafeth and the four children living in the United

States, on the other hand. The State claimed that all children likely witnessed ongoing

domestic violence meted by Sweidan and that contact with him would cause emotional

distress. Abdul Sweidan objected to the length of the proposed no contact order on

constitutional and other grounds. The court entered a no-contact order prohibiting

Sweidan from initiating contact with the children until 2046, the date on which the State

would likely release Sweidan from prison. According to the sentencing court, the minor

child being subjected to a violent and brutal act warranted the children’s protection.

       The sentencing court ordered Abdul Sweidan to pay $900 in legal financial

obligations including a $200 criminal filing fee and a $100 domestic violence penalty

assessment.

                                             43
No. 36060-1-III
State v. Sweidan


       Issue 6: Was any constitutional error harmless?

       Answer 6: Yes.

       The State argues that any violation of Abdul Sweidan’s confrontation clause rights

was harmless. We agree.

       A violation of the confrontation clause is subject to harmless error analysis. Lilly

v. Virginia, 527 U.S. 116, 139-40, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999); State v. Lui,

179 Wn.2d 457, 495, 315 P.3d 493 (2014). If harmless error, a violation of a defendant’s

rights under the confrontation clause does not require reversal. State v. Moses, 129 Wn.

App. 718, 732, 119 P.3d 906 (2005).

       Appellate courts generally assess harmless constitutional error in the context of the

trial court admitting impermissible evidence. In such a context, the reviewing court

naturally assesses whether the jury would have convicted absent such evidence. In our

appeal, Abdul Sweidan challenges the method of presentation of the testimony, not the

content of the testimony. If the trial court had required Maisa Haddad to testify in person

and Haddad had appeared in Benton County, Washington, her testimony could have been

more damning to Sweidan since the jury saw Haddad in person. Thus, Sweidan may have

benefitted by any constitutional violation. Still, by drawing such a conclusion, we would

speculate as to whether Maisa Haddad would have come to Washington State and


                                             44
No. 36060-1-III
State v. Sweidan


whether her face-to-face testimony would have caused greater harm to Sweidan. Also, all

rulings permitting video testimony could escape review. No reported decision adjudges

harmless error, in the context of wrongly admitted video conference testimony, based on

the impact of the testimony if presented live. Instead, decisions assess harmless error

under the traditional rule whereby the court measures the weight of the testimony absent

the video testimony.

       A violation of a defendant’s rights under the confrontation clause constitutes

harmless error if the State proves beyond a reasonable doubt that the jury verdict did not

rely on the error. State v. Lui, 179 Wn.2d at 495 (2014). An error is prejudicial unless

the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. State

v. Koslowski, 166 Wn.2d 409, 431, 209 P.3d 479 (2009). To determine whether a

violation is harmless, this court reviews, the importance of the witness’s testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and the overall strength of the

prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 686-87, 106 S. Ct. 1431, 89

L. Ed. 2d 674 (1986); State v. Saunders, 132 Wn. App. 592, 604, 132 P.3d 743 (2006).




                                            45
No. 36060-1-III
State v. Sweidan


       An assessment of harmlessness cannot include consideration of whether the

witness’s testimony would have been unchanged had there been confrontation. Coy v.

Iowa, 487 U.S. at 1021-22 (1988). Such an inquiry would involve pure speculation, and

harmlessness must therefore be determined by reviewing the remaining evidence. Coy v.

Iowa, 487 U.S. at 1021-22.

       Abdul Sweidan argues that admission of Maisa Haddad’s testimony was harmful

as some of her testimony was not cumulative of other testimony. Sweidan also

emphasizes that, during closing, the State relied on testimony of Haddad to corroborate

testimony from Dania Alhafeth.

       Maisa Haddad testified that Abdul Sweidan told his attending doctor that he cut his

hand while at work. This testimony conflicted with Sweidan’s testimony that he cut his

hand when taking the knife away from Dania Alhafeth. Haddad also testified that the

defendant cursed his wife while at the hospital, stating, “may God not bless her.” RP

(April 5, 2018) at 767. In closing argument, the State mentioned Haddad’s testimony that

Sweidan cursed his wife, while alluding to the similarity between the cursing in the

hearing of Haddad and the cursing directly at Alhafeth.

       In the absence of Maisa Haddad’s testimony, the State presented overwhelming

evidence to demonstrate Abdul Sweidan’s guilt. Dania Alhafeth testified that Sweidan


                                            46
No. 36060-1-III
State v. Sweidan


repeatedly stabbed her with a kitchen knife in the attack. Her attending physician, Dr.

Brandon Thomas, testified she sustained twenty-three stab wounds including on her back.

Sweidan averred that Alhafeth cut herself. He did not contend some third party attacked

his wife. The most harmful testimony came from Dr. Thomas, who opined that Alhafeth

could not have inflicted the wounds on her back by herself.

       Maisa Haddad’s testimony, that Abdul Sweidan told his attending doctor that he

cut his hand while at work, conflicted with Sweidan’s testimony that he cut his hand

when taking the knife away from Dania Alhafeth. Nevertheless, Sweidan never denied

telling the doctor that he cut his hand while at work.

       The couple’s residence contained blood throughout. The blood on gloves in the

residence included a DNA match with Abdul Sweidan’s with odds of a random match at

1 in 2.1 nonillion. Sweidan explained the blood by his testimony that his wife cut him.

Nevertheless, Sweidan’s and Alhafeth’s blood on Kashif’s clothing contradicted

Sweidan’s testimony that he earlier locked Kashif in his room.

       Maisa Haddad’s testimony that Abdul Sweidan cursed Dania Alhafeth was

consistent with Sweidan’s own testimony that he earlier cursed Alhafeth for her conduct.

Two months earlier, when Alhafeth scratched him, he told Alhafeth: “you are cursed in

this life and the hereafter.” RP (April 12, 2018) at 1246.


                                             47
No. 36060-1-III
State v. Sweidan


                                       Amal Testimony

       Issue 7: May Abdul Sweidan assign error to the testimony from his daughter that

she believed her father harmed her mother, when Sweidan did not challenge the testimony

in the trial court?

       Answer 7: We decline to answer this question, and we review the merits anyway

since the assignment of error may involve manifest constitutional error.

       For the first time on appeal, Abdul Sweidan contends that his daughter Amal’s

testimony, that she believed Sweidan harmed her mother, constituted error. The State

asks that we decline review of the assignment of error because Sweidan did not object to

the testimony during trial.

       A party may not generally raise a new argument on appeal that the party did not

present to the trial court. In re Detention of Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d

1144 (2007). A party must inform the trial court of the rules of law it wishes the court to

apply and afford the trial court an opportunity to correct any error. Smith v. Shannon,

100 Wn.2d 26, 37, 666 P.2d 351 (1983).

       RAP 2.5(a) embodies the principle that an appellant may not raise a new argument

on appeal, but the rule contains a number of exceptions. RAP 2.5(a)(3) allows an

appellant to raise for the first time “manifest error affecting a constitutional right,” an


                                              48
No. 36060-1-III
State v. Sweidan


exception on which a criminal appellant commonly relies. The law treats constitutional

errors especially under RAP 2.5(a) because the errors often result in serious injustice to

the accused and may adversely affect public perceptions of the fairness and integrity of

judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).

       Washington courts and even decisions internally have announced differing

formulations for “manifest error.” First, a manifest error is one “truly of constitutional

magnitude.” State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term

“manifest,” some decisions emphasize prejudice, not obviousness. The defendant must

identify a constitutional error and show how, in the context of the trial, the alleged error

actually affected the defendant's rights. The showing of actual prejudice renders the error

“manifest,” allowing appellate review. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756

(2009); State v. Scott, 110 Wn.2d at 688. A third formulation requires that the facts

necessary to adjudicate the claimed error be in the record on appeal. State v. McFarland,

127 Wn.2d 322, 333, 899 P.2d 1251 (1995).

       Sometimes the reviewing court does not decide whether the appeal challenge

qualifies as manifest constitutional error until after reviewing the underlying arguments.

In this circumstance, the court proceeds to preview the merits of the constitutional

argument to determine if the challenge will likely succeed. State v. Reeder, 181 Wn. App.


                                             49
No. 36060-1-III
State v. Sweidan


897, 912, 330 P.3d 786 (2014), aff’d, 184 Wn.2d 805, 365 P.3d 1243 (2015). In doing so,

the court will also address the merits of the claim and determine whether, in the context

of the entire record, the error is harmless beyond a reasonable doubt. State v. O’Hara,

167 Wn.2d at 99; State v. Grimes, 165 Wn. App. 172, 187, 267 P.3d 454 (2011). We do

so here.

       Issue 8: Did Amal’s testimony violate Abdul Sweidan’s right to a fair trial?

       Answer 8: No.

       Abdul Sweidan argues that under ER 701, Amal’s testimony violated his right to a

fair trial. Sweidan contests the portion of Amal’s testimony when she replied to a

question from the prosecution regarding her statements to a detective:

              Q. And without saying anything that you heard or what anybody else
       said, do you remember what you told that detective?
              A. I said that—well, I don’t know exactly because it just depended
       on what questions he asked, so just depended on what questions were asked.
        I remember that I said that my family, they were having an argument or
       arguments, and I said that I think that, I think that was him who did that, I
       mean my dad.

RP (April 4, 2018) at 632. We note that the question posed by the State’s attorney was

proper, but that Amal’s answer went beyond the scope of the question. The question only

asked for a yes or no answer and instructed Amal not to disclose what she said to the

detective. Although possibly not important, Amal did not directly testify that, as of the


                                            50
No. 36060-1-III
State v. Sweidan


date of the trial, she deemed her father guilty. Instead, she testified that she earlier told a

law enforcement officer that she believed her father assaulted her mother.

       ER 701 permits testimony by a lay witness only when the testimony is: (1)

rationally based on the perception of the witness, (2) helpful to the jury, and (3) not based

on scientific or specialized knowledge. A witness may not give his or her opinion as to

the guilt of a defendant either by direct statement or inference. State v. Black, 109 Wn.2d

336, 348, 745 P.2d 12 (1987).

       Abdul Sweidan relies on State v. Johnson, 152 Wn. App. 924, 219 P.3d 958 (2009)

to argue that Amal’s statements constituted manifest constitutional error. In State v.

Johnson, the State charged Gerald Johnson with second degree child molestation. The

court permitted three witnesses to testify to out-of-court statements made by Johnson’s

wife. The complainant, her mother, and her stepfather all related an incident when

Johnson’s wife confronted the complainant about the accusations against her husband and

demanded that she prove she had a sexual relationship with Johnson. In response, the

complainant mentioned a mole on Johnson’s penis and his specific sexual habits. All

three witnesses testified that Johnson’s wife acknowledged that the accusations must be

true. This court held that the testimony from the witnesses constituted manifest




                                              51
No. 36060-1-III
State v. Sweidan


constitutional error and reversed the trial court’s admission of the evidence. This court

characterized the testimony as collateral testimony offered solely to prejudice the jury.

       In light of State v. Johnson, Abdul Sweidan argues that Amal’s testimony served

no purpose but to prejudice the jury against him since Amal vouched for Dania Alhafeth’s

version of events. According to Sweidan, Amal’s testimony shed no light on the evidence

and only expressed her belief as to his guilt. Sweidan worries that his daughter’s opinion

that her father harmed her mother would carry great weight with jurors.

       We distinguish State v. Johnson. In Abdul Sweidan’s trial, the State did not ask

Amal to express any opinion on Sweidan’s guilt. The State did not call multiple

witnesses to testify as to a collateral matter, and Amal’s comment was fleeting. The State

did not mention Amal’s comment during closing.

       In State v. Mohamed, 187 Wn. App. 630, 350 P.3d 671 (2015), this court

distinguished between a fleeting comment, which causes no prejudice, and the prosecutor

directly asking a witness about the credibility of another witness and when a witness’s

answer focuses on a credibility assessment. State v. Mohamed, 187 Wn. App. at 651.

Unlike in Mohamed, Amal’s testimony went directly to the guilt of Abdul Sweidan, but

the State did not solicit the testimony and the comment was fleeting.




                                             52
No. 36060-1-III
State v. Sweidan


       For an error to constitute manifest constitutional error, the error must have

“practical and identifiable consequences.” State v. Montgomery, 163 Wn.2d 577, 595,

183 P.3d 267 (2008). Because of the transitory nature of Amal’s comment and

overwhelming evidence of guilt, the remark lacked identifiable consequences.



                                    Exceptional Sentence

       Issue 9: Whether the trial court erred in imposing an exceptional sentence based

on factors not found by the jury?

       Answer 9: No.

       The sentencing court imposed an exceptional sentence on Abdul Sweidan because

he attempted to murder his wife in the presence of the couple’s young son, Kashif. On

appeal, Sweidan contends the trial court erred in imposing the exceptional sentence

because the court relied on evidence irrelevant to the aggravating circumstance. Sweidan

observes that the sentencing court’s findings of fact 4, 5, 12, 13, 14, and 15, entered in

support of the exceptional sentence, did not mention Kashif. The State responds that no

improper reliance on additional factors occurred. Instead, according to the State, the

court’s findings of fact established the reasoning for both the exceptional sentence and

the evidence for the verdict.


                                             53
No. 36060-1-III
State v. Sweidan


       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A.535 RCW, a

sentencing court may impose an exceptional sentence based on “substantial and

compelling reasons justifying an exceptional sentence.” The court must “set forth the

reasons for its decision in written findings of fact and conclusions of law.” RCW

9.94A.535. A jury must enter findings supporting the imposition of an exceptional

sentence, and the trial court must then determine “whether the facts found by the jury are

substantial and compelling reasons.” State v. Perry, 6 Wn. App. 2d 544, 557, 431 P.3d

543 (2018).

       Abdul Sweidan’s jury found the aggravating circumstance of the crime being

committed within a minor child’s sight and sound. RCW 9.94A.535(3)(h)(ii). The statute

declares:

              (3) Aggravating Circumstances—Considered by a Jury—Imposed by
       the Court
              Except for circumstances listed in subsection (2) of this section, the
       following circumstances are an exclusive list of factors that can support a
       sentence above the standard range. Such facts should be determined by
       procedures specified in RCW 9.94A.537.
              ....
              (h) The current offense involved domestic violence, as defined in
       RCW 10.99.020, or stalking, as defined in RCW 9A.46.110, and one or
       more of the following was present:
              ....
              (ii) The offense occurred within sight or sound of the victim’s or the
       offender’s minor children under the age of eighteen years.


                                            54
No. 36060-1-III
State v. Sweidan


Based on the jury’s finding, the sentencing court held authority to impose an exceptional

sentence based on that specific circumstance.

       When reviewing the propriety of an exceptional sentence, we ask: (a) whether the

reasons given by the sentencing judge are supported by the evidence for which the

standard of review is clearly erroneous; (b) whether the reasons justify a sentence outside

the standard range under a de novo review; and (c) whether the sentence is too excessive,

under an abuse of discretion review. State v. Kolesnik, 146 Wn. App. 790, 802-03, 192

P.3d 937 (2008). Abdul Sweidan asks this court to review whether the reasons given

justify the imposition of a sentence outside the standard range under a de novo review.

       Abdul Sweidan relies on State v. Perry, 6 Wn. App. 2d 544 (2018). In State v.

Perry, the jury found injuries substantially exceeded the level of bodily harm necessary to

constitute bodily harm as defined by the instructions. State v. Perry, 6 Wn. App. 2d at

556. The trial court made additional findings that included:

              3. The victim in this case, Ryan Moore, may very likely have died
       had his brother not been walking along the road with him, which is a
       substantial and compelling reason to impose an exceptional sentence.
              ....
              5. The failure to stop and render aid in this case does not have any
       excuse in the view of the jury and in the view of this Court, which is a
       substantial and compelling reason to impose an exceptional sentence.
              6. The unwillingness to stop and see if anybody had in fact been hurt
       gives rise to two very unflattering implications . . . [t]hese are substantial
       and compelling reasons to impose an exceptional sentence.

                                            55
No. 36060-1-III
State v. Sweidan



State v. Perry, 6 Wn. App. 2d at 550. In Perry, this court reasoned that the above

findings made by the trial court went beyond those facts submitted to the jury. This court

reversed the trial court’s sentence because it was not satisfied that the trial court would

have imposed the same sentence based on the jury findings alone.

       Abdul Sweidan’s sentencing court may have entered some findings of fact beyond

those found by the jury. Nevertheless, the court relied on the jury’s determination that the

the stabbing occurred within the sight and sound of the young child. Findings of fact 4

and 16 specifically mentioned the crime being committed in the presence of Kashif. The

other findings may be superfluous, but no rule prohibits the sentencing court from

entering unneeded findings, as long as one or more of the findings justified the

exceptional sentence. The findings echoed the finding by the jury.

       We do not face the same issue faced by the Perry court, when the court could not

determine whether the trial court based its legal conclusion to impose the exceptional

sentence solely on the jury’s finding or on additional facts unrelated to the finding.

Sweidan’s sentencing court’s findings of fact demonstrated that the trial court imposed an

exceptional sentence based on the jury’s finding of the aggravating factor.

       Issue 10: Did the trial court err in entering a 28-year total ban on contact with

four of Sweidan’s children?

                                              56
No. 36060-1-III
State v. Sweidan


       Answer 10: Maybe. We remand for further consideration.

       Abdul Sweidan next argues, as he did during sentencing, that the sentencing

court’s imposition of a 28-year no-contact order with his four children violates his

fundamental right to parent. Sweidan contends that the trial court determined the length

of the no-contact order simply by matching it to the length of his sentence. Sweidan also

argues the trial court failed to consider alternative restrictions such as allowing Sweidan’s

children to initiate contact. The State contends that the no-contact order upholds the

State’s interest to protect children from witnessing domestic violence and to protect their

physical and mental health.

       Parents have a fundamental constitutional liberty interest in the “care, custody, and

management” of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982). This court must carefully review conditions that interfere with

the right to the care, custody, and companionship of one’s children. In re Personal

Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). These conditions must be

“‘sensitively imposed’” and must be “‘reasonably necessary to accomplish the essential

needs of the State and public order.’” In re Personal Restraint of Rainey, 168 Wn.2d at

374 (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)). Washington case

law requires the trial court to articulate the reasons for the reasonable necessity for a no-


                                              57
No. 36060-1-III
State v. Sweidan


contact order or the record must demonstrate the necessity. State v. Howard, 182 Wn.

App. 91, 101, 328 P.3d 969 (2014). This court reviews sentencing conditions for an

abuse of discretion. In re Personal Restraint of Rainey, 168 Wn.2d at 374. In reviewing

a no-contact order, this court should review its scope and length of duration. State v.

Howard, 182 Wn. App. at 101.

       Washington law does not permit blanket prohibitions of contact between a parent

and his or her children absent a showing that the order is reasonably necessary to serve

the State’s interest. “[T]he interplay of sentencing conditions and fundamental rights is

delicate and fact-specific, not lending itself to broad statements and bright line rules.” In

re Personal Restraint of Rainey, 168 Wn.2d at 377. Our Washington Supreme Court has

gone as far as to state that, even in a case when the child is a victim of the parent,

prohibiting all contact between the child and the defendant parent is inappropriate without

a showing that the no-contact order is necessary for the child’s safety. In re Personal

Restraint of Rainey, 168 Wn.2d at 378. A trial court should also consider if less

restrictive alternatives, such as indirect contact or supervised visitation, may be

reasonable instead of a full ban on contact.

       The State argues that its interest to protect children from witnessing domestic

violence is compelling. State v. Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001).


                                               58
No. 36060-1-III
State v. Sweidan


The State also has the responsibility to protect a child when parental actions or decisions

seriously conflict with the physical or mental health of the child. In re Welfare of Sumey,

94 Wn.2d 757, 762, 621 P.2d 108 (1980). Finally, the State argues that the Department of

Corrections has a policy to restrict or deny contact between an offender and those of the

same class that he or she has victimized.

       In State v. Aguilar, 176 Wn. App. 264, 308 P.3d 778 (2013), this court upheld a

ten-year no-contact order between Sebastian Cortes Aguilar and his thirteen-year-old

daughter and younger son. In that case, Aguilar’s daughter witnessed Aguilar stab his

wife at least five times and kill her. During the event, the daughter witnessed Aguilar

beating her mother. The daughter attempted to remove her mother from the scene, and

Aguilar followed them and stabbed his wife. Sebastian Cortes Aguilar claimed a cut his

daughter sustained during the incident was an accident. The jury also convicted Aguilar

of second degree assault of his daughter during the incident. The son witnessed the

argument and called 911 during which he heard his mother screaming.

       At sentencing, the trial court observed that Sebastian Cortes Aguilar failed to take

responsibility for the killing and blamed his wife for the incident. Further, the children

were victims of his crime even though they were not the specific targets. This court held

that the trial court did not abuse its discretion by imposing a ten-year no-contact order and


                                             59
No. 36060-1-III
State v. Sweidan


that the trial court correctly found the no-contact order reasonably necessary to protect the

emotional well-being of the two children. The ten-year length of the no-contact order

allowed Cortes to regain contact with his children when the children are at a more mature

age and can address their relationship with their father in light of the event that occurred.

       State v. Aguilar echoes Abdul Sweidan’s appeal in that Kashif witnessed the brutal

assault and Amal testified against her father. Further, Abdul Sweidan blames his wife for

the incident.

       Abdul Sweidan’s sentencing court considered the best interests of the children, but

the court did not address whether the no-contact order would continue to further the

State’s interest in protecting the children for twenty-eight years. The trial court failed to

consider that the State’s interests may change over time. At the conclusion of the twenty-

eight years, the children will be 47, 45, 39 and 30 respectively. The children may wish to

see their father sooner and no harm may come to them by sooner visitation. Although

Abdul Sweidan may be in prison, prison rules might allow some visitation.

       We remand and ask the trial court to reconsider the duration of its order and what

is reasonably necessary to protect the children. This court outlined instructions, in State

v. Torres, 198 Wn. App. 685, 393 P.3d 894 (2017), for imposing the scope and duration




                                              60
No. 36060-1-III
State v. Sweidan


of the no-contact order. As stated in Torres, the trial court should consider whether a

juvenile or family court would be a better place to resolve the issue.

                                    Criminal Filing Fee

       Issue 11: Did the trial court err in imposing the $200 criminal filing fee despite the

Abdul Sweidan’s indigence.

       Answer 11: No, not at the time, but the law allows a retroactive striking of the fee.

       Abdul Sweidan contends that, under State v. Ramirez, 191 Wn.2d 732, 426 P.3d

714 (2018), the 2018 amendments to the criminal filing fee statute require the $200

criminal filing fee ordered by the trial court to be struck. Swedian argues that, under the

current version of RCW 36.18.020(2)(h), the $200 filing fee may not be imposed on those

defendants who are indigent at the time of sentencing. The sentencing court found

Sweidan to be indigent. These amendments apply prospectively to cases pending on

appeal, and therefore should apply in this case. State v. Ramirez, 191 Wn.2d at 746-50.

The State concedes that the trial court should strike the $200 filing fee. As part of the

remand, the sentencing court should strike the fee.

       Issue 12: Did the trial court err in imposing the discretionary $100 domestic

violence penalty assessment despite the appellant’s indigence?




                                             61
No. 36060-1-III
State v. Sweidan


       Answer 12: No, not at the time, but recent amendments to the law may allow the

striking of the assessment.

       Finally, Abdul Sweidan contends that the 2018 amendments to the legal financial

obligations statutes also require striking the $100 domestic violence penalty assessment as

a discretionary cost. Sweidan emphasizes that RCW 10.99.080(1) states a court “may”

impose a domestic violence penalty assessment. The statute declares:

              All superior courts . . . may impose a penalty assessment not to
       exceed one hundred dollars on any . . . person convicted of a crime
       involving domestic violence. The assessment shall be in addition to, and
       shall not supersede, any other penalty, restitution, fines, or costs provided
       by law.

RCW 10.99.080(1).

       Although the State concedes the $100 domestic violence assessment should be

struck, this court stated in State v. Smith, 9 Wn. App. 2d 122, 442 P.3d 265 (2019) that

the domestic violence penalty assessment differs from other discretionary fees. “Unlike

the statutes governing filing fees and costs, the domestic violence penalty assessment

statute was not amended by the 2018 LFO [legal financial obligations] legislation, and

does not prohibit imposition of an assessment against indigent defendants.” State v.

Smith, 9 Wn. App. 2d at 127. The inquiry required of the trial court before imposing the

domestic violence penalty assessment is how imposition of an assessment on the


                                             62
No. 36060-1-III
State v. Sweidan


defendant will impact the victim. If the defendant is unable to pay “financial obligations

to the victim, such as restitution or child support” then the trial court may decline to

impose it. State v. Smith, 9 Wn. App. 2d at 128. RCW 10.99.080(5) states that “judges

are encouraged to solicit input from the victim or representatives for the victim in

assessing the ability of the convicted offender to pay the penalty, including information

regarding . . . family circumstances, and ongoing restitution.”

       Abdul Sweidan’s sentencing court imposed a $4,924.86 crime victim’s

compensation amount. Abdul Sweidan did not challenge that amount. The only

information before this court relevant to the domestic violence penalty assessment is this

amount of restitution.

       We remand to the trial court for input from Dania Alhafeth or her representative

regarding family circumstances, and ongoing restitution in accordance with RCW

10.99.080(5) in order to determine whether the imposition of the $100 assessment should

be struck.

                         Statement of Additional Grounds for Review

       In his statement of additional grounds, Abdul Sweidan argues that his wife tried to

stab him and then stabbed herself on discovering that he is Jewish. Sweidan argued this




                                              63
No. 36060-1-III
State v. Sweidan


point before the trial court and his counsel included this narrative in the brief. Therefore,

this argument presents no additional grounds for review.

       Abdul Sweidan also contends that the interpreter during the trial did not represent

his answers correctly and did a bad job interpreting. The record does not support this

contention. Rather, the interpreter repeatedly asked witnesses to slow down to permit

adequate interpretation, and she alerted the judge to any issues with interpreting devices.

We deny this additional ground.

                                      CONCLUSION

       We affirm Abdul Sweidan’s conviction for attempted second degree murder.

We uphold the exceptional sentence based on a child witnessing the attempted homicide.

       We remand the case for resentencing. The sentencing court should reconsider the

no-contact order in accordance with this opinion. The court should strike the filing fee

and make further inquiries regarding the domestic violence assessment penalty.



                                           _________________________________
                                           Fearing, J.

WE CONCUR:



______________________________             ________________________________
Siddoway, J.                               Lawrence-Berrey, J.

                                             64
