                                                                       FILED
                                                                   NOVEMBER 30, 2017
                                                                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. 34718-4-111
                     Respondent,              )
                                              )
      V.                                      )
                                              )
MEGHAN LILLIAN MIANECKI,                      )        UNPUBLISHED OPINION
                                              )
                    Appellant.                )

      FEARING, C.J. -    The State charged Meghan Mianecki with rape of a child in the

second degree and molestation of a child in the second degree. The State filed the

charges in adult court nine months after the alleged victim and his family reported the

allegations to law enforcement. Mianecki was seventeen years of age when she

purportedly committed the crime. She turned eighteen years of age before the State filed

charges. The trial court denied Mianecki' s motion to dismiss the charges on the basis of

preaccusatorial delay. We affirm.

                                         FACTS

       Since this appeal comes to us without a trial, we extract the facts from police

reports and testimony presented during a hearing conducted to resolve Meghan
No. 34718-4-III
State v. Mianecki


Mianecki' s motion to dismiss the prosecution on the basis of preaccusatorial delay. We

note that Mianecki has not yet had the opportunity to refute the factual allegations of the

State.

         According to Andrew Bartholomew, Meghan Mianecki, on July 23, 2015, sexually

assaulted him. Andrew Bartholomew is a pseudonym. The two were then classmates

and cross-country teammates. Bartholomew was a twelve-year-old boy and Mianecki

was a seventeen-year-old girl. We do not know the circumstances under which a twelve

and seventeen-year-old attended the same school or participated on the same cross-

country team.

         According to Andrew Bartholomew, on July 23, Meghan Mianecki phoned the

Ascencio home, where Andrew resided, and requested to visit. The record does not

reflect to whom Mianecki spoke at the Ascencio home. Mianecki previously dated

Andrew's older brother. Mianecki arrived thereafter at the Ascencio residence. No

adults were home. Mianecki sat on the couch next to Andrew, kissed his neck, and

eventually guided him to his bedroom where the two engaged in sexual intercourse.

Mianecki gave Andrew hickeys on his neck and left shoulder. When Andrew's mother,

Lilia Ascencio, drove Andrew to track practice later that afternoon, she noticed marks on

her son's neck. Andrew reluctantly told his mother about the incident with Mianecki.

         On July 23, 2015, Lilia Ascencio reported a sexual assault to the Grant County

Sheriffs Office. The Sheriffs Office assigned sheriff deputies Nick Overland and Jacob

                                             2
No. 34718-4-111
State v. Mianecki


Fisher to the case. Deputy Fisher served as Deputy Overland's field training officer.

Overland had never investigated a sex crime.

       On July 23, Deputies Nick Overland and Jacob Fisher met Lilia Ascencio, her son

Andrew Bartholomew, and Bartholomew's father, at the Grant County Sheriff's Office.

Ascencio told the deputies that Andrew's classmate and cross-country teammate, Meghan

Mianecki, sexually assaulted him earlier that day. The deputies then conducted an initial

interview of the family. Andrew repeated the story above.

       At the close of the interview, Grant County Sheriff Deputy Nick Overland

photographed the hickeys on Andrew's neck. Overland also collected the clothes

Andrew wore that day and the condom allegedly used when Meghan Mianecki and

Andrew engaged in sex. After photographing and collecting the evidence, Andrew

informed the deputies he would be more comfortable preparing a written statement at his

residence. Accordingly, the deputies followed Ascencio and Andrew to the mother and

son's residence to collect Andrew's statement.

      On arrival at Lilia Ascencio's home, Deputies Nick Overland and Jacob Fisher

sequestered the pair of shorts and underwear Andrew wore after the sexual encounter.

Deputy Fisher then prepared Andrew's written statement. In his statement, Andrew said

that "[he] did not want to have sex, but [he] did not know what to do." Clerk's Papers

(CP) at 9. Andrew also disclosed that Meghan Mianecki told him not to tell anyone of




                                            3
No. 34718-4-III
State v. Mianecki


the event. At the completion of the statement, Ascencio advised the deputies that she

intended to obtain a protection order to keep Mianecki away from Andrew.

       Deputy Nick Overland testified, during Meghan Mianecki's motion to dismiss

hearing, about the course of the investigation after July 23, 2015. Overland did not deem

his investigation complete after interviewing Andrew, photographing his neck, and

collecting the young man's clothes. If he had then forwarded the evidence collected to

the prosecutor, the prosecutor would have returned the evidence with a request for

deoxyribonucleic acid (DNA) testing on the clothes and also requested the completion of

other tasks.

       On August 6, 2015, Grant County SheriffD~puties Nick Overland and Jacob

Fisher attempted to interview Meghan Mianecki at her home regarding the alleged sexual

assault. Connie Mianecki, Meghan's mother, answered the residence's door. The mother

told the deputies that her daughter was not home and that the family had obtained a

lawyer, who advised Meghan not to speak with officers. The deputies informed Connie

that they planned to request a search warrant for her daughter's DNA. The officers

wanted Mianecki's DNA to compare to DNA evidence found on Andrew Bartholomew's

clothing and the condom.

       Sheriff Deputies Nick Overland and Jacob Fisher obtained a warrant authorizing

the collection of Meghan Mianecki's DNA through a buccal swab. The deputies went to

the Mianecki residence on August 14, 2015 and met with Connie and Meghan Mianecki

                                            4
No. 34718-4-111
State v. Mianecki


to execute the warrant. Overland took two buccal swabs from Meghan. Fisher

photographed the process.

       Deputies Nick Overland and Jacob Fisher did not place Meghan Mianecki under

arrest on August 14. Deputy Overland testified, at the motion hearing, that the deputies

lacked evidence to support or refute Andrew Bartholomew's story. According to

Overland: "it was a he-said/she-said" case. Report of Proceedings (RP) at 13. When the

deputies first contacted the Mianeckis, they hoped that Mianecki would disclose her side

of the story. The deputies did not arrest Mianecki because they did not judge her a threat

to society or to Andrew and because Mianecki posed no risk to flee. Law enforcement

supplied Andrew's family with multiple resources to protect Andrew inside and outside

of school.

       On August 18, 2015, Deputy Nick Overland forwarded the buccal swabs, Andrew

Bartholomew's clothing, and the condom to the Washington State Patrol Crime

Laboratory. On the laboratory request form, Deputy Overland did not check the box to

indicate a desire for the laboratory to "rush" its analysis of the evidence. The request

form indicated that the suspect was not in custody, but did not indicate whether the

officers had referred the case to the prosecutor's office or whether a court date was

pending.

       Alison Walker, a scientist in the Washington State Patrol Crime Laboratory DNA

Section, also testified during the motion to dismiss hearing. She eventually analyzed the

                                             5
No. 34718-4-III
State v. Mianecki


DNA evidence found on the buccal swabs and Andrew Bartholomew's clothing. During

the motion hearing, Walker explained the procedure the laboratory follows on receipt of a

request for a DNA analysis. A supervisor "triages" and assigns the laboratory's cases to

the scientists. RP at 57. Triaging lasts four to six weeks. Walker did not describe the

triage process. Walker testified the laboratory received Deputy Nick Overland's request

to analyze the DNA on August 19, 2015, and her supervisor assigned her the case on

October 9, 2015. According to Walker, the seven-week passage did not exceed the

laboratory's standard time frame.

       According to Alison Walker, a DNA analysis takes four to six weeks to complete

after the assignment to the scientist. This window of time includes a scientific peer

review of the analyst's report. Walker completed her report regarding Meghan

Mianecki's DNA on November 25, 2015, forty-seven days after the assignment.

       Alison Walker admitted, during the motion hearing testimony, that the

Washington State Patrol Crime Laboratory designates priority treatment to some cases.

The laboratory may allocate priority status to a homicide or a sexual assault case with an

unknown perpetrator or to a pending case with a hearing date shorter than six weeks. The

agency requesting the report dictates whether circumstances exist to prioritize the case. If

the Grant County Sheriffs Office had marked "rush" on Meghan Mianecki's DNA

request but the office had not identified a pending court date, the laboratory would have

assigned the case to a scientist as quickly as possible. Walker did not concretely cast

                                             6
No. 34718-4-111
State v. Mianecki


what number of days constitutes "as quickly as possible." RP at 67. Walker could not

recall any case, involving a minor suspect, given priority.

       On December 2, 2015, the Grant County Sheriffs Office received the DNA test

results from the Washington State Patrol Crime Laboratory. We do not know the results.

Deputy Nick Overland did not work on December 2 or 3, 2015. During the motion

hearing, Deputy Overland averred that he could not recall when he received the

laboratory report. He testified to a busy schedule between December 2 and 23 with his

working eleven shifts and responding to forty-four calls. Overland also commented that

the Grant County Sheriffs Office handled multiple other investigations in neighboring

Adams County during late 2015. Overland presumed he received the laboratory report on

December 23, 2015, because that date appears at the top of his supplemental officer's

report. On cross-examination, Overland conceded that he could not answer why neither

Deputy Jacob Fisher nor he reviewed the report before December 23, 2015.

       Meghan Mianecki turned eighteen on December 19, 2015. Deputy Nick Overland

testified that he knew of Mianecki's age, but did not monitor her birthday. Deputy

Overland maintained that Mianecki' s age did not concern him during the investigation

and that the Grant County Sheriffs Office handles every case in the same manner

regardless of the suspect's age. Overland averred that nothing unusual transpired

regarding the pace of the investigation of allegations against Meghan Mianecki.

      On January 5, 2016, Sheriff Deputy Nick Overland referred the Meghan Mianecki

                                             7
No. 34718-4-III
State v. Mianecki


case to the Grant County Prosecuting Attorney's Office. The Grant County office

referred the case to the Adams County Prosecuting Attorney's Office because of a

conflict.

                                       PROCEDURE

       On April 1, 2016, the State of Washington charged Meghan Mianecki with rape of

a child in the second degree and child molestation in the second degree. Mianecki filed a

motion to dismiss for preaccusatorial delay. At the motion hearing, Deputy Nick

Overland and Washington State Patrol Crime Lab scientist Alison Walker testified for the

State. The following colloquy occurred between defense counsel and Deputy Overland

during the hearing: ,

               Q. And neither one of you had any time during those-let's see. It
       would have been 17 days until Meghan's birthday on the 19th-to review
       that report and submit a report to the prosecutor?
              A. I don't have an answer for that, sir.

RP at 45.

       The trial court denied Meghan Mianecki's motion to dismiss. We accepted

discretionary review of the trial court's order.

                                  LAW AND ANALYSIS

                                        Due Process

       On appeal, Meghan Mianecki repeats her request for dismissal of the pending

charges because preaccusatorial delay denied her due process. She contends the State's



                                              8
No. 34718-4-111
State v. Mianecki


reason for delay does not outweigh the severe prejudice caused by being tried as an adult.

While the State concedes prejudice by the loss of juvenile court jurisdiction, it disagrees

that prejudice outweighs the reasonable basis for the delay. We review de novo the

question of whether preaccusatorial delay violates an accused's due process rights. State

v. Oppelt, 172 Wn.2d 285,290,257 P.3d 653 (2011). We agree with the State primarily

on the ground that the law does not require the State to hurry an investigation when the

suspect may soon tum age eighteen.

       Washington employs a three-tined test when determining if preaccusatorial delay

violates due process: (1) the accused must show actual prejudice from the delay, (2) if the

accused shows prejudice, the court must determine the reasons for the delay, and (3) the

court must then weigh the reasons for the delay and the prejudice to determine whether

prosecution would breach fundamental conceptions of justice. State v. Oppelt, 172

Wn.2d at 295. In clarifying the elements of the tripartite test, our Supreme Court advised

that this test is "best understood as an analytical tool to assist" courts in conducting a

preaccusatorial delay analysis. State v. Oppelt, 172 Wn.2d at 295. The central inquiry

always remains whether the action by the government violates fundamental conceptions

of justice. State v. Oppelt, 172 Wn.2d at 292 (2011 ).

       Although not stated in the three-part test, a predicate to a preaccusatorial delay

analysis should be a finding that a delay in filing charges occurred. All three elements

assume the presence of a delay. Nevertheless, none of the Washington reported decisions

                                              9
No. 34718-4-111
State v. Mianecki


discuss whether or not a delay occurred. The decisions assume some delay and then

directly analyze prejudice caused by the delay and the reasons for the delay. The court

reviews the length of the time between law enforcement's learning of the crime and the

filing of charges when evaluating the reasons for the delay. Nevertheless, no decision

asks whether a court must conduct the three-prong preaccusatorial delay analysis when

no delay occurred.

       We suggest that the State should enjoy a reasonable time during which to

investigate and review possible charges without being blamed with any delay.

Otherwise, the law would demand that the court engage in the three-pronged

preaccusatorial delay assessment even if the State filed charges two days after law

enforcement learned of the crime. The public and the accused deserve a scrupulous, not

rushed, investigation by law enforcement and thorough review of possible charges by the

prosecuting attorney before the filing of charges. Because of varying circumstances

concerning the nature of the alleged crime, the scope of the investigation needed before

filing charges, and other work commitments of law enforcement, we assume that the law

cannot afford any firm deadline with regard to when a delay commences to run.

       Although we conclude that no delay occurred in the investigation of Andrew

Bartholomew's allegations, we engage in Washington's orthodox three-elements test.

The accused must first show the State's purported lagging caused actual prejudice to her

defense in order to satisfy prong one of the prosecutorial delay test. State v. Salavea, 151

                                             10
No. 34718-4-III
State v. Mianecki


Wn.2d 133, 139, 86 P.3d 125 (2004); State v. Norby, 122 Wn.2d 258,264, 858 P.2d 210

( 1993 ). Under due process rules, courts presume prejudice on loss of juvenile court

jurisdiction. State v. Dixon, 114 Wn.2d 857, 861, 792 P.2d 137 (1990). Offenders fulfill

their burden of proof when prosecutorial delay causes a loss of juvenile court jurisdiction

because the loss results in a decrease of benefits available to a defendant in the juvenile

court system. State v. Salavea, 151 Wn.2d at 139; State v. Dixon, 114 Wn.2d at 860-61;

State v. Alvin, 109 Wn.2d 602,604, 746 P.2d 807 (1987); State v. Calderon, 102 Wn.2d

348, 352-53, 684 P.2d 1293 (1984). The loss of juvenile court jurisdiction subjects the

accused to harsher penalties and the potential stigma of an adult criminal conviction.

State v. Dixon, 114 Wn.2d at 860-61. Thus, we conclude that Meghan Mianecki shows

prejudice.

       We tum to the State's side of the equation. We must first measure the delay to

analyze the reasons for and nature of the delay. When an accused argues prejudicial

delay because of loss of juvenile court jurisdiction, the critical time period of delay ends

with the defendant's eighteenth birthday. State v. Brandt, 99 Wn. App. 184,190,992

P.2d 1034, 9 P.3d 872 (2000). Any delay after the birthday does not prejudice the

defendant because the juvenile court generally loses jurisdiction on the defendant's

eighteenth birthday. State v. Acheson, 75 Wn. App. 151, 155, 877 P.2d 217 (1994); State

v. Bushnell, 38 Wn. App. 809,811,690 P.2d 601 (1984). Thus, the ending date for our

window of delay is December 19, 2015, Meghan Mianecki' s eighteenth birthday.

                                             11
No. 34718-4-III
State v. Mianecki


       Under the second step in the due process analysis, we identify, characterize, and

ascertain a level of blame for the State's conduct that led to the delay. An important

question is whether the delay in prosecuting an accused was justified. State v. Brandt, 99

Wn. App. at 189 (2000). The State holds broad discretion to decide when to prosecute

and may delay prosecution until it determines it can establish guilt beyond a reasonable

doubt. State v. Salavea, 151 Wn.2d at 146 (2004 ). Absent a showing of arbitrary action

or governmental misconduct, a trial court cannot dismiss charges. State v. Michielli, 132

Wn.2d 229,240,937 P.2d 587 (1997). The due process clause protects against arbitrary

action or governmental misconduct and does not grant courts the authority to substitute

their judgment for that of the prosecutor. State v. Cantrell, 111 Wn.2d 385, 390, 758

P.2d l (1988); State v. Starrish, 86 Wn.2d 200,205, 544 P.2d 1 (1975).

       Loss of juvenile court jurisdiction does not automatically lead to a finding of

unjust prosecutorial delay, in part, because loss ofjurisdiction is not always the fault of

the State. The accused has no constitutional right to be tried as a juvenile. State v.

Dixon, 114 Wn.2d at 860 (1990). Absent extraordinary circumstances, the State may

manage a juvenile's case in the same manner as all other cases and need not afford

special treatment to the case even if the juvenile soon turns eighteen. State v. Salavea,

151 Wn.2d at 146 (2004); State v. Calderon, 102 Wn.2d at 354 (1984). The preceding

rule controls this appeal.

       We agree with the trial court that the five months that elapsed from the beginning

                                             12
No. 34718-4-111
State v. Mianecki


of the law enforcement investigation to Meghan Mianecki's turning the age of majority

do not entail government misconduct or mismanagement of the case. The State instead

handled the case in its ordinary course without any delay. Thus, based on Supreme Court

precedence, we need not balance and weigh the prejudice to Mianecki and the State's

reason for any delay.

       Meghan Mianecki focuses on the DNA r,eport arriving in the Grant County

Sheriffs Office on December 2, but no officer reviewing the report until December 23.

She turned eighteen on December 19. Yet, no evidence supports a finding that the

passing of twenty-one days is unreasonable when law enforcement remains busy with

other work commitments. Mianecki provides no argument as to when the report should

have been reviewed. Mianecki also highlights the trainee status of Deputy Nick

Overland. Nevertheless, no evidence suggests that the investigation would have

proceeded faster if a veteran deputy oversaw the investigation. Often rookies work faster

than veterans.

       Meghan Mianecki underscores Sheriff Deputy Nick Overland's inability to answer

why either he or Deputy Jacob Fisher failed to review the DNA report between December

2 and December 19. This emphasis ignores the overwhelming testimony of Nick

Overland and Crime Lab scientist Alison Walker. The State followed standard

procedures and fulfilled general expectations for completing tasks such as gathering

DNA evidence, shipping the evidence to the crime lab, assigning a technician to analyze

                                           13
No. 34718-4-III
State v. Mianecki


the evidence, preparing the technician report, sending the report to law enforcement,

reviewing the report, and forwarding the law enforcement file to the prosecutor. Deputy

Overland testified to a busy work schedule in December 2015. In turn, he only conceded

that he could not, like most everyone else, account for the details of all of his work during

each day.

       We further note that, even if the Grant County's Sheriffs Office reviewed the

report within a week, the sheriffs office needed to assemble the report and other

infonnation and forward the information to the prosecuting attorney's office. Mianecki

does not contend that the prosecuting attorney, in the normal course of business, would

have filed charges by December 19 even assuming law enforcement reviewed the report

on December 3.

       Meghan Mianecki emphasizes that her age fanned the basis of her crime.

Therefore, the State readily knew of her age during the investigation of the crime, and

law enforcement should have ensured that the investigation ended and any charges were

filed before she turned age eighteen. We reject this emphasis as relevant to our analysis.

No case addressing preaccusatorial delay grounds its holding on the nature of the crime.

In most, if not all, cases involving allegations of preaccusatorial delay, law enforcement

knew of the age of the suspect. Still, law enforcement holds no obligation to speed the

process in order to file charges before the accused legally gains adulthood.

      Meghan Mianecki perspicaciously relies on State v. Frazier, 82 Wn. App. 576,

                                             14
No. 34718-4-III
State v. Mianecki


918 P .2d 964 ( 1996) abrogated by State v. Oppelt, 172 Wn.2d 285, 257 P .3d 653 (2011 ),

in which this court affirmed the dismissal of charges against Jason Frazier. Nevertheless,

the trial court found negligence and the record supported the finding of negligence of the

State in its investigation. On June I 0, 1992, Frazier confessed to law enforcement to

being involved in three burglaries. The State did not file charges until November 19,

1993, seventeen months later. W,e do not know when Frazier turned eighteen. The State

failed to account for an eight-week delay between the investigating officer's completion

of his report and the receipt of the report by the juvenile court or the eight-week delay

between the prosecutor's receipt of the report and Frazier's eighteenth birthday. These

facts do not echo the facts in our appeal.

                                      Equal Protection

       Meghan Mianecki argues that allowing the State to prosecute her as an adult for an

alleged juvenile act based on her age without a reasonable basis for its preaccusatorial

delay violates her right to equal protection under the Fourteenth Amendment to the

United States Constitution. She contends the State treated her differently from other

juveniles. Of course, Mianecki's argument assumes that the State delayed the

investigation and lacked a legitimate reason for the delay. We disagree with these

assumptions.

       In her appeal brief, Meghan Mianecki cites to case law that discusses the levels of

scrutiny that the court applies to government conduct and the importance of juvenile

                                             15
No. 34718-4-III
State v. Mianecki


court jurisdiction. Nevertheless, Mianecki cites no authority that entails the passage of

time before the State files criminal charges. Naked castings into the constitutional seas

are not sufficient to command judicial consideration and discussion. State v. Johnson,

179 Wn.2d 534,558,315 P.3d 1090 (2014); State v. Blilie, 132 Wn.2d 484,493 n.2, 939

P.2d 691 (1997).

                                     CONCLUSION

       We affirm the trial court's denial of Meghan Mianecki's motion to dismiss her

prosecution. We remand for further proceedings.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                             Fearing, C.J.

WE CONCUR:




Pennell, J.




                                            16
