                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 22, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 STATE OF WASHINGTON,                                                No. 46233-8-II

                                Respondent,

        v.

 JOSHUA JOHN BESSEY,                                           UNPUBLISHED OPINION

                                Appellant.

       SUTTON, J. —       Joshua J. Bessey appeals the superior court’ s order reducing his

reimbursement for attorney fees and costs by $5,000 under RCW 9A.16.110 as a sanction for a

discovery violation because he did not produce text messages in his possession before trial. We

hold that because Bessey was under no obligation to produce the text messages, the trial court

abused its discretion. We reverse and remand to the trial court to restore the $5,000 reduction in

its order awarding fees and costs. And because Bessey prevails on appeal, under RCW 9A.16.110,

we award him reasonable attorney fees and costs on appeal.

                                              FACTS

       The State charged Bessey with first degree burglary, second degree assault, fourth degree

assault, and interfering with the reporting of a domestic violence offense, as a result of an incident

that occurred on May 23, 2013. The State alleged that, on May 23, Bessey entered the home of

his ex-girlfriend, Kristie Morgan, assaulted her and her boyfriend, and broke her cellphone.

       The case went to trial and, at the end of the second day of trial, Ms. Morgan testified that

she and Bessey had no contact before May 23. Bessey then informed his attorney that he had text

messages sent to him by Ms. Morgan a few days before May 23 that would contradict Morgan’ s
No. 46233-8-II


testimony that she had terminated their relationship on April 19 and that he had moved out before

May 23. Counsel instructed Bessey to find the text messages and bring them to court the next day.

The next morning Bessey brought printouts of a number of text messages that Ms. Morgan had

sent him on May 18 and May l9. Counsel gave copies of these printouts to the State.

       The State moved to exclude the text messages, arguing that Bessey’ s failure to provide

them until the second day of trial constituted a discovery violation. VRP at 357-58. In response,

Bessey’ s counsel explained that (1) he did not know of their existence until his client mentioned

them the previous evening, (2) since the defense had not been able to interview Ms. Morgan, they

had no idea that she would be claiming that she had broken up with the defendant on April 19,

well before the alleged incident on May 23, and ( 3) as a result, the text messages did not even

become relevant until Ms. Morgan testified.       Thus, Bessey argued, there was no discovery

violation and no basis upon which to suppress this evidence.

       The trial court granted the State’ s motion and suppressed the text messages, stating,

               I am going to exclude [ the text messages]. Trial is not by ambush. This
       phone was in possession of the Defendant. He had access to these at all times. He
       could have provided any of these texts to Counsel prior to today’ s date. To bring
       these in now, after State has rested their case, we have discovery, we have deadlines
       so that we do not have trial by ambush or surprise, and that it is by prejudicial -- it
       is prejudicial to another party to suddenly come up with something after the fact.
       And so, these text messages will be excluded. They’ re marked. They’ ll be made a
       part of the record.

2A Verbatim Report of Proceedings ( VRP) at 362. The State did not request any monetary

sanctions against Bessey for failing to produce the text messages before trial began. The trial

continued and Bessey took the witness stand, testifying that he acted in self-defense.




                                                 2
No. 46233-8-II


       The jury found Bessey not guilty on all counts and returned a special verdict, finding “ by

a preponderance of the evidence” that Bessey acted in self-defense, and that he had not engaged

in any criminal conduct substantially related to the events that gave rise to the charges brought

against him. Clerk’ s Papers (CP) at 74.

       After being found not guilty by the jury, Bessey moved for an order for reasonable attorney

fees and costs under RCW 9A.16.110. The State responded that Bessey’ s failure to produce the

text messages constituted a discovery violation and Bessey should be sanctioned by reducing his

award of attorney fees. The trial court agreed, ruling,

       I don’ t fault Mr. Crandall for this; I fault his client because he was the one that had
       control of that cellphone. He knew what the charges were that he was facing, he
       knew in what was being alleged here, and it was Mr. Bessey who, just on the last
       moment, decides to tell his attorney about these listing of text messages that, had
       they been brought forward, probably would have been a very different, as I say,
       looking trial. But that’ s not to say a trial wouldn’ t have gone forward on either
       different charges or other charges.

       So although I am not going to zero out these fees as some kind of penalty, that I
       also don’ t see that Mr. Bessey should benefit by having all of his attorney’ s fees
       paid when there was fault on his as to the amount of attorney’s fees, and was it
       reasonable, had he turned over those documents? So I’m going to reduce it
       somewhat, but not a lot. I’m going to reduce it by $5,000.00 as a penalty for Mr.
       Bessey, and so the total amount will be $35,206.13.

2B VRP at 555-56.

       The trial court awarded Bessey attorney fees and costs of $40,206.13, but then reduced his

award by $5,000.00 as a discovery “ penalty,” thus bringing Bessey’ s total award to $35,206.13.

CP at 105-06. Bessey appealed.




                                                  3
No. 46233-8-II


                                            ANALYSIS

                                      I. RCW 9A.16.110

       The Washington legislature has exempted persons from facing criminal liability for acting

in self-defense when faced with imminent danger. RCW 9A.16.110(1). Further, if a person who

is charged with certain crimes prevails on a self-defense affirmative defense, the person is entitled

to reimbursement for legal fees and expenses:

               When a person charged with a crime listed in [RCW 9A.16.110(1)] is found
       not guilty by reason of self-defense, the state of Washington shall reimburse the
       defendant for all reasonable costs, including loss of time, legal fees incurred, and
       other expenses involved in his or her defense. This reimbursement is not an
       independent cause of action. To award these reasonable costs the trier of fact must
       find that the defendant’ s claim of self-defense was sustained by a preponderance of
       the evidence. If the trier of fact makes a determination of self-defense, the judge
       shall determine the amount of the award.

RCW 9A.16.110(2)

       The jury’s special verdict finding that Bessey acted in self-defense entitled him to an award

of reasonable attorney fees and costs under RCW 9A.16.110(2). As a result, the trial court awarded

him reasonable attorney fees and costs.

                               II. ALLEGED DISCOVERY VIOLATION

       Bessy argues that the court erred by reducing his attorney fee award for the purported

discovery violation of failing to produce the text messages. We agree.

       We review the imposition of discovery sanctions for an abuse of discretion. Blair v. TA–

Seattle East No. 176, 171 Wn.2d 342, 348, 254 P.3d 797 (2011). A trial court abuses its discretion

when it exercises it on untenable grounds or for untenable reasons. State v. Lawrence, 166 Wn.

App. 378, 385, 271 P.3d 280 (2012). A trial court abuses its discretion only when no reasonable




                                                 4
No. 46233-8-II


person would take the position adopted by the trial court. Pub. Util. Dist. No. 1 of Okanogan

County v. State, 182 Wn.2d 519, 531, 342 P.3d 308 (2015).

       CrR 4.7, which governs discovery in criminal proceedings, provides a reciprocal list of the

prosecutor’ s and defendant’ s obligations. CrR 4.7(b)(1) provides the defendant’ s obligations as

follows:

               Except as is otherwise provided as to matters not subject to disclosure and
       protective orders, the defendant shall disclose to the prosecuting attorney the
       following material and information within the defendant’ s control no later than the
       omnibus hearing: the names and addresses of persons whom the defendant intends
       to call as witnesses at the hearing or trial, together with any written or recorded
       statements and the substance of any oral statements of such witness.

CrR 4.7(b)(1). This rule does not obligate a defendant to produce documentary evidence of his or

her own accord for purposes of impeaching a State witness. CrR 4.7(b)(2)(x) allows the prosecutor

to inspect documentary evidence in the defendant’ s possession, but only “ on motion.”

CrR 4.7(b)(2).

       Here, the State did not make any specific oral or written discovery requests for any of the

information on Bessey’ s cell phone. And the prosecutor did not file a motion under CrR 4.7(b)(2)

to inspect Bessey’ s evidence. Therefore, Bessey had no obligation to provide printouts of the text

messages to the State. In fact, Bessey went beyond his discovery obligations by voluntarily

providing the State with the printouts.1




1
 Bessey also argues that he did not know that the text messages were relevant because he was
unaware that Ms. Morgan would claim at trial that she had no contact with him for the two weeks
prior to May 23. But even if Bessey would have known that the text messages were relevant, he
was under no obligation to produce them absent a formal written request from the prosecutor or a
court order. CrR 4.7(b)(2).


                                                5
No. 46233-8-II


       We hold that the trial court abused its discretion in reducing Bessey’ s attorney fee award

by $5,000 for a purported discovery violation. We reverse the trial court’ s order, remand, and

order the court to restore the $5,000.

                           III. ATTORNEY FEES AND COSTS ON APPEAL

       Bessey    also   requests     reasonable   costs   and   attorney   fees   on   appeal   under

RCW 9A.16.110(2). Under RCW 9A.16.110(2), an acquitted criminal defendant is entitled to

reimbursement for attorney fees reasonably incurred in connection with his criminal defense and

reasonably incurred upon prevailing in his appeal. State v. Lee, 96 Wn. App. 336, 346, 979 P.2d

458 (1999); State v. Jones, 92 Wn. App. 555, 565, 964 P.2d 398 (1998). Because we hold that the

trial court abused its discretion, Bessey prevails in his appeal and we award him reasonable

attorney fees and costs on appeal.

                                           CONCLUSION

       We hold that because Bessey did not violate a discovery rule or court order, the trial court

abused its discretion in sanctioning Bessey for failing to produce text messages during trial and in

reducing Bessey’ s reimbursement by $5,000. We reverse and remand to the trial court to restore




                                                  6
No. 46233-8-II


Bessey’ s $5,000 reduction in its order awarding fees and costs. And because Bessey prevails on

appeal, we award Bessey his reasonable attorney fees and costs on appeal.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                    SUTTON, J.
 We concur:



 MAXA, P.J.




 LEE, J.




                                                7
