                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         December 20, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                              No. 48117-1-II

                                Appellant,

         v.

    ANTHONY ELOY PEREZ,                                        UNPUBLISHED OPINION

                                Respondent.

        JOHANSON, J. — The State of Washington appeals a trial court order granting Anthony

Eloy Perez’s motion to dismiss for governmental misconduct and dismissing the charges against

Perez. The State argues that (1) some of the trial court’s findings of fact are not supported by

substantial evidence and (2) the trial court erred by failing to consider alternative sanctions before

dismissing the case.1 We hold that (1) substantial evidence supports all but one of the challenged

findings of fact, (2) we do not address the remaining challenged finding of fact because the other

findings are adequate to support the trial court’s governmental misconduct finding, and (3) the trial

court erred by failing to consider alternative sanctions before dismissing the case. Accordingly,



1
  The State also argues that (1) the trial court erred in concluding that alleged misconduct was
sufficient to support dismissal and (2) dismissal was not an appropriate sanction because the
alleged misconduct was not prejudicial. Because we reverse the dismissal and remand for the trial
court to consider other sanctions before dismissing this case, we do not reach these issues.
No. 48117-1-II


we affirm the trial court’s conclusion that the State engaged in governmental misconduct, but we

reverse the trial court’s dismissal and remand for the trial court to consider other sanctions.

                                              FACTS

                                         I. BACKGROUND

       On March 15, 2015, officers arrested Perez on suspicion of second degree child rape. The

officer who initially responded was wearing a body camera and recorded his contact with Perez.

The State charged Perez with second degree rape of a child. As of March 17, the State possessed

Perez’s cell phone, the victim’s cell phone, and deoxyribonucleic acid (DNA)-related evidence

that was to be analyzed at a forensics lab.

       On April 9,2 the State filed an amended information alleging a “predatory enhancement”

related to the second degree rape of a child charge, which enhanced the sentence to 25 years to

life. Clerk’s Papers (CP) at 47. The amended information also added two additional charges:

communication with a minor for immoral purposes and sexual exploitation of a minor.

       As of April 9, the Grays Harbor Sheriff’s Office was still investigating, and the State was

aware that additional evidence would be obtained. This additional evidence included (1) DNA

results from swabs collected from Perez and the victim, (2) results of a search warrant for

electronic messages between Perez and the victim from a company called “KIK,” and (3) the

results of a warrant to search cell phones for electronic communications between Perez and the

victim. CP at 47. The trial was scheduled for August 4, four days before the expiration of the

speedy trial period.



2
 Although the State submitted the amended information on April 9, the trial court did not enter an
order allowing the amended information to be filed until April 13.

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No. 48117-1-II


       On May 6, defense counsel filed a notice of appearance and a demand for discovery and a

list of witnesses. Among the items defense counsel requested were all expert reports or statements,

all electronic surveillance, and all information related to any searches or seizures. On May 15,

defense counsel followed up his May 6 demand for discovery with a letter “requesting

documentation from the ‘KIK’ Company, any information recovered from the defendant’s cell

phone, evidence contained on disks, other data recovered from the defendant’s computer, and the

results of DNA testing.” CP at 47. On June 1, the trial court entered an omnibus order ordering

the State to produce this evidence and a witness list no later than June 15.

       The State failed to produce this evidence by June 15, and it failed to request additional

time. The trial court later found that the State had “completely disregarded [Perez’s May 15] letter

and the Omnibus Order.” CP at 47.

       On June 22, the State sent the body camera video to the court-appointed attorney who had

withdrawn from the case on May 11. The trial court later found that the State did not explain why

it had waited three months before making this video available to Perez.

       On June 23, Thurston County Detective Tyson Beall completed his examination of the cell

phones. Detective Beall’s report “describes the contents of three documents on separate disks,

which included additional electronic conversations between Mr. Perez and the alleged victim. The

three documents were attached by reference to the report.” CP at 48. On June 25, the Washington

State Crime Laboratory completed the DNA testing.

       On July 1, the State finally provided a copy of the body camera footage to Perez. The trial

court continued the CrR 3.5 hearing scheduled for that day to July 8 to allow Perez time to view

the body camera footage he just received.


                                                 3
No. 48117-1-II


            On July 23, 12 days before the August 4 trial date, and a month after the State received the

reports, the State provided Perez with Detective Beall’s report and the DNA report. The three

disks referred to in Detective Beall’s report were not included. The trial court later found that

these disks were never provided to Perez.

            On July 24, Perez filed a motion to dismiss for governmental misconduct and discovery

violations under CrR 4.7 and CrR 8.3. He asserted that the State’s failure to provide timely

discovery amounted to governmental misconduct and that this misconduct prejudiced him because

it forced him to choose between going to trial adequately prepared and his right to a speedy trial.

            On July 27, 4 working days before the August 4 trial date, the State provided Perez with

an updated DNA report. The next day, the State finally responded in part to the omnibus order by

disclosing 16 lay witnesses and 3 expert witnesses. This disclosure was made 43 days after the

omnibus order’s deadline.

                                   II. CrR 8.3(b) HEARING AND RULING

            At the hearing on Perez’s CrR 8.3(b) motion to dismiss, the trial court heard argument from

defense counsel and Prosecutor Katherine Svoboda. In addressing the discovery packet Perez

received on July 23,3 the trial court asked Svoboda why it took so long to get this discovery to

Perez. Svoboda responded that the assistant prosecutor who was in charge of discovery had been

in trial.

            Svoboda agreed that the evidence that was most crucial to the enhancement allegation was

contained in the discovery that Perez did not receive until July 23, but she commented that she did




3
    This packet contained Detective Beall’s report and the first set of DNA results.

                                                     4
No. 48117-1-II


not think the delay justified “exclusion,” let alone a dismissal.4 Report of Proceedings (RP) at 16.

Svoboda further acknowledged that new DNA evidence had arrived the day before the CrR 8.3(b)

hearing, but she asserted that Perez could “make a strategic decision to go forward, or take time to

look at the additional information” and that none of the more recent evidence “interject[ed] new

facts or information that was not known to [defense counsel].” RP at 16. Svoboda admitted that

she was not aware of whether any information had been obtained from the search warrant issued

for KIK, but she stated that she would check to see if she had received everything that the sheriff’s

office had obtained.

       After discussing the CrR 8.3(b) motion with counsel, the trial court commented that it had

to carefully consider this motion because this was a serious case and the potential risk to the public

needed to be balanced with ensuring that Perez received effective assistance from counsel who

had a full opportunity to prepare a defense, including an opportunity to evaluate the State’s

evidence and possibly seek additional expert opinions. The trial court did not, however, discuss

whether any sanctions other than dismissal would be appropriate.

       The trial court issued written findings of fact and conclusions of law. The trial court’s

findings of fact are set out above. In addition to the facts set out above, the trial court entered the

following findings of fact:

               18.    The Court found that the State was not thorough in their review of
       discovery, diligent in following up with police investigators who evaluated the
       evidence, and timely in providing evidence to Mr. Perez.
               19.    As the trial date approached, the State knew critical evidence had
       not yet been discovered and did not act with reasonable diligence to ensure that the
       DNA results and the computer forensic examination were provided to Mr. Perez.


4
  Svoboda asserted, in part, that the information from the phone searches did not insert any new
facts into this case because “Mr. Perez certainly knows what the conversations were.” RP at 15.

                                                  5
No. 48117-1-II


              20.   The Court is convinced the State ignored this case for weeks as if it
       was unimportant.

CP at 48.

       Based on these findings, the trial court entered the following conclusions of law:

               2.      The Court concluded that the test set forth in State v. Teems, 89 Wn.
       App. 385, 948 P.2d 1336 (1997), should be used to determine if dismissal is an
       appropriate remedy under CrR 8.3(b). The Court considered whether (a) arbitrary
       action or government misconduct (b) affected the defendant’s right to speedy trial
       and right of counsel to prepare an adequate defense.
               3.      The evidence requested by Mr. Perez was uniquely within the
       control of the State and completely beyond the reach of Mr. Perez. The State made
       no attempt to obtain this evidence in response to the request of Mr. Perez or the
       mandate of the Omnibus Order. The State took no timely steps to determine the
       status of the DNA testing or to determine if the cell phone forensic examinations
       were completed.
               4.      The State should have provided Mr. Perez copies of any disks
       containing materials not protected by statute from distribution, i.e., sexual
       depictions of the victim.
               5.      The Court finds the State’s assertion that it did not receive the May
       15, 2015, evidence request from Mr. Perez is not credible. The Court finds the
       deputy prosecuting attorney handling the case made material misrepresentations to
       the Court about her knowledge of this letter in open court on July 13, 2015.
               6.      The DNA results had been known by investigators for over a month
       before they were provided to Mr. Perez and the entirety of the electronic
       conversations between Mr. Perez and alleged victim were never provided to Mr.
       Perez.
               7.      The complete failure of the State to provide the discovery required
       by the Omnibus Order on June 15, 2015, and its failure to act with reasonable
       diligence to monitor the processing of forensic evidence and to produce evidence
       in a timely manner, coupled with the unethical conduct of the deputy prosecuting
       attorney, constitutes prosecutorial misconduct involving bad faith.
               8.      Next, the Court considered whether the government misconduct
       placed the Mr. Perez in a position where he was forced to choose between effective
       assistance of counsel and his right to a speedy trial.
               9.      Since the entirety of the discovery, was not provided to Mr. Perez
       and his right to speedy trial was to expire on August 8, 2015, Mr. Perez’s right to a
       speedy trial was in jeopardy. Trial was set for August 4, 2015.
               10.     The cell phone contents were crucial evidence in defending the
       predatory enhancement charge, and the DNA evidence was crucial evidence in
       establishing that sexual intercourse occurred between the defendant and alleged
       victim.

                                                6
No. 48117-1-II


               11.     Mr. Perez must have a reasonable opportunity to review all of the
       evidence prior to trial, to hire experts, and to formulate a defense on his behalf.
               12.     The unreasonable delay in disclosing this crucial evidence meant
       that Mr. Perez would not have adequate time to fully prepare a defense.
               13.     The State placed Mr. Perez in a position to choose between his right
       to a speedy trial and ineffective assistance of counsel.
               14.     The Court dismissed all charges against the defendant, Anthony
       Eloy Perez.

CP at 130-31 (emphasis added). The trial court then issued an order of dismissal “pursuant to CrR

8.3(b).”5 CP at 131.

       The State appeals.

                                            ANALYSIS

       The State argues that (1) substantial evidence does not support the trial court’s findings of

fact 18, 19, and 20 and challenges portions of conclusions of law 4 and 10 that are more properly

characterized as findings of fact6 and (2) the trial court erred by failing to consider alternative

sanctions before dismissing the case. We hold that substantial evidence supports all of the

challenged findings of fact other than finding of fact 20, but that the remaining findings support




5
 The State moved for reconsideration and supported its motion for reconsideration with numerous
declarations. Noting that the State had never asked for additional time to respond to the motion to
dismiss or moved to supplement the record, the trial court struck the declarations and denied the
motion for reconsideration. The State does not challenge these decisions on appeal.
6
  Although the State alleges in its assignments of error that “[t]he trial court’s findings regarding
the discovery process were not supported by substantial evidence,” it fails to identify any specific
finding until it states in its argument that it is challenging findings of fact 18, 19, and 20 and
conclusions of law 4 and 10. Br. of Appellant at 1. Nowhere in its argument does the State set
out the text of the challenged findings of fact in full. Although the State’s briefing is vague and
does not comply with RAP 10.4(g), we address the State’s challenges to the findings of fact in the
interests of justice. RAP 1.2(c); see State v. Neeley, 113 Wn. App. 100, 105, 52 P.3d 539 (2002).

                                                 7
No. 48117-1-II


the trial court’s governmental misconduct conclusion. We agree, however, that the trial court erred

by failing to consider alternative sanctions.

                                          I. PRINCIPLES OF LAW

          CrR 8.3(b)7 governs a trial court’s dismissal of criminal charges due to governmental

misconduct. Under CrR 8.3(b), a trial court may dismiss a defendant’s charges if the defendant

makes two showings. First, the defendant must show arbitrary action or governmental misconduct.

State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). Such governmental misconduct

“‘need not be of an evil or dishonest nature; simple mismanagement is sufficient.’” Michielli, 132

Wn.2d at 239-40 (emphasis omitted) (quoting State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d

1017 (1993)). Second, a defendant seeking dismissal under CrR 8.3(b) must also show that such

governmental misconduct prejudiced his or her right to a fair trial. Michielli, 132 Wn.2d at 240.

“Such prejudice includes the right to a speedy trial and the ‘right to be represented by counsel who

has had sufficient opportunity to adequately prepare a material part of his defense.’” Michielli,

132 Wn.2d at 240 (quoting State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)). Dismissal

under CrR 8.3 is an extraordinary remedy, and thus a trial court should consider alternative

remedies before resorting to dismissal. State v. Wilson, 149 Wn.2d 1, 12, 65 P.3d 657 (2003).

          We review a trial court’s CrR 8.3(b) dismissal ruling for a manifest abuse of discretion.

Michielli, 132 Wn.2d at 240. “‘Discretion is abused when the trial court’s decision is manifestly




7
    CrR 8.3(b) provides,
         The court, in the furtherance of justice, after notice and hearing, may dismiss any
         criminal prosecution due to arbitrary action or governmental misconduct when
         there has been prejudice to the rights of the accused which materially affect the
         accused’s right to a fair trial. The court shall set forth its reasons in a written order.

                                                      8
No. 48117-1-II


unreasonable, or is exercised on untenable grounds or for untenable reasons.’” Michielli, 132

Wn.2d at 240 (quoting Blackwell, 120 Wn.2d at 830). We review a trial court’s challenged factual

findings for substantial evidence. State v. Sommerville, 111 Wn.2d 524, 533-34, 760 P.2d 932

(1988). “Substantial evidence exists if the record contains evidence of sufficient quantity to

persuade a fair-minded, rational person of the truth of the declared premise.” Sommerville, 111

Wn.2d at 534. Unchallenged findings of fact are verities on appeal. State v. Broadaway, 133

Wn.2d 118, 131, 942 P.2d 363 (1997).

                                      II. FINDINGS OF FACT

                                A. FINDINGS OF FACT 18 AND 19

       The State argues that findings of fact 18 and 19 are not supported by substantial evidence.

We disagree.

       Finding of fact 18 provides,

       The Court found that the State was not thorough in their review of discovery,
       diligent in following up with police investigators who evaluated the evidence, and
       timely in providing evidence to Mr. Perez.

CP at 48. Finding of fact 19 provides,

       As the trial date approached, the State knew critical evidence had not yet been
       discovered and did not act with reasonable diligence to ensure that the DNA results
       and the computer forensic examination were provided to Mr. Perez.

CP at 48.

       The State argues that substantial evidence does not support the findings that the State was

not thorough or diligent in its review of the discovery or that the State failed to follow up with




                                                9
No. 48117-1-II


investigators.8 The statements made by Svoboda at the CrR 8.3 hearing and the unchallenged

findings support these findings.

        The unchallenged findings establish the following:

                (1)     The State had been in possession of Perez’s cell phone, the victim’s
        cell phone, and the DNA-related evidence since March 17;
                (2)     As of April 9, the State was aware that that additional evidence
        relating to the DNA testing, the results of a search warrant for information from
        KIK, and the searches of Perez’s and the victim’s phones were outstanding;
                (3)     As of May 15, Perez had requested this evidence;
                (4)     A June 1 omnibus order was entered ordering the State to provide
        the evidence requested in the May 15 letter by June 15;
                (5)     The State did not provide this evidence by June 15, failed to request
        additional time to comply with the omnibus order, and “completely disregarded the
        defendant’s letter and the Omnibus Order,” CP at 47;
                (6)     The State attempted to make the body camera video available to
        Perez on June 22, but sent the video to his former counsel who had withdrawn from
        the case on May 11, and the State did not explain why it took more than three
        months from the time the State acquired this evidence for it to attempt to provide it
        to Perez;
                (7)     It took the State a month to provide the report on the forensic
        evaluation of the phone to Perez after the State received the report, and when it did,
        the three disks that were attached to the report were not included;
                (8)     Perez never received the three disks mentioned in the forensic
        report.
                (9)     The State received additional DNA evidence five working days
        before the trial date.
                (10) The State disclosed 16 lay witnesses and 3 expert witnesses to the
        defense 4 working days before the trial date and 43 days after the deadline set in
        the omnibus order.


8
  In its argument, the State directs us to a responsive brief in which it asserts it provided an agreed-
to timeline. Although this document was signed by Svoboda on July 27, the filing date on the
document is August 13, 2015, the day the State filed its motion for reconsideration. Thus, it
appears that this filing was among the other declarations and attachments that the trial court struck
and that it was not before the trial court when it considered Perez’s motion to dismiss.
Accordingly, we do not consider this document.
          The State also directs us to the declarations it submitted with its motion for reconsideration.
The State fails to acknowledge that the trial court struck these declarations because they contained
new information and the State did not ask for additional time to respond to the motion to dismiss
or move to supplement the record. Accordingly, we do not consider these documents.

                                                   10
No. 48117-1-II



        These findings demonstrate that there was considerable delay between the time law

enforcement obtained evidence, when the State received the evidence from law enforcement, and

when the State provided this information to Perez. They also show that Perez never received some

of the discovery. In addition, these findings demonstrate that the State failed to timely respond to

the omnibus order. The only explanation of the delay at the CrR 8.3 hearing was that some of the

delay was caused by the assistant prosecutor being in trial—apparently with no one monitoring

her desk. And Svoboda’s admission that she would have to verify that there was no evidence from

the KIK search warrant that the sheriff’s office had not forwarded to the State, suggests that as late

as four working days before trial the State still did not know for certain whether there was

additional outstanding discovery. These unchallenged findings and Svoboda’s statements support

findings of fact 18 and 19.

                                        B. FINDING OF FACT 20

        The State next challenges finding of fact 20. Finding of fact 20 states, “The Court is

convinced the State ignored this case for weeks as if it was unimportant.” CP at 48. Because the

other findings are sufficient to support the trial court’s governmental misconduct conclusion, we

decline to review whether substantial evidence supports this finding.

                                 C. CONCLUSIONS OF LAW 4 AND 10

        The State next challenges the trial court’s conclusions of law 4 and 10. Because, in the

context of the State’s arguments, these conclusions of law are more properly characterized as

findings of fact, we treat them as findings of fact in this analysis. State v. Marcum, 24 Wn. App.

441, 445, 601 P.2d 975 (1979) (statement of fact contained within a trial court’s conclusions of

law is treated as a finding of fact).

                                                 11
No. 48117-1-II


       Conclusion of law 4 states, “The State should have provided Mr. Perez copies of any disks

containing materials not protected by statute from distribution, i.e., sexual depictions of the

victim.” CP at 49. The State asserts that it provided Perez with the materials from the disks

containing the content of the victim’s phone in the initial discovery. But the State does not assert

that it provided all of the nonprotected materials from all of the disks. Additionally, the trial court

found that the State never provided Perez with the three disks Detective Beall had attached to his

report, and the State does not challenge this finding of fact. Accordingly, the State does not show

that this conclusion of law was incorrect.

       Conclusion of law 10 states,

       The cell phone contents were crucial evidence in defending the predatory
       enhancement charge, and the DNA evidence was crucial evidence in establishing
       that sexual intercourse occurred between the defendant and alleged victim.

CP at 50. The State argues only that the cell phone evidence was not “‘crucial evidence’” because

“all information that was obtainable from the cell phones was given to the defense prior to July 6,

2015.” Br. of Appellant at 13. But this argument does not address whether the cell phone evidence

was crucial to the case; it merely reiterates the State’s claim that it did not fail to provide Perez

with this evidence. Thus, the State does not show that this conclusion of law was incorrect.

                           III. FAILURE TO CONSIDER OTHER SANCTIONS

       The State further argues that the trial court erred when it dismissed the case without

considering other sanctions.9 We agree.




9
 Although Perez addresses whether the record supports dismissal as a sanction, he does not address
whether the trial court failed to consider other sanctions.

                                                  12
No. 48117-1-II


        Because dismissal under CrR 8.3(b) is an extraordinary remedy, the trial court should have

considered alternative remedies before resorting to dismissal. Wilson, 149 Wn.2d at 12. Nothing

in the record or the trial court’s findings of fact and conclusions of law suggests that the trial court

considered other sanctions that would not have infringed on Perez’s speedy trial rights, such as

excluding the late-disclosed evidence or witnesses.10 Thus, the trial court erred in dismissing the

charges without first examining other possible sanctions.

        Accordingly, we affirm the trial court’s conclusion that the State engaged in governmental

misconduct, but we reverse the trial court’s dismissal and remand for the trial court to consider

other sanctions.11

        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.



                                                     JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MELNICK, J.



10
  Although the State did not aggressively argue for a different sanction, it did mention that
exclusion of certain evidence was another option.
11
  Perez asks that we decline to impose appellate costs due to his indigency. Because Perez is the
substantially prevailing party, we do not award appellate costs to the State. See RAP 14.2.
                                                13
