State v. Hoffman, No. 36851-3-III

CourtCourt of Appeals of Washington
Writing for the CourtSiddoway, J.
Citation481 P.3d 604
Parties STATE of Washington, Respondent, v. Joyce Aspen HOFFMAN, Appellant.
Decision Date23 February 2021
Docket NumberNo. 36851-3-III

481 P.3d 604

STATE of Washington, Respondent,
Joyce Aspen HOFFMAN, Appellant.

No. 36851-3-III

Court of Appeals of Washington, Division 3.


Marek Elias Falk, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Timothy Rasmussen, Stevens County Prosecutor, 215 S Oak St., Colville, WA, 99114-2862, Will Morgan Ferguson, Attorney at Law, 4448 Sunburst Lane, Stevensville, MT, 59870, for Respondent.


Siddoway, J.

¶ 1 In 2020, the Washington Legislature substantially modified the punishment for the crime of bail jumping with the result that for most criminal defendants, their first failure

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to appear at a pretrial hearing need not be a crime, and their second will be a gross misdemeanor. Joyce Hoffman, whose convictions in 2019 included two counts of bail jumping, asks us to apply the legislation retroactively to her.

¶ 2 Whether legislation that ameliorates punishment for a crime is an exception to the Washington saving statute1 is an issue presently pending before the Washington Supreme Court. See State v. Jenks , 12 Wash. App. 2d 588, 459 P.3d 389 (2020), review granted , 196 Wash.2d 1001, 471 P.3d 211 (2020). Unlike the pure mitigation of penalty at issue in that case, however, the legislation on which Ms. Hoffman relies modified the elements of the crime, meaning that defendants would not only need to be resentenced, but could need a second minitrial. In the published portion of this opinion we hold that controlling case law rejects any exception to the saving statute that would require second trials.

¶ 3 In the unpublished portion of the opinion, we agree with Ms. Hoffman that her convictions for possession of a controlled substance and use of drug paraphernalia require reversal and remand.

¶ 4 We reverse Ms. Hoffman's convictions for possession of a controlled substance and use of drug paraphernalia and remand. Her convictions for bail jumping are affirmed.


¶ 5 On a winter night in February 2017, Dustin Hughes, then a patrol officer with the Colville Police Department, was following a car whose driver he suspected of driving under the influence. After observing two infractions, he conducted a traffic stop. He spoke to the driver, Joyce Hoffman, told her why she was stopped, and asked if she had been drinking. Ms. Hoffman said she had not, and Officer Hughes did not smell any alcohol. The officer noticed that Ms. Hoffman's pupils were constricted, which he knew from his drug training could indicate use of an opiate.

¶ 6 Officer Hughes took her information and on running it through dispatch learned she did not have a valid driver's license. He also requested a K-9 assist from the county sheriff's office. As he was obtaining Ms. Hoffman's information and preparing a citation, a K-9 deputy arrived and walked his dog, Kilo, around Ms. Hoffman's car. Kilo alerted when he reached the passenger side door.

¶ 7 Officer Hughes delivered citations to Ms. Hoffman, told her of the K-9 alert, and asked if she would consent to a search of the car. She said the car belonged to her mother and she and her husband, who was her front seat passenger, had only borrowed it for the day.2 She nonetheless consented to the search, but her husband objected.

¶ 8 Officer Hughes gave Ms. Hoffman permission to speak with her husband in an attempt to gain his consent and she spoke to him in hushed tones for about two minutes. When consent was not forthcoming, Officer Hughes decided to impound the car and apply for a search warrant. The car was towed to an evidence facility and secured.

¶ 9 After obtaining a warrant, Officer Hughes searched the car. He found a purse on the driver's side floorboard that contained documents belonging to Ms. Hoffman.3 The purse also contained what Officer Hughes believed was a mints tin containing a crystal-like substance and a small green "baggie" emblazoned with dollar signs. Officer Hughes would testify at trial that such baggies are called "dime bag[s]" and "typically carr[y] narcotics." Report of Proceedings (RP) at 186. Officer Hughes did not see anything in the baggie, but it was tested anyway, with negative results.

¶ 10 In a console located between the car's front seats, Officer Hughes found a black nylon pouch containing hypodermic needles,

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a small cooking tin, cotton balls, unused cotton swab tips, and a butane torch. The cooking tin, which contained traces of brown matter, was later tested and found to contain a nonusable amount of heroin residue.

¶ 11 Ms. Hoffman was charged with one count of possession of heroin and one count of use of drug paraphernalia. Several months before trial, the State was granted leave to amend the information to add two counts of bail jumping for Ms. Hoffman's failure to appear for two pretrial hearings.

¶ 12 The case proceeded to a two-day jury trial in May 2019. During a break in jury selection, venire juror 4, Joshua Gavell, notified the bailiff that he had seen Ms. Hoffman in the hallway and heard her make incriminating statements on her phone. He was brought into the courtroom and outside the presence of the other members of the venire, was asked about what he heard. He answered,

To quote, one of the things I heard was, "I should have been smart and thrown my drugs away." And the other thing was just comments about jurors that wouldn't be selected or not being worried about certain jurors that may be selected, because they had—were smart enough to put it on somebody else.

RP at 101. Mr. Gavell said he had not discussed what he heard with anyone but the bailiff. With the agreement of the parties, the trial court excused Mr. Gavell from the venire. The court later ruled, over a defense objection, that Mr. Gavell could be called as a witness by the State.

¶ 13 The State called as witnesses Officer Hughes, Mr. Gavell, a forensic scientist from the Washington State Patrol Crime Laboratory, the K-9 deputy, and court personnel who testified to Ms. Hoffman's failures to appear that were charged as bail jumping.

¶ 14 Officer Hughes testified consistent with the facts recounted above. When cross-examined, he testified that although he believed there was blood in the needles found in the heroin kit, they were not tested, so he did not know if the blood, if any, was Ms. Hoffman's. He testified he was not aware of any evidence that Ms. Hoffman used the needles or the cooking tin, other than that they were found in the car she was driving. He testified that he did not look to see if Ms. Hoffman's arms had track marks or blood spotting from recent needle use.

¶ 15 Defense counsel elicited the K-9 deputy's testimony that when Kilo alerted at the passenger side door of the car, Ms. Hoffman's husband was seated in the passenger seat.

¶ 16 Toward the end of the State's case, the prosecutor became aware that Ms. Hoffman might testify to reasons she had failed to appear on the two occasions that were the basis for the bail jumping charges. The prosecutor argued that if Ms. Hoffman offered excuses, the court should instruct on the statutory "uncontrollable circumstances" affirmative defense to bail jumping. The defense requires the defendant to prove, by a preponderance of the evidence, that uncontrollable circumstances prevented her from appearing, she did not contribute to creating the circumstances in reckless disregard of the requirement to appear, and she appeared as soon as the circumstances ceased to exist.

¶ 17 The defense objected, arguing that it would not offer the evidence to excuse Ms. Hoffman's bail jumping. Defense counsel said he wished to offer the evidence to dispel any inference that Ms. Hoffman failed to appear because of consciousness of guilt of the drug offenses. The trial court reserved decision but warned the defense that if Ms. Hoffman offered reasons for her failure to appear, it believed the State would be entitled to the instruction.

¶ 18 In the defense case, Ms. Hoffman testified that she had been aware of and missed required court appearances on September 4 and December 31, 2018. As an excuse for failing to appear in September, she testified about a hospitalization that immediately preceded the September hearing date. She attributed her failure to appear in December to oversight. She testified that in the case of both missed appearances, she came to court and successfully moved for the bench warrants to be recalled. She did not offer testimony about the heroin residue or drug paraphernalia and the State did not

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question her about them in cross-examination.

¶ 19 Ms. Hoffman had submitted a proposed jury instruction on the defense of unwitting possession to the heroin possession charge. After she testified without disclaiming knowledge of the heroin residue, the prosecutor questioned whether the unwitting possession instruction should be given. Over a defense objection, the trial court agreed, stating the defense required affirmative proof and without it, the instruction would not be given. In light of Ms. Hoffman's testimony offering excuses for her failures to appear charged as bail jumping, the trial court instructed the...

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