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Steven Powell Defense Sentencing Memorandum

Steven Powell Defense Sentencing Memorandum

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Published by Ben Winslow
Defense memorandum seeking a reduced sentence for Steven Powell.
Defense memorandum seeking a reduced sentence for Steven Powell.

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Published by: Ben Winslow on Jun 09, 2012
Copyright:Attribution Non-commercial

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01/30/2013

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1
IN
THE
SUPERIOR
COURT
OF
THE
STATE
OF
WASHINGTON
/I
IN
AND
FOR
THE
COUNTY
OF
PIERCE
STATEOF
WASHINGTON,
)
1
Plaintiff,
1
NO.
11-1-03893-1
VS.
11
DEFENDANT'S
SENTENCING
STEVEN
POWELL,
1
MEMORANDUM
)
Defendant.
1
Comes
Now,
Steven
Powell,
through
his
attorneys,Mark
T.
Quigley
and
Travis
R.
1
Currie,
and submits this
Memorandum regarding
sentencing
in the
above
matter.
I.
EACH
OF
DEFENDANT'S
14
COUN'TSOF
VOYEURISMSHOULD
BE
CONSIDERED
UNRANKEDFELONIES
AND
SENTENCED
ACCORDINGLY.
Defendant
Steven
Powell
was
convicted
at
trial
of
14
counts
of
Voyeurism
as
defined
in
RC W
9A.44.115(2)(a)
and
as
charged
in
the
original
Information
filed
on
September
22,20
1
1
.
1
Each
Count
as
alleged
in
the
Information
states
a
charging
period
between June
1,2006
and
!I
August 3
1,2007.
The jury was
instructed
on
each
count
thatthe
State
must
prove beyond
a
I
reasonable
doubt
that
the
Defendant
committed
the
acts
between
June
1.
2006
and
August
3
1,
'I
2007
(see
jury
POWELL-DEFGNDAN'r'S
SEN'KENCING
'
MEMORANDUM-1
!
E-FILEDIN COUNTY CLERK'S OFFICEPIERCE COUNTY, WASHINGTONJune 08 2012 3:23 PMKEVIN STOCKCOUNTY CLERK
NO: 11-1-03893-1
 
I1
instruction
numbers
13-26
filed
herein).
The
jury
so
found.
11
Prior
to
June7,2006,
the
crime
of
voyeurism
as
defined in RCW
9A.44.115
was
an
unranked
felony
with
a
standard
range
of
0-
I2
months.
in
2006,
the
legislature
changed
Voyeurism
to
a
ranked
level
I1
felony,
the
effrc~ive
ate
of that
change
was
June
7.
2006.
Therefore
part
of
thecharging
period,
found by
the
jury
as
the
dates
of
commission,
occurred
I
during
a
time
when Voyeurism
was
an unranked
felony
(June
1,2006
to
June
6,2006).
11
I
I
Arguably.
acts
were
committed
both
before andafter
the
effective
date
changing
!i
Voyeurism
to
a
Ranked Felony.
At
trial,
Detective Sanders
testified
the
exact
date
the
images
of
I1
i
A.H.
and
J.H.
were
taken is
unknown.
Similarly, A.H.,
J.H.,
and
their
mother,
D.C. provided
no
testimony about tho
exact
date
my
photographs
were
taken
nr
viewing
ocruncd
Recruse
of
that
BCI,
he
State
chase
a
broad
charging
period
and
requested
jury
initructionsdefining
~hrl
eriod,
I
lj
Where
two
possible
constructions
are
permissible,
the
nile
of
lenity requires
constmction
'1
oFa
statute
strictly
against
the state and
in
favor
ofthe
defendant. State
v.
Sass,
94
Wash.2d
72
1,
620
P.Zd
79.
(IUBO).
I
Penal
statutes
are
generally
construed
against
the
State
in
favor
of
an
accused.
Seattle
v.
11
1
I
Green,
51
Wash.Zd
871,
322
P.2d
842
(1958);
State
v.
Tharn~son,
8
Wash.2d
774,232
P.ld
87
1:
(195
1);
citedin
State
v.
Arndt,
87
Wash.2d
374,
553
P.2d
1328
(1
976).
'1
When
evidence
does
not
clearly
prow
the
commission
date, and
the
chargingperiod
I.
encompasses
r
chrngr
in
the
penally
far
mmrnirrinn,
the
defendant
is
entitled
lo
he
sentenced
I
I
underthe
more
lenient
penalty.
This
issue
was
addressed
in
State
v.
Parker,
132
Wash.2d
182,
1,
937
P.2d
575
(1
997).
I
Ii
In
Parker,
supra,
the defendant
was
charged with,
and con~icted
f,
committing
crimes
POWELL-DEFLNDANT'S
SEN
I
tNC'ING
MEMORANDUM-2
Dcpanmenr
ot-Ashigned
Cak~nsul
949
Market
Street,
Sullc
334
'lacoma.
Washington
98402-36%
:
Telephone:
(253)
799-6062
 
during
a
five
year
period.
During
the
fourth
year
of
the
charging
period
the
law
changed
increasing
the
penalties
for
the
charged
crimes.
The
State
asked
the
jury
to
convict
the
defendant
for
any
alleged
acts during
the
charging
period.
The jury
was
nut
asked
to
and
did
not
specify
when during
the
f
ve
year
charging
period
any
of
the
acts
occurred.
At
sentencing the court
imposed the
higher
standardrange,
which
became
effective
in
year
four
of
the five
year
charging
period.
The
Washington
Supreme Court
held
such
a
sentence
was
error.
The court
held
that
use
of
the
increased
penalties without requiringtheState
to
prove
the
acts occurred after
the
effective
dates
of
the
increased
penalties
would
violate
the
ex
post
facto clause
of
both
the
United
States
and
Washington
constitutions.
See
State v.
Parka,
supra
at
19
1,
citing
State
v.
Gurrola,
69
Urn.App.
1
52,848
P.2d
1
99
(
1
993).
The
Court
further stated that
when(emphasis
supplied)
the
crime
was
committed
j
s
a
factual
question
which
must
be
put
to
the
jury.
State
v.
Parker, supra,
at
192.
footnote
14.
Here
the jury
was
given
little
if
any
evidence
of
when
the
voyeurism
acts
were
committed.
Although
D.C.
estified
that
A.H.
and
J.H. moved
into
the
house
in
late
summer
2006,
she also
testified
on cross
examination
that
she
did
not
how
he
exact
date
the
girls
moved
in.
Ultimately
,
the
jury
found,
as
requested
by
the
State
in
their
proposed
jury
instructionsdefining
Vo
yzurism
that
the
acts
occurred
between
June
1,2006
and
August
3
1.2007.
Under
the
holding
of
Parker.
supra,
Gurrola,
supra
and
the
rule
of
lenity,
Defendant
should
be
sentenced
under
the
more
lenient
penalty
authorized
during
the
charging
period.
Defendant
should
be
sentenced
on
each
count
as
an unranked felorly
with a
standard rangeof0-12
months.
Deprtment
O~-~ESI~IIC~
ounsef
949
hfarket
Strrcr.
Su~le
34
?acorns.
Warhingtun
9SJ02-3696
,
Telephonr
(253)
798-6062

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