# State Of Washington, Resp/cross-app V. Brett Harold Grimnes, App/cross-resp

> Court of Appeals of Washington · August 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10547870

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** August 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10547870

## How later opinions describe it (automated extraction)

- noting need for specific factfinding to determine whether constitutional violation occurred and if prejudice resulted
- noting that judges may be unconsciously prejudiced by seeing a defendant in restraints

## Opinion text

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84477-6-I

Respondent, DIVISION ONE
v.

BRETT HAROLD GRIMNES, UNPUBLISHED OPINION

Appellant.

SMITH, C.J. — Brett Grimnes appeals a jury verdict finding him guilty of

robbery in the first degree with a deadly weapon enhancement. On appeal,

Grimnes contends that (1) the trial court erred by denying his CrR 8.3(b) motion

to dismiss after a jail guard read his confidential trial preparation materials,

(2) that the court violated his constitutional rights by failing to conduct an

individualized determination as to whether restraints were necessary at each

pretrial proceeding, (3) that the prosecutor committed misconduct during cross-

examination of Grimnes’s expert witness, and (4) that the combined effect of

these errors denied Grimnes a fair trial. He also contends that the court erred by

requiring Grimnes to submit to a mental health evaluation as a condition of

community custody and by imposing a victim penalty assessment (VPA). We

affirm the convictions. However, we agree that the court erred by requiring the

mental health evaluation and imposing the VPA and remand for the court to

strike both from the judgment and sentence.
No. 84477-6-I/2

On cross-appeal, the State maintains that the trial court erred by

concluding that Grimnes’s prior Montana conviction was not factually similar to a

prior Washington conviction. Because the facts admitted in the Montana case

are insufficient to satisfy the elements of the Washington offense, we agree with

the trial court and affirm its ruling.

FACTS

On May 7, 2021, Brett Grimnes entered an AM/PM convenience store

carrying a metal wrench and proceeded to break items in the store, shout loudly,

and push the store cashier. As Grimnes left the store, he took several bottles of

Gatorade and then picked up a gallon bottle of water and threw it at the cashier.

Law enforcement arrived shortly thereafter and apprehended Grimnes. Grimnes

was later charged with robbery in the first degree with a deadly weapon

enhancement.

At Grimnes’s initial appearance, the State requested that he be restrained,

citing his criminal history, the nature of the offense, and his behavior in custody

as compelling reasons justifying restraints. The trial court granted the State’s

request, noting that Grimnes would be shackled at further proceedings given the

nature of his criminal history and the crimes charged in the present case. The

court also noted Grimnes could move for reconsideration of the court’s decision.

About a year later, in April 2022, Grimnes moved to proceed pro se and to

waive his right to counsel. Following a colloquy with the trial court, Grimnes’s

request to proceed pro se was granted. Over Grimnes’s objection, the court also

appointed standby counsel to assist with his defense.

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Over the next few months, during pretrial proceedings, Grimnes twice

complained about the restraints or asked that they be removed. Despite

Grimnes’s comments and requests, the court denied his request to remove the

restraints. However, before voir dire began, the court ordered that Grimnes

would not be restrained in front of the jury.

In August 2022, Grimnes moved to dismiss the charges against him. In

his motion, Grimnes alleged that after a meeting with his standby counsel and

investigator, jail guards had opened and read confidential legal mail from his

investigator. The trial court held an evidentiary hearing on the motion. At the

evidentiary hearing, the court heard testimony from the defense investigator, two

jail deputies, both prosecutors assigned to the case, the lead investigating law

enforcement officer, and Grimnes.

The trial court ultimately denied Grimnes’s motion. After summarizing the

testimony from the hearing, the court found that the jail deputies’ review of the

documents was “a reasonable review of the record[s], and very, apparently brief.”

The court also found that even if the jail deputy read part of the documents, the

jail’s policy of checking all mail for safety purposes, even legal mail, was

reasonable. The court concluded that no Sixth Amendment1 violation of

Grimnes’s right to confer privately with his counsel occurred.

The case proceeded to trial and a jury convicted Grimnes as charged.

Before sentencing, the State submitted a memorandum and declaration

contending that this conviction was a third strike offense. The State maintained

1 U.S. CONST. amend. VI.

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that Grimnes’s Montana conviction for aggravated assault was factually

comparable to an earlier Washington conviction for assault in the second degree.

The court determined that the two convictions were not factually comparable and

imposed a standard range sentence of 84 months.

Grimnes appeals.

ANALYSIS

CrR 8.3(b) Motion to Dismiss

Grimnes contends that the jail deputies violated his Sixth Amendment right

to confer privately with his counsel by reading his confidential legal materials and

therefore, that the trial court erred by denying his CrR 8.3(b) motion to dismiss.

CrR 8.3(b) provides that the trial court “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[s] the

accused’s right to a fair trial.” Dismissal of charges under CrR 8.3(b) is an

“ ‘extraordinary remedy.’ ” State v. Rohrich, 149 Wn.2d 647, 658, 71 P.3d 638

(2003) (quoting State v. Baker, 78 Wn.2d 327, 332, 474 P.2d 254 (1970)).

To prevail on a CrR 8.3(b) motion to dismiss, a defendant must show by a

preponderance of the evidence (1) arbitrary action or governmental misconduct

and (2) prejudice affecting the defendant’s right to a fair trial. State v. Kone, 165

Wn. App. 420, 432-33, 266 P.3d 916 (2011). The governmental misconduct

does not need to be of an evil nature; simple mismanagement is sufficient. State

v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). “However, the

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defendant must show actual prejudice, not merely speculative prejudice[,]

affected [their] right to a fair trial.” Kone, 165 Wn. App. at 433.

“We review the trial court’s decision to deny a motion to dismiss under

CrR 8.3 for abuse of discretion, that is, whether the decision was manifestly

unreasonable, based on untenable grounds, or made for untenable reasons.”

Kone, 165 Wn. App. at 433.

Here, Grimnes’s CrR 8.3(b) motion was premised on an alleged Sixth

Amendment violation. To determine whether a Sixth Amendment violation

occurred, we look to whether (1) a state actor participated in the infringing

conduct alleged by the defendant; (2) if so, whether the state actor(s) infringed

on a Sixth Amendment right of the defendant; (3) if so, whether prejudice to the

defendant resulted, that is whether the State failed to overcome the presumption

of prejudice arising from the infringement by not proving the absence of prejudice

beyond a reasonable doubt; and (4) if so, what the appropriate remedy is to

select and apply, considering the totality of the circumstances. State v. Irby, 3

Wn. App. 2d 247, 252-53, 415 P.3d 611 (2018).

1. State Actor

The first prong is not at issue because neither party disputes that the jail

deputies were state actors.

2. Jail Deputies’ Conduct

We must next determine whether the jail deputies’ conduct infringed on

Grimnes’s Sixth Amendment rights. We conclude that it did not because the jail

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deputies followed appropriate procedures when inspecting the envelope for

contraband, and the documents in question were not privileged communications.

“The Sixth Amendment guarantees a criminal defendant the right to

assistance of counsel, which includes the right to confer privately with that

counsel.” State v. Peña Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257 (2014);

U.S. CONST. amend. VI. “State intrusion into those private conversations is a

blatant violation of a foundational right.” Peña Fuentes, 179 Wn.2d at 811.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated

when the State intrudes into a privileged attorney-client communication. By

implication, a defendant’s Sixth Amendment right is not necessarily infringed on

when the attorney-client information acquired by the State is not privileged.” Irby,

3 Wn. App. 2d at 254.

Criminal defendants also have “an explicit right to self-representation

under the Washington Constitution and an implicit right under the Sixth

Amendment to the United States Constitution.” State v. Madsen, 168 Wn.2d

496, 503, 229 P.3d 714 (2010). Where standby counsel is appointed, statements

between a pro se defendant and standby counsel are privileged. State v.

McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). This privilege, along with

the work-product doctrine, protects communications between a pro se defendant

and standby counsel to the extent that such communications contain the

opinions, theories, or conclusions of the attorney or investigating agencies. State

v. Pawlyk, 115 Wn.2d 457, 477, 800 P.2d 338 (1990) (discussing privileged

communications); State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987)

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(regarding pro se defendants); see also CrR 4.7(f)(1). But the privilege does not

shield facts from discovery, even if they are transmitted in communications

between an attorney and client. Youngs v. PeaceHealth, 179 Wn.2d 645, 653,

316 P.3d 1035 (2014) (“Facts are proper subjects of investigation and discovery,

even if they are also the subject of privileged communications.”).

Further, although incarcerated persons have a Sixth Amendment right to

confidential attorney-client communications, that right must be balanced against

jail officials’ need to maintain safety and security at the jail facility. Wolff v.

McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); see

also Nordstrom v. Ryan, 762 F.3d 903, 910 (9th Cir. 2014). For this reason, jail

staff may not read legal mail, but they may inspect it to determine if contains

contraband or poses a threat to jail safety. Wolff, 418 U.S. at 577.

a. Whether Jail Deputies’ Opening of Grimnes’s Mail Infringed

His Sixth Amendment Right to Counsel

We must first address whether the jail deputies’ opening of Grimnes’s

correspondence infringed on his Sixth Amendment right to confer privately with

his counsel. We conclude that it did not.

Testimony about the jail’s procedure for reviewing incoming mail indicates

that jail deputies followed the standard procedure of checking for contraband and

did not unnecessarily pry into Grimnes’s materials. During the evidentiary

hearing on Grimnes’s motion to dismiss, Sergeant Theresa Dorcy testified about

the jail’s policy of searching and processing mail. She explained that legal mail

and discovery materials are typically labeled as such by the sender and, per jail

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No. 84477-6-I/8

policy, are set aside by jail staff. Legal mail is opened by jail staff in front of the

inmate, checked for contraband, and then handed to the inmate without staff

reading it. Discovery materials are similarly handled. Discovery materials are

stored in a secure room until an inmate requests to see their documents. At that

point, the inmate is brought to the secure room at which time jail staff take the

requested material out of the envelope and hand it to the inmate. Inmates are

not permitted to take discovery materials with them due to security risks. Like

with legal mail, jail staff check envelopes labeled as discovery for contraband but

do not read the materials inside. If jail staff cannot determine from the envelope

if mail is legal mail or discovery materials, jail policy is for staff to stop scanning

the contents as soon as they recognize a document is legal mail. Attorneys and

investigators visiting clients at the jail sign an acknowledgement of the

procedures for seeing someone in jail at each visit; the discovery policy is one of

the procedures described on the form.

Sergeant Dorcy testified that after a meeting between Grimnes and his

standby counsel and investigator in one of the jail’s meeting rooms, she called for

Deputy Sherry Kness, a classifications deputy who handles mail for pro se

inmates, to process an unmarked, unsealed manila envelope given to Grimnes

by his investigator. Sergeant Dorcy recalled that Deputy Kness “opened [the

envelope] in less than five seconds and said that it needed to go into [Grimnes’s]

discovery.”

Deputy Kness testified to the same set of facts. She testified that she was

called to review the materials in the unmarked envelope before Grimnes could

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No. 84477-6-I/9

take them out of the room. Deputy Kness explained that, per jail policy,

classifications deputies are allowed to skim some of the material to determine

what type of document it is. She testified that before she picked up the envelope,

Grimnes told her that the envelope contained “legal confidential information.”

After looking at the documents for “[p]robably five seconds or less,” Deputy

Kness concluded that the documents were neither legal mail nor discovery. She

noted that the documents looked “like a commissary order.” Deputy Kness told

Sergeant Dorcy that Grimnes could take the documents but Grimnes informed

them that he did not want them. Deputy Kness commented that if the documents

were discovery materials, they would need to go to the secure discovery room.

Grimnes replied, “[I]t’s not discovery. You can just take it.” Deputy Kness then

wrote Grimnes’s name on the envelope and the word “discovery.”

Grimnes’s defense investigator Lana Reichert testified that, at some point

during her meeting with Grimnes, she handed him an unsealed, unmarked

manila envelope. Despite being familiar with the jail’s policies, Reichert testified

that she did not label the envelope as legal mail or as discovery materials.

Reichert then explained that the envelope contained four pages of documents

received through a subpoena duces tecum from Mark Hill, the Department of

Social and Health Services (DSHS) Electronic Benefits Transfer (EBT) records

physical manager, and sent via e-mail. Reichert also testified that there were no

handwritten notes, no attorney communications, and no communications from

her written on or attached to the documents.

Grimnes testified that Deputy Kness read portions of the documents “out

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No. 84477-6-I/10

loud” to Sergeant Dorcy and another jail staffer. He also stated that the incident

undermined his confidence in his ability to communicate with his investigator and

standby counsel.

Given the context and surrounding circumstances, we conclude that the

jail deputies did not violate Grimnes’s Sixth Amendment right to confer privately

with his counsel by checking his mail for contraband. Testimony from Sergeant

Dorcy and Deputy Kness supports the court’s finding that the jail staff followed

procedure and only opened the envelope to check for contraband. Because the

envelope was unmarked and unsealed, it was reasonable for the jail deputies to

do so. Also, Deputy Kness’s review of the documents was so short that she

would not have gained anything of significance from these particular documents.

Deputy Kness’s short review indicates that she was following procedure by briefly

scanning the documents in order to properly characterize the kind of documents

left behind. Given these circumstances, we conclude that no Sixth Amendment

violation occurred.

b. Whether the Documents Were Privileged

We must next address whether the information exposed to the scrutiny of

the jail deputies included privileged attorney-client communications. Neither

party disputes that the communication between Grimnes and his defense

investigator was privileged based on the context of the meeting. We must

determine then, whether the records at issue were privileged communications.

We conclude that they are not.

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No. 84477-6-I/11

The records at issue, a list of Grimnes’s EBT transactions, were facts and

did not reveal any privileged information about his defense or trial strategy.

Grimnes’s assertion that the documents were prepared in anticipation of litigation

is also unavailing. The records were prepared by the DSHS, which routinely

prepares and maintains public records related to the programs it administers.

WAC 388-01-030. Moreover, none of the documents in the envelope had notes

from Grimnes, his defense investigator, or his standby counsel. Because the

documents did not contain communications from standby counsel or the

investigator, they were not privileged. Therefore, we conclude that the trial court

did not abuse its discretion in denying Grimnes’s motion to dismiss.

3. Prejudice

Because the state actors at issue here did not infringe on Grimnes’s Sixth

Amendment right, we disagree with Grimnes that any prejudice resulted. But

even if the jail guards’ conduct did constitute a Sixth Amendment violation, the

State has still proved the absence of prejudice beyond a reasonable doubt.

The testimony from the evidentiary hearing is sufficient to meet this

burden. Deputy Kness testified that she looked at the documents for “[p]robably

five seconds or less” and that she followed the jail’s policy for examining legal

mail and discovery materials. She also testified that she did not tell anybody

what was contained in the documents. Sergeant Dorcy testified that Grimnes

told her and Deputy Kness that the documents were not discovery and that they

could keep the documents. Both prosecutors assigned to Grimnes’s case

testified that they did not know what was in the envelope, that no one from the jail

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told them about the documents, and that law enforcement never discussed the

documents in question with them. The lead law enforcement investigator also

testified that he did not know what the documents in the envelope were and that

he was only made aware that Grimnes had allegedly had legal mail taken from

him when he was subpoenaed to appear in court. Because no one involved in

Grimnes’s prosecution knew anything about the documents, the State met its

burden of proving Grimnes was not prejudiced beyond a reasonable doubt. And

because Grimnes was not prejudiced, the court did not err by denying his

CrR 8.3(b) motion to dismiss.2

4. Evidentiary Hearing

Grimnes also asserts that the evidentiary hearing held by the court to

determine whether a Sixth Amendment violation occurred was an additional

violation of his confidentiality. We disagree.

When a defendant raises a Sixth Amendment violation on a CrR 8.3(b)

motion to dismiss, an evidentiary hearing is proper to determine whether such a

violation occurred. See Irby, 3 Wn. App. 2d at 263 (remanding for evidentiary

hearing on CrR 8.3 motion to dismiss); Peña Fuentes, 179 Wn.2d at 822

(discussing importance of discovery and factfinding to determine

2 In its reply brief as cross-appellant, the State offered additional
argument on the Sixth Amendment issue. Grimnes subsequently moved to strike
the portion of the State’s reply brief that addressed this issue, arguing that it is
not an issue raised on cross appeal. RAP 10.1(c) provides that “[i]f the
respondent is also seeking review, the respondent may file a brief in reply to the
response the appellant or petitioner has made to the issues presented in the
respondent’s review.” Because the State did not raise a Sixth Amendment issue
in its cross appeal, we agree that the portion of the State’s reply brief addressing
the Sixth Amendment issue should be stricken.

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prejudice); State v. Garza, 99 Wn. App. 291, 301-02, 994 P.2d 868 (2000)

(noting need for specific factfinding to determine whether constitutional violation

occurred and if prejudice resulted).

Here, the trial court properly conducted an evidentiary hearing after

Grimnes moved to dismiss on the grounds of government misconduct. The

evidentiary hearing was not a violation of Grimnes’s confidentiality.

Restraints at Pretrial Hearings

Grimnes asserts that the trial court violated his constitutional rights by

forcing him to appear in restraints during pretrial proceedings without conducting

an individualized inquiry at each appearance. Grimnes also argues that the

State cannot establish beyond a reasonable doubt that the unconstitutional use

of restraints was harmless. Although it is unclear whether Grimnes was shackled

at all pretrial proceedings, the record clearly reflects that Grimnes was shackled

at some proceedings and the court failed to conduct an individualized inquiry.

But because Grimnes fails to demonstrate how being restrained at some of the

proceedings resulted in prejudice, we conclude that though the restraint was

unconstitutional, the error was harmless.

A criminal defendant’s right to a fair trial is protected by the Sixth and

Fourteenth Amendments to the United States Constitution and article I,

section 22 of the Washington State Constitution. State v. Jackson, 195 Wn.2d

841, 852, 467 P.3d 97 (2020). “It is well settled that a defendant in a criminal

case is entitled to appear at trial free from all bonds or shackles except in

extraordinary circumstances.” State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967

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(1999) (plurality opinion). This constitutional right to a fair trial is also implicated

by restraints at nonjury pretrial hearings. Jackson, 195 Wn.2d at 852. But the

right to be free from restraints is not absolute; trial judges are vested with

discretion to determine measures that implicate courtroom security, such as

whether to restrain a defendant. State v. Hartzog, 96 Wn.2d 383, 396, 400, 635

P.2d 694 (1981). Therefore, “[a] trial court must engage in an individualized

inquiry into the use of restraints prior to every court appearance” to determine

whether the restraints are necessary. Jackson, 195 Wn.2d at 854 (emphasis

omitted).

We review a trial court’s decision of whether to shackle a defendant for an

abuse of discretion. Jackson, 195 Wn.2d at 850. A trial court abuses its

discretion when its decision is manifestly unreasonable or based on untenable

grounds or untenable reasons. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d

1159 (2002).

1. Whether Grimnes Was Unconstitutionally Restrained

At Grimnes’s first appearance, the trial court granted the State’s request

that Grimnes be restrained in the courtroom because of the nature of the charges

against him and his criminal history. The court’s order noted that it was subject

to a motion for reconsideration by Grimnes. Over a year passed between

Grimnes’s first appearance and the case proceeding to trial. Over the course of

that year, Grimnes appeared for more than 20 pretrial hearings, either remotely

or in-person. Of those proceedings, shackling was discussed or mentioned on

four occasions.

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On May 19, 2022, Grimnes stated: “I can request to be unshackled during

these hearings so I can actually write things down and make notes and stuff. It’s

nearly impossible to do with the shackles on.” In response, the court told

Grimnes that it would address his request at the next hearing.

Then, on July 7, 2022, when asked by the court if he was ready to

proceed, Grimnes replied: “I’m struggling with the restraints over here trying get

my paperwork here.” The court responded: “Let me know when you are ready.”

No further discussion of restraints took place that day.

On August 8, 2022, Grimnes inquired about whether he would be

shackled during trial. The court told Grimnes that it would address that issue

after they finished discussing the pretrial motions.

On August 30, 2022, the court informed Grimnes that it would not order

him to be restrained at trial. The court stated: “Mr. Grimnes, I’m not going to

order restraints in the courtroom before the jury. I think that has been

appropriate for all the hearings pretrial, but I see no reason for that. Obviously,

you will be transported down, however, by jail staff before you come in the

courtroom in restraints.”

Though restraints were only discussed at these four hearings, the court’s

comment about restraints having been appropriate for “all the hearing pretrial”

indicates that Grimnes was shackled throughout pretrial proceedings. Still,

Grimnes bears the burden of proving that he was unconstitutionally restrained at

each of the pretrial hearings. Because restraints were not discussed at each

hearing, it is unclear from the record whether Grimnes was shackled at all pretrial

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proceedings. However, it is clear that on the two occasions that Grimnes stated

he was shackled, the court did not conduct an individualized inquiry as to

whether shackling was still appropriate. Because the court failed to conduct the

relevant inquiry as to whether restraints were necessary, we conclude that

Grimnes was unconstitutionally restrained on these occasions.

2. Harmless Error

Although Grimnes was unconstitutionally restrained, such error was

harmless because Grimnes was not shackled in front of the jury and because

there is no evidence that his being restrained during pretrial proceedings

prejudiced the judge against him during pretrial proceedings, over the course of

the trial, or at sentencing.

Once an appellant demonstrates that they were unconstitutionally

restrained during a court proceeding, the State must establish that any error was

harmless. Jackson, 195 Wn.2d at 855-56. To do so, the State must

demonstrate, from an examination of the record, that the error was harmless

beyond a reasonable doubt or that the evidence against the defendant was so

overwhelming that no rational finder of fact could find the defendant not guilty.

State v. Clark, 143 Wn.2d 731, 775-76, 24 P.3d 1006 (2001). Although the

likelihood of prejudice is “significantly reduced” in proceedings without a jury,

judges, too, are not immune from the risk of prejudice from implicit bias. State v.

Lundstrom, 6 Wn. App. 2d 388, 395 n.2, 429 P.3d 1116 (2018); Jackson, 195

Wn.2d at 856 (noting that judges may be unconsciously prejudiced by seeing a

defendant in restraints). There is a presumption that the trial court properly

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discharged its official duties without bias or prejudice. In re Pers. Restraint of

Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).

a. Motion to Dismiss Hearing

Grimnes first asserts that he was unconstitutionally restrained during the

hearings on his motion to dismiss and that this error was not harmless because

the State cannot prove that the shackles did not affect the court’s decision on the

motion to dismiss. We disagree.

As an initial matter, we note that the State maintains that Grimnes failed to

meet his burden to perfect the record because the record does not reflect that

Grimnes was restrained at the motion to dismiss hearing. Although the record is

somewhat unclear as to whether Grimnes was shackled at these hearings, the

trial court’s later statement that it believed restraints were necessary at all pretrial

proceedings alludes to the fact that Grimnes was shackled during the hearing on

the motion to dismiss. Therefore, we disagree that the record does not reflect

that Grimnes was restrained at this particular hearing. We next turn to whether

this unconstitutional restraint constituted harmless error.

At the August 30, 2022 hearing, the trial court determined that the jail

staff’s conduct in processing Grimnes’s discovery materials did not violate his

Sixth Amendment right to confer privately with his counsel. The record clearly

supports the trial court’s determination.

Over the course of a two-day evidentiary hearing, the court heard

testimony about the incident from jail deputies, the prosecutors assigned to the

case, the lead law enforcement officer on the case, and Grimnes. At the hearing,

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Grimnes expressed concern that the jail staff could read his confidential legal

materials while he prepared his case by using cameras in his cell. Despite

testimony that the jail cameras did not possess the zoom capabilities to read

materials in an inmate’s cell, the court instructed the State to perform a

simulation, with Grimnes’s involvement, to confirm that jail staff could not view

Grimnes’s case materials via the surveillance cameras. At another hearing, the

court considered the results of the simulation and determined from photo

evidence that the cameras were too pixilated to see details of Grimnes’s legal

materials. After considering the testimony from the hearings, a video of the

entire incident, and the additional evidence from the simulation, the court

concluded that the jail deputy’s review of Grimnes’s legal materials was “so short

that [the deputy] wouldn’t have gained anything of significance from this

particular document” and that it was “certainly reasonable” for the jail to have a

policy for safety purposes to review any incoming mail. Given the court’s in-

depth consideration of Grimnes’s motion, the record does not support that the

court exhibited any bias in conducting the hearing or that its decision was

negatively influenced by the fact that Grimnes was restrained. The court’s

decision was reasonable and we conclude that the unconstitutional restraint was

harmless error.

b. Sentencing Hearing

Grimnes next asserts that being restrained during pretrial proceedings in

front of the same judge that sentenced him affected the court’s decisions at his

sentencing hearing. The record reflects, and the State concedes, that Grimnes

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was restrained during at least two pretrial proceedings. But because no

prejudice resulted, we conclude that such error was harmless.

State v. Jarvis, 27 Wn. App. 2d 87, 530 P.3d 1058, review denied, 537

P.3d 1027 (2023), is instructive here. In Jarvis, this court concluded that the

defendant was unconstitutionally restrained during his sentencing hearing and

that the error was not harmless. 27 Wn. App. 2d at 97-98. In its harmless error

analysis, the court pointed to two decisions by the sentencing judge that could

indicate potential prejudice as a result of seeing Jarvis in restraints. Id. at 102-

03. The first was the sentencing court’s determination that the State had proven

that the two prior strike offenses were committed by Jarvis on fingerprint and

photograph evidence. Id. Given the nature of the evidence and the sentencing

court’s role in evaluating the evidence, this court explained that the State could

not prove beyond a reasonable doubt that Jarvis’ appearance in restraints at

sentencing had no impact on the sentencing court’s determination that Jarvis had

committed the two prior offenses. Id.

The second decision was the sentencing court’s determination to

sentence Jarvis at the top end of the standard range for the first degree unlawful

possession of a firearm conviction. Id. at 102. Because that determination

involved an exercise of discretion, this court noted that Jarvis’ appearance in

restraints at the sentencing hearing could have influenced the sentencing court’s

decision. Id.

Jarvis is distinguishable from the present case. Here, like in Jarvis, the

State argued that Grimnes was a persistent offender and that this conviction was

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No. 84477-6-I/20

a third strike offense. But unlike in Jarvis, the sentencing court disagreed that

the State had proven the two prior strike offenses. In reaching this decision, the

sentencing court had to make factual determinations, much like the court in

Jarvis, about whether Grimnes’s Montana conviction was factually comparable to

his prior Washington conviction. Moreover, when Grimnes refused to appear in

court for the comparability analysis hearing, the court denied the State’s motion

to proceed without Grimnes’s presence and continued the hearing. Finally, the

sentencing court here chose to sentence Grimnes to a mid-range sentence of 84

months even though the State requested the statutory maximum sentence of 92

months. The nature of the court’s decisions indicates that Grimnes’s appearance

in restraints during pretrial proceedings had no impact on the court’s sentencing

determinations. Therefore, we conclude that the use of unconstitutional

restraints was harmless error.

Prosecutorial Misconduct

Grimnes maintains that the prosecutor committed misconduct while cross-

examining his expert witness by insinuating that Grimnes prevented his witness

from accessing documents provided by the State. Because Grimnes fails to

demonstrate how the prosecutor’s conduct was so flagrant or ill-intentioned that a

jury instruction could not have cured the resulting prejudice, he waived any error.

To prevail on a claim for prosecutorial misconduct, a defendant who timely

objects must prove that the prosecutor’s “ ‘conduct was both improper and

prejudicial in the context of the entire trial.’ ” State v. Zamora, 199 Wn.2d 698,

708, 512 P.3d 512 (2022) (internal quotation marks omitted) (quoting State v.

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No. 84477-6-I/21

Loughbom, 196 Wn.2d 64, 70, 470 P.3d 499 (2020)). But where a defendant

fails to object, “the defendant is deemed to have waived any error, unless the

prosecutor’s misconduct was so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741,

760-61, 278 P.3d 653 (2012). “In other words, the defendant who did not object

must show the improper conduct resulted in incurable prejudice.” Zamora, 199

Wn.2d at 709.

On cross-examination, the State asked Grimnes’s expert, Dr. David Dixon,

a series of questions about the expert’s conclusions and the materials he relied

on in making those conclusions. One line of questioning focused on whether

Dr. Dixon had reviewed reports from the State about Grimnes’s demeanor under

the influence:
[STATE]: You’ve talked about needing a baseline. Were you
provided any baseline about Mr. Grimnes while under
the influence of methamphetamine?
[DIXON]: No, I never observed him under the influence, just the
effect of methamphetamine.
[STATE]: Were you provided potential reports with that
information?
[DIXON]: No.
[STATE]: Were you provided reports with that information from
myself from my office?
[DIXON]: I don’t believe so.
[STATE]: Okay. Were you told not to review those reports at
the request of the defendant?
[DIXON]: I don’t believe so.
[STATE]: Several hundreds of pages in an email?
[DIXON]: I don’t recall that.

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No. 84477-6-I/22

The State then showed Dr. Dixon a transcript of his interview with the

prosecutor and asked if the transcript refreshed his recollection about receiving

additional information. Dr. Dixon indicated that it did not refresh his recollection.

The State then asked Dr. Dixon again whether the expert had reviewed the

additional information from the prosecutor’s office. Dr. Dixon indicated that he

did not believe so and that he could not recall. The State then asked Dr. Dixon

whether Grimnes had requested he change his expert report. Grimnes did not

object to this line of questioning or to any of the State’s questions about the

additional records.

Considered in the context of the entire trial, these questions were not so

flagrant or ill-intentioned as to result in incurable prejudice. Rather, these

questions were part of a larger series of questions meant to assess the credibility

of Dr. Dixon and the basis and reliability of his report. When Dr. Dixon indicated

he did not recall parts of his interview with the prosecutor, the State attempted to

impeach him with a transcript of that interview. But when Dr. Dixon indicated that

the transcript did not help him refresh his recollection, the State moved on to ask

the witness other questions. It appears that the purpose of this brief exchange

during cross-examination was not, as Grimnes asserts, to mislead the jury into

believing that there were hundreds of pages of reports about Grimnes’s past

behavior while using methamphetamine or that Grimnes had intentionally

prevented Dr. Dixon from considering that information. Instead, the purpose of

this questioning was to impeach the witness after he testified that he could not

recall whether he reviewed any additional records from the prosecutor and that

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No. 84477-6-I/23

he did not recall any direction from Grimnes about the records. The prosecutor’s

conduct was not so flagrant or ill-intentioned that a jury instruction could not have

cured the resulting prejudice and therefore, we conclude that Grimnes waived

any error related to the prosecutor’s conduct.

Cumulative Error

Grimnes contends that he is entitled to a new trial because the cumulative

effect of all his asserted errors denied him a fair trial. We disagree.

“Under the cumulative error doctrine, a defendant may be entitled to a new

trial when cumulative errors produce a trial that is fundamentally unfair.” Emery,

174 Wn.2d at 766. Cumulative error “is limited to instances when there have

been several trial errors that standing alone may not be sufficient to justify

reversal but when combined may deny a defendant a fair trial.” State v. Greiff,

141 Wn.2d 910, 929, 10 P.3d 390 (2000).

Here, Grimnes being unconstitutionally restrained at some pretrial

proceedings is the only error. But because we determined this error to be

harmless, we also conclude that reversal is not appropriate under the cumulative

error doctrine.

Community Custody

Grimnes asserts that the court erred by requiring him to submit to a mental

health evaluation as a condition of community custody without first making

findings that Grimnes is a mentally ill person. Grimnes argues that the

requirement that he submit to an evaluation should be stricken from the judgment

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No. 84477-6-I/24

and sentence. The State does not oppose remand to strike the evaluation

provision.

A court may order a mental health evaluation only if it finds “that

reasonable grounds exist to believe that the offender is a mentally ill person as

defined in RCW 71.24.025, and that this condition is likely to have influenced the

offense.” RCW 9.94B.080.

Here, neither party disputes that the court made no such finding and that

remand is appropriate to strike the evaluation requirement from the judgment and

sentence. We agree that remand is necessary to correct the judgment and

sentence.

Victim Penalty Assessment

Grimnes argues that the trial court erred in imposing a victim penalty

assessment because it found him to be indigent. The State does not oppose

remand for Grimnes to move to strike the assessment.

As of July 1, 2023, trial courts may no longer impose the crime victim

penalty assessment on indigent defendants. Former RCW 7.68.035 (2018),

amended by LAWS OF 2023, ch. 449, § 1(4). This change in statute applies

prospectively to defendants whose cases are not yet final, including those whose

cases are pending on appeal. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d

714 (2018).

Here, neither party disputes that Grimnes is indigent and that remand is

proper for Grimnes to move to strike the assessment. We agree that remand is

appropriate.

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No. 84477-6-I/25

Montana Conviction

On cross-appeal, the State asserts that the trial court erred by determining

that Grimnes’s Montana conviction for aggravated assault was not factually

comparable to his prior Washington conviction for assault in the second degree.

We disagree. Because the elements of the Montana offense are broader than

those of the Washington offense and because Grimnes’s guilty plea did not

stipulate or admit facts that would satisfy the Washington offense, the trial court

correctly determined that the Montana conviction was not comparable.

The Sentencing Reform Act of 1981, chapter 9.94A RCW, creates a grid

of standard sentencing ranges calculated based on a defendant’s offender score

and the seriousness level of the current offense. RCW 9.94A.505, .510, .520,

.525; State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014). A defendant’s

offender score is the sum of points accrued as a result of their prior convictions.

RCW 9.94A.525. We review de novo a sentencing court’s calculation of an

offender score. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007).

Out-of-state convictions for offenses may be included in the offender score

calculation and must “be classified according to the comparable offense

definitions and sentences provided by Washington law.” RCW 9.94A.525(3).

Only comparable out-of-state convictions can be included in the offender score.

State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). The State bears

the burden of proving by a preponderance of the evidence the existence and

comparability of all out-of-state convictions. Olsen, 180 Wn.2d at 472.

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No. 84477-6-I/26

We employ a two-part analysis to determine whether an out-of-state

conviction is comparable to a Washington conviction. Thiefault, 160 Wn.2d

at 414-15. First, we determine whether the convictions are legally comparable by

comparing the elements of the out-of-state conviction to the relevant Washington

statute. Thiefault, 160 Wn.2d at 415. If the out-of-state conviction is identical to

or narrower than the Washington statute and contains all the most serious

elements of the Washington statute, then the out-of-state conviction is legally

comparable and counts toward the offender score. Thiefault, 160 Wn.2d at 415.

But if the out-of-state statute is broader than the Washington statute, the

offenses are not legally comparable. In re Pers. Restraint of Lavery, 154 Wn.2d

249, 258, 111 P.3d 837 (2005).

Second, even if the offenses are not legally comparable, the out-of-state

conviction may still be included in the offender score if the offenses are factually

comparable. Thiefault, 160 Wn.2d at 415. To determine if the offenses are

factually comparable, we analyze whether the defendant’s conduct underlying

the out-of-state conviction would have violated the comparable Washington

statute. Thiefault, 160 Wn.2d at 415. The sentencing court may “look at the

defendant’s conduct, as evidenced by the indictment or information, to determine

if the conduct itself would have violated a comparable Washington

statute.” Lavery, 154 Wn.2d at 255. “In making this factual comparison, the

sentencing court may rely on facts in the out-of-state record only if they are

admitted, stipulated to, or proved beyond a reasonable doubt.” State v. Arndt,

179 Wn. App. 373, 379, 320 P.3d 104 (2014). The elements of the charged

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No. 84477-6-I/27

crime remain the cornerstone of this inquiry. Arndt, 179 Wn. App. at 379. In the

factual comparability analysis, the court may only consider facts which are

admitted or proved beyond a reasonable doubt in the out-of-state conviction.

Lavery, 154 Wn.2d at 258.

If the out-of-state conviction is neither legally nor factually comparable to a

Washington offense, it may not be included in the defendant’s offender score.

Thiefault, 160 Wn.2d at 415.

Here, the State concedes that Grimnes’s Montana conviction is not legally

comparable to his Washington conviction. We must instead determine whether

the two convictions are factually comparable.

Under Montana Code, “[a] person commits the offense of aggravated

assault if the person purposely or knowingly causes serious bodily injury to

another or purposely or knowingly, with the use of physical force or contact,

causes reasonable apprehension of serious bodily injury or death in another.”

MCA 45-5-202. Montana defines “serious bodily injury” as bodily injury that:
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or
impairment of the function or process of a bodily member or organ;
or
(iii) at the time of the injury, can reasonably be expected to result in
serious permanent disfigurement or protracted loss or impairment
of the function or process of a bodily member or organ.

MCA 45-2-101(66)(a).

Under MCA 45-2-101(35), to act “knowingly” means
a person acts knowingly with respect to conduct or to a
circumstance described by a statute defining an offense when the
person is aware of the person’s own conduct or that the

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No. 84477-6-I/28

circumstance exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an offense when
the person is aware that it is highly probable that the result will be
caused by the person’s conduct. When knowledge of the existence
of a particular fact is an element of an offense, knowledge is
established if a person is aware of a high probability of its
existence. Equivalent terms, such as “knowing” or “with
knowledge”, have the same meaning.

Per RCW 9A.36.021(1)(g), a person is guilty of assault in the second

degree by strangulation if they “[a]ssault[] another by strangulation or

suffocation.” “ ‘Assault is an intentional touching or striking of another person

that is harmful or offensive, regardless of whether it results in physical injury.’ ”

State v. Jarvis, 160 Wn. App. 111, 119, 246 P.3d 1280 (2011) (quoting State v.

Tyler, 138 Wn. App. 120, 130, 155 P.3d 1002 (2007)). “Strangulation” is defined

generally as “to compress a person’s neck, thereby obstructing the person’s

blood flow or ability to breathe, or doing so with the intent to obstruct the person’s

blood flow or ability to breathe.” RCW 9A.04.110(26). The plain meaning of

“obstruct” in this context is to hinder or block to some degree a person’s ability to

breathe or to experience blood flow. State v. Rodriquez, 187 Wn. App. 922, 935,

352 P.3d 200 (2015). To “compress” means “to reduce the volume, size,

duration, density, or degree of concentration of by or as if by pressure” or “to

press together.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 467 (2002).

And “suffocation” means “to block or impair a person’s intake of air at the nose

and mouth, whether by smothering or other means, with the intent to obstruct the

person’s ability to breathe.” RCW 9A.04.110(27).

In the present case, the only facts that were admitted or stipulated to from

the Montana conviction are those in Grimnes’s Montana guilty plea. In the plea

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No. 84477-6-I/29

agreement, Grimnes admitted to the following facts:
On or about September 12, 2011, I knowingly with use of physical
force, caused reasonable apprehension of serious bodily injury to
my girlfriend C.K. by placing my hands around her neck and
applying pressure while at our home in Billings, Yellowstone
County, Montana. I further acknowledge that I knowingly struck her
in the face and that it caused her injury.

From the facts admitted in Grimnes’s guilty plea, it is clear that he

intentionally touched another person in a harmful way that likely compressed that

person’s neck. But it is unclear from the plea statement whether such action

actually obstructed that person’s blood flow or ability to breathe or whether

Grimnes intended to so do. Because it is unclear if Grimnes possessed the

requisite intent or whether he obstructed another person’s blood flow or ability to

breathe, the facts admitted by the Montana plea statement do not satisfy the

elements for assault in the second degree by strangulation. Therefore, the trial

court did not err by determining that the Montana conviction was not factually

comparable to the Washington conviction.

Affirmed and remanded for the trial court to remove the mental health

evaluation condition from the judgment and sentence and for Grimnes to move

the court to strike the VPA.

WE CONCUR:

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10547870. Public record. Not legal advice.