IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON g v b STATE OF WASHINGTON, Respondent, cr> ~P"Z~~ y r*(

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v. STEPHEN J. HOPE, Appellant No. 73814-3-1 DIVISION ONE

o UNPUBLISHED OPINION v FILED: August 22. 2016 Spearman, J. — It is within the trial court's sound discretion to dismiss criminal 

### charges against a defendant when a necessary witness for the State is unavailable for trial. The exercise ofthat discretion requires the trial court to make reasonable efforts to learn whetherthe witness can be made to appear within a reasonable time. The extent ofthe trial court's efforts and what constitutes a reasonable time are specific to the facts ofeach case. Inthis case, the trial court abused its discretion when itdismissed the 

### charge against the defendant without knowledge of when the witness would appear and

more information would have soon been available without causing a delay inthe 

### proceedings. We reverse and remand.
FACTS 

### Early in the morning on May 16, 2014, a yellow Chevroletpickup truckwas 

### reported stolenfrom Sicklesteel Cranes in MountVernon, Washington. Thetruckwas equipped with a global positioning system(GPS) tracking device and itwas quickly located bythe Snohomish County Sheriff's Office. Deputy Dixon Poole saw thetruckNo. 73814-3-1/2
pass him going in the opposite direction. The deputy got a clear look at the driver— a white male wearing sunglasses, a blue hardhat, and a flagger vest. Poole and other deputies followed the truck to 8125 108th St. NE, Arlington, Washington, defendant Stephen Hope's home address. Hope was charged with possession of a stolen vehicle. Trial was set for February 27, 2015. On February 26, 2015, the parties obtained a continuance and the new trial date was May 1, 2015. On April 2, 2015, the partiesjointly requested another continuance and the court set a new date ofJune 19, 2015. The State requested a third continuance on May 21, 2015, because the deputy 

### prosecutor assigned to the case would be taking medical leave. Defense counsel was amenable to the extension but Hope was not. The trial court found good cause for the 

### continuance butextended the date only to July 2 instead of the requested date of July 

### 24. On July 2, the State moved to continuetrial again because Poole, a material witness, had a prescheduled family vacation. Poole was the onlyofficerwho could 

### identify Hope as the driverof the stolenvehicle. Thetrial court reset the trial date to July 24,2015. 

### Attrial call on July 24, both parties answered ready and trial was setto begin the 

### following Monday, July 27, at 9:00 a.m. On that day both parties indicated that their witnesses were "ready to go."Verbatim Report of Proceedings (VRP) at 19-20. Thetrial was expected to last three days, concluding on Wednesday, July 29. The court heard motions inlimine, completed juryselection and gave the jurypreliminary instructions 

### before recessingfor lunch. When trial reconvened at 1:30p.m., the State indicatedforNo. 73814-3-1/3
the first time that it had been unable to contact or locate Poole, who was scheduled to testify that afternoon. MR. GRANT: The second issue, over the lunch hour the State found out that they're having a difficulttime contacting one oftheir witnesses so I may ask that we recess early today. Ianticipated that witness being here and he is not here at this time, but we are ready to proceed with some evidence at this point. THE COURT: Who are you missing? MR. GRANT: Dixon Poole. THE COURT: Where is he? MR. GRANT: I don't have an answer for Your Honor. THE COURT: How could you not have an answer? MR. GRANT: Because Ican't get ahold of him. THE COURT: How about his supervisor? MR. GRANT: He doesn't know where he is either. He's not signed in and his supervisor is unaware ofwhere he's at right now. THE COURT: Is he supposed to be working? Why is this difficult to get this information? (sic) MR. GRANT: It's not a regular

- THE COURT: Is he scheduled to be working today? MR. GRANT: No, he's subpoenaed to be here, he's not scheduled to work 

### today. This is not a regularly scheduled date for him. Iwill know by close ofbusiness today where he's at and hopefully he will be here inthe morning to testify. THE COURT: First issues first, is that acceptable to the defense to have him here at 9:00 to take care ofthat issue? MS. RANCOURT: Yes, Your Honor. MR. GRANT: He may show up today. He's not here yet. 

### VRP (7/27/15) at 39-41. Poole did not show up later that day, and the State's other scheduled witness, Deputy Gibson, had gotten the dates mixed up and also failed to 

### appear. The State had no other witnesses to call and asked the court to recess for the day, about two hours earlier than its usual time. The court granted the request. 

### The nextmorning, the State notified the court that Poole had recently suffered 

### "an unforeseen injury." VRP(7/28/15) at 84. The State did notknow when the injury occurred, but indicated that he had had surgery during the previous week. ItNo. 73814-3-1/4 represented that Poole would not be available to testify that day because he had been prescribed and was taking a high dosage of painkillers. Poole was scheduled to see his doctor at 11:30 that morning, after which he expected to have more information, but it



### was possible that he might not be available until the following week. The State requested that trialproceed withthe available witnesses, then find out 

### during the noon recess when Poole would be available to testify, and depending on his 

### availability, recess the trial until then. Hope's counsel objected and indicated that "we will be making a motion to dismiss." VRP (7/28/25) at 86. Bothcounsel requested an opportunity to brief the issue. When itappeared to the State that the court was not 

### inclined to grant a lengthy recess, itasked for a short recess at that pointto determine Poole's availability. The court refused to grant the State another recess and indicated that it would grant a motion to dismiss. The court stated: THE COURT: ...It is conceded that Deputy Poole is the State's chief material witness. Without him the case folds. We've had difficulty getting 

### ahold of Deputy Poole. He's known at least for a week what's goingon.... He's under an obligation to notify the State and the State is under an 

### obligation toknow where their witnesses are. Idon'tfind anyplausible excuse forthe failure of him to keep the State and the defense and the Court informed of his whereabouts. This case was continued twice, once 

### by Judge Kurtz to the 17th and another one by Judge Appel over the defendant's objection to accommodate Deputy Poole. Evenwith that accommodation he seems unwilling to keep us informed of his whereabouts. 

### VRP (7/28/15) at86-91. Thetrial court alsorelied on the State's representation thatthe witnesswould "potentially" not be available until thefollowing week and cited some 

### potential concerns aboutjuroravailability. Thewritten orderofdismissal, entered on July 28, 2015, stated that"[t]he court isnotwilling to recessthis matteruntil DeputyNo. 73814-3-1/5 Poole is available and the State is unable to proceed without Deputy Poole." Clerk's Papers at 1. The State appeals.
DISCUSSION The State argues thatthe trial court abused its discretion when itdismissed the charges against Hope. Itargues thatthe court should not have decided whether dismissal was appropriate until after itlearned laterthat day when the absent witness would be available to testify. We agree. A trial court's decision to dismiss criminal charges is reviewed for abuse of discretion. State v. Koerber, 85 Wn. App. 1, 3, 931 P.2d 904 (1996). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or

reasons. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004). A decision is 

### based on untenable grounds or foruntenable reasons ifthe trial court applies the wrong 

### legal standard, relies on unsupported facts, or takes a view that noreasonable person would take. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.2d 638 (2003). 

### In this case, the morning of the second day oftrial, the State advised the 

### trial court that its key witness had recently had surgery and was unavailable to 

### testify that day. The State suggested that the deputy might not be availableuntil the following week, butthatthe actual length of any recess requestwas 

### contingenton the information the State received during the noon hour after Poole's appointmentwith his doctor. The record shows that the State had three witnesses present and that itwas ready to proceed with those witnesses during 

### the morning session. The courtoffered no explanation as to whyit could not 

### proceed with thetrial and await more definite information on the length of aNo. 73814-3-1/6 proposed recess. Instead it relied on the State's speculation that Poole would not be available until the next week, concluded that a delay ofthat length was unwarranted and dismissed the charge. The issue in this case is not the trial court's substantive decision that in 

### light of all the circumstances a recess to the following week was unwarranted. Instead the issue concerns when the court made the decision, what information the court had before itand whether gathering additional information would have 

### impeded the trial. We conclude itwas manifestly unreasonable for the trial court to dismiss the case when it did because the information upon which itrelied was uncertain and more reliable information was likelyavailable to the courtwithout causing a delay inthe proceedings. Koerber is instructive. Koerber, 85 Wn. App. at 3-4. Inthat case, the night 

### beforetrial was to begin, the State became aware that one of itscritical witnesses

was sick with the flu. The State was unable to advise the court when the witness 

### would be able to appear. The trial court dismissed the case because the witness "was not presently available."jd at 3. We concluded that the dismissal was an abuse ofdiscretion and reversed because "thejudge could have proceeded and waited to see whetherthe witness became well enough to testify within a reasonable time." Id. at 4, n.2. 

### Similarly here, there was no needforthetrial court to decide whether dismissal was warranted at the point itdid. The trial could have gone forward with the available witnesses. The court was aware that in a few hours it would likely 

### know when Poole would be available to testify. The reasonable course wouldNo. 73814-3-1/7 

### have been to proceed withthe trialthat morning until the extent ofPoole's unavailabilitybecame certain that afternoon. The court could then make an informed decision about whether a recess was warranted.1 The trial court abused its discretion because itdismissed the charge against the defendant when itwas 

### uncertain when the witness would appear butthe necessary information would have soon been available without causing a delay inthe proceedings. We reverse the decision ofthe trial court and remand for further proceedings consistent with this opinion. Reversed and remanded.



### Q.O fy~v<^

# i

WE CONCUR: 

# ^Se<^&iP

11tis possible, ofcourse, thatwhen courtreconvened afterlunch, the Statewould eitherhave no new information orconfirmthatPoole would not beavailable for a weekormore. Weexpress noopinion on whether, in either of those circumstances, dismissalwould have been proper.