14 NICS App. 24, KENYON v. SQUAXIN ISLAND TRIBE (May 2016)
IN THE SQUAXIN ISLAND COURT OF APPEALS
SQUAXIN ISLAND INDIAN RESERVATION
SHELTON, WASHINGTON
Justin Kenyon, Defendant/Appellant,
v.
Squaxin Island Tribe, Plaintiff/Appellee.
NO. SQI-2015-1506-0132 (May 27, 2016)
SYLLABUS*
Appellant argued trial court should have not found him guilty beyond a reasonable doubt of violating a no contact protection order because of alleged inconsistencies in statements made by tribe’s primary witness and conflicting dates of violation as alleged in the criminal complaint. Court of Appeals found that trial court did not commit any errors of law or fact with respect to the dates listed on the complaint or in weighing credibility of tribe’s primary witness as due process was met under the Indian Civil Rights Act. Court of Appeals denied the appellant’s appeal.
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Before: |
Randy A. Doucet, Senior Judge; Jerry R. Ford, Judge; Lisa L. Atkinson, Judge. |
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Appearances: |
Mary Rodriguez for Appellant; Thomas Meyer for Appellee. |
OPINION
Per curiam:
THIS MATTER, having come before the Squaxin Island Court of Appeals for Oral Arguments on April 29, 2016, this Court now FINDS and CONCLUDES:
Procedural History
14 NICS App. 24, KENYON v. SQUAXIN ISLAND TRIBE (May 2016) p. 25
This matter came before the Court on an appeal of the trial court finding Appellant (defendant below) guilty of Violation of No Contact [Protection] Order, following a bench trial held on September 22, 2015. Appellant, through the Court Clerk, filed an appeal on October 10, 2015. A preliminary hearing was held on November 5, 2015 by Senior Judge Doucet, to clarify parties, judgment being appealed, and issues on appeal. Following the November 5, 2015 hearing, a Findings and Order was entered by Senior Judge Doucet setting forth the four issues on appeal. Appellee filed a “Brief of Appellee” on December 16, 2015. Due to scheduling issues, Oral Argument was set out to April 29, 2016.
Applicable Law and Standard of Review
Squaxin Island Rules of Appellate Procedure, Chapter 4.32, govern this matter. The Rules of Appellate Procedure do not clearly indicate the Standard of Review for appeals of criminal convictions, only for appeals from the Employment Court. In the absence of a stated Standard of Review, this Court adopts the clearly erroneous standard.1
Discussion
At Oral Argument, the primary errors argued by the Appellant were that the Trial Court should not have found him guilty beyond a reasonable doubt due to alleged inconsistencies in the statements made by the Tribe’s primary witness, Sam Penn, and the date or dates of the violation as alleged on the Criminal Complaint. The other two issues identified in the Order following the November 5, 2015 hearing were not argued.
Dates listed on Criminal Complaint
One of Appellant’s arguments during Oral Argument was that the dates listed on the Criminal Complaint were not the same dates to which the primary witness provided testimony at trial, and therefore he was deprived of due process. “Cases involving amendment of the charging date in an information have held that the date is usually not a material element of the crime. Therefore, amendment of the date is a matter of form rather than substance, and should be allowed absent an alibi defense or a showing of other substantial prejudice to the defendant.” State v. DeBolt, 808 P.2d 794 (Wa.App. Div. 1) (1991), citing State v. Allyn, 40 Wn. App. 27, 35, 696 P.2d 45, review denied, 103 Wn.2d 1034 (1985) (“Allen”). Here, Appellant showed no evidence from the record that he was prejudiced by the primary witness’s testimony that the offense occurred on a date other than the date range listed on the Criminal Complaint. Under both DeBolt and Allen, courts have found that the date is not an element of the crime. Therefore, this alleged error is without merit.
14 NICS App. 24, KENYON v. SQUAXIN ISLAND TRIBE (May 2016) p. 26
Witness Credibility
Appellant’s second assignment of error is that the Trial Court should not have found the testimony of the primary witness credible to the standard of belief beyond a reasonable doubt, due to his inconsistent statements regarding the date(s) he witnessed the Protected Party enter Appellant’s residence. As the U.S. Supreme Court held in Jackson v. Virgina, 443 U.S. 307, 319-320 (1979), an appellate court is not required to “ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . .” (It looks like closed quotes go here?) This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the Fact-Finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Internal citations omitted, emphasis in original.). Additionally, in Metlakatla Indian Community v. Nina Jordan, the Metlakatla Court of Appeals held that “The Magistrate’s [trial] Court, as the trier of fact, is in the best position to hear the parties’ testimony, observe the demeanor of the witnesses, determine witness credibility, and make its decision based on the evidence before it.” 4 NICS App. 80, MIC v. Jordan (1996), p. 81 (emphasis added). In this matter, because a rational trier of fact could have found the elements of the crime of Violation of No Contact [Protection] Order to have been met beyond a reasonable doubt even given the inconsistency of a specific date of violation, the guarantees of due process under the Indian Civil Rights Act are satisfied, and the finding is not clearly erroneous.
Conclusion
This Court finds that the Trial Court did not commit any errors of law or fact with respect to the dates listed on the Criminal Complaint or in weighing the credibility of the Tribe’s primary witness Sam Penn, in determining, beyond a reasonable doubt, that the Appellant committed the criminal offense of Violation of No Contact [Protection] Order.
NOW, THEREFORE, Appellant’s appeal is hereby Denied.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
This Court strongly encourages the Squaxin Island Tribe to amend the Rules of Appellate Procedure to include a specified Standard of Review as the Tribe so chooses, and to institute a procedure for determining what the appeal is about, such as requiring a written brief by the appellant.