* State Of Washington, Respondent V. Joshua J. Bessey, Appellant (civil)

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Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASHINGiber 1, 2015
STATE OF WASHINGTON,
Respondent,
ME
JOSHUA JOHN BESSEY,
Appellant.
DIVISION IT
No. 46233 -8 -II
AMENDED ORDER GRANTING
MOTION TO PUBLISH OPINION
The Appellant, Joshua John Bessey, filed a motion to publish the opinion that was filed in
that matter on September 22, 2015. After consideration, it is hereby
ORDERED that the final paragraph, which reads as follows, shall be deleted: " A majority
of the panel having determined that this opinion will not be printed in the Washington Appellate
Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is so ordered." It is
further
ORDERED that this opinion is now published.
DATED this 1st day of December , 2015.
PANEL: Jj. Maxa, Lee, Sutton
FOR THE COURT.:
4 _	4hmI IU TTON, J.
We concur:
 	 	 	 	 	 	 	 	 	 	 	 	 	

Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASEEINCK'EQNber 17, 2015
STATE OF WASHINGTON,
Respondent,
V.
JOSHUA JOHN BESSEY,
Appellant:
DIVISION H
No. 46233- 8- 1I
ORDER GRANTING
MOTION TO PUBLISH OPINION
The respondent, Department of Labor and Industries, filed a motion to publish the opinion
that was filed in that matter on September 22, 2015. After consideration, it is hereby
ORDERED that the final paragraph, which reads as follows, shall be deleted: " A majority
of the panel having determined that this opinion will not be .printed in the Washington Appellate
Reports, but will be filed for public record pursuant to RCW 2. 06.040, it is so ordered." It is
further
ORDERED that this opinion is now published.
DATED this day of .. st.. r , 2015.
PANEL: ' Jj. Maxa, Lee, Sutton.
FOR THE COURT:
SUTTON, J.
W concur:
10V OIL
NLAYarp.j.
LSE, J.
 	 	 	 	 	 	 	 	 	 	 	 	 	

Filed
Washington State:
Court of Appeals.
Division Two
IN THE COURT' OF,APPEALS OF THE -STATE OF*WASHINdipbew-
4 201.5
DIVISION 11
STATE	TE OF WASHINGTON;	N.GTON, No. 46233=8 -II
Respondent;
V.:
JOSHUA. JOHN BES-S)SYY VN]?UBL5RED:OPINION
Appellant.
SUTTON, I. —	Joshua J. BosseY appeals. thQ superior ourt, order reducing	mh1	his
reimbursement for -attorney fees and costs by .$'5, 000 under R-CW9A.1-6. 110 -as. a, sanotion.-for a.
discovery violation because he did not produce text messages. in his possession before trial. -W.e
hold That because Bes8ey w-ag- under .no obligation. to• produce the *text aessagos, the. trW -0-0-tt'
abused its:discretion. We reverse-and remand to theArial. court to: restore -the: $5,000 reduction in.
its,-' Aw-grd- fp,.e ; md costs.. And-bpc4uspl ess y -pr	s: - co Q pvailson4p,p Q 4
we award Ir on reasonable. attorney foe8,,atid-o.osts:'on.appeaL.
FACTS
The State charged Bossey with first.degreo burglary, second. de eo assault; fourth
assault, and interfering with the reporting:of a. domestic violence -offense, as axesu'ft-of an incident
that occurred,.on May 2;3', :2;0'13: The State. -alleged that, on.May 23, Besspy entered. the home. of .
his:.ex=girlfri'eod; Kri8ti.eMbrggn, -assaulted hQr-.andhet-boyft-iend, and,broke her.cellphone.
The case -went -to trial and, -at,the .end of the second day of trial,,Ms. Morgan. testified that:
she and Bes.sev had. no 6ontactbefoxe May 23. Bessey then iAfbimed hisatiorney that he. had text
messages sent to him by Ms,.Morgan a few days before May 2.3 that would contradict Motgaii"s
 	 	 	 	 	 	 	 	 	 	 	 	 	

No,.46233 -8 -II
testimony that she	he had.terminated .th6ifxelationship: on April,'19 and that he had -moved out b6f6rd-
May 23, Counsel instructed Bessey to find the -text messages,and bring them to pQurt,the.next.day:
The next morning .Bessey brought ,printout's of'a namber of -text messages that Ms.. Morgan had
sent him on May 181 and May 19. Counsel gave copies of these printouts to the State..
The State mored to exclude the: text messages; atguihg, tji4t Bessoy'-*s fadjqre 'to PrQV
them until. the seowid day of .trial con8tituteda dlgcbVery Violation, VRPwatl-5-7- 558., In regpofise',
Bq sey-ls counsel explained: that did..'not-kno.w of their.- until his clientmentione.d,
thein.the previous evonifig, (2) $ ince-the defei),se 7iac1. notbeen able to bator6ew'Ms. Morgan, they'
had -no 'idea. that she would be -claiming,-that she had broken up with the defendant on April .1-9..',
well before the alleged incident on May; 23, %and -(3) as a result, the text messages did-not:eyea
become relevant until M's-;. Morgan testified, Thus;, Bessey :argued, Ther.6, was. no discovery
violation and no basis upon -which to suppress this evidence.	ze,
The trial. court gravedthe. State' s:motion and -suppressed the text:rhessage ..	5, .stating?.
Iam. going. to..eXdludd [ the text messages],. -Trial is not byambush. Thisi,
phone was -in.possession of.'the Defendant. Re .had.access to-these -:at all.times.. AG.
Gould havb.proyided any of these texts-to Counsel prior to today' s date.. To bring,
these in.now, after State has rested -their case,,we:have discovery, we:have deadlines
so-that' wedQ. not.:have trial by.ambush. Qvsmpriso, and that it isby.p.rejudicial - it,
is. prejudicial to another party to suddenly come up with Sometiffiag, after the f4a.
And,.-so,' these text -messages will be excluded. They1remaiked. They' ll be-madea
part of the re.cord*...
2A. _ 1	VQr-batU_A. Report of'Prop.eedin 9 ( VR'-P): at .362, The. - ate. did. not :request. any monetary	9: - St
sanctions against Bessey for f4ifing to produce the text. messages before. trial began.. The Vial,
continued and Bessey took the witness stand, testifying,that he acted -in so1f-defenE;e.
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46233 -8 -II
The jury found'Bessey not guilty on all counts and ieturned.:9 special verdict, finding "by,
a. preponderance of the evidence" that Bessey acted in selfdefense, And that. lie bad not engaged
in any criminal conduct -substantially telated to theevents that gave rise to the, -charges brought
against I -Am. Clerk's. P*apers. (C. -	P) at. 74.
After being found -not gLuity by the jury; B d f: oder f dble-aftoimoy	essey-mQ-ve er OrTe4son
f ' S Eiihiref to	fees and costs -ti-ader RC.W. 9A. 16. 110, The. State. responded that Begsey produce the.
I
e sanctionedby-reduqing his	text.messages constitate.&A discovery violation and Be.sse.yshould.b
award of attorney fees, The trial. court agreed;. ruling,
I dont fault:Mr. Crandall *for this; .I fault his client because hewas the one thathad
control	ontrol of that cellphone. He knew what,the charges were -that he was facing,,he..
knew in what was being alleged here, and it -was, Mr. Bessey-who,. just on the last.
worhent, decides .to,tell his attorney about these listing of text messages that, had.
they been brought forward, probably would have been a vory. different, as '.I say,.
looking trial. lliit that' s not to say a trial wouldn' t .have. goneforward on. either.
different charges or other .changes..
So although..I -am not. going to zero out these -fee,&as, some land of penalty, that I
I	also. don: . see that .M. -	t B.Qggey -ghouid.bonofit by having all Of his. attorney' s fees.	es.-
paid when: there Was fatilt on his as to the amount of attornoy' s fees., and was it
reasonable, had. he- turned over those, documents Su P -m-. -	going to reduce :it
somewhat, but nQt.a lot. I'm.gQing to reduce it by $:5, 000W As. a. penalty -for -fir.
Bessey,.and .so -the :total
2B.-VR.P at 5.55- 56.
The trlal-court. -award .ed. Bessey attorney fees and costs of $4.%206. 1 3.-,but then -reduced his,
award by $ discovery " penalty," thus bringing.'Bessqs..total award to $ 3,--,' 06. 1.3.	5, OOQ, QO as a p
CP at 1.05- 06, 8essey appealed.
 	 	 	 	 	 	 	 	 	 	 	 	 	

Not 4623-3- 8- 11
ANALYSIS .
L ROW 9At 16..l 10
The Washington legislatotehas. exempted persons from facing:criminal liability for-a0ing
in.s6,If*defense when faced with imminent dangen RCW 9A. 16. 110.(1). Further; if a -person who
8 charged certain crimes prevails on a.self-defense affirmatlye defense, -the -Derson is entitle	grg I. ..	
Time. .. ....... . ., .... I entitled_,	d,
to r6imbursernent for legal, fees and expenses-.
When;a-person charged with a crime-Jisted in. [RCW 5A.16. 11-0*(1)] iis found
not: guilty by,reason of self-defense;, thestate of Washington shall reimburse the:
defendant for all reasonable costs;. 'including loss of th-no, -legal fees focillred, and
other expenses in his or her -defense. This reimbursement is ) Iot an
independent cause of action. To.award these reasonable costs the trier of fact must.
find -that -the defendant' s claim :of self-defense was sustained by a preponderance ,of
the evidence, If the trier of fact makes -a determination of self-defense',.the judge
shall deternaine the ainoua of the award.
RCW9A..16. 110( 2)
The jury's special-ver4fet findingthatBessqyacteaiself :defense entitled'him to: an award.
W-9,..	A;.I-,6.ill.O.*(,.-	2,.)..Agaiesult. Elie ttial.court-awaMed
him.reasonable attorney fees and costs.
H. ALLEGEDDISCOVERY VIOLATION
Bessy argues that the: touft OfTod by reducing his. attorney .fee -award for the: purported,
discovery -violation of -failing to.produce the text messages, We agree.. -
We review 'sheimposition. of discovery sanctions. for axi. abuso, of discretion., Blair v, `TA
Seattle,.Eas,t No. 176, 1. 71 W.A.2d 342., 34.8, 254 P. 3d 797 ( 2011). A trial,court abuses its%discretion
when it -exercises it 'on untenable grounds- or -for untenable reasons. State. -v. Lawrence, 1, 66 WiII
A.-	pp, 3-78-',385,,.27,lP.3.d. 2.80,''(2012-..),.	0 A.trial :court, abuses its discretion only -when no reasonable.
M
 	 	 	 	 	 	 	 	 	 	 	 	 	

No, 46.233 -8 -IT
person would take the position adopted by the trial court.. Pub. UtiL Dist. No.. 1' of -Okanogan
Caqnty v. S`iqte, 182 Wn,2d519, 531; 542 P.3d 308 ( 2015),
UR 4. 7, which governs. discovery criminal proceedings,,provides a reciprocal,list of the.
prosecutor' s and defendant' s obligations.. CrR-4. 7( b)( I.) provides the: defendant?'&-6bligations as
fdllow-s-
Excopt.as is otherwise provided as to matters not subject to: disclosure -and
protective orders, the defendant shall disclose to the prosecuting attorney the
f6floving material and information within the defendant' s control no later than the
orw-iibnghearing: the -naioesaad addresses of persons. whom the defendantintends
to -Q4 as witnesses at the. h.ear*mg or trial, -together with aijywritten or -recorded
statements. and the: substance of any oral statements of.such witnoss..
CrR 4,7( b)( 1). Thi&rule does not obligate a defendant;toproduce documentary evidence of his: or
her ow-naccord-forpta-posas ofiiripeaching a?State wiuless. CrR4.7( b)( 2)( x).allowgtho-pro8ecutor
to inspect- d6cum&nta:ry evidence in the: defendant.'s: - possession, but only - I' oja inotion.11 -
CrX4.7
Here;. the. State, did,ftot, Make -any :Opecific.oral or written dhcovet requests, , e	y for of th
infor.mation..on.'!3essey''s-cel.1 phone.- Andthe prosecutor did not file a motion.under CrP, 41(b
to-inspectBess.eys eviden touts! of the telt	evidence.. Therefore, Bq-sgey had.no -obligation to prow prin P
messages to the State. In fact, Bessey went.'beyond his discovery obligatoo, by v.0.1untanly
providing the State with the printouts'.
I Bessey also argues that he did not know that the text messageswere relevant beoausehe. was
unaware that Ms. Morgan would claim -at trial that sho.had r10 contact with him for the -two weeks
prior toMay 23. But even if Bessey would have known tliat the text:messages Were relevant,.he
un ligatim to produce. them or 4	w di ob absent a formal wri t	Ii request the pros cu Qr:
court order. CrR 4.7( b)( 2).
5*
 	 	 	 	 	 	 	 	 	 	 	 	 	

No....46233- 8- 11 ,
We. hold thAttlie trial court abused its disdetion,infeducing-Bessdy' 8. attorney f6e award.
by $5,-000 for 4, pu;rpQred discovery violation,. 'We reverse, the -trial -court' s order -rem.and. and
ordet1he cobxt, to- -re.store. the $ 5, 0001.
III. ATTORNEYTEES AND .COSTS Oi4APPEAL
Bessey : also roqgests' reasonable tosts and - attorney , fees on . appeal - orider.
RC.W- 9A .16. 110.(2). Under RC.W 9A. 16. 110( 2:), an acquitted crirhimaJ :defenclarit is entitled to
peirnbursement for-attorney fees trPawndbly -incLuTed in connection with Ms. criminal -defense. and
reasonably inmtedupoa preva mg. n	il i . his -appeal., 'Si.af.e. v; U6 W.-& -	9:. App. 3.36, 346, 919 -P -.2d
2d' .398 ( 1998). Because we hold That: the	458 ( 1999); S-ta.t.e.v.,Jbnes,.92Wt..A.p.'P.' 555.,.565,.9.64,P
trial :court- abused its dis.cretion,' Belsey prevails in. bis appeal and wv -award. him reasonable
attorney fees and cosis on appeal.
CONCLUSION
tiVe. hold that because Belsey dial not Violate a: dscovery:rule-or eourt•'grder, the trial court
abused its discretion in -saftetionih.g.-Bessey for failing to.,pr6duce. text messages during tn'41 and in
reducingBewpy' s, reimbursemontbY$ 5, 0.00. ' WeTe.verse,andremand to: 'tlie.t.h-a:l...	dourtto-restore
m
51
 	 	 	 	 	 	 	 	 	 	 	 	 	

No...46233- 8- H
3essey'§'.$5, 000 reduction iii:its..orde'r awarding fees and costs. - And because: B e§ s&y ptevails on
appeal, we ward Bessey.-hi5 -:reasonable a,ttpmeyfee.s and. cOstIs:-Qn:-4Ppeal'
A fnqjoi:ity of the panel having. deteitnined- -that.,ihig opinion. will not 'be printed in the
Washington.Appellate Reports, but will be filed.for public record in accordance with RCW 106.040,
it.is so. ordered..
We concur:
lap,
7
SUTTON,. ..