22 NICS App. 1, CHARLES v. SWINOMISH (January 2024)

IN THE SWINOMISH TRIBAL COURT OF APPEALS

SWINOMISH INDIAN RESERVATION

LACONNER, WASHINGTON

Darlene Summer Jean Charles, Defendant/Appellant,

v.

Swinomish Tribal Community, Plaintiff/Appellee.

NO.    CRCA-2023-0022 (January 3, 2024)

SYLLABUS*

Appellant argued trial court violated her due process rights and that there was insufficient evidence to convict her of Class B malicious mischief. The Tribe’s code distinguishes Class B and Class C malicious mischief offenses based on the dollar amount of damage caused. Court of Appeals reversed the Class B malicious mischief conviction and remanded for entry of a Class C malicious mischief judgment and sentence due to the lack of evidence presented to support that resulting damages amounted to a Class B conviction. Court of Appeals found the trial court did not violate appellant’s due process rights when excluding a portion of her testimony as trial court did allow appellant opportunity to testify and make an offer of proof to support her claims. The trial court had no basis to determine whether the testimony in question was relevant and admissible to appellant’s defense as appellant did not make an offer of proof.

Before:

Eric Nielsen, Chief Justice; Daniel A. Raas, Justice; Britany Kee’ ya aa. Lindley, Justice.

Appearances:

Laurence Blakely, Attorney for Darlene Charles, Appellant; Melissa V. Swimonsen, Attorney for Swinomish Tribal Community, Appellee.

OPINION

Nielsen, J:

STATEMENT OF THE CASE

Darlene Charles was living with her mother, Donna Charles. On October 30, 2022, Donna and Darlene1 struggled over a shelf Darlene was moving into a bedroom.

22 NICS App. 1, CHARLES v. SWINOMISH (January 2024) p. 2

During the struggle, Darlene’s finger became stuck in the shelf and when she pushed the shelf to remove her finger, the shelf fell on top of Donna.

Donna decided Darlene would no longer be allowed to live in the home. She and another daughter removed the key to the home, which was hidden, to prevent Darlene from getting back into the home.

Later that evening Darlene returned home. Because the door was locked, she went to retrieve the hidden key. She called Donna but Donna assumed Darlene wanted to go back into the home so she did not answer the call.

Although she knew she was no longer welcome in the home, Darlene wanted her clothes and some medications she left in the home. Darlene broke two windows, went into the home, and retrieved her clothes and medications. She then texted Donna and let her know she broke the windows.

The Tribe charged Darlene with one count of Class C assault, and one count of Class B malicious mischief. Each count alleged domestic violence. Following a jury trial, Darlene was found guilty of the malicious mischief and acquitted of the assault and domestic violence allegations.

Darlene timely appeals.

STANDARD OF REVIEW

The Swinomish Tribal Code is silent on the standard of review on appeal. Under STC 4-01.070(B) where a matter is not governed by the Tribe’s code, resolutions or customs, the court is authorized to look to the law as developed by other tribal, state, and federal courts. Edge v. Swinomish, 4 NICS App. 151, 154 (Swinomish Ct. App. 1996).

The majority of appellate courts apply one of three standards of reviews depending on the issues. Questions of law are reviewed de novo, questions of fact are reviewed for clear error, and matters of discretion are reviewed for abuse of discretion. Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988); Cooke v. Yurok Tribe, 7 NICS App. 78, 79 (Yurok Tribal Ct. App. 2005); Bugenig v. Hoopa Valley Tribe, 5 NICS App. 37, 37 – 38 (Hoopa Valley Tribal Ct. App. 1998); See Raymond Johns and Leslie McGhee v. Gracie Allen, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct. App. 2004) (“In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.”); see also In the Guardianship of Three Minors, 10 NICS App. 29, 32 (Muckleshoot Tribal Ct. App. 2011) (same). We adopt these standards of review.

Issue 1

Appellant contends the Tribe failed to present sufficient evidence that she committed Class B malicious mischief. We agree.

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The appellant was charged with Class B malicious mischief. In relevant part, malicious mischief is a Class B offense when a person maliciously disturbs, damages, injures, or destroys any property belonging to another and the amount of damage caused is over $250.00. STC § 4-04.080(A)(B). Where the damage is less than $250.00, it is a Class C offense. STC § 4-04.080(C). Relevant to this case, the only difference between a Class B and Class C offense is the amount of damage element. Class C malicious mischief is therefore a lesser degree offense of a Class B malicious mischief.

In all criminal prosecutions, due process2 requires that the prosecution prove every fact necessary to constitute the charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Where a defendant challenges the sufficiency of the evidence, the proper inquiry is, when viewing the evidence in the light most favorable to the prosecution, whether there was sufficient evidence for a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). Whether there is sufficient evidence to constitute an offense is a question of law.

The due process provision of the Indian Civil Rights Act is similar to the due process provision of the United States Constitution. It reads, “No Indian tribe in exercising powers of self-government shall deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” 25 U.S.C. § 1302(a)(8). Under STC 4-01.110 (A)(1), a defendant is entitled to those rights “guaranteed by the Indian Civil Rights Act and all other rights whose protection is necessary under the Constitution of the United States.”

We do not hold the due process provisions of the Indian Civil Rights Act must be interpreted identically to the due process clause in the United States Constitution. A different interpretation may be appropriate if it is shown the Tribe’s customs and traditions require it. However, we find that given the purpose of the Indian Civil Rights Act, to “secure for the American Indian the broad constitutional rights afforded to other Americans,” and thereby to “protect individual Indians from arbitrary and unjust actions of tribal governments”3 that 25 U.S.C. § 1302 (a)(8), which is made applicable to criminal prosecutions pursuant to STC 4-01.110 (A)(1) should be interpreted to also require that the prosecution prove every fact necessary to constitute the charged crime beyond a reasonable doubt.4

Here, the Tribe did not present any evidence regarding the cost of the damaged windows. Thus, there was insufficient evidence for a rational trier of fact to find beyond a reasonable doubt that appellant committed a Class B malicious mischief.

22 NICS App. 1, CHARLES v. SWINOMISH (January 2024) p. 4

Like the Swinomish Tribal Code, under Washington State’s malicious mischief statutes the degree of the offense is determined by the amount of damage. See RCW 9A.48.070 and 9A.48.080. Washington courts hold that “When the evidence is insufficient to convict of the crime charged, but sufficient to support conviction of a lesser degree crime, an appellate court may remand for entry of judgment and sentence on the lesser degree.” State v. Atterton, 81 Wn.App. 470, 473, 915 P.2d 535 (1996). Because the jury here found the Tribe proved the elements of malicious mischief beyond a reasonable doubt but there was insufficient evidence of the amount of damage element, we too order the Class B malicious mischief conviction be vacated and remand for entry of a judgment and sentence on the lesser degree of Class C malicious mischief.

Issue 2

Appellant contends she was denied her due process right to present as defense when the trial court excluded her testimony regarding why she wanted her medications.5 We disagree.

Appellant was allowed to testify that one of the reasons she wanted to get back into the home was to retrieve her medications. Appellant wanted to testify that her medications were related to a physical ailment and what happens if she does not take her medications. The trial court excluded that testimony.

The defendant's right to present a defense is subject to “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Evidentiary matters are governed under the federal rules of evidence. STC 3-01.O61(A). Under the federal rules, “Relevant evidence” means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Federal Evidence Rule 401. “Maliciously” means a desire to cause annoyance or harm of any kind. STC 4-01.040(A)(12).

Appellant failed to make an offer of proof regarding the physical ailments her medications were necessary to alleviate or why she needed the medications. Without that offer of proof, there was no basis for the trial court to determine whether the evidence was relevant and admissible to her defense that she did not act maliciously.6

Moreover, the appellant admitted that she broke the windows. She testified she broke the windows because she was “upset.” Transcript at 264.

On appeal, appellate courts generally review a trial court’s evidentiary rulings under the abuse of discretion standard. United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.2011). While courts have defined “abuse of discretion” in several ways, there is a general agreement that a court abuses its discretion when it acts unreasonably or exercises unsound judgment in the exercise of its discretion. See Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tribal Ct. App. 2005) (abuse of discretion involves a “clear error of judgment”), In the

22 NICS App. 1, CHARLES v. SWINOMISH (January 2024) p. 5

Membership of Julie Bill Meza, et al., 7 NICS App. 111, 114 (Sauk-Suiattle Tribal Ct. App. 2006) (abuse of discretion requires finding that trial court’s actions “were manifestly unreasonable, exercised on untenable grounds, or for untenable reasons”); Black’s Law Dictionary at 10 (6th Ed. 1990) (abuse of discretion is “synonymous with a failure to exercise a sound, reasonable, and legal discretion”). 

Appellant was allowed to testify that she broke the windows to get into the home to retrieve her medications. But she did not make an offer of proof regarding what the medications were for and why she needed them. So long as the defendant has an opportunity to present her theory of the case, the exclusion of some aspects of the defendant's proffered evidence will not amount to a violation of the defendant's constitutional right to present a defense.  State v. Ritchie, 24 Wn. App. 2d. 618, 520 P.3d 1105, 1116 (2022). Appellant had the opportunity to present her case that she needed her medications. The trial court did not abuse its discretions in excluding the proffered testimony.

Issue 3

Eighteen days after the incident, appellant was arraigned. At the arraignment, the court’s bailiff, Michael Price, observed appellant and took photos of her fingers. Price was at training when the trial was scheduled. Appellant requested she be allowed to take Price’s oral deposition. The trial court was concerned about the relevancy of any observations Price made at the time of the arraignment. It denied the request for an oral deposition but nonetheless allowed appellant to submit written interrogatories to Price.7

Appellant claims the denial to orally depose Price violated her right to compulsory process.8 We disagree.

Appellant argues Price’s testimony was relevant because he observed appellant when she had not taken her medications. However, the appellant offered no proof she was not taking her medications when she was observed by Price. More importantly, there was no offer of proof of what Price observed. Thus, on this record, there is no evidence Price’s observations were relevant to any issue at trial. In any event, the court allowed appellant to take Price’s written deposition and she did not move to admit his testimony. The court did not abuse its discretion in denying appellant’s request to orally depose Price.

Issue 4

The day after the jury rendered its verdict, the trial judge discussed with the court’s staff whether the jury verdicts had been formally entered and if a judgment notwithstanding the verdict (JNOV) was appropriate in a criminal case. The prosecuting attorney, who was present, was asked by the judge if she was familiar with a JNOV in a criminal case. The prosecuting attorney informed the judge she would research the issue. Transcripts at 304. The prosecuting attorney then filed a motion for a judgment notwithstanding the verdict regarding the jury’s

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acquittal of the domestic violence allegation. Appellant objected and following a hearing the trial judge denied the motion. Appellant was subsequently sentenced.

Appellant now asserts, for the first time on appeal, the ex parte communication with the prosecuting attorney violates the appearance of fairness due process requirement and the Washington State Code of Judicial Conduct 2.9.9 Appellant argues the remedy is reversal of her conviction.

STC § 3-01.130(C)(1)-(2) provides:

(A)    In a criminal case, either party may by motion request recusal of a judge. A judge may be recused from a criminal case if the moving party demonstrates that sufficient factual grounds exist for a reasonable person to objectively find at least one of the following:

(1)    the judge has a direct, personal, and substantial pecuniary interest in a case; or

(2)    where there is a strong possibility that the judge’s decision will be biased.

While we strongly disapprove of the action of the trial judge, appellant did not move for recusal and has not asserted any prejudice resulting from the ex parte communication. Absent a recusal motion or showing of prejudice to the outcome of the trial, the error does not constitute grounds for reversal. See Edge v. Swinomish, 4 NICS App. 151, 156 (Swinomish Ct. App. 1996) (appellant failed to demonstrate prejudice).

However, an objective observer could reasonably question the trial judge’s impartiality. We remand for entry of a judgment and sentence for a Class C malicious mischief and because an objective observer could reasonably question the trial judge’s impartiality, we order the case remanded to a different judge.

ORDER

Appellant’s Class B Malicious Mischief conviction is reversed and the case is remanded for entry of a Class C malicious mischief judgment and sentence before a different judge.

*

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.


1

We use first names to avoid confusion and mean no disrespect.


2

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.


3

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978).


4

The Tribe has not cited to any Swinomish custom or tradition that suggest in a criminal prosecution a defendant’s due process rights to require the prosecution prove each element of the crime beyond a reasonable doubt under the United States Constitution should be interpreted differently under the due process provision of the Indian Civil Rights Act.


5

Under the due process clause of the United States Constitution, a defendant has the right to present a defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). For this appeal, we assume without deciding whether that same right is guaranteed under 25 U.S.C. § 1302(8).


6

It is noted that appellant did not raise a necessity defense.


7

Appellant did not request a continuance to procure Price’s trial testimony.


8

25 U.S.C. § 1302(a)(6).


9

We do not address whether the Washington State Code of Judicial conduct is applicable in governing the conduct of a Swinomish Tribal judge because it is unnecessary to our analysis.