State of Washington v. C.B.

FILED
AUGUST 23, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 33110-5-111
Respondent, )
)
V. )
)
C.B.,t ) PUBLISHED OPINION
)
Appellant. )

SIDDOWAY, J. - Carter B., a juvenile, 1 was found guilty of second degree

criminal trespass for his role in his friends' entry into the fenced yard of Melvin Harris,

an African-American, where Carter's friends rang the doorbell, shouted a racist comment

through an open window, and ran away. Carter challenges the disposition, invoking the

common law implied license to approach a residential door, but without addressing the

limitations of the common law license. He also invokes inapplicable United States

constitutional First Amendment case law.

The juvenile court's finding that the boys' behavior exceeded the implied common

law license was supported by substantial evidence and the court did not abuse its

discretion in denying Carter's recusal motion. We affirm.

t Because the superior court record has been sealed by order of that court, we have
changed the caption, substituting the juvenile's initials for his name. See GR 15(g).
1 "Carter" is a pseudonym. We also substitute pseudonyms for the names of his

juvenile partners in the crime.
No. 33110-5-111
State v. C.B.

FACTS AND PROCEDURAL BACKGROUND

On June 1, 2013, Carter B., then 14 years old, dared his friends, Parker C. and

Jared W., to "dingdong ditch" the home of Melvin Harris, an African-American.

"Dingdong ditch" is the boys' slang for running up to someone's front door, ringing the

doorbell, and running away. When Parker and Jared were reluctant, Carter taunted the

two, telling them they were "pussies" if they refused. Report of Proceedings (RP) at 190.

When they finally accepted the dare, Carter walked his two friends halfway to the Harris

home and pointed it out. On the way, Carter "upped the ante and urged the two boys to

yell 'nigger' when they rang the doorbell." Clerk's Papers (CP) at 14.

The Harris property was fenced on all sides. To reach the front porch, one had to

walk up the private driveway to an opening in the fence, where a private sidewalk led to

the porch. There was no mailbox within the front yard; it was located across the street.

Because of prior harassment, the Harris family had installed surveillance cameras, and

signs that the property was under video surveillance were posted in the window by the

front door.

It was early evening when, after continued hesitation, Parker and Jared finally

acted on the dare. Mr. Harris and his wife were in the living room watching television at

the time. One of the windows adjacent to their front door was open to circulate air on

what was a warm evening. After running up the driveway and through the gate to the

front yard, Parker and Jared ran on to the front porch, rang the doorbell, and Jared yelled

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State v. C. B.

very loudly, "You fucking nigger, go back to Africa!" RP at 126.

The Harrises' initial reaction was shock and fear. Mr. Harris would later testify

that the boys' actions "scared the hell out of' him, and he dropped the glass he was

holding. RP at 127. He immediately went outside to see who was responsible and saw

three males running away.

The couple's fear quickly turned to indignation. Mr. Harris decided to try to

locate the boys involved. Correctly surmising where their escape route would take them,

he drove to that area and saw Parker, whom he recognized as one of the culprits.

Ultimately, all three boys and some of their parents arrived at the location where Mr.

Harris had found Parker and they all talked about what had happened. Parker and Jared

initially lied about why they had been at the home, claiming they were there to sell

football tickets. When Carter's mother arrived and encountered Mr. Harris questioning

the boys, she yelled at him, "Why do you have your big black ass in my neighborhood?"

RP at 183-84.

All three boys were charged with second degree criminal trespass. Carter was

charged as an accomplice. Parker reached a diversion agreement, did community service,

and wrote an essay and a letter of apology to Mr. Harris. Jared was denied diversion and

pleaded guilty.

Before trial, Carter's lawyer filed a motion claiming that a diversion agreement

had been offered by the diversionary unit and moving to compel it. Under RCW

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State v. CB.

13.40.070(6), Carter-a juvenile first time offender who had been charged with only a

misdemeanor-was required to have the complaint against him referred to the

diversionary unit, for its consideration whether to offer an agreement. At the hearing on

the motion, the juvenile court-the Honorable Douglas Federspiel-took the position that

neither the State nor the defense had followed proper procedure. The judge was

concerned that the State had not referred the case to the diversionary unit as required and

was asking the court to exercise a power that it did not have. He was concerned that the

defense was asking him to compel a diversion agreement it claimed had been offered,

without any evidence of the offer.

During the course of the hearing on the defense motion, Judge Federspiel made

several comments that Carter later contended revealed bias. At one point, he stated:

Well, 1-J have my personal thoughts about this case. But I don't
have the authority to override a discretionary decision that the legislature
gave to a diversionary unit.

RP at 50 (emphasis added). Later, expressing disagreement with the prosecutor's view

that the court's supervisory power over the diversionary unit empowered him to

recommend against diversion, Judge Federspiel said,

Well, this process was butchered the whole way through. I am
denying the motion to demand that it be deferred. What has to happen is
this has to be referred to the diversionary unit. The diversionary unit gets
to make a decision. And that decision is within their discretion, granted by
our state's legislature.
Do I like it? No. But I am bound to follow the law of the
legislature. And, you know, when I see representations that a diversion

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State v. C.B.

agreement was offered, I sort of get my dander up, because I don't think it
was. I think it was discussed. And I don't think the state followed the
process that it should have followed.
This is an emotional case. But just because cases are emotional it
does not allow you to bypass the law. No matter how much somebody
might want to, the law is here to protect from emotion running rampant
over the law.

RP at 51 (emphasis added). After announcing his decision to the lawyers, Judge

Federspiel spoke to Mr. Harris, who was present at the hearing, explained the process,

and added:

I understand that-I can understand that you might not be happy
with the decision that I have made today. But I want you to know that I'm
bound as a judicial officer to follow the law that the legislature's passed
and that the governor signed. I don't have the ability to bypass the
governor or the legislature in terms of this law no matter what my personal
feelings are, or what I think the equities are, sir.

RP at 53-54 (emphasis added).

Carter's case was referred to the diversionary unit, which rejected a diversion

agreement and referred the case back to the court. The intake officer notifying the court

of the unit's decision explained that it was based on "behaviors displayed before, during,

and after the alleged criminal offense." CP at 182. He also explained that "[t]he alleged

victim has been the subject of continuous long-term anti-social behaviors directed at this

family. The issues at hand go far beyond what occurred on the door-step on the day in

question." Id.

After his case was referred back to the court, Carter filed a motion asking Judge

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State v. C.B.

Federspiel to recuse himself, arguing that the comments the judge made during the

hearing on the motion to compel diversion revealed bias. The judge denied the motion.

At the conclusion of a bench trial, Judge Federspiel found Carter guilty. Carter

appeals.

ANALYSIS

Carter makes eight assignments of error. The first seven are related, contending

that some of the trial court's findings of fact are not supported by substantial evidence,

that the findings do not support the conclusion that Carter was an accomplice to a second

degree trespass, and that the trial court erred in entering its disposition order. His

remaining assignment of error is to Judge Federspiel's denial of his recusal motion. We

first address the seven related challenges to the evidence and then tum to the recusal

issue.

I. The evidence was sufficient to support the finding of guilt

A. Challenged findings offact and standard of review

In the opening pages of his brief, Carter assigns error to eight of the juvenile

court's findings of fact. But as the State points out, he does not thereafter address the

challenged findings-or at least doesn't address most of them-in the argument section

of his brief. We will not review issues for which inadequate argument is briefed or only

passing treatment is given. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970

(2004), ajf'd, 166 Wn.2d 380, 208 P.3d 1107 (2009). Only the asserted shortcomings of

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State v. C.B.

findings 1.6, 1.9 2, and 1.14 are sufficiently briefed to warrant review.

Following a bench trial, we review the findings of fact for substantial evidence.

State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). '" Substantial evidence'

is evidence sufficient to persuade a fair-minded person of the truth of the asserted

premise." Id. at 106. We defer to the trial court, as finder of fact, for purposes of

resolving conflicting testimony and evaluating the persuasiveness of the evidence. See

id. The trial court entered findings that it found Mr. Harris, Ms. Harris, and Parker, all of

whom testified for the State, to be credible witnesses. It found that Jared, who was called

by the defense, was not credible.

Carter argues that finding 1.6 is "directly contrary to the testimony at trial" insofar

as it states that "Mr. Harris ran out the front door and into the street in front of their home

to attempt to see who had shouted the racial slur." Br. of Appellant at 10. The State

concedes that Mr. Harris walked rather than ran out his front door. Br. ofResp't at 21;

see RP at 127 ("I didn't run out, I just walked out."). The court's finding that Mr. Harris

ran out of his home is not supported by the evidence.

Carter challenges findings 1. 9 and 1.14 insofar as they state that Mr. Harris' s front

door was not open to the public and that a gate led to a private sidewalk inside the fenced

yard. Those findings state, in relevant part:

2
While Carter assigns error to finding 1. 7, his challenge to that finding actually
quotes finding 1.9. See Br. of Appellant at 10.

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State v. C.B.

Mr. Harris's front yard is completely fenced. Mr. Harris'[s] mailbox is
located across the street and not within their front yard. There is a
driveway from the street to their garage. There is an entrance gate adjacent
to the home, and inside the gate there is private a sidewalk (within the
fenced yard) leading from there to the front porch and their front door.

CP at 16 (Finding of Fact 1.9), and

The property was not posted with "no trespassing" signs, however the front
doorway was not a public area and was not open to the public for the
purpose of ringing the doorbell and running away while yelling offensive
language which could be heard by persons inside the private residence.

CP at 18 (Finding of Fact 1.14).

Substantial evidence supports finding 1.9. Mr. Harris's front yard is completely

fenced, his mailbox is across the street, and a driveway leads from the street to his

garage. There is an opening in the fence adjacent to the home for a sidewalk that

connects the driveway and the front porch. While the fence opening is not a door, "gate"

may be defined as "an opening for passage in an enclosing wall, fence, or barrier."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 939 (1993). We will ascribe that

meaning to "gate" in assessing the sufficiency of the evidence. The fact that the sidewalk

connecting the driveway to the front porch lay entirely within the Harrises' fenced yard

supports the finding that unlike a sidewalk at the front of a lot that lies within a public

easement, the Harrises' sidewalk was private, not public.

Finding 1.14 is likewise supported by substantial evidence. Mr. Harris testified

that he did not have "No Trespassing" signs posted. The front doorway was well within

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State v. C.B.

the boundaries of the Harrises' property, which we have already noted was almost

completely fenced, with no opening to a public sidewalk. The court's finding that the

front doorway was not impliedly open for the purpose of dingdong ditching and shouting

offensive comments is a reasonable inference as to the scope of the implied license to

enter a residential yard, which is discussed in greater detail below.

Carter successfully challenges only the finding that Mr. Harris "ran" out of his

home following the disturbance.

B. Evidentiary support for elements of second degree
criminal trespass

Carter's principal argument on appeal is that the State's evidence did not establish

the essential elements of a second degree criminal trespass by Jared and Parker. An

accessory may not be convicted in the absence of proof that the one to whom he is

charged as accessory actually committed the crime. State v. Strong, 167 Wn. App. 206,

211,272 P.3d 281 (2012) (citing State v. Nikolich, 137 Wash. 62, 66-67, 241 P. 664

(1925)).

Due process requires the State to prove every element of the crime charged

beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487,488, 670 P.2d 646 (1983).

"The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d

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State v. C.B.

1068 ( 1992). Where trial was to the bench, this is done through determining whether

substantial evidence supports the findings of fact, as discussed earlier, and if so, whether

the findings support the conclusions of law. Homan, 181 Wn.2d at 105-06. In claiming

insufficient evidence, the defendant necessarily admits the truth of the State's evidence

and all reasonable inferences that can be drawn from it. Id. at 106.

Under RCW 9A.52.080(1), "[a] person is guilty of criminal trespass in the second

degree if he or she knowingly enters or remains unlawfully in or upon premises of

another under circumstances not constituting criminal trespass in the first degree." "A

person 'enters or remains unlawfully' in or upon premises when he or she is not then

licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.0I0(5)

(emphasis added).

We begin by noting that the significance Carter attaches to the absence of "No

Trespassing" signs at the Harris home is misplaced. Posting is required to exclude

persons from only "unimproved and apparently unused land." RCW 9A.52.0I0(5). 3

The principal issue at trial was whether Jared and Parker enjoyed a license to enter

the Harris property. Among licenses that can prevent an entry from constituting trespass

3
RCW 9A.52.010(5) provides in part that "[a] person who enters or remains upon
unimproved and apparently unused land, which is neither fenced nor otherwise enclosed
in a manner designed to exclude intruders, does so with license and privilege unless
notice against trespass is personally communicated to him or her ... or unless notice is
given by posting in a conspicuous manner." (Emphasis added.)

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State v. CB.

are implied licenses. One implied license recognized by common law is a homeowner's

implied license to third parties to approach his or her front door for a customary purpose.

Florida v. Jardines, _U.S._, 133 S. Ct. 1409, 1415, 185 L. Ed. 2d 495 (2013).

Jardines is a Fourth Amendment search and seizure case, but its outcome depended on

the common law issue present here: When does an implied license exist to enter a

person's residential property?

In Jardines, officers entered into Joelis Jardines's yard with a drug-sniffing dog

and, after it alerted at Mr. Jardines's front door, they applied for and obtained a search

warrant for his home. Whether the search warrant was valid turned on whether the

officers' entry into the yard was "an unlicensed physical intrusion" or, instead, Mr.

Jardines "had given his leave (even implicitly)" for the officers to do what they had done.

Id. at 1415. Justice Scalia summarized the applicable common law:

"A license may be implied from the habits of the country,"
notwithstanding the "strict rule of the English common law as to entry upon
a close." McKee v. Gratz, 260 U.S. 127, 136, 43 S. Ct. 16, 67 L. Ed. 167
(1922) (Holmes, J.). We have accordingly recognized that "the knocker on
the front door is treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers and peddlers of all
kinds." Breardv. Alexandria, 341 U.S. 622,626, 71 S. Ct. 920, 95 L. Ed.
123 3 ( 1951 ). This implicit license typically permits the visitor to approach
the home by the front path, knock promptly, wait briefly to be received, and
then (absent invitation to linger longer) leave. Complying with the terms
of that traditional invitation does not require fine-grained legal knowledge;
it is generally managed without incident by the Nation's Girl Scouts and
trick-or-treaters. Thus, a police officer not armed with a warrant may
approach a home and knock, precisely because that is "no more than any
private citizen might do." Kentucky v. King, 563 U.S. [452,469], 131 S.

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State v. C.B.

Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011 ).
But introducing a trained police dog to explore the area around the
home in hopes of discovering incriminating evidence is something else.
There is no customary invitation to do that. An invitation to engage in
canine forensic investigation assuredly does not inhere in the very act of
hanging a knocker. To find a visitor knocking on the door is routine ( even
if sometimes unwelcome); to spot that same visitor exploring the front path
with a metal detector, or marching his bloodhound into the garden before
saying hello and asking permission, would inspire most of us to-well, call
the police. The scope of a license-express or implied-is limited not only
to a particular area but also to a specific purpose.

Id. at 1415-16 (some emphasis added) (footnotes omitted).

A three-member concurrence in Jardines by Justice Kagan explained that she

would have decided the case on privacy rather than property grounds. But she offered

her own example of limitations on a homeowner's implied license to approach the front

door:

A stranger comes to the front door of your home carrying super-high-
powered binoculars .... He doesn't knock or say hello. Instead, he stands
on the porch and uses the binoculars to peer through your windows, into
your home's furthest comers .... Has your "visitor" trespassed on your
property, exceeding the license you have granted to members of the public
to, say, drop off the mail or distribute campaign flyers? Yes, he has.

Id. at 1418 (Kagan, J., concurring) (emphasis added).

Even the dissent, which would not have found the officers' entry into Mr.

J ardines' s yard to be a trespass, agreed that the implied license to proceed up a walkway

to a front door arising from custom has "spatial and temporal" limits. Id. at 1422.

Among the dissent's examples of limitations on the license are that custom does not give

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rise to an implied license to veer from the established walkway, "come to the front door

in the middle of the night without an express invitation," or linger: "The license is limited

to the amount of time it would customarily take to approach the door, pause long enough

to see if someone is home, and (if not expressly invited to stay longer), leave." Id. at

1422-23 (Alito, J., dissenting).

In the premises liability context, this court has held that a homeowner's implied

license to third parties can arise from "local custom." Singleton v. Jackson, 85 Wn. App.

835,839,935 P.2d 644 (1997) (adopting RESTATEMENT (SECOND) OF TORTS§ 330

(1965)). Singleton held that a Jehovah's Witness who approached a home for purposes of

religious solicitation was a licensee rather than a trespasser, relying on cases from other

jurisdictions holding that "strangers approaching a private residence may reasonably

interpret the presence of a doorbell or a pathway leading to the door as tacit consent to

approach the residence and attempt to contact its occupants." Id. at 840-41. Comment e

of the Restatement is cited by Singleton as explaining the rationale underlying the rule.

Id. at 840. Expanding on "local custom," comment e explains:

[A]ccount must be taken of customs prevailing in the community. "The
well-established usages of a civilized and Christian community" entitle
everyone to assume that a possessor of land is willing to permit him to enter
for certain purposes until a particular possessor expresses unwillingness to
admit him. Thus a traveler who is overtaken by a violent storm or who has
lost his way, is entitled to assume that there is no objection to his going to a
neighboring house for shelter or direction. So too, if there is a local custom
for possessors of land to permit others to enter it for particular purposes,
residents in that locality and others knowing of the custom are justified in

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regarding a particular possessor as conversant with it and, therefore, in
construing his neglect to express his desire not to receive them as a
sufficient manifestation of a willingness to admit them. Thus, if it be a
custom in a particular town for owners of vacant land to permit persons to
cut across it, one doing so is a licensee unless by posted notice or otherwise
the particular owner objects to the practice. Familiar intimacy may also
justify the assumption of consent to such visits as friends customarily pay
to one another.

RESTATEMENT§ 330 cmt. eat 174 (emphasis added).

Here, the juvenile court concluded that neither habits of the country nor local

custom resulted in the Harrises' impliedly opening their private sidewalk and front porch

to third parties for the purpose of dingdong ditching and shouting racist comments

through open windows. The conclusion is not only reasonable, it appears inescapable.

Carter did not offer evidence that Jared's and Parker's conduct is customary and expected

in Yakima County, and therefore implicitly invited by Yakima County homeowners. He

does not cite a case from any jurisdiction suggesting that conduct as objectionable as the

conduct he solicited and encouraged falls within the scope of a homeowner's common

law implied license to third parties. The cases he does cite-search and seizure cases-

do not examine the "purpose" limitation on the common law license, nor do they

otherwise help him. See State v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994)

(stating that a police officer is permitted the same license to intrude "as a reasonably

respectful citizen" and that "[t]he scope of the implied invitation is dependent on the facts

and circumstances of each case"); State v. Ferro, 64 Wn. App. 181, 183, 824 P.2d 500

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No. 33110-5-111
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(1992) (holding that police officers trespassed when they went beyond the defendant's

driveway, exceeding any implied license). 4

Instead, Carter argues that because the court attached importance to the racial slur

shouted during the trespass, it "essentially created a new crime by adding a speech

element." Br. of Appellant at 17-18. He then identifies three reasons why this new crime

cannot be a crime or was not proved: Carter had no notice of the crime; the racial epithet

did not constitute a "true" threat or "fighting words" for First Amendment purposes; and

there is insufficient evidence the epithet was shouted while Jared was on the Harrises'

property. Id. at 24-26.

The court did not create a new crime. The "habits of the country/local custom"

limitation on a homeowner's implied license is well settled. The racist comment shouted

by Jared was relevant to that limitation. There being no "new crime," notice is not an

issue.

For the same reason-that the racist comment was merely evidence relevant to

4
Carter argues on appeal that he asserted the defense provided by RCW
9A.52.090(2) (compliance with conditions of premises open to the public). The defense
negates the unlawful entry element of the crime, so "once a defendant has offered some
evidence that his or her entry was permissible under RCW 9A.52.090, the State bears the
burden to prove beyond a reasonable doubt that the defendant lacked license to enter."
City of Bremerton v. Widell, 146 Wn.2d 561,570, 51 P.3d 733 (2002). Carter does not
identify any basis on which the Harris property was "open" other than the common law
implied license, so his assertion of the defense adds nothing to the State's burden of
proving that Jared's and Parker's presence was unlawful.

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No. 33110-5-111
State v. C.B.

limitations on the implied license-the First Amendment is a nonissue. "' [I]t has never

been deemed an abridgment of freedom of speech or press to make a course of conduct

illegal merely because the conduct was in part initiated, evidenced, or carried out by

means oflanguage, either spoken, written, or printed."' Cox v. Louisiana, 379 U.S. 559,

563, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965) (quoting Giboney v. Empire Storage & Ice

Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949)). "Although the First

Amendment broadly protects 'speech,' it does not protect the right to 'fix prices, breach

contracts, make false warranties, place bets with bookies, threaten, [or] extort.'" R.A. V

v. City of St. Paul, 505 U.S. 377,420, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992)

(Stevens, J., concurring) (alteration in original) (quoting Frederick Schauer, Categories

and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265,270 (1981)).

Carter was found guilty not because of what Jared said, but because the conduct that

Carter solicited and encouraged took place on the Harrises' front porch, where Jared and

Parker had no lawful right to be.

Finally, the trial court found that the racial slur was shouted while Jared was

standing on the Harris porch. CP at 16 (Finding of Fact 1.9). Carter has not assigned

error to that part of finding 1.9, which is a verity on appeal. State v. B.J.S., 140 Wn. App.

91, 97, 169 P.3d 34 (2007).

The trial court found the facts to be as testified to by Mr. and Ms. Harris and

Parker. It found their testimony to be supported by the Harrises' surveillance video. It

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found evidence of consciousness of guilt in Jared's and Parker's running away following

the trespass. It found Carter's central involvement to be supported by Parker's testimony

and circumstantially by uncontroverted evidence of the statement made by Carter's

mother, suggesting Carter comes from a household harboring racist attitudes. Its findings

support its conclusions that Carter knowingly solicited, encouraged or requested the

trespass; that Jared's and Parker's entry onto the Harris property was for an unlicensed

purpose; and its ultimate conclusion that Carter was guilty of second degree criminal

trespass as an accomplice.

II. Recusal

Carter's remaining assignment of error is to Judge Federspiel 's refusal to recuse

himself, which he argues violated due process and the appearance of fairness doctrine. 5

He contends on appeal that he "presented evidence of potential, if not actual, bias" on the

part of the judge. Br. of Appellant at 29. We review a trial court's recusal decision for

an abuse of discretion. Woljkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836,

840, 14 P.3d 877 (2000). The trial court abuses its discretion when its decision is

5
He also relies indirectly on former Canon 3(D)(l) (2002) of the Code of Judicial
Conduct (CJC) in citing Woljkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836,
841, 14 P.3d 877 (2000). Br. of Appellant at 27. But as a result of the wholesale revision
of the CJC in 2010, the version of the CJC in effect when Woljkill's recusal issue arose
was rescinded.

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State v. C.B.

manifestly unreasonable or is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971).

Most matters relating to judicial disqualification do not rise to a constitutional

level, and personal bias or prejudice alone is not a sufficient basis for imposing a

constitutional requirement under the due process clause. Tatham v. Rogers, 170 Wn.

App. 76, 92,283 P.3d 583 (2012) (citing Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009)). "[S]tate codes of judicial conduct

provide more protection than due process requires, and ... 'most disputes over

disqualification will be resolved without resort to the Constitution.'" Id. (quoting

Caperton, 556 U.S. at 890).

The Washington Supreme Court has characterized a judge's failure to recuse

himself or herself when required to do so by the judicial canons as a violation of the

appearance of fairness doctrine, and has narrowed the scope of the appearance of fairness

doctrine in the context of judicial decision making to whether there is evidence of a

judge's or decision maker's actual or potential bias. Id. at 94 (citing State v. Post, 118

Wn.2d 596, 619 n.9, 826 P.2d 172, 837 P.2d 599 (1992)). Before the appearance of

fairness doctrine will be applied, there must be evidence of a judge's actual or potential

bias. State v. Dominguez, 81 Wn. App. 325,329,914 P.2d 141 (1996). If a party

presents sufficient evidence of bias, "[t]he test is whether a reasonably prudent and

disinterested observer would conclude [the party] obtained a fair, impartial, and neutral

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trial." Id. at 330.

In this case, Carter's only evidence of potential bias is the several statements made

by the judge at the hearing on the motion to compel diversion. Judge Federspiel

responded to the recusal motion with oral and written decisions identifying the context of

his statements.

Responding to Carter's complaint that he described the case as an "emotional

case," Judge Federspiel explained that by the time of the hearing, he had reviewed the

court file. It revealed that Carter's alleged solicitation of his friends' trespass was the

culmination of other unpleasantness between Carter, Mr. Harris, and Mr. Harris's

daughter. As Judge Federspiel explained,

[K]eep in mind that the documents on file in this case contain allegations
that the alleged victims' daughter questioned the respondent's actions in
calling another student a "faggot"; that in response the respondent
commented on Facebook that she was "[a] once a month bleeding bitch;"
that there was a period of exchanges over time with less than civilized
accusations back and forth, culminating in the alleged statement yelled on
Mr. Harris' porch: "You fucking Nigger, Go back to Africa!"
It would be disingenuous of me, or any judge for that matter, to
convey that this case does not have the potential to stir the emotions of
many segments of our society.

CP at 85.

The judge's reference to the case being an emotional one was in the context of the

prosecutor's request that the judge exercise his supervisory power over the diversionary

unit to recommend against diversion. Essentially, the prosecutor was asking the judge to

19
No. 33110-5-III
State v. C.B.

decide, based on material in the court file, that the allegations of wrongdoing by Carter

were too serious to qualify for a diversion agreement. Judge Federspiel's comment about

the case being emotional was a response to this appeal, and was immediately followed by

his statement that "just because cases are emotional it does not allow you to bypass the

law." RP at 51. In this context, the judge's comment merely acknowledged what the

prosecutor had said in objecting to diversion: that the allegations reflected in the file were

not of "a mere technical property violation, but a racially motivated and hateful intrusion

into a family's home." CP at 194.

The comment "Do I like it? No," addressed the fact that Judge Federspiel does not

favor the legislative decision to repose the decision whether to enter into a diversion

agreement exclusively in the diversionary unit. Here, too, the judge immediately added,

"But I am bound to follow the law of the legislature"-which he thereafter did, ordering

the State to refer the case to the diversionary unit. RP at 52. Objectively viewed, the

judge was being candid about his attitude toward the law while at the same time assuring

the parties that he intended to follow it.

Finally, Judge Federspiel explained to Mr. Harris that he did not "have the ability

to bypass the governor or the legislature in terms of this law no matter what my personal

feelings are, or what I think the equities are." RP at 54. If this conveyed anything about

how the judge would conduct the trial, it was that regardless of any sympathy he might

have for Mr. Harris he would follow the law.

20
No. 33110-5-111
State v. C.B.

Judge Federspiel's comments in the pretrial hearing, although expressed before the

presentation of all the evidence, addressed only what he knew about the charges at that

time; how the trial participants might expect that knowledge to affect him; and the fact

that whatever the effect, he was reserving judgment and would follow the law. His

candid comments were not unreasonably made given the context in which they were

made, and were accompanied by words and conduct demonstrating impartiality. He did

not abuse his discretion in denying the recusal motion.

Affirmed.

WE CONCUR:

eforsmo, J. f Pennell, J.

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