Opinion
No. 61135-6-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-8-02841-4, Carol A. Schapira, J., entered December 18, 2007.
Affirmed by unpublished per curiam opinion.
T.N., a juvenile, challenges his disposition of guilty for third degree theft on the ground that he was prejudiced by an unreasonable delay between the completion of the police investigation and the referral of his case to the prosecutor. We affirm.
On March 11, 2007, Paul Hagerman was working as a loss prevention officer at the Fred Meyer store in Redmond. He began observing T.N. on the store's security camera after fellow loss prevention officer Tiffany Harris alerted him. He observed T.N. in the store's apparel department, looking around "in a furtive manner," as though looking for people rather than merchandise. He then went to the sales floor to observe T.N. in person. Hagerman followed T.N. to the shoe department, where he observed T.N. put on a pair of Reebok shoes, remove the tag, place his old shoes in the shoebox, and walk out of the store.
Hagerman and two other employees approached T.N. in the parking lot. T.N. denied stealing any merchandise and attempted to walk away. Hagerman put T.N. in an elbow-wrist lock and escorted him into the store's loss prevention office. There, the loss prevention officers recovered the shoes from T.N.'s feet and verified that they were Fred Meyer merchandise. Hagerman also observed that the shoes had been damaged by T.N.'s earlier removal of the tag. Loss prevention officer Harris wrote a report of the incident.
Redmond Police Officer Greg Patrick was dispatched to Fred Meyer. Officer Patrick asked T.N. for his name, and T.N. initially gave a false name. Officer Patrick advised T.N. of his Miranda rights, including the juvenile warning. After T.N. stated that he understood his rights, Officer Patrick asked T.N. if he was willing to talk about what had occurred, and T.N. answered that he was. Officer Patrick asked T.N. whether he had taken the items, and T.N. admitted that he had taken two sweatshirts and the shoes. Officer Patrick placed T.N. under arrest for shoplifting and transported him to the Redmond Police Department. Officer Patrick documented the incident in a police report, which he completed and signed on March 25, 2007.
T.N. was charged with third degree theft in an information dated August 7, 2007. The court found him guilty in a disposition dated January 14, 2008. T.N. appeals his disposition on the ground that he was prejudiced by unreasonable delay from the completion of the police investigation to the receipt of the referral by the prosecutor, arguing that the action should have been dismissed under King County Local Juvenile Criminal Rule (LJuCR) 7.14(b).
LJuCR 7.14(b) provides that a court "may dismiss an information if it is established that there has been an unreasonable delay in referral of the offense by the police to the prosecutor and respondent has been prejudiced." For purposes of LJuCR 7.14(b), a delay of more than two weeks constitutes prima facie evidence of an unreasonable delay. Where there is a prima facie showing of unreasonable delay, the court must determine whether or not dismissal or other appropriate sanctions will be imposed. The rule provides that the court shall consider, among other factors: "(1) the length of the delay; (2) the reason for the delay; (3) the impact of the delay on the ability to defend against the charge; and (4) the seriousness of the alleged offense."
LJuCR 7.14(b) (emphasis added).
LJuCR 7.14(b).
LJuCR 7.14(b).
LJuCR 7.14(b).
LJuCR 7.14(b) expressly requires that respondent be prejudiced by the delay. Furthermore, our Supreme Court in State v. Chavez held that dismissal under Benton County's version of LJuCR 7.14(b) implicitly required actual prejudice to the defendant. And, LJuCR 7.14(b), like the rule in Chavez, states that the trial court "may" dismiss an information if unreasonable delay is established. Thus, dismissal under LJuCR 7.14(b) is reviewable only for a manifest abuse of discretion.
111 Wn.2d 548, 761 P.2d 607 (1988).
Chavez, 111 Wn.2d at 559.
Chavez, 111 Wn.2d at 562.
Here, the trial court found that there had been a delay of 82 days from the completion of the police report to the referral of the case for prosecution and that the reason for the delay was unknown. T.N. argued that he was prejudiced by the delay because Harris had moved out of state and was no longer available to testify, and because the security video that filmed some of T.N.'s activities was reused after 60 days per store policy. However, the trial court ruled that the loss of Harris, a potential witness for the State, did not prejudice the defense and that there was no evidence showing that the video would have been preserved but for the delay.
The court weighed the factors listed in LJuCR 7.14(b) before denying T.N.'s pretrial motion to dismiss. We conclude that the trial court did not abuse its discretion.
Affirmed.