State v. Priest

STATE OF WASHINGTON, Respondent, v. DAVID RANDALL PRIEST, Appellant.

No. 32549-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

AUGUST 1, 2017

ORDER GRANTING MOTION FOR RECONSIDERATION AND AMENDING THE OPINION

THE COURT has considered appellant's motion for reconsideration and a majority of the panel is of the opinion the motion should be granted. Therefore,

IT IS ORDERED, the motion for reconsideration of this court's decision of August 1, 2017, is hereby granted.

IT IS FURTHER ORDERED the opinion filed August 1, 2017, is amended as follows:

The paragraph on page 35 that reads:

During the pendency of this appeal, appellant David Priest filed three motions. Two related motions ask this court to decline the State an award of costs on review and to permit late filing of the request. Because of the delays in resolving this appeal, we grant permission for late filing of the request. We take under advisement Priest's request to deny the State costs and direct Priest to comply with paragraph 3 of our June 10, 2016, general order.

shall be amended to read:

During the pendency of this appeal, appellant David Priest filed three motions. Two related motions ask this court to decline the State an award of costs on review and to permit late filing of the request. Because of the delays in resolving this appeal, we grant permission for late filing of the request.

A majority of this panel denies the State an award of appellate costs.

PANEL: Judges Fearing, Korsmo, Pennell

BY A MAJORITY:

/s/_________

GEORGE B. FEARING

Chief Judge

UNPUBLISHED OPINION

FEARING, C.J. — David Priest appeals his convictions for trafficking in stolen property and possession of a stolen motor vehicle on the contention that Okanogan County Superior Court lacked jurisdiction over his prosecution because he is an enrolled member of the Confederated Tribes of the Colville Reservation (Colville Tribe) and the actions forming the basis of his convictions occurred solely on the Colville Reservation. Priest also challenges the warrantless search of his cell phone, recovered at the scene of a different alleged crime, as violative of his privacy rights under article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. He further challenges the admission of a witness's prior recorded statement. Finally, he assigns error to the imposition of legal financial obligations. We reject all but one of hisarguments. We affirm his convictions, but remand for a hearing on whether Priest may afford payment of discretionary legal financial obligations.

FACTS

The prosecution of David Priest arises from the theft of a trailer and all-terrain vehicles (ATVs) from the Okanogan County property of Harrell Myers. On December 22, 2012, Myers discovered that someone stole an enclosed race car trailer from his property located between the towns of Twisp and Pateros. At the time of the theft, the trailer housed four ATVs: a Honda, a red Suzuki, a yellow Bombardier, and a white side by side Polaris. Myers reported the theft to Okanogan County Sheriff Deputy Laura Wright.

On February 4, 2013, Okanogan County Sheriff Sergeant Tracy Harrison visited Shelly Priest at her home located in a housing project at 4116 Rocky River Road on the Colville Reservation. Shelly told Harrison that her former brother-in-law, David Priest, left possessions under a tarp in her backyard. With Shelly's permission, Harrison peered under the tarp and spied two ATVs: a yellow Bombardier and a white Polaris. Sergeant Harrison took photographs of the ATVs and ran the vehicles' identification numbers, but could not determine whether the vehicles were stolen.

Okanogan County sheriff deputies eventually learned that the yellow Bombardier and white Polaris ATVs belonged to Harrell Myers. The deputies later recovered one ATV down the street from Shelly Priest's residence and another at a different location inOmak.

On February 14, 2013, Okanogan County Sheriff Sergeant Tracy Harrison contacted defendant David Priest. Priest commented to Harrison that he knew Harrison wanted to speak with him about ATVs. Priest told Harrison that the ATVs originated in the Methow Valley and that Josh Taylor, Nikki Windsor, and Josh Howell transported them to Shelly Priest's house from 232 Greenacres Road in Riverside, which residence belonged to his friend, Amanda VanSlyke. VanSlyke previously lived in a house on the Greenacres property, which also included a barn and a small garage. VanSlyke rented the garage to Priest, although he never paid her, and VanSlyke moved from the Greenacres property by the beginning of January 2013 after pipes to the house severed.

Law enforcement officers interviewed Amanda VanSlyke, who had no knowledge of David Priest entering the Greenacres garage after she moved from the property. She confirmed that Josh Taylor and Nikki Windsor brought and stored items in the barn. VanSlyke never saw Priest haul any vehicles to or from the Greenacres property.

David Priest also informed Sergeant Tracy Harrison that Josh Taylor, Nikki Windsor, and Josh Howell stole a 28-foot car trailer, modified it to a flatbed trailer in the barn on the Greenacres property, and sold it to Darren Morris. Sheriff Deputy Laura Wright visited Darren Morris and confirmed that he possessed Harrell Myers' stolen trailer. Deputy Wright obtained a search warrant for the outbuildings on Amanda VanSlyke's Greenacres Road property and discovered debris and trailer parts.

On February 23, 2013, Charles Nodine contacted law enforcement and reported that he recently purchased a Suzuki ATV and a Honda ATV, and he worried both were stolen. Nodine had announced in his home town of Oroville that he and his wife sought to purchase ATVs. At the suggestion of a friend, Nodine contacted a man named Danny in Omak, who had two ATVs for sale. Nodine also met a man named D.P., who helped negotiate the sale of the ATVs between Danny and him. Nodine paid $750 for the ATVs and agreed to pay more after receiving titles to the vehicles. When the titles never arrived, Nodine grew suspicious and contacted the Okanogan County Sheriff's Office. Nodine later identified D.P. as David Priest.

PROCEDURE

In February 2013, the State of Washington charged David Priest with three counts of trafficking in stolen property in the first degree and two counts of possession of a stolen motor vehicle. The investigation of the crimes continued, however.

After filing of the charges, Frank Andre, a caretaker of an Omak vacation residence, discovered a cell phone on the ground outside a barn on the property. The snow had just melted, and the phone was wet. In January 2013, Andre had reported a burglary of the barns and his caretaker's residence. On the assumption that the phone belonged to the burglars of his residence, Andre delivered the phone to the Okanogan County Sheriff's Office. The phone lacked its back cover, but the memory card and subscriber identity module (SIM) card were intact. Okanogan County Sheriff DetectiveCraig Sloan, certified in cell phone and computer forensics, removed the battery from the phone and placed both in a bag of uncooked rice to dry.

In December 2013, Detective Craig Sloan retrieved the cell phone and battery from the bag of rice. Sloan noticed that the SIM card had been installed incorrectly, so he removed the card and reinserted it in the phone. He implanted the battery in the cell phone and attempted to activate the phone, to no avail. Detective Sloan then connected the phone to a universal forensic extraction device (UFED) to charge the battery and extract information from the cell phone. The battery charged, but, because the UFED did not recognize the cell phone model, the device could not mine data.

Detective Craig Sloan activated the cell phone. The phone lacked service, but Sloan examined the phone's settings and found the phone's number, a number for a contact labeled "Home," and a third number for a contact labeled "Lynn." Clerk's Papers (CP) at 160. Sloan then viewed photographs on the cell phone. He discerned, in the grainy photographs, a red ATV or snowmobile and a yellow ATV or snowmobile. Sloan did not recognize any people shown in the photographs. Detective Sloan asked Okanogan County Sheriff Frank Rogers whether Frank Andre had reported the theft of any snowmobiles or four wheelers. Rogers replied in the negative, but added that Deputy Laura Wright had investigated the theft of red and yellow ATVs around the same time that Andre discovered the cell phone. Sloan deactivated the phone and returned it to storage.

Detective Craig Sloan then searched for the cell phone number, the "Home" number, and the "Lynn" number in the sheriff office's Spillman Data System. Sloan learned that David Priest maintained the cell phone number and home number. Lynn Stanley owned the "Lynn" number. Sloan knew that Stanley and Priest had engaged in a sporadic romantic relationship. Sloan reviewed Deputy Laura Wright's investigation reports for the Harrell Myers' property theft and obtained color copies of photographs of Myers' red and yellow ATVs. The ATVs matched the ATVs in the photographs on Priest's cell phone. Sloan reported the match to Deputy Wright, who used the information to obtain a search warrant for the cell phone.

After Laura Wright garnered a search warrant, Detective Craig Sloan reviewed all digital photographs, text messages, and voice recordings stored on the cell phone. Sloan discovered incriminating messages from December 2012 between David Priest and Nikki Windsor, one of the individuals that Priest identified as having stolen Harrell Myers' property. Messages read:

06:40 am Dec 11, 2012

To: +15093228640 (from David Priest)

where r u? its 6:38 am did u ever go? Call

06:43 am Dec 11, 2012

From: +15093228640 (Nicki Windsor)

Were in twisp trailer was a no ran out of gas going up the hill so it was too late doing other business be back soon feel free to use o car all you want!01:37 am

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