Th/;, document contains some ·
                      qualii}! ·

  COURT OF CRIMINAL APPEALS
         FEB 24 2015
    ·Abe! Acosta, Clerk
           ./C1DV€-r:ri)V\tl_t:-rJ'f J>~)~UYhJt.r,lf0                                                               b~ ~h~            bf..-101

 . . 117/Je_ L~- t!tt_us_e _/l.lo_/ 3_0~;).9 Ciuduidaciz~ __
  . _..-J[Us of /l!oi{)£_1/e/z; 'cL~ £a n::t_j_f_7?._ ZZ -e,__()-1/;_e_ r _
                        E!..

__·-i· __)J)_o__J1fjU.&TcU-afdi:L;Vever~e.eA.J _(/.ed__
    .. __ . T~/~,11)-    _ef/iz_er_M_US_fl_---- -t-··----··· -··--· ··-·---··-- _________ --·--------·
                                                                                __
            1i    ...     ft7;       /i::f'e_    ./lot'    'J liRJ.d_{!_ux~reN/t __ _/s we<{ ..

. .-----~-~~--~-~~f~---
   . _____ bie_ ')1--j_eL/~ __-n_<-~ ±f:r_s-l__CQ c; "'-_y .
             11
 . ....... ··-·J·W~o. __/lJ_eve.-.c __,_tu_vesftytktecL6.f'__~__fb:~.<:_-
-·--~-.-==-l-W-~ ~~$~~-J~; ~~l_t-~;k_~~~d~~-
    .    _ I A _. [.9 J3_1-::_:lfjffEil:-tL4-ie.d_/2o_b_/o_eff                                                       _&c.Ls.e.._JUo, _
__ _---~r-3.9~3s_.,__,__l                                             \ -,--------------------------·-
  -·-· -··--- __ -l-'---------- . L±-~s_LIY1fo_$S{_io_{~-=6-ff:~+--CA:u~_eAlu~
                  i M0-ed up) ~~r0 rvtlx upJ o~e..s .                                ed
        - · I[    1'\L\.\)i.~c\.-u.ls        ---------       -·-·-r-···---···-·-· -··-·--··--·------·----· - - - - - -                 ·-------   --

        . _j+----- -_ ~-~~--~~~--~--~~u~~-~~~~~-----
~~-~h~~~~~J/1~---~-
            11                                                ±cr-:-
 _ __ _ -·---\fS Ihv_w.l't./ -~-a~~f---·----~-v~**-----·W_r.J _______
                                                         -1-L            ·
                                                                      i±/o_o__ s:__ _________ __
                                                                                .
                                                                                r
                                                                                _s__
  -.- .. -\Php_q\6., he. __ )~)tJ(LDVe.dv----                                                             --------·---·· _. .   ____ . . ...... ·.
             1\                                              ~---
          . !I.' -· ... ·-·· - ...   -----·-----···-··----·-------~---    .. ·····- ----------·····-· ---- ... --· .. - ······ . - ··-· . -·
..-.       '   .J
                                     I'
                                     I
       '

                                                 ---------·--··----·                       ---·-·--

·-·-------------r-r-----------------------

 -----·-·---------i· t\t\e_ ~orA.cDduVV'- tJt' LA.u.J I 1\J                                           ·

=~~---·· I ~ '-' fl f"" A . [i~' App /l ~A-+) o;J For                                    ~·- ~~=

=~=--:-t~=!A~~s~rn~~;7H=igr~3-~~ ~ -·· · ==
                    \,   .....

~=~~~~=~~                                       ±-~h,~m~e~rJE~~-~~-            -     .   ------·--·--·--·

-----·--                         I..
-------------++--1_ _ _ _ _ _ _ __;________                               ·-=--_-------=~-~-----
                                                                      ---------·--

----------++-------------------------
                                 i

       ---+I +-----------------------------
------
----                             II          - - - - - - - - - ------------------------
                                                                       -----------------               ...
                                 I
                                 I

                                 I       I
     .   '

                      ·-de.- rU·t'\-t-\

                                                A± Al\     ±i~·e./~    k1A€   f\J·±i oJ
                                                     &±~

                                          7770/

-------H---

-----~+-----------------------------------------

             ----------- ------·

------·--4+------·----------

                     - - - - - - - - - - - - - - ·----·------·---·-----·---·------

                                           -   ~-
    .     )

     .,

                                         J-                    ,,
                                 .~·   e,VT,                   il
----f-+--'li~~:=p...~....___,._~~t..u..t'2J~:::::_._:L_____ ;.i 'l
                                                                ~
                                                                         ---------
------~~~~~~~~e~                                               1(1

-~~~rw:t£ £i:b~u&a:!~                              1

-----~~~~~-~~~~~~~(~(-~-~
                                                                     s
------++-+--=-~~~\.___L_..:::....,u_~IL-----l--U!-o!.l...L-------------

                                                                     ~

----+H~~_.!...L.~~.L-..U.J--+.-~.!_____ _ _ _ _ _ _ ___1;____
                                                                         ~

                                                                     7
                    I        .

            '   _t~~~~~~--                                           7
-----++D~k~_c._,,) ----------
                                       ----        ----·----
.   )

        -   ·-----------   -----------------
.-·   I.u I /\e_                lJ ;s:t-r-~ Lt- L.:.J ~1--
        Df   "J"ef+'t_r-.sotJ C.CutDt , Te_'/.. ~.s
   . .•

-----++-----HA~~:l,-~ wb.~.r~   t\.?pl\u4rJt r.e~~\vtk   A.:   ±h\~~+w1L
                                              I                       i
----~~~~~~~~4-~~~~~~~=+~~~~~

                      ----·--··--------·-----------· · - -       - -
                           -"-
•   1

        ...s.su es
----++--~t of Acd:io "l 10 iII ~v e___
    a ioe.- k~ urJti l A. VO~ d Or J.e-V' t-'<:'\------
          re.4., L1\J boil/\:;; Q...>xu.~ e.~--1'----·
.'
.'

     _,_
                          ' F~ovv\
                        . ;.
                           I
                             .  v         v   \.
                           I
                           i
                           '
                           '

                ---:· ···--------::::;;;;------·-·---------------------------------------,--------:-------
            ------·

                                                                                _ u_cf_
 ----···-                                                                                -~---------------              ----···

·_          . . . i _____ Cr_o_~ C:c.L~~-;V-A:L Q,~tr_i ~+- ___                                __                                                                           .
 _________ . _ __J _---·-------· ....... ·-·- -~ __     c£_ _ _ .deft?-ec.s.o.tJ___C.O uN#--------------------· __
                                                                                ~E\VEDlN
 ---------,- - - - - ·                                                                   ·-----C-OU___,RT'--='-OF:-=-:CR=IMI~APPE:AtS------------

                                                   Y\ ___             --- ~l-------_ --~ ~ ~-;- -JAfn62015- - ·- -
                                                            ---~-~-----
 - - - -·-              _c      -----

                        --,-----~                  npp
                                              -- ___

                                                                   tUl::Dlt_ flMSW _ _               __     ___
 _    __    _   _   _
                          1
                               ______________________   _____     :__t_o_____;_r, l-'Pr-( ____C~-u-~1---~~~~--~~~~ta~~'~-~~ _

 ______ ----i :~-- rrpp Uta-t;:f_-~-:m,Tt~ ~;b_~~~Ca~~;~~----
 ~ -~~ ~t:~-~~-~-~--~~l~~-----~:~-~= -_
                          I
                                                                                -------                                   - - - - - --------------·--

 - ----··--. ·-·- --- -~- -------------··--· ----- - - - - ----·-· -----·· . ----· ·-- -----·-·--···-·»------ - · ·- - ---   -·--· - - --··-·--- --- . - --------- ... ----- -   - . -- -

 --._=1-===~=-~-~-=-~=-~=----
                                                                                b '
 - - - - - - - -J ~--- -- --~~--====-~- -~ -_- _ --~--~~~-t~~±=~Jsb~R;~~-
 -_. __________/_______________________________________________ d<:ef?f<?cS_Q d_c1ui!J=-J'11U .
                         /                                                                 ·                          . 3      o     cJ w ,J_{gL~au-±.h..__
                        J--~----~ - ------ --- -- -- -- - -6 e.t~: () tn~-vt ?;.. '?770:S:
     --. - - - -- - . --------------------- ... - --- - - - --- -· -                                               ;t~ tU . l5i;- ?,_() ~~-- ·-·                                 --


672 F.2d 916
A. G. Rogers Co.v.Merck and Co., Inc.
80-146
UNITED STATES COURT OF APPEALS Sixth Circuit
11/10/81

1
E.D.Tenn.

AFFIRMED


                                THIRD DIVISION
                               ELLINGTON, P. J.,
                            BETHEL and GOBEIL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules

                                                                     August 8, 2018

In the Court of Appeals of Georgia
 A18A1141. WILLIAMS v. THE STATE.

      ELLINGTON, Presiding Judge.

      A Henry County jury found Khary Williams guilty beyond a reasonable doubt

of four counts of aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon).

Following the denial of his motion for new trial, Williams appeals, challenging the

sufficiency of the evidence disproving his affirmative defense of justification. For the

reasons provided below, we affirm.

      Viewed in the light most favorable to the jury’s verdict,1 the evidence showed

the following. For about a year preceding the incident at issue, Williams lived with

      1
       Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
his fiancée and her four children in Henry County. Williams was unemployed and his

fiancée paid the household bills.

      On May 14, 2014, Williams’ fiancée drove Williams around town in search for

employment. At home that evening, they argued about Williams’ refusal to apply for

positions at all but one of the businesses they visited that day. Williams’ fiancée

asserted that she had caught Williams lying about putting in a job application at Papa

Johns. As the argument escalated, Williams forcefully tried to remove the engagement

ring from his fiancée’s finger. Relenting, she removed the ring herself, and, after she

handed it to Williams, he proceeded to throw the ring into the yard. Williams’ fiancée

then demanded that Williams leave her house.

      During the altercation, three of the fiancée’s children were walking home from

the bus stop. As the children arrived at the house, Williams’ fiancée told them to get

in the car and to stay there because they were about to leave. She then left the

children in the car parked in the garage and made a second attempt at demanding that

Williams leave her house.

      Williams walked away from his fiancée and went into their bedroom. Williams’

fiancée heard a gun cock and then Williams walked back towards her with his hands

behind his back. Fearing for her life, she ran back to the garage and cranked the car.

                                          2
As she put the car into reverse, she heard gunshots. She frantically backed out of the

garage, hit a tree, and momentarily blacked out. After she regained consciousness, she

drove to a neighbor’s house for help.

       As a result of the shooting, Williams’ fiancée sustained a bullet wound to her

abdomen which required that her colon be repaired. Her son suffered a bullet wound

to his fingers. Williams’ fiancée and her son both have continuing issues arising from

their injuries.

       Williams admitted to investigators that he shot at the car occupied by the four

victims until the gun was empty and that he then threw the gun at the driver’s side

window of the car with such force that the gun broke through the window and landed

in the front seat. According to Williams, he walked to the garage and the shooting

“just happened.” Williams also stated that he was afraid of his fiancée and that she

tried to hit him with the car.

       Williams contends that the State failed to disprove his affirmative defense of

justification. Specifically, he argues that the evidence presented at trial showed that

his fiancée was attempting to run him over with her car and that the shooting was a

justifiable act of self defense. Williams asserts that this was sufficient to raise a

                                          3
reasonable doubt, and thus, the standard for a criminal conviction was not met in the

present case.2

       On appeal from a criminal conviction,

       [the appellate court] view[s] the evidence in the light most favorable to
       the verdict[,] and an appellant no longer enjoys the presumption of
       innocense. [The appellate court] determines whether the evidence is
       sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99
       SCt 2781, 61 LE2d 560) (1979) and does not weigh the evidence or
       determine witness credibility. Any conflicts or inconsistencies in the
       evidence are for the jury to resolve. As long as there is some competent
       evidence, even though contradicted, to support each fact necessary to
       make out the State’s case, [the appellate court] must uphold the jury’s
       verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). In

particular, the question of justification is a matter for the jury, and the appellate court

       2
        See OCGA § 16-1-3 (1) (“‘Affirmative defense” means, with respect to any
affirmative defense authorized in [the Crimes and Offenses Code], unless the state’s
evidence raises the issue invoking the alleged defense, the defendant must present
evidence thereon to raise the issue.”); Bacon v. State, 249 Ga. App. 347, 349 (1) (b)
(548 SE2D 78) (2001) (An affirmative defense is a defense that admits the doing of
the act charged “but seeks to justify, excuse or mitigate it. With an affirmative
defense, the focus no longer becomes the act, itself, since such is admitted. Instead,
the State’s burden becomes the introduction of evidence that disputes, i.e.,
‘disproves,’ the defendant’s alleged justification/excuse for the act.”) (punctuation
and footnotes omitted).

                                            4
defers to the jury’s assessment of the weight and credibility of the evidence when a

defendant relies on this affirmative defense. Mosley v. State, 300 Ga. 521, 524 (1)

(796 SE2d 684) (2017); Glenn v. State, 296 Ga. 509, 511 (1) (769 SE2d 291) (2015).

      Under OCGA § 16-3-20 (a) (1), “The fact that a person’s conduct is justified

is a defense to prosecution for any crime based on that conduct. The defense of

justification can be claimed[, inter alia,] [w]hen the person’s conduct is justified

under [OCGA §] 16-3-21[.]” OCGA § 16-3-21 (a) provides that, except as otherwise

provided, “[a] person is justified in threatening or using force against another when

and to the extent that he or she reasonably believes that such threat or force is

necessary to defend himself or herself or a third person against such other’s imminent

use of unlawful force[.]” The evidence adduced at trial in this case authorized the jury

to find that Williams intentionally fired a gun at his fiancée and her three children as

they were sitting in his fiancée’s car. “Deliberately firing a gun in the direction of

another person constitutes aggravated assault.” (Citations and punctuation omitted.)

Howard v. State, 288 Ga. 741, 743 (1) (707 SE2d 80) (2011).3 The jury was free to

      3
         Under OCGA § 16-5-21 (b) (2), “[a] person commits the offense of
aggravated assault when he or she assaults with a deadly weapon or with any object,
device, or instrument which, when used offensively against a person, is likely to or
actually does result in serious bodily injury.” See OCGA § 16-5-20 (a) (“A person
commits the offense of simple assault when he or she either: (1) Attempts to commit

                                           5
reject Williams’ version of the events, that is, that he was afraid of his fiancée and she

was trying to run over him, and the guilty verdicts show that the jury did not find his

firing of the gun at the occupied car to be justified. Mosley v. State, 300 Ga. at 524

(1); Glenn v. State, 296 Ga. at 511 (1).4 Accordingly, the trial court did not err in

determining that the State carried its burden of introducing evidence that disproved

Williams’ alleged justification for his use of deadly force and that the evidence was

sufficient to support his convictions for aggravated assault. Howard v. State, 288 Ga.

at 743 (1) (firing a gun toward a crowd in a parking lot); Bishop v. State, 266 Ga.

App. 129, 130 (1) (596 SE2d 674) (2004) (firing a gun into a truck occupied by two

people); Parker v. State, 234 Ga. App. 137, 138 (505 SE2d 784) (1998) (firing a gun

into a car occupied by four people).

       Judgment affirmed. Bethel and Gobeil, JJ., concur.

a violent injury to the person of another; or (2) Commits an act which places another
in reasonable apprehension of immediately receiving a violent injury.”).
       4
        See Jackson v. State, 329 Ga. App. 240, 242 (3), n. 4 (764 SE2d 569) (2014)
(A defendant may assert justification in any instance “which stands upon the same
footing of reason and justice as” the grounds specifically set out in the statute.) (citing
OCGA § 16-3-20 (6)).

                                            6


459 F.2d 6
Joseph T. ROZECKI, Jr., et al., Plaintiffs-Appellants,v.Charles W. GAUGHAN, Superintendent, et al., Defendants-Appellees.
No. 71-1378.
United States Court of Appeals,First Circuit.
Argued April 3, 1972.Decided April 26, 1972.

Robert A. Bell, Boston, Mass., for plaintiffs-appellants.
Bernard Manning, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Div., were on brief, for defendants-appellees.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.

1
On September 30, 1971, describing themselves as "patients" in the Treatment Center of, and confined in, the Massachusetts Correctional Institution at Bridgewater, hereafter Bridgewater, and as representatives of a class of persons there confined, either for observation, or by civil commitments pursuant to Mass. G.L. c. 123A, plaintiffs filed a complaint in the district court against Charles W. Gaughan, Superintendent of Bridgewater, and Harry L. Kozol, M.D., Director of Treatment.1  Jurisdiction was laid under 28 U.S.C. Sec. 1343(3) and equitable rights were claimed under the Eighth Amendment. 42 U.S.C. Sec. 1983.  The factual basis of the claim was "grossly inadequate heating," allegedly leading to physical ills and to severe personal discomfort.  The sole relief sought was an order directed to the defendants to supply adequate heat.

2
Defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted.  F.R.Civ.P. 12(b) (6).  On October 22 this motion came on for hearing before a magistrate, at which point defendants, apparently without objection, presented witnesses and testimony was taken.  No statement was made that the hearing was on the merits, or that the testimony was being taken as a transposition into a motion for summary judgment.  F.R. Civ.P. 12(b), 56.  After the hearing plaintiffs submitted affidavits supporting a comprehensive claim of frequent, if not continuous, totally insufficient heat in many portions of the buildings during cold weather, alternated by marked excessive heat in other portions, apparently due to lack of controls over the distribution of the steam.  The defendants filed a memorandum of counsel asserting additional "facts," but not under oath as required by Rule 56, bearing on their good faith and their attempts, so far unsuccessful, to improve the conditions.  Asserting, as they do here, that the inadequacy in the heating was unintentional, they contended that it could not constitute "cruel and unusual punishment" since, as the plaintiffs were patients rather than "inmates" (albeit involuntarily confined), the question of punishment was not involved.

3
In a memorandum dated November 9 the magistrate found that the Bridgewater heating system was old and incapable of regulation, or, at least, adequate regulation, and concluded as follows.

4
"It is clear that the authorities at Bridgewater are not purposely depriving the patients of heat at the Treatment Center; nor does it appear that there is any negligence on the part of the authorities in providing heat to the patients.  This being so, it does not appear that the patients have stated a claim upon which relief can be granted under the Civil Rights Act.  Granted, if the authorities at the Treatment Center purposely refused to provide heat for the patients at the Treatment Center it would be cruel and unusual punishment cognizable under the Eighth Amendment of the Constitution of the United States.  Hence, the patients would be entitled to relief under the Civil Rights Act.  However, such is not the case at the Treatment Center.  Here the authorities are doing all they can with what they have."

5
He ordered that the complaint be dismissed.  The district court noted its approval at the bottom, and the memorandum and order of dismissal was docketed on November 11.2

6
Defendants make the claim that the complaint was dismissed "on the merits."  In the light of the rapidity with which plaintiffs found themselves out of court it is hard to be sure what the court intended.  We do not pause to consider the irregularities, however, because it is apparent that, whatever was done, the court's conception of substantive law was basically at fault.  It cannot be because plaintiffs are confined prior to trial, as distinguished from imprisoned after conviction, that the cruelty, if any, of their treatment is not to be noticed.  Distinctions, if any are conceivable, should be the other way.  Nor can it be any excuse for continuous, as distinguished from temporary accidental, inhumane treatment, if there were such, that the representatives of the state were doing the best they could.

7
Whether personal good faith of the individual defendants could constitute a defense to monetary damages is not before us.  We can only say that it cannot be thought a defense against equitable relief.  Plaintiffs do not have to show that the authorities are "purposely depriving the patients of heat."  As the court said in Holt v. Sarver, E.D.Ark., 1970, 309 F.Supp. 362, 385, aff'd 8 Cir., 442 F.2d 304, "The obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed, upon what Respondents may actually be able to accomplish."  The result, not the specific intent, is what matters; the concern is with the "natural consequences" of action or inaction.  Monroe v. Pape, 1961, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492; Pierson v. Ray, 1967, 386 U.S. 547, 556, 87 S.Ct. 1213, 18 L.Ed.2d 288. "Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations."  Jackson v. Bishop, 8 Cir., 1968, 404 F.2d 571, 580 (Blackmun, J.).

8
Reversed.

1
 By amendment plaintiffs asked to add additional defendants, viz., the Commissioner of Corrections, and the Commissioner of Mental Health.  The action was dismissed without this motion being acted upon

2
 We do not know whether the district court had the document in its possession between November 9 and November 11, but we do know that it approved the magistrate's findings without notice, heard no argument, and could not even have had possession of a transcript on which the magistrate's findings were based, as the transcript was not prepared until later


                                                                                Filed
                                                                                Washington State
                                                                                Court of Appeals
                                                                                Division Two

                                                                                January 4, 2018

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 48948-1-II

                        Respondent,

         v.

    ANTHONY BRESTOFF,                                             PUBLISHED OPINION

                        Appellant.

        SUTTON, J. — Anthony Brestoff appeals the juvenile court’s denial of his motion to dismiss

a charge of possession of less than 40 grams of marijuana while under the age of 21 and the

resulting juvenile adjudication. He argues that RCW 13.40.070(3) 1 prohibited the State from

charging him with possession of marijuana because the State had already elected to modify his

community supervision following his suspension from school based on the same conduct. We

agree that because the State had already modified the community supervision based on certain

conduct, it could not also charge Brestoff for the same conduct. Accordingly, we reverse the

adjudication and remand to the juvenile court to dismiss the charge with prejudice.

1
 The legislature amended RCW 13.40.070 in 2017. Laws of 2017, ch. 292 § 2. The amendment
did not alter subsections that are relevant to this appeal. Accordingly, we cite to the current version
of the statute.
No. 48948-1-II

                                                FACTS

                 I. APRIL 2015 ADJUDICATION AND OCTOBER 2015 MODIFICATION

       In April 2015, Brestoff pleaded guilty in juvenile court to a charge of unlawful possession

of marijuana while under the age of 21. The conditions of supervision imposed following the April

2015 adjudication included a requirement that Brestoff “attend school without unexcused

absences, tardiness[,] or disciplinary referrals,” and a requirement that he “refrain from committing

new offenses.” Clerk’s Papers (CP) at 47-48.

       On October 8, while still under supervision, Brestoff was suspended from school. The

school’s notice of disciplinary action stated that the “reason for the action” was that Brestoff had

possessed “marijuana, a vaporizer[,] and vapes.” CP at 55. The notice of disciplinary action

further stated that Brestoff had violated the following district rules: “Exceptional Unsafe

Misconduct” and “Alcoholic Beverages and Drugs” and that “[t]his [was] the second occurrence

of this nature during [Brestoff’s] high school career.” CP at 55.

       Brestoff’s probation officer filed a violation report with the juvenile court. The violation

report stated that Brestoff had “violated [the] conditions of [his] supervision by: Fail[ing] to attend

school without unexcused absences or disciplinary referrals.” CP at 54. Brestoff’s probation

officer attached a copy of the school district’s notice of disciplinary action describing Brestoff’s

possession of marijuana, a vaporizer, and vapes. The violation report also noted that Brestoff had

been ordered to complete drug and alcohol treatment but that he had not finished treatment “due

to a relapse he had over the summer.” CP at 54. But the report did not state that Brestoff’s failure

to complete treatment was itself a violation.

                                                  2
No. 48948-1-II

       Based on the probation officer’s violation report, the State filed a petition to modify

Brestoff’s community supervision in his April 2015 disposition. At the modification hearing,

Brestoff admitted “[t]o the allegation that [he] failed to attend school without unexcused absences

disciplinary [sic] rules.” CP at 21. The underlying possession violation was not discussed at the

modification hearing.2 The juvenile court imposed four days of detention with credit for one day,

extended Brestoff’s probation, and required that he obtain a substance abuse evaluation and follow

all chemical dependency disposition alternative treatment recommendations.

                                   II. OCTOBER 2015 CHARGE

       In October, shortly after the juvenile court modified Brestoff’s April 2015 disposition, the

State charged Brestoff with unlawful possession of marijuana while under the age of 21.

       Brestoff moved to dismiss the charge, arguing that under RCW 13.40.070(3) the State was

required to choose between modifying his community supervision or filing a criminal charge based

on the same conduct, the marijuana possession at school. The State argued that the criminal charge

was proper because the modification of community supervision was based on Brestoff’s school

suspension and was independent of the marijuana possession. The juvenile court denied Brestoff’s

motion to dismiss. In its memorandum decision, the juvenile court stated that it found that the

probation violation was based on the school suspension, regardless of the reason for the

suspension.

2
  This information is drawn from the juvenile court’s memorandum opinion addressing Brestoff’s
motion to dismiss the later criminal charge. CP at 21. The transcript of the modification hearing
is not in our record. Brestoff does not dispute that this was a correct characterization of what
occurred at the hearing.

                                                3
No. 48948-1-II

       Following a stipulated facts bench trial, the juvenile court adjudicated Brestoff guilty of

possession of less than 40 grams of marijuana while under the age of 21. The juvenile court

imposed 6 months of community supervision and 16 hours of community service. It also ordered

Brestoff to comply with a curfew set by his probation officer, to participate in classes

recommended by his probation intake, to undergo an alcohol or drug dependency evaluation, to

refrain from using illegal drugs or alcohol, to be subject to random testing, and to reside in an

approved placement.

       Brestoff appeals the denial of his motion to dismiss.

                                            ANALYSIS

                                       I. LEGAL PRINCIPLES

         We review a trial court’s ruling on a motion to dismiss for manifest abuse of discretion.

State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). An abuse of discretion occurs “‘when

the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or for

untenable reasons.’” Rohrich, 149 Wn.2d at 654 (quoting State v. Blackwell, 120 Wn.2d 822, 830,

845 P.2d 1017 (1993)).

       RCW 13.40.070(3) provides that upon determining jurisdiction and probable cause, the

prosecutor

       shall either file an information in juvenile court or divert the case, as set forth in
       subsections (5), (6), and (8) of this section. . . . In lieu of filing an information or
       diverting an offense a prosecutor may file a motion to modify community
       supervision where such offense constitutes a violation of community supervision.

(Emphasis added.)

                                                  4
No. 48948-1-II

       In State v. Murrin, Division One of this court held that RCW 13.40.070’s use of the phrase

“in lieu of” unambiguously reflected the legislature’s intent to require the State to elect between

modifying community supervision or filing criminal charges when those actions are “based on the

same conduct.” 85 Wn. App. 754, 758-59, 934 P.2d 728 (1997). We adopted Murrin in State v.

Tran, 117 Wn. App. 126, 132, 69 P.3d 884 (2003).

         The parties do not dispute that the State must elect between a criminal charge and

modification of community supervision if the charge and modification are based on the same

conduct. Instead, the dispute here centers on whether the criminal charge for unlawful possession

of marijuana and the modification of community supervision were, in fact, “based on the same

conduct.” See Murrin, 85 Wn. App. at 759.

                                       II. SAME CONDUCT

         Brestoff argues that the modification and the criminal charge were based on “the same

underlying conduct.” Br. of Appellant at 7. The State responds that the modification and the

criminal charge were not based on the same conduct because the modification was based on

Brestoff’s suspension from school for failing to abide by the school district’s rules, not for

committing any new offenses, while the criminal charge was based on Brestoff’s unlawful

possession of marijuana. We agree with Brestoff.

                                                5
No. 48948-1-II

          Brestoff relies on Murrin and Tran. But neither of those cases is particularly instructive

because neither Murrin 3 nor Tran 4 squarely address the issue presented here—whether an act

qualifies as the “same conduct” if the conduct is not the direct cause of the modification and the

State does not allege a new law violation.

          Here, the State could have sought modification based on Brestoff’s failure to complete

drug treatment, but the fact that the State did not do so indicates that the State was using Brestoff’s

possession of marijuana to establish the violation. Under Murrin and Tran, the State cannot bring

charges if the juvenile has also been violated for committing a new crime based on the same

underlying conduct. The conduct underlying Brestoff’s violation was the same as the conduct that

was the basis of the criminal charge, unlawful possession of marijuana. Although the probation

officer’s violation report stated only that Brestoff had “violated [the] conditions of [his]

supervision by: Fail[ing] to attend school without unexcused absences or disciplinary referrals,”

3
  Murrin was violated for committing a new offense and adjudicated for taking a motor vehicle
without permission. Murrin, 85 Wn. App. at 756-57. The “new offense” violation included an
allegation that Murrin had taken a motor vehicle without permission. 85 Wn. App. at 756.
Although the court did not discuss the issue of whether Murrin’s committing the new offense
violation and the new charge of taking a motor vehicle without permission were based the same
conduct, the court treated them as the same conduct in its opinion. 85 Wn. App. at 759-60.
4
  Tran was violated for, among other things, a new offense based on driving without a license and
then was also charged with driving without a license. Tran, 17 Wn. App. at 129-30. Tran argued
that because the basis for his violation was the new offense, the State could not also charge him
with the new offense. 117 Wn. App. at 130. The only issue expressly addressed was “whether
RCW 13.40.070(3) prohibit[ed] the State from filing both a motion to modify a juvenile’s
community supervision and a criminal charge based the same criminal offense.” 117 Wn. App. at
131. After adopting the rationale in Murrin, we reversed the trial court’s denial of Tran’s motion
to dismiss. 117 Wn. App. at 134. Although we did not discuss whether the new offense violation
and the criminal charge were based on the same conduct—Tran’s driving without a license—this
conclusion was clearly implied. See 117 Wn. App. at 134.

                                                  6
No. 48948-1-II

CP at 54, the probation officer also attached documentation that showed that Brestoff’s absence

and disciplinary referral were based on his possession of marijuana.

           It is clear that Brestoff’s suspension from school was based on his conduct of possessing

marijuana. Absent the marijuana possession, the grounds for the modification would not have

existed.

                                    III. JUVENILE JUSTICE ACT

       Brestoff and amici5 also argue that because Brestoff’s suspension from school was based

on his possession of marijuana and the suspension was the basis of his modification, the

modification cannot be severed from his possession of marijuana, and imposing two different

punishments for the same conduct is not consistent with the intent of the Juvenile Justice Act of

1977 (JJA), chapter 13.40 RCW. We agree.

       The legislature enacted the JJA, as a comprehensive statutory scheme designed to

“respond[] to the needs to youthful offenders” due to their age while ensuring that juveniles are

“accountable for their offenses.” RCW 13.40.010(2); Laws of 1977, ch. 291, § 55(2). Juveniles

are not to be subjected to “adult criminal proceedings and punishments.” State v. S.J.C., 183

Wn.2d 408, 413, 352 P.3d 749 (2015). The intent of the JJA, includes, among other goals, (1)

protecting the public from criminal behavior, (2) holding juveniles accountable for their criminal

behavior, (3) providing punishment commensurate with the juvenile’s age, crime, and criminal

history, (4) providing rehabilitation and reintegration of juvenile offenders, and (5) providing for

necessary treatment, supervision and custody. RCW 13.40.010(2). The intent of the legislation is

5
  We granted the motion by amici curiae the American Civil Liberties Union and Team Child to
file briefs.

                                                 7
No. 48948-1-II

further evidenced by the requirement that the State must elect between imposing sanctions for

violations or bringing new charges thus indicating the legislature’s decision to balance these

interests. RCW 13.40.070(3).

         Here, the modification of Brestoff’s existing sentence due to his suspension and the new

adjudication were both based on Brestoff’s possession of marijuana. Accordingly, we reverse

Brestoff’s adjudication and remand to the juvenile court to dismiss the charge with prejudice.

                                                    SUTTON, J.
 We concur:

BJORGEN, C.J.

MELNICK, J.

                                                8


929 N.E.2d 795 (2010)
SUMMERS
v.
STATE.
Supreme Court of Indiana.
June 9, 2010.
Transfer granted.


917 So.2d 193 (2005)
FRANCO
v.
STATE.
No. SC05-1122.
Supreme Court of Florida.
November 17, 2005.
Decision without published opinion. Rev.denied.


537 U.S. 1043
IN RE HUTTON;
No. 02-7200.
Supreme Court of United States.
December 2, 2002.

1
ON PETITION FOR WRIT OF HABEAS CORPUS.

2
Petition for writ of habeas corpus denied.