court of appeals

SPOKANE - The state Court of Appeals for Division 3 has rejected the appeal of a man convicted of unlawful imprisonment after an incident at the 2017 barter fair, but sent the case back to Okanogan County Superior Court to correct the sentence.

Christopher P. Robbins appealed his convictions for unlawful imprisonment and driving while suspended, arguing a new trial should have been granted because of prosecutorial misconduct and the absence of a defense witness.

The unpublished opinion, written by Judge Kevin Korsmo, was filed March 10. Judges Robert Lawrence-Berrey and Rebecca Pennell concurred.

According to court records, Robbins drove a female acquaintance to the barter fair near Tonasket and they slept in his car in a camping area at the fair. The victim testified that he touched her breast without permission and that she’d told him not to touch her.

After the two had dozed, he asked her to share his sleeping bag. When she showed no inclination to join him, he started driving the car up a hill away from people at the fair, according to court records.

“The victim repeatedly told him she did not want to go and to let her out; he kept driving,” said court records. “She could not open the car door while the vehicle was moving. She struck him and eventually stabbed him in the hand with a knife she carried in her bag.”

The car stopped and she fell out when the door opened. She then ran to a group of people and took cover in a nearby car, said court records.

“The incident was reported to fair security and they contacted the county sheriff’s office,” said court documents.

Robbins denied touching the victim or asking her to share the sleeping bag. He did ask her to have a sexual relationship, but she declined, court records said.

He allegedly said he looked for somewhere to let her out of his car.

On cross examination, the prosecutor asked about statements Robbins allegedly made to police - that he had met the victim the day before and that the pair had arrived at the fair about 8 a.m. the day of the incident. He denied making them.

He was shown a letter and asked if he had written it. He denied doing so, and the letter was not admitted into evidence, according to court records.

On the second day of trial, defense counsel told the court a witness, Michael Sackman, had not responded to his subpoena and was not in court. Sackman’s testimony was expected to impeach the victim’s testimony, court records said.

A material witness warrant was issued for Sackman and Judge Chris Culp told the defense the case would stay on schedule if Sackman was not present by the time the defense rested. Counsel did not challenge the schedule, records said.

Testimony from a deputy sheriff and the victim followed; the victim was not cross examined in court about her alleged conversation with Sackman.

The state rested its case around 11 a.m.; defense counsel presented the material witness warrant to the court for signature about 10 minutes later.

Robbins testified on his own behalf before and after the lunch recess, and the defense rested at the end of his testimony. Sackman did not appear, court records said. Defense counsel did not request a continuance, and the parties proceeded with closing arguments.

The prosecutor argued, without objection from the defense, that Robbins had told officers he and the victim had arrived at their fair at 8 a.m. and that he’d met the victim the day before.

The jury was unable to reach a verdict on the original charge of second-degree kidnapping, but did convict Robbins of the lesser included offense of unlawful imprisonment, plus driving while suspended.

Sackman was booked into the county jail the next morning, released, and re-booked on a different matter.

Robbins promptly moved for a new trial “due to an irregularity that denied him a fair trial,” said court records. The motion was denied.

“In the court’s view, the proposed impeachment testimony would not have changed the verdict and Sackman’s absence from trial was never explained,” said the appeals court.

Robbins was sentenced to the standard range of 55.5 months in prison on the unlawful imprisonment charge and 12 months of community custody upon release. The total sentence, by law, was not to exceed 60 months.

The appeals court determined Culp did not abuse his discretion responding to Sackman’s absence.

“Mr. Robbins initially argues that the court erred in denying a continuance,” the appeals court said. “The main problem with this argument is that he never requested a continuance. Counsel postulated early that more time might be needed to find Sackman, but never requested that the court recess or continue the trial to allow more time for the witness to be located.

“A trial judge cannot abuse discretion he was never asked to exercise.”

Robbins also argued the prosecutor erred in her closing argument by referencing evidence not produced at trial.

“While he correctly identifies the prosecutor’s mistake, his failure to object to the easily remediable error fails to establish prejudice,” the appeals court said.

Robbins did correctly argue that the combined term of incarceration and community supervision exceeded the statutory maximum sentence. The case was remanded for the trial court to correct the term of supervision to 4.5 months.

Robbins was was represented on appeal by Jennifer J. Sweigert of Nielsen Koch, Seattle. Okanogan County Prosecutor Arian Noma represented the state.

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