State v. Brush

Summary

The Washington Supreme Court held that a jury instruction defining a "prolonged period of time" as more than a few weeks improperly commented on the evidence and relieved the State of part of its burden to prove an aggravated domestic violence sentencing factor. The court reversed the defendant’s exceptional sentence and remanded for possible jury consideration of the prolonged pattern of abuse. It also held that testimony concerning the victim’s statements during a stalking incident was properly admitted under the excited utterance and present sense impression exceptions to hearsay.

Holdings

1. The instruction stating that a "prolonged period of time" means more than a few weeks incorrectly interpreted the law, resolved a contested factual issue for the jury, and constituted an improper judicial comment on the evidence.
2. The trial court did not abuse its discretion by admitting most of the victim's daughter's testimony concerning her mother's statements during the stalking incident because the statements qualified as excited utterances or present sense impressions.

Questions Presented

1. Whether the pattern jury instruction defining "prolonged period of time" as more than a few weeks was an improper judicial comment on the evidence under article IV, section 16 of the Washington Constitution.
2. Whether the trial court abused its discretion by admitting the victim's daughter's testimony about statements made by the victim during a stalking incident under the excited-utterance and present-sense-impression exceptions to hearsay.

Disposition

reversed_and_remanded