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State v. Finch

Court of Appeals of Washington, Division 2

May 20, 2014

The State of Washington, Petitioner,
v.
Dwight A. Finch, Respondent

Oral Argument February 19, 2014.

Appeal from Wahkiakum Superior Court. Docket No: 12-1-00007-2. Date filed: 03/20/2013. Judge signing: Honorable Michael J Sullivan.

Pamela B. Loginsky (of Washington Association of Prosecuting Attorneys ); and Daniel H. Bigelow, Prosecuting Attorney, and John G. Wetle, Deputy, for petitioner.

John A. Hays, for respondent.

Richard McCartan on behalf of the Washington State Department of Commerce, amicus curiae.

AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Linda CJ Lee, J.

OPINION

Page 149

Worswick, C.J.

[181 Wn.App. 389] ¶ 1 In this interlocutory appeal, which is linked with State v. A.W., 181 Wn.App. 400, 326 P.3d 737 (2014), the superior court ordered a juvenile to submit to polygraph testing.[1] A.W.,[2] a minor,[3] pleaded guilty to first [181 Wn.App. 390] degree child molestation and received a special sex offender disposition

Page 150

alternative (SSODA).[4] During treatment, A.W. disclosed that Dwight Finch had sexually assaulted him. The State charged Finch with first degree child rape and first degree child molestation, and the superior court, over the State's objection, ordered A.W. to submit to the polygraph test that the parties dispute on appeal. After we granted discretionary interlocutory review of that decision, Finch moved to intervene in A.W.'s juvenile disposition. Finch requested the juvenile court to order A.W. to take the disputed polygraph test to determine the truthfulness of his allegations against Finch, either by granting Finch's motion to intervene or on its own motion in the interest of justice. The juvenile court entered an order requiring A.W. to submit to the disputed polygraph test.

¶ 2 In this case, the State appeals the superior court order requiring A.W. to submit to the polygraph test ordered for the purposes of ascertaining the truthfulness of A.W.'s allegations against Finch. Additionally, the State asks us to remand this case to a different judge. Because the superior court exceeded its authority by ordering the disputed polygraph test, we hold that the superior court abused its discretion, and we reverse the polygraph order. To maintain the appearance of fairness, we remand this case to a different judge.

FACTS

A. State v. A.W. , with Finch as Intervenor

¶ 3 A.W. pleaded guilty to first degree child molestation. The juvenile court imposed a SSODA, which imposed conditions including:

[1.] [O]bey all ... laws.
[2.] Participate in weekly treatment.
[181 Wn.App. 391] [3.] Treatment compliance could be monitored every 6 months through a polygraph, if available.

Clerk's Papers (CP) (A.W.) at 18, 22. The juvenile court modified the polygraph test condition from the boiler plate language, which had stated, " Treatment compliance shall be monitored every 6 months through a polygraph." CP (A.W.) at 22.

¶ 4 While undergoing court ordered sex offender treatment, A.W. told his therapist that Finch committed sex acts against him.[5] A.W.'s therapist informed the State about A.W.'s disclosure, and the State charged Finch with first degree ...


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