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State v. Latham

Court of Appeals of Washington, Division 3

May 3, 2018


          Fearing, J.

         We address a tragic story of violence toward a woman that ended with her survival against odds. Avery Latham appeals his convictions for two charges of attempted first degree murder on the basis that his two attempts to kill the same victim constituted only one crime. He also requests resentencing on the basis that the trial court erred in scoring his offender score. We hold that the trial court did not abuse its discretion in either ruling and affirm the convictions and sentence.


         The State prosecutes Avery Latham for attempted murder of Katelyn Diricco, among other crimes, under an inexplicable set of circumstances that include the miraculous endurance of Diricco. On December 27, 2014, Diricco resided in a Spokane abode with her boyfriend and other tenants. On this wintry night, Diricco returned home around 10:00 p.m., retired to her bedroom located in the basement, and entered bed to warm herself. While in the bed, Latham, who Diricco had never met, ambled downstairs, laid on the bed with her, introduced himself, and attempted to engage in pleasantries. Latham twice touched Diricco, and both times Diricco said no and removed his hand from her body. A nervous Diricco told Latham that he gave her "the heebees" and that she intended to relocate upstairs to sleep on the couch. Report of Proceedings (RP) at 216.

         Before Katelyn Diricco exited the bed, Avery Latham placed both hands around Diricco's throat and strangled her while repeatedly telling Diricco that she would stay with him. Latham's tight grasp silenced Diricco's attempts to scream. Within one minute and after exhaling a gasp of air, Diricco lost consciousness. To prevent Diricco from regaining cognizance, Latham removed his t-shirt and wrapped it around her neck. Latham then concluded Diricco was dead.

         Avery Latham placed Katelyn Diricco's body in a sleeping bag, carried the corpus upstairs, exited the residence, and placed Diricco inside a recycling bin located in the backyard of the dwelling. We do not know the activity of Latham during the next two hours. After this passage of time, he pushed the sepulcherian recycle bin through an alleyway for two blocks before dumping Diricco's body in the snow near a vacant home. Latham turned Diricco's body onto her back and twice slit her throat from ear to ear with a knife. He deemed Diricco already deceased but desired to guarantee the demise.

         Miraculously, Katelyn Diricco survived and awoke at an unidentified time later that night in the snow. A frantic Diricco looked for help and eyed porch lights shining at a nearby home. Diricco ran to the home. A woman answered her knock on the door to find Diricco crying, bleeding, and clenching her throat. The woman called 911, and emergency personnel ferried Diricco to the hospital.

         After discharge from the hospital, Katelyn Diricco identified, from a Facebook account, Avery Latham as the man who entered the basement. Police questioned Latham during a series of interviews. Latham confessed to the crime and took police to Diricco's residence and the alleyway, where officers recovered evidence, including the deadly knife.


         The State of Washington charged Avery Latham with two counts of attempted first degree murder, one with a deadly weapon enhancement, one count of second degree assault, and a count of first degree kidnapping. The State charged one count of attempted murder for Latham's strangling of Katelyn Diricco in the basement bedroom and the other count of attempted murder for slashing Diricco's throat in the alley. Latham entered a plea of not guilty by reason of insanity and waived his right to a jury trial.

         During trial, Avery Latham described hearing voices since achieving fifteen years of age. One voice, known as Quin, directed Latham to kill Katelyn Diricco. Latham testified that he did not wish to kill Diricco, but Quin employed Latham's hands to murder the woman. Quin coached him during the attempted killing. According to Latham, Quin also instructed Latham to dispose of the body and threatened to kill Latham if he did not comply. A frightened Latham believed Quin would slay him because Quin earlier choked Latham until Latham almost lost consciousness. Latham averred that, after Latham dumped Diricco's body in the alleyway, Quin expressed pleasure and commended Latham for a job well done. During trial, Latham testified that he slit Diricco's throat in the alleyway "just to make sure" of the death and to "'finish it.'" RP at 414.

         A defense psychiatrist diagnosed Avery Latham as schizophrenic and opined, during trial, that Latham did not understand the nature and quality of his acts. The State of Washington's expert disagreed and deemed Latham a malingerer. At the conclusion of testimony, the trial court concluded that, regardless of whether Latham suffered from schizophrenia, he understood the nature and quality of his acts because he understood their outcome. The trial court thus rejected the insanity defense and convicted Latham on all charged accounts.

         At sentencing, Avery Latham requested that the assault conviction and one attempted murder conviction be vacated because the multiple convictions violated double jeopardy. Latham also contended that all four convictions comprised the same criminal conduct and should be scored as a single crime. The State and the trial court agreed that the second degree assault conviction merged with the attempted murder conviction since both relied on the same act of strangulation. The trial court, however, denied the request to merge the two attempted murder counts because of different methods utilized in the two attempts. The court also denied scoring the two attempted murder counts as the same criminal conduct since the attempts did not occur at the same time or place or with the same intent.

         The trial court imposed a standard range consecutive sentence of 190 months' confinement for each attempted murder count, 55 months' confinement for the kidnapping, and 24 months' confinement for the deadly weapon enhancement. The ...

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