State Of Washington, V. Navin Avery Milko
505 P.3d 1251
| Wash. Ct. App. | 2022Background:
- In 2018 Milko arranged meetings with paid escorts at Puyallup houses, brandished a knife, and assaulted five women; he raped one victim (BP), whose rape kit matched his DNA.
- The State charged Milko with 12 felonies across five incidents; he had prior Florida convictions for similar crimes (rape of two escorts).
- Trial was set for July 2020 during the COVID-19 emergency; two out-of-state witnesses (sexual assault nurse Jenny Biddulph in Virginia and victim J.A. in North Carolina) said flying would pose significant COVID-19 health risks.
- The trial court held an evidentiary hearing, tested video/ audio technology, and entered detailed findings that (a) remote testimony was necessary to further public health policy and (b) the technology preserved reliability and the functional equivalent of in-person testimony.
- Biddulph and J.A. testified by two-way video; the jury convicted Milko of most charges; on appeal he challenged the video testimony under the Confrontation Clause and, in a SAG, sufficiency for one attempted rape and his exceptional indeterminate sentence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two out-of-state witnesses could testify by two-way video without violating the Confrontation Clause (federal and state) | State: Video was necessary to further the important public policy of preventing COVID-19 spread; court made case-specific findings and technology ensured reliability | Milko: Face-to-face confrontation is preferred; necessity was speculative and did not justify dispensing with in-person testimony | Court: Affirmed; applying Maryland v. Craig/Foster, held necessity satisfied by detailed, case-specific findings of significant health risk and reliability was assured |
| Sufficiency of evidence for attempted first-degree rape of AQ | State: Circumstantial and direct evidence (same address, similar conduct as BP, victim ID at trial) supported a substantial step toward rape | Milko: AQ denied he stated intent to rape and initially misidentified in photomontage; evidence insufficient | Court: Affirmed; evidence and inferences were sufficient for a rational juror to find a substantial step and identity |
| Validity of exceptional indeterminate sentence | State: Statutes permit indeterminate sentences for first-degree rape and allow exceptional sentences pursuant to RCW 9.94A.535; court’s written findings and counsel acknowledgments suffice | Milko: Court failed to explicitly state sentence was indeterminate or lacked authority to impose indeterminate exceptional sentence | Court: Affirmed; court’s findings and statutory framework permitted an exceptional indeterminate sentence |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (1990) (face-to-face confrontation is preferred but not absolute; two-prong test: necessity to further important public policy and assured reliability)
- State v. Foster, 135 Wn.2d 441 (1998) (adopts Craig test under Washington Constitution; requires case-specific findings)
- State v. Sweidan, 13 Wn. App. 2d 53 (2020) (applies Craig test to out-of-state witness and discusses necessity scope)
- Horn v. Quarterman, 508 F.3d 306 (5th Cir. 2007) (two-way video testimony upheld where witness’s serious medical condition made travel unsafe)
- Bush v. State, 193 P.3d 203 (Wyo. 2008) (video testimony necessary to prevent further harm to medically fragile witness)
- State v. Cardenas-Flores, 189 Wn.2d 243 (2017) (standard for sufficiency of evidence review)
- State v. Davila, 184 Wn.2d 55 (2015) (mixed question standard for review of factual findings/legal conclusions)