Andre Thompson, one of two defendants in the ongoing trial in Thurston County Superior Court, won a small victory Tuesday when the judge dismissed a third-degree theft charge against him.
Thompson and his brother, Bryson Chaplin, are on trial in a case that perhaps is most notable because they were shot by an Olympia police officer who was trying to apprehend them. The officer, Ryan Donald, has been called as a witness in their trial, testifying since May 3. He likely made his last appearance early Tuesday, although he could be recalled by the defense.
Chaplin and Thompson face assault charges resulting from an alleged attack on Donald, who was attempting to apprehend the brothers after responding to a report of thefts and an assault at a west Olympia supermarket.
Both men were shot during the altercation with Donald, who was cleared of wrongdoing by the Thurston County Prosecutor’s Office and the Olympia Police Department.
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Both men are charged with two counts of second-degree assault for the alleged attack on Donald. Chaplin faces one count of fourth-degree assault for an alleged assault on a Safeway employee.
The Prosecutor's Office also filed theft charges against Thompson and Chaplin in October. Chaplin pleaded guilty March 27 to three counts of third-degree theft.
Thompson still faced one count of third-degree theft until early Tuesday, when defense attorney Sunni Ko argued there was insufficient evidence for that charge. She made her argument during a “halftime motion,” which is allowed after the state, represented by Thurston County prosecuting attorneys Wayne Graham and Scott Jackson, rested their case.
During the halftime motion, the jury was not in the courtroom.
Ko argued there was no evidence that he aided or abetted Chaplin in the theft.
“There is insufficient evidence that he was acting as an accomplice,” she said.
Graham countered with a video from the west Olympia supermarket the two men entered after midnight May 21, 2015, saying there was a “reasonable inference” that Thompson acted as a lookout.
Ko countered that “knowledge and presence” is not the law.
“There has to be something more and there is nothing here,” she said.
Superior Court Judge Erik Price didn’t buy the state’s arguments, either.
“I can’t get there with this evidence,” he said after watching the video. “Count three shall be dismissed.”
More Donald testimony
Before the dismissal, Donald took the stand and the defense’s cross-examination proceeded in fits and starts after it was interrupted with objections and four side conferences between attorneys and the judge before noon.
Chaplin’s attorney, George Trejo, dressed in a purple suit, came out swinging and drew the most objections.
At one point, he held a photo of the Rev. Dr. Martin Luther King Jr. and showed it to Donald. It appeared to be a Facebook post depicting King holding ice cream, with the caption “I have a dreamsicle.”
Trejo asked Donald who it was and what he was known for. Donald replied that it was Martin Luther King, a civil rights activist.
Trejo reacted in horror that Donald hadn’t used his full title and merely described him as such.
“He’s the greatest civil rights hero in the history of the United States,” Trejo said.
He also asked Donald whether he thought the photo was disrespectful.
Donald said it was not disrespectful.
Donald dug in Tuesday and didn’t volunteer information to defense attorneys, sometimes to their frustration.
“You can’t remember a lot of things the defense asks you,” Trejo said at one point, leading him to question whether Donald was on medication that might impede his memory.
That led to an objection from Jackson. Donald also cited the law that protects health information and expressed disappointment at the line of questioning.