State v. Bunker

• Decision Date: 05 May 2008
• Docket Number: No. 59536-9-I.,No. 59322-6-I.,59322-6-I.,59536-9-I.
• Citation: 144 Wn. App. 407,183 P.3d 1086
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Leo B. BUNKER, Appellant. State of Washington, Respondent, v. Donald Carl Williams, Appellant.

183 P.3d 1086

144 Wn. App. 407

STATE of Washington, Respondent, v. Leo B. BUNKER, Appellant.

State of Washington, Respondent, v. Donald Carl Williams, Appellant.

No. 59322-6-I.

No. 59536-9-I.

Court of Appeals of Washington, Division 1.

May 5, 2008.

Christopher Gibson, Attorney at Law, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Leo Britton Bunker, Appearing Pro Se.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Randi J. Austell, Attorney at Law, King Co. Pros. Attorney, Seattle, WA, for Respondent.

DWYER, J.

¶ 1 In these consolidated cases, Leo Bunker and Donald Williams appeal their felony convictions for violating domestic violence no-contact orders. They do not deny that they violated the terms of their no-contact orders. Rather, they contend that violating the terms of a no-contact order, by itself, was not a crime in Washington at the time they were charged and convicted. According to Bunker and Williams, this is so because the statute criminalizing domestic violence no-contact order violations, RCW 26.50.110, as it was written when they were charged, only imposed criminal penalties in certain circumstances — namely, when the violator assaults or threatens the victim, or enters a prohibited area named in the order, or if the violated order was issued by a foreign jurisdiction that criminalizes no-contact violations. Bunker and Williams contend, and the State does not debate, that none of these circumstances were either alleged in Bunker's and Williams's charging documents, included as necessary elements of the charged offense in the "to convict" jury instructions, or proved at trial. The State responds, instead, that Bunker and Williams read the statute incorrectly. The State contends that both principles of statutory construction and recent amendments to RCW 26.50.110 demonstrate that the legislature has always intended to impose criminal penalties for domestic violence no-contact order violations. We agree with the State that RCW 26.50.110 criminalized Bunker's and Williams's conduct. Accordingly, we affirm their convictions. We hold, however, that the trial court abused its discretion in sentencing Bunker; thus, we remand his cause for resentencing.

Facts

Bunker

¶ 2 Washington State Patrol Trooper Melvin Hurd pulled Bunker over for speeding in his truck tractor. After Bunker provided Hurd with his driver's license, registration, and other information, Hurd checked his identity against police records. The records check showed that Bunker was subject to two court orders preventing him from contacting Lillian Hiatt. A female passenger was accompanying Bunker in the cab of his truck tractor.

¶ 3 Hurd radioed a request for assistance. Washington State Patrol Troopers James MacGregor and Michael Faulk responded. MacGregor began talking to the passenger, asking her for her name and date of birth. He then had the State Patrol's communications office do a computer search for the name she provided, which returned no results. MacGregor asked her for additional information. She provided him with two other names, neither of which returned results.

¶ 4 Faulk then took a turn speaking to the passenger, calling her "Lillian." She nervously denied that her name was Lillian. When Faulk asked her who she was, she responded that she was Bunker's wife. Faulk then took her into custody and transported her to the Auburn Police Department, where fingerprint analysis showed that she was Lillian Hiatt. When Faulk radioed this information to Hurd and MacGregor, they arrested Bunker for violating the no-contact orders. Bunker was charged in an amended information stating simply that he "did know of and willfully violated the terms of a court order issued on December 16, 2002 by the Clark County Superior Court pursuant to RCW chapter 26.50, for the protection of Lillian G. Hiatt." The information alleged that this violation was contrary to RCW 26.50.110 and was a felony based on Bunker's prior convictions for violating no-contact orders.

¶ 5 A jury found Bunker guilty of violating the terms of the no-contact order, premised on Hiatt's presence in his truck tractor cab. The trial court sentenced Bunker to 33 months imprisonment. Bunker requested that the trial court impose an exceptional mitigated sentence based on the mitigating factor that Hiatt had been a "willing participant in the commission of the offense." The trial court declined to consider imposing an exceptional mitigated sentence, however, stating that "[u]nfortunately, under the statute and the case law I don't think I have the discretion to impose an exceptional sentence downward. If I did have that discretion, I would probably do it."

Williams

¶ 6 A no-contact order barred Williams from coming within 500 feet of Linda Poole's home or work. The order also prohibited Williams from contacting Poole in any way except to telephone her for the exclusive purpose of arranging visits between Williams and the former couple's five-year-old daughter, Carlee.

¶ 7 Williams called Poole on her cellular telephone from her home while she was in the checkout line at the grocery store, asking her where she was. He called her a "slut" and a "whore," and accused her of "sleeping with her customers."

¶ 8 Williams was still at Poole's home when she returned from the grocery store. He was angry and intoxicated. When she told him that she was going to pick Carlee up from day care, he attempted to take her car keys from her. He grabbed her wrist, but she yanked it free. She fled out the door, got into her truck, locked the door, and drove to Carlee's day care.

¶ 9 Williams called Poole two or three times while she was driving. He called again while she was in the driveway of Carlee's day care provider, Cathy Ramish. He yelled at Poole that if she did not return immediately, he was going to tear her computer and telephone out of the wall and take her truck, her tools, and her dog.

¶ 10 Ramish saw Poole in her driveway and came outside. She could hear screaming coming from Poole's telephone from four or five feet away. As Ramish came closer, she recognized Williams's voice, and could see that the face of Poole's telephone said that the call was coming from "home." Ramish called 911, and police officers came to the daycare to escort Poole and Carlee home. Williams had left by the time they arrived.

¶ 11 Later that evening, after Poole and Carlee had gone upstairs to eat dinner, Poole returned downstairs to retrieve something for Carlee. As Poole came down the stairs, she saw through the window that Williams was standing on the front porch. He was rattling the door knob and attempting to open the door. The door was locked, however, and Williams could not get inside. Poole could tell that he was even more intoxicated than he had been earlier, and told him to go away. After he left, Poole called 911 to report the incident.

¶ 12 The King County Prosecutor charged Williams with three counts of violating a domestic violence no-contact order pursuant to RCW 26.50.110. These were felony charges due to Williams's prior no-contact order violations. After stipulating that he had twice previously violated domestic violence no-contact orders, Williams was tried before a jury. Both Williams's charging documents and the court's instructions to the jury alleged only that Williams had violated the terms of the no-contact order. The jury found him guilty as charged. The trial court imposed concurrent standard range sentences.

Former RCW 26.50.110

¶ 13 Bunker and Williams both contend that their charging documents and the to-convict jury instructions given in their trials were inadequate as a matter of law. They contend that this is so because both the charging documents and the jury instructions omitted essential elements of the crime of violating a no-contact order. At the root of this contention is Bunker and Williams's assertion that the statute criminalizing no-contact order violations, RCW 26.50.110 (as it was written when they were charged and convicted), only imposes criminal penalties for certain types of violations — specifically, those violations that involve assaults of or threats to the victim, that consist of entering a prohibited place named in the order, or are criminal violations of foreign no-contact orders that occur within Washington state. According to Bunker and Williams, because none of these circumstances were pleaded or proved by the State, both of their convictions must be reversed. Because the legislature has always intended, however, that RCW 26.50.110 impose criminal penalties for no-contact order violations like those committed by Bunker and Williams, we reject their argument to the contrary.¹

¶ 14 The statute at issue, as it was in effect when it was applied to Bunker and Williams, is unfortunately not a virtuosic specimen of legislative drafting:

Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.

Former RCW 26.50.110(1) (2006).

¶ 15 RCW 10.31.100(2)(a), referenced in the above-quoted section, mandates that the police will arrest any person suspected of violating a Washington domestic violence no-contact or protection order, but only if they have probable cause to believe that the restrained person has threatened or...