State v. Carter
| Decision Date | 19 July 2010 |
| Docket Number | 62916-6-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SYLVESTER L. CARTER, JR., Appellant. |
UNPUBLISHED OPINION
Sylvester L. Carter, Jr. appeals from the judgment entered on a jury's verdict finding him guilty of felony violation of a court order. On appeal, Carter claims that there was insufficient evidence introduced at trial to support his conviction, that the information filed as a charging document was incomplete, and that he was denied the effective assistance of counsel. Finding no error, we affirm.
On November 21, 2006, the King County District Court issued a domestic violence no-contact order pursuant to RCW 10.99.050[1] (the 2006 no-contact order), prohibiting Sylvester L. Carter, Jr. from contacting his ex-girlfriend Michelle Baker, or coming within 500 feet of her or of her residence. The terms of the 2006 no-contact order specified that it would remain in effect until November 21, 2008 and that Carter had sole responsibility to avoid violating the order's provisions. Carter signed the order.
On the night of July 8, 2008, Carter drove his car to Baker's residence, which was located in the city of Bellevue, and parked in front of Baker's home. When Carter arrived Baker was standing in front of her residence talking to her friend, Richard David. Carter contacted Baker from his vehicle, spoke to her briefly from his car after she approached him, and then departed. After Carter had driven away from Baker's residence, David reported the incident to Bellevue Police Officer Casey Hiam. Later that night Officer Hiam interviewed Baker at her residence.
The following day, Bellevue Police Detective Sarah Finkel continued the investigation begun by Officer Hiam. She placed a telephone call to Carter, who admitted during the conversation to having driven to Baker's residence on the previous night but claimed he did so only to check on the whereabouts of his daughter who had run away from his home. Finkel subsequently arrested Carter.
By amended information, the State charged Carter with one count of "Domestic Violence Felony Violation of a Court Order " in violation of RCW 26.50.110(1) and (5).[2] In the charging document, the State specifically alleged that, on July 8, 2008, Carter violated the 2006 no-contact order issued "pursuant to RCW chapter 10.99, for the protection of Michelle Baker." By itself, violation of a no-contact order issued under certain statutes—chapters 7.90, 9.94A, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW—is a gross misdemeanor. See RCW 26.50.110(1). However, pursuant to RCW 26.50.110(5) violation of a no-contact order issued under those same statutes constitutes a class C felony if the offender has at least two previous convictions for violating no-contact orders issued under the same listed statutes (previous qualifying convictions). Thus, an individual who repeatedly violates no-contact orders issued under the listed statutes may be subject to prosecution for a felony offense. In the amended information filed herein, the State alleged that Carter had at least two previous qualifying convictions.[3]
At trial, the State introduced multiple exhibits into evidence. To establish that Carter had violated the 2006 no-contact order, it introduced the no-contact order itself. To establish that Carter had two previous qualifying convictions, the State introduced two judgment and sentence forms: (1) a November 3, 1997 judgment and sentence form (the 1997 form) entered by the King County Superior Court and (2) a September 16, 1996 judgment and sentence form (the 1996 form), which was also entered by the King County Superior Court. Carter did not object to the admissibility of these three exhibits.[4] Similarly, he did not seek to redact any information contained therein. The trial court admitted the exhibits into evidence.
The 1997 form indicates that Carter was convicted of "FELONY VIOLATION OF A COURT ORDER" and cites to RCW 10.99.050 as the statutory basis for the conviction. As explained above, a conviction of violating a no-contact order issued under RCW 10.99.050 constitutes a conviction that could qualify an offender for felony prosecution. The 1997 form also contains a table summarizing Carter's criminal history. The table includes the following notations: (a) a 1991 conviction for "Robbery 1°"; (b) a 1991 conviction for "VUCSA—Del."; (c) a 1991 conviction for "Theft 2°"; and (d) a 1996 conviction for "FVNCO." Each of these notations is accompanied by a corresponding cause number.
The 1996 form indicates that Carter was convicted of "VIOLATION OF POST SENTENCE COURT ORDER" and cites to RCW 9A.36.041 as the statutory basis for the conviction. That statutory provision pertains to the offense of assault in the fourth degree.[5] A conviction for violating RCW 9A.36.041 does not constitute a previous conviction that could qualify an individual for prosecution of the enhanced crime of felony violation of a no-contact order pursuant to RCW 26.50.110(5). The 1996 form also indicates that the trial court had dismissed a second, unspecified count. It does not contain any other description of the crime of conviction. However, the 1996 form does bear the same cause number as that listed for the 1996 "FVNCO" conviction listed in the criminal history table included in the 1997 form.
The State called three witnesses at trial: Richard David, Officer Hiam, and Detective Finkel. David testified that, on July 8, 2008, he was present at Baker's residence and observed Carter park his car within 500 feet of Baker's residence and contact her. Officer Hiam testified that he had interviewed Baker at her residence on the night of July 8 after receiving a complaint that Carter had contacted her and that she had appeared nervous and upset. Detective Finkel testified that Carter admitted to her in a telephone conversation that he had in fact driven to Baker's residence on July 8. None of the State's witnesses testified about the 1996 or 1997 forms.
After the State presented its case in chief, Carter, through his attorney, moved to dismiss the allegation that he had at least two previous qualifying convictions, contending that insufficient evidence had been introduced to prove the existence thereof. Specifically, Carter contended that the 1996 form was insufficient to establish that he had been previously convicted of violating a no-contact order as required to sustain a felony charge under RCW 26.50.110(5). He maintained that, based on the face of the 1996 form, it was not possible to tell whether he had a qualifying conviction because the form referred to a "violation of the post-sentence court order, " cited to the statutory provision for fourth degree assault, and referred to an unidentified additional count that had been dismissed. In light of that ambiguity, Carter argued, a rational trier of fact could not reasonably infer from the 1996 form that he had a previous qualifying conviction.
In response to Carter's motion, the prosecutor represented that other documents related to the 1996 cause but not introduced into evidence indicated that Carter had in fact pleaded guilty to the charge of felony violation of a no-contact order. The prosecutor represented that those documents included a plea agreement form, a presentence report, and a statement of defendant on plea of guilty. However, the State did not move to reopen its case in chief to introduce those documents into evidence or otherwise submit them to the trial court for review. In addition, the trial court expressly stated that it did not review those documents related to the 1996 cause. Carter's attorney acknowledged that the prosecutor had shown him certain documents related to the 1996 prosecution but maintained that the 1996 judgment and sentence form was, by itself, unclear as to the crime of conviction.
The trial court denied Carter's motion. In explaining the reason for its ruling, the trial court stated that, in its view, Carter had "merged" two motions into one—one pertaining to the sufficiency of the evidence and the other pertaining to the legal question of whether the 1996 judgment and sentence form was applicable to the charged felony count and, hence, admissible. The trial court stated that Carter should have brought the latter motion before the exhibits were admitted and that, by failing to do so, he had effectively waived any challenge to the sufficiency of the 1996 judgment and sentence form to prove a previous qualifying conviction. The trial court further stated that, notwithstanding Carter's failure to make a pretrial motion seeking to exclude from evidence the 1996 judgment and sentence form and despite the form's ambiguity, the form was, nonetheless, sufficient to support a finding that Carter had a previous qualifying conviction.
After the trial court denied Carter's motion, presentation of the evidence resumed. The only witness to testify in Carter's defense was Carter himself. He admitted that he had driven to Baker's house on July 8 and spoken to her outside of her residence. He also testified that he had signed the 2006 no-contact order when it was issued and was aware of the restrictions that it had imposed but thought that it had expired as of July 8. He also confirmed that he had admitted to Detective Finkel on the telephone that he had visited Baker's residence.
Despite his admissions, Carter maintained that he did not intend to violate the no-contact order. Carter testified that he had driven to Baker's house only to confirm that his 15-year-old daughter was living with Baker. According to Carter's testimony, his daughter, who had been living with him, had run away from his apartment approximately a week and a half before the July 8 incident....
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