State v. Chapman
| Decision Date | 27 April 2000 |
| Docket Number | No. 68416-2.,68416-2. |
| Citation | 998 P.2d 282,140 Wash.2d 436 |
| Parties | STATE of Washington, Petitioner, v. Gregory Wayne CHAPMAN, Respondent. |
| Court | Washington Supreme Court |
Ed Holm, Thurston County Prosecutor, Ms. Audrey Jean Broyles, Deputy, Olympia, for Petitioner.
Scott Steven Schwieger, Tacoma, for Respondent.
Petitioner State of Washington seeks review of a decision by the Court of Appeals, Division II, which reversed a Thurston County Superior Court conviction of Respondent Gregory Wayne Chapman for a class C felony violation of a domestic violence protection order under RCW 26.50.110(5). The Court of Appeals concluded Respondent was not subject to criminal prosecution for violation of the protection order which prohibited him from coming within one mile of Ms. Lisa Titchell's residence. We granted review. We reverse.
The questions presented in this case are: (1) whether a third violation of a domestic violence protection order, which prohibits Respondent from coming within one mile of a named person's residence, when Respondent has two prior convictions for violation of domestic violence no-contact orders, constitutes a class C felony under RCW 26.50.110(5) although Respondent did not enter the residence; and (2) whether there is a basis for sanctions against Petitioner State of Washington under RAP 18.9 for filing a petition for review which Respondent asserts was "unfounded in law and improper in purpose."
The facts in this case are not in dispute. On April 8, 1998, the Thurston County Superior Court, Commissioner Pro Tempore Jean E. Meyer, granted Ms. Lisa Titchell's petition for an order of protection against Respondent Gregory W. Chapman.1 The significant portion of the order provided that:
. . . .
Restrain respondent from entering or being within one mile (distance) of my [sic] [Lisa A Titchell's] residence, school, daycare or school of the minors ... SPCCC; Olympic View Elementary, Creative Discovery Day Care.[2]
. . . .
(Emphasis added.)
On June 7, 1998, Ms. Rosanna L. Cowan observed Respondent twice, while her mother, Ms. Gwen H. Abba, observed him three times on that day.3 On the second occasion, Ms. Cowan noticed Respondent standing in some bushes on the corner of Bicentennial and Third Avenue, across the street from Ms. Titchell's apartment complex in Lacey, Washington.4 Respondent saw Ms. Cowan and began walking towards her.5 Aware of the order of protection Ms. Titchell had obtained against Respondent, she was frightened and ran upstairs to inform her mother that he was outside.6
The mother, Ms. Abba, went downstairs, looked around the corner, and verified it was Respondent.7 She then went to tell Ms. Titchell Respondent was outside. Ms. Titchell at the time was with her two children, ages 4 and 11, in a park behind her apartment complex. After Ms. Abba's warning, Ms. Titchell walked around the building and observed Respondent behind a bush approximately 50 to 75 feet from her front door.8 Respondent saw her and "took off."9 She telephoned 911 to report Respondent's violation of the protection order.10 Thurston County Deputy Sheriff Gary Daurelio responded to the call. He apprehended Respondent about one-eighth of a mile from Ms. Titchell's apartment complex at approximately 3:30 p.m.11
On June 17, 1998, the Thurston County Prosecuting Attorney filed an information in the Thurston County Superior Court charging Respondent with one count of felony violation of a no-contact order under RCW 26.50.110(5) ().12 The case proceeded to a jury trial before the Honorable Gary R. Tabor on August 12, 1998. At the outset of trial, Respondent made a motion to dismiss, claiming he could not be held criminally liable under RCW 26.50.110 for violation of an order of protection that prohibited him from coming within one mile of the residence of Ms. Titchell and her children because the Superior Court had no authority to enter such an order.13 The trial court denied the motion.14
At trial, the parties stipulated that Respondent had been convicted of two previous violations of no-contact orders.15 At conclusion of the State's case, Respondent again moved to dismiss, arguing he did not commit a crime under RCW 26.50.110.16 The trial court denied the motion, stating "the provision that excluded the defendant from coming within one mile of [Ms. Titchell's] residence, a specifically named location, is clearly a restraint provision under [RCW] 26.50.060(1)(b) excluding the [R]espondent from the dwelling."17 The court reasoned that "excluding a person from a dwelling can include a reasonable area surrounding the dwelling."18
Respondent proposed two jury instructions consistent with his assertion that he committed no crime when he stood across the street from Ms. Titchell's residence. The trial court declined to give the instructions. The jury found Respondent "guilty" of a class C felony violation of a protection order as charged in the amended information.19 Respondent does not dispute the jury's finding that he violated the terms of the April 8, 1998 protection order by coming within one mile of Ms. Titchell's residence, but he does question the authority of the trial court to impose the one-mile restriction.20
On August 26, 1998, Respondent filed a notice of appeal to the Court of Appeals, Division II,21 followed by a motion to shorten time under RAP 18.8(a) on October 28, 1998.22 Court of Appeals Commissioner Donald G. Meath on November 9, 1998 granted the motion for accelerated review.23 The Court of Appeals on July 16, 1999, the Honorable Elaine Houghton writing, reversed Respondent's conviction.24 The court disagreed with the trial court's conclusion, relying upon a decision of the Court of Appeals, Division I, Jacques v. Sharp.25 The court stated:
Here, as in Jacques, the geographic scope of the order excludes [Respondent] Chapman from more than [Ms.] Titchell's residence, workplace, school or day care. RCW 26.50.060(1)(b) does not authorize a court to exclude a respondent from any particular distance from such sites. Because we cannot read words into a statute that are not there, see Henley v. Henley [ 95 Wash.App. 91, 974 P.2d 362 (1999)], [citation omitted] we conclude that [Respondent] was not subject to criminal prosecution for coming within one mile of [Lisa] Titchell's residence.26
Petitioner State of Washington then sought review by this Court, which we granted on December 2, 1999.
RCW 26.50.110 under the Domestic Violence Prevention Act provides that:
(4) Any assault that is a violation of an order issued under this chapter and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation of a protective order issued under this chapter that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.
(5) A violation of a court order issued under this chapter is a class C felony if the offender has at least two previous convictions for violating the provisions of a no-contact order issued under chapter 10.99 RCW, a domestic violence protection order issued under chapter 26.09, 26.10, or 26.26 RCW or this chapter, or any federal or out-of-state order that is comparable to a no-contact or protection order issued under Washington law. The previous convictions may involve the same victim or other victims specifically protected by the no-contact orders or protection orders the offender violated.
. . . .
(Emphasis added.)
RCW 26.50.060 provides in pertinent part that:
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