State v. Gray

• Decision Date: 24 July 2006
• Docket Number: No. 55228-7-I.,55228-7-I.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Robert Earl GRAY, Appellant.

138 P.3d 1123

134 Wn. App. 547

STATE of Washington, Respondent, v. Robert Earl GRAY, Appellant.

No. 55228-7-I.

Court of Appeals of Washington, Division 1.

July 24, 2006.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

Rob Gray, Appearing Pro Se.

Deborah A. Dwyer, Prosecuting Atty King County, Catherine Marie McDowall, King County Prosecutor's Office, King Co. Pros. Office/Appellate Unit, Seattle, WA, for Respondent.

AGID, J.

¶ 1 Under RCW 26.50.110(5), a conviction for violating a no contact order (NCO) issued under certain statutes is a felony if the offender has at least two prior convictions for violating NCOs issued under those same statutes. A jury convicted Robert Gray of domestic violence violation of a no contact order and returned a special verdict finding that he had two prior convictions for violating NCOs. Gray appeals, arguing that the statutory authority for the previously-violated NCOs is an essential element of felony violation of an NCO that must be found by the jury. In State v. Carmen we ruled that the question whether the prior convictions qualify as predicate convictions under the statute is a threshold evidentiary determination properly left to the court.¹ The Supreme Court recently approved this holding in State v. Miller.² Because the statutory authority for the previously-violated NCOs dictates whether they are admissible, it is a question of law for the court in its gate-keeping capacity, not an essential element for the jury. In addition, Gray waived this issue by failing to object when the State offered proof of his prior convictions and the court admitted the evidence. We affirm.

FACTS

¶ 2 On the morning of March 18, 2004, Roy Hance was at a laundromat when he noticed a woman putting clothes in a washing machine while a man with a cane spoke into her ear. Hance then saw the man strike the woman in the leg with his cane hard enough that her leg buckled and she had to grab a laundry cart to keep from falling down. The man continued talking into her ear and hit her twice in the arm with the back of his hand. Hance could not hear what the man was saying. After waiting to see if the man was going to strike the woman again,³ Hance stepped outside and called 911.

¶ 3 When the police arrived Hance told them what happened and identified the man and woman. Police talked to both the man, Robert Earl Gray, and the woman, Vanessa Jenkins. Jenkins said she had a relationship with Gray, but she denied that he hit her and refused to give a statement. Gray said he had known Jenkins for a long time and that she had approached him at the laundry and asked to help him. After learning there was a current No Contact Order issued by King County Superior Court prohibiting Gray from contacting Jenkins, the police arrested Gray. The State charged him with domestic violence felony violation of a no contact order, alleging that he had two previous convictions for violating NCOs. Normally a gross misdemeanor,⁴ violation of an NCO is a felony if the defendant has two or more previous convictions for violations of NCOs issued under certain statutes.⁵

¶ 4 At trial, Hance testified to the events of March 18, 2004. The State introduced exhibit 6, a judgment and sentence order from Seattle Municipal Court, and exhibit 7, a Statement of Defendant on Plea of Guilty, as evidence of Gray's previous convictions for violating NCOs. Gray did not object to admission of these documents. After the State rested, Gray moved to dismiss the allegation that he had two prior convictions for violating NCOs issued under the listed statutes. He argued the State failed to offer proof that his Seattle Municipal Court conviction was based on an NCO issued under one of the requisite statutes. The court denied the motion, ruling that Carmen held that the statutory authority for the previously-violated NCOs is a question of law for the court, not an essential element the jury must find.

¶ 5 The jury convicted Gray of domestic violence violation of a no contact order and returned a special verdict finding that he had twice been previously convicted for violating NCOs. Before sentencing, Gray again moved to dismiss on the same basis as his previous motion. The trial court again denied the motion, but continued sentencing for 30 days to give Gray an opportunity to seek discretionary review before this court on the issue of whether Blakely⁶ affected Carmen. Gray did not seek discretionary review, and he was ultimately sentenced within the standard range for domestic violence felony violation of a no contact order. He now appeals.⁷

DISCUSSION

¶ 6 RCW 26.50.110(5) states:

A violation of a court order issued under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020....[⁸]

Gray argues that the statutory authority for the previously-violated NCOs is an essential element which must be found by the jury beyond a reasonable doubt.⁹ We held otherwise in Carmen, which the Supreme Court recently addressed in Miller.

¶ 7 Gray contends Miller does not affect this case, and we should disagree with Carmen based on the principles discussed in Blakely, as did Division Two of this court in State v. Arthur.¹⁰ Assuming we agree with him, he maintains insufficient evidence supports his conviction because the State failed to prove the statutory authority for one of the previously-violated NCOs and his sentence violated Blakely because it was based on facts not found by the jury. The State argues Miller essentially affirmed Carmen, and Gray's argument therefore does not raise a question of evidentiary sufficiency. Rather it presents a question of law, namely, whether the trial court properly ruled that the previously-violated NCOs were issued under statutes listed in RCW 26.50.110(5). It also asserts Gray waived any argument by failing to timely object to admission of his prior convictions.

I. Validity of State v. Carmen

¶ 8 In Carmen, the trial court refused to give the defendant's proposed "to-convict" instruction which included the statutory authority of the previously-violated NCOs as an element, ruling that the statutory authority for those convictions was a question of law for the court. At sentencing, the court reviewed municipal court files on the previous convictions and concluded they were based on violations of NCOs issued under listed statutes. We affirmed, holding that the jury found beyond a reasonable doubt the fact that elevated Carmen's crime to a felony, his two previous convictions for violation of an NCO, so Apprendi was not implicated.¹¹ We reasoned that

[b]ased on this finding, the charge could properly be sentenced as a felony, provided that the orders underlying the prior convictions were issued pursuant to one or more of the pertinent statutes. The only question determined by the trial court was whether the convictions relied upon by the jury actually were based on violations of protection orders issued under one of the statutes listed in RCW 26.50.110(5). This was properly a question of law for the court.[¹²]

We also said the trial court should have recognized that the requirement that the previously-violated NCOs be issued under one of the listed statutes "relates to the admissibility of the State's proof of the prior convictions, rather than to an essential element of the felony crime."¹³

¶ 9 In Arthur, the State charged the defendant with felony violation of an NCO and offered judgments and sentences showing prior convictions for violating an NCO, but those documents did not indicate the statutory authority under which they were issued. Division Two held there was insufficient evidence of the predicate convictions because the statutory authority for the previously-violated NCOs is an essential element of the felony offense. It expressly disagreed with Carmen, ruling that the predicate prior convictions, including the statutory authority for those convictions, are not Apprendi prior convictions because "the statute does not state that a conviction with the predicate offenses will be punished as a class `C' felony, but rather that it `is a class "C" felony.'"¹⁴ In contrast, Carmen treated the existence of the predicate convictions themselves as essential elements for the jury, but not the statutory authority for the NCOs underlying those convictions.¹⁵

¶ 10 In Miller, the defendant argued that the validity of the current NCO he allegedly violated is an element of felony violation of an NCO under RCW 26.50.110(5).¹⁶ Because RCW 26.50.110 does not expressly state that a "valid" order is an element of the crime of violating an NCO, the Supreme Court considered whether validity was an implied element. It noted Carmen's holding that the evaluation of an underlying NCO was a question of law for the court and cited Arthur as disagreeing with Carmen. It then stated that "Carmen also noted, properly, that `[t]he very relevancy of the prior convictions depended upon whether they qualified as predicate convictions under the statute. If they had not so qualified, the jury never should have been permitted to consider them.'"¹⁷

¶ 11 The court held the validity of the NCO is not an element of the crime. It explained that

issues relating to the validity of a court order (such as whether the court granting the order was authorized to do so, whether the order was adequate on its face, and whether the order complied with the underlying statutes) are uniquely within the province of the court. Collectively, we will refer to these issues as applying to the "applicability" of the order to the crime charged. An order is not applicable to the charged crime if it is not...