State v. Melland, 76617-1-I

CourtCourt of Appeals of Washington
Citation452 P.3d 562
Decision Date19 August 2019
Docket NumberNo. 76617-1-I,76617-1-I
Parties The STATE of Washington, Respondent, v. Tristan James MELLAND, Appellant.

452 P.3d 562

The STATE of Washington, Respondent,
v.
Tristan James MELLAND, Appellant.

No. 76617-1-I

Court of Appeals of Washington, Division 1.

FILED: August 19, 2019


Richard Wayne Lechich, Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610 Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Ian Ith, King County Prosecuting Attorney's Office, 516 3rd Ave. Seattle, WA, 98104-2385, for Respondent.

PUBLISHED OPINION

Schindler, J.

452 P.3d 565

¶1 The State charged Tristan James Melland with assault in the second degree of D.J. and felony violation of a court order prohibiting contact with D.J. The jury convicted Melland of assault in the second degree and the lesser included offense of misdemeanor violation of a no-contact order. Melland seeks reversal, arguing sufficient evidence does not support the jury finding he committed the crimes. Melland also argues sufficient evidence does not support the jury finding an essential element of assault in the second degree, reckless infliction of substantial bodily harm; and police officer testimony violated his right to confrontation. In the alternative, Melland seeks dismissal without prejudice of the misdemeanor violation of a no-contact order conviction on the grounds that the charging document is deficient. We conclude sufficient evidence supports the jury finding Melland committed the crimes but sufficient evidence does not support the jury finding Melland recklessly inflicted substantial bodily harm. We conclude police officer testimony did not violate Melland's right to confrontation and the charging document contains the essential elements of the lesser included offense of misdemeanor violation of a no-contact order. Accordingly, we reverse the assault in the second degree conviction and affirm the misdemeanor violation of a no-contact order conviction.

FACTS

¶2 In 2016, 29-year-old Tristan James Melland and 31-year-old D.J. lived together in her apartment in Queen Anne. D.J. worked as a bartender.

¶3 On March 31, 2016, D.J. experienced severe vomiting and nausea after she stopped drinking alcohol. The Virginia Mason Hospital records state, " ‘[R]elationship stressors led to excessive alcohol intake.’ " A Virginia Mason doctor diagnosed D.J. with alcohol withdrawal and prescribed Librium and potassium chloride.

¶4 On April 4, 2016, the Seattle Municipal Court (SMC) entered a domestic violence no-contact order in City of Seattle v. Tristan J. Melland, case no. 614080. The no-contact order prohibited Melland from having any contact with D.J. "directly" or "indirectly." Melland was present. Melland signed and acknowledged receipt of a copy of the no-contact order. The no-contact order expired on April 4, 2018. The order states, in pertinent part:

A. do not cause, attempt, or threaten to cause bodily injury to, assault, sexually assault, harass, stalk, or keep under surveillance the protected person.

B. do not contact the protected person directly, indirectly, in person or through others, by phone, mail, electronic or any other means, except for mailing or service of process of court documents through a third party, or contact by the defendant's lawyers.

C. do not knowingly enter, remain, or come within 500 [feet] ... of the protected person's residence, school, workplace, [or] ... anywhere protected party is.

The order warns Melland, "You have the sole responsibility to avoid or refrain from violating the order's provisions," and violation of the terms of the no-contact order "is a criminal offense."

¶5 On June 11, 2016, Seattle Police Officer Kevin Stewart responded to a June 10 911 call reporting a "domestic violence assault incident" and "possible violation of a no-contact order." When Officer Stewart arrived at the apartment, D.J. was "visibly shaking" and "crying," "complaining of an injury," and holding her hand. Officer Stewart noticed her right pinky finger and ring finger were "discolored and bruised." Officer Stewart took

452 P.3d 566

photographs of her right hand and her two hands side-by-side. Officer Stewart checked the police database for a no-contact order. There was a valid no-contact order in effect that prohibited Melland from having any contact with D.J.

¶6 On June 15, 2016, the State charged Melland with domestic violence felony violation of a no-contact order in violation of RCW 26.50.110(1) and (4) and interfering with domestic violence reporting in violation of RCW 9A.36.150. The information alleged Melland committed the crimes against a family or household member.

¶7 On June 26, D.J. experienced severe nausea and abdominal pain. D.J. told the Virginia Mason Hospital emergency room physician Dr. David Frank that she " ‘managed to stay away from alcohol until two weeks ago when, again, relationship stressors (boyfriend's trial for domestic dispute) led’ " her to " ‘[e]ngage[ ] in a one-week long binge where she was drinking a fifth [of a gallon] of bourbon per day as a way of coping with recent stressors in her life.’ " Dr. Frank noted D.J. " ‘lives in Queen Anne with boyfriend of six years who is abusive’ " but " ‘is no longer living with her.’ " Dr. Frank diagnosed alcohol withdrawal and admitted D.J. to the hospital. Dr. Frank ordered an X-ray of her right hand. X-rays showed a " ‘nondisplaced fracture’ " of her right pinky finger.

¶8 On June 29, Detective Jeffrey Page interviewed D.J. at Virginia Mason. Detective Page took photographs of her right hand "splinted and wrapped" in a bandage and "unwrapped" to show the "bruising to [her] right pinky finger."

¶9 A Virginia Mason social worker met with D.J. before discharge from the hospital on July 1 to discuss "concerns of domestic violence." D.J. told the social worker that " ‘following a fight with her boyfriend about a week or so ago, she was feeling lonely and consumed significantly more alcohol than usual.’ "

¶10 On July 14, 2016, Virginia Mason emergency room physician Dr. Huma Memon admitted D.J. for alcohol withdrawal. D.J. told Dr. Memon she drank " ‘about a fifth-and-a-half of bourbon the night before.’ "

¶11 Before her discharge the next day, social worker Janelle Moore met with D.J. because doctors "had raised the concern that there was a history of domestic violence, and they wanted to make sure that the patient had a safe place to go." D.J. expressed "concern about her ex-boyfriend with DV[1 ] history, and a concern about her safety." D. J. told Moore her "ex-boyfriend was violating a protection order that prevents him from being near her." D.J. said she planned to "get her things from her apartment, which she indicated was her own private lease but where [Melland] had also lived and had a key." D.J. told Moore her "lease was up at the end of July and she wouldn't be returning there."

¶12 On November 10, 2016, the State filed an amended information to add a charge of domestic violence assault in the second degree in violation of RCW 9A.36.021 (1)(a). The amended information alleged that "on or about June 10, 2016," Melland "did intentionally assault another and thereby recklessly inflict substantial bodily harm upon [D.J.]" in violation of RCW 9A.36.021(1)(a).

¶13 Before trial, the court ruled the statements D.J. made to the Virginia Mason health care providers for purposes of medical diagnosis or treatment were admissible under ER 803(a)(4).2 The court granted the defense motion to redact other statements in the medical records, such as references to Melland being in "jail." The court also granted the defense motion to redact the findings of fact in the certified copy of the April 4, 2016 SMC no-contact order.

452 P.3d 567

¶14 The prosecutor conceded the 911 call and the statements D.J. made to the police were not admissible if she did not testify. The prosecutor told the court that according to the victim advocate, D.J. "did not indicate whether she was going to show up or not," and the victim advocate "expressed low confidence to me that [D.J.] would show up. So at this point, unless something changes, it's my understanding she's not going to show up."

¶15 In opening statement, the prosecutor told the jury, "I don't know if [D.J.]'s going to testify and if she does, I don't know what she's going to say; but I want to talk about what I do know the evidence will show and what you can expect to see in this case." The prosecutor asserted Melland committed the charged crimes of interfering with domestic violence reporting, felony violation a no-contact order, and assault in the second degree. The prosecutor displayed the redacted April 4, 2016 no-contact order and told the jury:

You can see that the listed defendant is Tristan Melland, the defendant here today. You can see that the no-contact order expires on April 4, 2018. We all know we haven't reached that date yet, so it's still applicable.

We know that it protects [D.J]; it lists her by name, birth date, gender, and race. We know that it identifies the defendant by name, gender, birth date, and race. But it also describes at the bottom of this page, what the defendant is not allowed to do. Let's zoom in on that.

There's a number of very important provisions that are at
...

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16 cases
  • State v. Burge
    • United States
    • Court of Appeals of Washington
    • 6 Octubre 2022
    ...negligent, or accidental acts, but no evidence of who performed those acts. Ryan Burge relies on State v. Melland, 9 Wn.App. 2d 786, 452 P.3d 562 (2019), in which the jury found Tristan guilty of second-degree assault. The prosecution alleged that Melland fractured the victim's finger when ......
  • State v. Burge
    • United States
    • Court of Appeals of Washington
    • 6 Octubre 2022
    ...negligent, or accidental acts, but no evidence of who performed those acts. Ryan Burge relies on State v. Melland, 9 Wn.App. 2d 786, 452 P.3d 562 (2019), in which the jury found Tristan guilty of second-degree assault. The prosecution alleged that Melland fractured the victim's finger when ......
  • State v. Burge
    • United States
    • Court of Appeals of Washington
    • 21 Julio 2022
    ...negligent, or accidental acts, but no evidence of who performed those acts. Ryan Burge relies on State v. Melland, 9 Wn.App. 2d 786, 452 P.3d 562 (2019), in which the jury found Tristan guilty of second-degree assault. The prosecution alleged that Melland fractured the victim's finger when ......
  • State v. Charleston
    • United States
    • Court of Appeals of Washington
    • 14 Septiembre 2020
    ...argues the jury could have found he did not act recklessly, relying on this court's recent decision in State v. Melland, 9 Wn.App. 2d 786, 452 P.3d 562 (2019). But the facts of this case are distinguishable from Melland. In that case, Melland was convicted of assault in the second degree ba......
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