State v. Rice
| Decision Date | 25 March 2014 |
| Docket Number | No. 43449–1–II.,43449–1–II. |
| Citation | 320 P.3d 723,180 Wash.App. 308 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Robert Wayne RICE, Appellant. |
OPINION TEXT STARTS HERE
Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.
Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.
PART PUBLISHED OPINION
¶ 1 Robert Wayne Rice appeals his convictions and sentence for felony harassment—death threat and for violation of a civil antiharassment protection order. Rice argues that (1) insufficient evidence supports his conviction for felony harassment—death threat, (2) the trial court improperly instructed the jury on the elements of violation of a civil antiharassment protection order, and (3) the trial court ordered an impermissibly long period of probation. The State concedes that insufficient evidence supports Rice's conviction for felony harassment. In the published portion of this opinion, we reverse the trial court's imposition of 48 months of probation and remand for resentencing. In the unpublished portion of this opinion, we accept the State's concession and reverse Rice's conviction for felony harassment—death threat, but we affirm Rice's conviction for violation of a civil antiharassment protection order.
¶ 2 While Robert Wayne Rice served time at the Clark County Jail he met Jody Beach, a custody officer at the jail. Rice subsequently made unwelcome advances toward Beach, such as sending her flowers, writing her notes, and asking her out to breakfast. In response to Rice's unwelcome advances toward Beach, a Clark County Sheriff's sergeant instructed sheriffs deputies Jason Hafer and Scott Bain to tell Rice that Beach did not want Rice to contact her.
¶ 3 Hafer and Bain met Rice when he was at the courthouse on unrelated business. Hafer walked with Rice into an interview room in the courthouse, and there told Rice that Beach did not want Rice to contact her. The conversation between Hafer and Rice became heated, at which point Bain entered the conference room and informed Rice that Beach did not want Rice to contact her. Rice responded by repeatedly threatening to kill Bain. Bain responded by stepping back and unsnapping the holster on his stun gun. Rice continued to repeat his threats to kill Bain, at which time Bain arrested Rice for felony harassment—death threat (felony harassment).
¶ 4 Bain later testified as to how he felt when Rice threatened to kill him:
[Rice] was causing me fear of an assault.
....
Somebody who's that angry and upset with me, telling me they're going to kill me, causes me concern.
....
2A Verbatim Report of Proceedings (VRP) at 298–99.
[Rice] was in a different position that day. He was not quiet, content, sitting peacefully. He was extremely angry, livid. A—a wild look to him. His—his eyes—he was extremely aggressive.
¶ 5 At a hearing attended by both Beach and Rice, a court granted Beach a civil antiharassment protection order (antiharassment order) against Rice under chapter 10.14 RCW. During the time that this antiharassment order was effective, Rice wrote a letter to Beach and sent it to the jail.
¶ 6 The State charged Rice with felony harassment for threatening to kill Bain. The State also charged Rice with misdemeanor stalking for his advances towards Beach and with violation of an antiharassment order under RCW 10.14.120 and RCW 10.14.170 for writing a letter to Beach and sending it to the jail.
¶ 7 The trial court provided the following instruction to the jury on the charge of violation of an antiharassment order:
To convict the defendant of the crime of violation of a court order, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between January 20, 2011 and January 23, 2012, there existed a protection order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a restraint provision of the order prohibiting acts or restraint provision of the order prohibiting contact with a protected party; and
(4) That the defendant's act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers at 26. This jury instruction is based on an instruction from the Washington Practice Jury Instructions, designed for violations of orders under RCW 26.50.110(1)(a), rather than violations of an antiharassment order under RCW 10.14.120, and RCW 10.14.170. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 36. 51, at 635 (3d ed.2011) (WPIC). Rice did not object to this instruction at trial.
¶ 8 The jury convicted Rice of felony harassment, misdemeanor stalking, and misdemeanor violation of an antiharassment order under RCW 10.14.120 and 10.14.170. The trial court sentenced Rice to 90 days of time served on the felony harassment charge, to run concurrently with the sentence on the two misdemeanor charges. The trial court also sentenced Rice to 182 days for each of the two misdemeanor charges, to run consecutively.
¶ 9 The trial court suspended 184 days of this sentence, and imposed 48 months of probation. Rice did not object to the 48 months of probation at sentencing. Rice appeals (1) his sentence to 48 months of probation, (2) his conviction for felony harassment, and (3) his conviction for violation of an antiharassment order.
¶ 10 Rice argues that the trial court erred in sentencing Rice to 48 months of probation in violation of RCW 9.95.210(1)(a). We agree.
¶ 11 A trial court lacks inherent authority to suspend a sentence. State v. Gibson, 16 Wash.App. 119, 127, 553 P.2d 131 (1976) (citing State ex rel. Lundin v. Super. Ct., King County, 102 Wash. 600, 174 P. 473 (1918)). Thus, when the trial court does suspend a sentence, it must exercise its authority in the manner provided by the legislature. Gibson, 16 Wash.App. at 127, 553 P.2d 131. A defendant may challenge a sentence imposed in excess of statutory authority for the first time on appeal because “a defendant cannot agree to punishment in excess of that which the legislature has established.” In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 873–74, 50 P.3d 618 (2002); State v. Anderson, 58 Wash.App. 107, 110, 791 P.2d 547 (1990).
¶ 12 Statutory interpretation is a question of law that we review de novo. State v. Franklin, 172 Wash.2d 831, 835, 263 P.3d 585 (2011). When interpreting the meaning and purpose of a statute, our objective is to determine the legislature's intent. State v. Jones, 172 Wash.2d 236, 242, 257 P.3d 616 (2011). Effect is given to the statute's plain meaning when it can be determined from the statute's text. Jones, 172 Wash.2d at 242, 257 P.3d 616.
¶ 13 If the statute is still susceptible to more than one interpretation after we conduct a plain meaning review, then the statute is ambiguous and we rely on statutory construction, legislative history, and relevant case law to determine legislative intent. Jones, 172 Wash.2d at 242, 257 P.3d 616. We construe statutes in a manner that avoids strained or absurd consequences. State v. Merritt, 91 Wash.App. 969, 973, 961 P.2d 958 (1998).
¶ 14 The rule of lenity applies to situations where more than one interpretation can be drawn from the wording of a statute. State v. Snedden, 149 Wash.2d 914, 922, 73 P.3d 995 (2003). “Under the rule of lenity, the court must adopt the interpretation most favorable to the criminal defendant.” State v. McGee, 122 Wash.2d 783, 787, 864 P.2d 912 (1993).
¶ 15 RCW 9.95.210(1)(a) grants the trial court authority to suspend the sentence of a criminal defendant. RCW 9.95.210(1)(a) states in relevant part:
[T]he superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.
(Emphasis added.). Division One of this court interpreted the meaning of the phrase “the maximum term of sentence” in State v. Parent, 164 Wash.App. 210, 213, 267 P.3d 358 (2011) (quoting RCW 9.95.210(1)).
¶ 16 In Parent, Kerry Parent pleaded guilty to two counts of misdemeanor assault. 164 Wash.App. at 211, 267 P.3d 358. The trial court sentenced Parent to 12 months in prison for each assault count, to run consecutively, totaling 24 months in prison. Parent, 164 Wash.App. at 211, 267 P.3d 358. The trial court suspended 16 months of this prison term, and imposed 24 months probation for each count, to run consecutively, totaling 48 months of probation. Parent, 164 Wash.App. at 211, 267 P.3d 358. Parent appealed, arguing that “the maximum term of sentence” referred to the one “sentence” at the end of the case—regardless of the number of counts—thus limiting the trial court to sentencing Parent to 24 months of probation in the entire case. Parent, 164 Wash.App. at 212–14, 267 P.3d 358. The State argued that “the maximum term of sentence” referred to one additional “sentence” for each count in a case, allowing the trial court to sentence Parent to an additional 24 months of probation for each of Parent's two assault counts. Parent, 164 Wash.App. at 212, 267 P.3d 358.
¶ 17 Division One of this court held that the text of RCW 9.95.210(1)(a) could equally support either side's interpretation of “the maximum term of sentence.” Parent, 164 Wash.App. at 213, 267 P.3d 358. Thus Division One...
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