State v. Spencer

• Decision Date: 20 June 2005
• Docket Number: No. 52817-3-I.,52817-3-I.
• Citation: 114 P.3d 1222,128 Wash. App. 132
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Steven Jeffrey SPENCER aka Steven J. Rice, Appellant.

114 P.3d 1222

128 Wash. App. 132

STATE of Washington, Respondent, v. Steven Jeffrey SPENCER aka Steven J. Rice, Appellant.

No. 52817-3-I.

Court of Appeals of Washington, Division 1.

June 20, 2005.

Catherine L. Floit, Attorney at Law, Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Erin H. Becker, King County Deputy Prosecuting Attorney, Seattle, WA, for Respondent.

BAKER, J.

¶ 1 In violation of a no-contact order, Steven Spencer went to Shelia Quinn's apartment, entered, and remained for several minutes despite requests by Quinn and her son, Aaron Skinner, for Spencer to leave. Spencer was found guilty of residential burglary and violation of a court order. Spencer claims that substantial evidence does not support his conviction for residential burglary, he was denied a unanimous verdict, and his Sixth Amendment rights were violated when the judge, and not the jury, determined that the offenses were domestic violence crimes. Because substantial evidence supports a finding of guilt under both alternate means of committing residential burglary, his first two grounds for appeal fail. And because his punishment was not increased when the judge made a finding of domestic violence, Spencer's Sixth Amendment rights were not violated. We affirm.

I.

¶ 2 Steven Spencer had lived with Sheila Quinn, but by July 31, 2002, he was prohibited by court order pursuant to RCW 10.99.050 from having contact with her or coming within 1,000 feet of her residence or workplace. Despite the no-contact order, Spencer went to Quinn's apartment and entered. Quinn's son, Aaron Skinner, and Quinn both asked Spencer to leave. He did not leave voluntarily, but was eventually pushed out by Skinner and a friend.

¶ 3 Spencer was arrested and charged with one count of residential burglary — domestic violence in violation of RCW 9A.52.025, and one count of misdemeanor violation of a no-contact order — domestic violence in violation of RCW 26.50.110(1).

¶ 4 The jury was not asked to decide whether the offenses were crimes of domestic violence, i.e., committed by one family or household member against another. There is no evidence on the record that the prosecuting attorney elected one of the alternate means — unlawful entry or unlawful remaining — of committing burglary. The jury found Spencer guilty as charged, but did not specify upon which alternate means of committing burglary it relied to find Spencer guilty.

¶ 5 During sentencing, the judge checked a box on the judgment and sentence indicating that the offenses were crimes of domestic violence. As a result of that finding, the judge issued a no-contact order under RCW 10.99.050. Finally, the judge imposed a standard range sentence on Spencer for the residential burglary — domestic violence conviction.

II.

¶ 6 Spencer argues that the State failed to prove an essential element of residential burglary. Spencer was charged with residential burglary — domestic violence under RCW 9A.52.025(1), which provides:

A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.[¹]

¶ 7 Spencer argues that he did not have the intent to commit a crime upon entering the apartment. He concedes that he violated the no-contact order by entering within 1,000 feet of Quinn's residence. But he argues that he committed a single crime by entering the prohibited zone; not separate crimes for entering the zone, entering the apartment, and remaining in the apartment. The crime that the State asserts that he intended to commit upon entering the apartment is violation of a no-contact order. Spencer argues that because his violation of the no-contact order was complete once he entered the prohibited zone, he could not have the requisite intent to commit a crime upon entering the residence. Thus, the linchpin of Spencer's argument is his assertion that violation of a no-contact order is not a continuing crime.

¶ 8 To determine whether a defendant's acts are a continuing course of criminal conduct, "the facts must be evaluated in a commonsense manner."² But the court should also remember that "the doctrine of continuing offenses should be employed sparingly, and only when the legislature expressly states the offense is a continuing offense, or when the nature of the offense leads to a reasonable conclusion that the legislature so intended."³

¶ 9 Spencer argues that similar to the defendant's failure to transfer the title of a car in State v. Green,⁴ his violation of a no-contact order was not a continuing offense. The court in Green determined that the relevant statute contained no express language that indicated failure to transfer a title within 45 days was a continuing offense.⁵ Similarly, there is no express language in RCW 26.50.110 stating that the Legislature intended violation of a no-contact order to be a continuing crime. ¶ 10 Despite the absence of express language in the statute, the nature of a violation of a no-contact order leads to a reasonable conclusion that the Legislature intended that the offense be a continuing crime. The core purpose of the law is to protect an individual from domestic abuse. Although a zone of safety is created around an individual, it is the person that is being protected, not the zone. Once a defendant enters the prohibited zone, the crime begins but is not complete — it continues. As long as the defendant remains within the prohibited zone, he continues to violate the no-contact order.

¶ 11 Further proof that a violation of a no-contact order is a continuing crime lies in the fact that a defendant may violate the no-contact order in a number of ways.⁶ In State v. Stinton,⁷ the court explained that a "court may specifically tailor a protection order to the petitioner's circumstances by including multiple provisions forbidding the respondent from a variety of misconduct toward the petitioner."⁸ Thus, a defendant "may violate a protection order by disobeying one or several of multiple provisions."⁹ For example, in Stinton, the court concluded the defendant's harassing and threatening conduct was separate and distinct from his unlawful entry.¹⁰ Based on these separate violations of the no-contact order, the court held that "a violation of a protection order provision can serve as a predicate crime for residential burglary."¹¹ The court in Stinton did not directly discuss the issue of whether violation of a no-contact order is a continuing crime. But the court implied that the crime was continuing when it ruled that the defendant could violate the provision to not harass the protected person after the defendant had already violated the provision not to enter the protected person's residence.

¶ 12 In addition to the holding in Stinton, the punishment scheme devised by the Legislature leads us to conclude that it intended a violation of a no-contact order to be a continuing crime. The no-contact order that Spencer was charged with violating was issued under RCW 10.99.050. The purpose of that statute is to assure victims of domestic violence maximum protection from abuse.¹² To accomplish the goal of maximum protection, the Legislature implemented a scheme whereby "assaultive violations of no-contact orders [are punished] more severely than nonassaultive violations (former RCW 10.99.040(4)(b) and 10.99.050(2))."¹³ Likewise, the Legislature included section (4) in RCW 26.50.110 — under which Spencer was charged — which elevates an assault that might otherwise be a misdemeanor to a class C felony if that assault is a violation of a no-contact order.¹⁴

¶ 13 We must interpret and construe statutes "so that all the language used is given effect, with no portion rendered meaningless or superfluous."¹⁵ If the crime of violating a no-contact order were complete once a defendant entered the prohibited zone around the protected person, then the crime of violation of a no-contact order would always be complete before an assault occurred. The punishment schemes mentioned above would never be triggered, and the language in the statutes would be rendered meaningless and superfluous. To give effect to the Legislature's punishment scheme, we conclude that violation of a no-contact order is a continuing offense. And because a violation of a no-contact order is a continuing offense, Spencer's challenge to the sufficiency of the evidence fails.

¶ 14 Spencer argues that the Legislature did not intend a defendant who violates a no-contact order in a dwelling to automatically face a felony punishment, therefore we should not allow a violation of a no-contact order to serve as the "intent to commit" a crime element of burglary. Spencer claims that the Legislature expressed its intent clearly when it provided that an assaultive violation of a no-contact order should be elevated to a class C felony. Spencer claims that the Legislature could have included another provision stating that a violation of a no-contact order within a dwelling should be elevated to a felony as well. But the Legislature chose to not include such a provision. Spencer argues that we should not allow a violation of a no-contact order to serve as the "intent to commit a crime" element of burglary because that would result in always punishing a violation of a no-contact order within a dwelling as a felony, contrary to the Legislature's intent.

¶ 15 Spencer misinterprets the Legislature's actions. First, the Legislature did not merely add a provision making all assaultive violations of a no-contact order a felony. Instead, the Legislature relied on already existing statutes to ensure that any assault in violation a no-contact order was punished as a felony. It elevated any assault that violated a no-contact order and did not amount to assault in the first or second degree from a misdemeanor to a class C felony.¹⁶ The Legislature did not need to add legislation related...