State v. Vant

• Decision Date: 01 July 2008
• Docket Number: No. 35779-8-II.,35779-8-II.
• Citation: 186 P.3d 1149,145 Wn. App. 592
• Parties: STATE of Washington, Respondent, v. Russell Raymond VANT, Appellant.
• Court: Washington Court of Appeals

186 P.3d 1149

145 Wn. App. 592

STATE of Washington, Respondent, v. Russell Raymond VANT, Appellant.

No. 35779-8-II.

Court of Appeals of Washington, Division 2.

July 1, 2008.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

PENOYAR, J.

¶ 1 A jury convicted Russell Vant of a protection order violation and a sex offender registration violation. Vant appeals the protection order violation conviction on the ground that the State produced insufficient evidence to prove that the home where he was seen by his community corrections officer (CCO) was the protected party's "residence." Vant further asserts that the State failed to prove a prior out-of-state conviction or conduct a comparability analysis, as required. Vant alleges that the trial court erred by including two prior convictions in his offender score that the State did not prove, imposing improper conditions for community custody, and sentencing him in excess of the maximum sentence possible. We affirm but remand for a new sentencing hearing and clarification of Vant's judgment and sentence.

FACTS

¶ 2 A restraining order entered on January 3, 2006, prevented Vant from knowingly coming within one mile of his niece, Raven Carter, or her residence. On August 29, 2006, two CCOs familiar with Vant observed him on the porch of 7030 Steamboat Island Road Northwest in Thurston County. That address is the home of Vant's sister, who is Carter's mother.

¶ 3 Eric Kolb, a detective in the Thurston County sexual offender registration unit, supervised Vant as a sexual offender. Without a stable residence, Vant met with Detective Kolb on July 14, 2006 to "[register] as a transient in Thurston County." Report of Proceedings (RP) (Dec. 20, 2006) at 39. At the meeting, Kolb instructed Vant to "check in ... every single Monday" at the Thurston County Sheriff's Office to keep Kolb apprised of his whereabouts. RP (Dec. 20, 2006) at 42. Vant last signed in with the sheriff's office on August 14, 2006. Between August 14 and Vant's arrest in October 2006, the sheriff's office had not received any letters or phone calls from Vant explaining his absence. Vant was subsequently arrested and charged with violating the order prohibiting contact and violating sex offender registration requirements.¹

¶ 4 At trial, Vant testified that he "assumed" Carter lived with her mother but that he was told that Carter would not be home, so he went over to "get some laundry" and "[take] a bath." RP (Dec. 20, 2006) at 75. Vant further testified, with respect to the sexual offender registration, that Detective Kolb explained the registration rules to him but that his "comprehension is not that good." RP (Dec. 20, 2006) at 77. When asked on cross-examination if he reported to the police after August 14, Vant responded: "I'm not aware of what I did or didn't do." RP (Dec. 20, 2006) at 84.

¶ 5 Carter testified as well, noting that she only lived "[o]ff and on" with her mother during August 2006. RP (Dec. 20, 2006) at 9. She testified that she was not at her mother's house on August 29, when Vant was seen on the porch, but that she was there the next day when police came to take her statement. Carter testified that she received mail at her mother's house and that she kept personal belongings and property there as well.

¶ 6 The jury convicted Vant on both counts and the trial court sentenced him on January 11, 2007. The trial court sentenced Vant to 18-months' confinement and 36-to-48-months' community custody. Additionally, the trial court ordered Vant to refrain from possessing or consuming any controlled substances or from possessing or perusing any "sexually explicit images" at his CCO's discretion. Clerk's Papers (CP) at 36. The trial court further ordered Vant to submit to random urinalysis/portable breath test/blood alcohol content (urinalysis/PBT/BAC) tests and random polygraph tests at his CCO's discretion.

¶ 7 Vant now appeals.

ANALYSIS

I. Sufficiency of the Evidence

¶ 8 The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Theroff, 25 Wash. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wash.2d 385, 622 P.2d 1240 (1980); State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (en banc). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wash.2d at 874-75, 83 P.3d 970 (citing State v. Cord, 103 Wash.2d 361, 367, 693 P.2d 81 (1985)).

¶ 9 Under RCW 10.99.050(2)(a), willful violation of a protection order issued under RCW 10.99.050 is punishable, and knowledge is a necessary statutory element of a protection order violation. Under the protection order provisions, Vant was not to have any contact with Raven Carter, nor knowingly come within one mile of Carter's residence.² No address was listed on the protection order. The jury was instructed that if Vant, knowing of these provisions, willfully violated the order by knowingly entering or coming within one mile of Carter's residence, he should be convicted of the offense.

¶ 10 Carter testified that she was living "[o]ff and on" at her mother's house the end of August 2007. RP (Dec. 20, 2006) at 9. She also testified that her personal property and possessions were kept at her mother's house. She could not remember exactly where she stayed the week of the violation, but Carter did recall being at her mother's house on August 30 when a deputy stopped by the house to take her statement. Additionally, Carter received her mail at her mother's address.

¶ 11 Jurors heard from Vant as well, who replied "yes" when asked by the State if he knew that Carter lived with her mother. RP (Dec. 20, 2006) at 87. Further, when asked by his own counsel if he was aware that Carter was living with her mother, Vant responded: "I assumed [Carter] was living there. I mean, [my sister] told me [Carter] wouldn't be there and I could go and get my stuff." RP (Dec. 20, 2006) at 75.

¶ 12 In his appeal, Vant argues that the dictionary definition of "residence" does not align with Carter's testimony, regarding her living habits, when he visited his sister's house on August 29, 2007. Appellant's Br. at 8. Per Vant, Webster's Dictionary, "residence" means:

the act ... of abiding or dwelling in a place for some time: an act of making one's home in a place ...; the place where one actually lives or has his home distinguished from his technical domicile; ... a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit.... Appellant's Br. at 7 (citing to Webster's Third New International Dictionary 1931 (1969)).

¶ 13 Under this definition, any reasonable jury could easily find, beyond a reasonable doubt that Carter, in fact, "resided" at her mother's house. She testified that though she did not live there all the time, she did live there off and on, kept personal belongings there, and received mail there. Carter may not have lived there full time, but her testimony indicates that her mother's house was at least a "temporary ... dwelling" to which she intended to return. RP (Dec. 20, 2006) at 9. Further, the jury heard that Carter returned to her mother's house the day after Vant's visit, as the police took her statement. Vant relies heavily on the idea that Carter did not reside at her mother's but, rather, that it was more of a "technical domicile." Appellant's Br. at 8.

¶ 14 Regardless, Vant's own testimony demonstrated to the jury that he "assumed" Carter lived there and that he was attempting to visit when she would not be home. RP (Dec. 20, 2006) at 75. Even under the residence definition Vant presented, any reasonable trier of fact could have found Vant guilty of "knowingly coming within one mile of the residence of Raven Carter," this violating the protection order. CP at 25; Instr. 12.

II. Comparability

¶ 15 Vant argues that because the State did not prove his 1984 Georgia felony conviction, nor show that it is "comparable" to a Washington felony, it should not have been used in calculating his offender score.³ State v. Cabrera, 73 Wash.App. 165, 168, 868 P.2d 179 (1994). In fact, the State did not present proof of conviction nor of comparability at sentencing.⁴ Had this prior felony been omitted from his score, his standard range would have decreased from 17-22 months to 4-12 months. RCW 9.94A.525(16). Further, Vant, citing In re Personal Restraint of Cadwallader, 155 Wash.2d 867, 123 P.3d 456 (2005), argues that upon remand for resentencing, the State should be held to the existing record and prohibited from providing new information or analysis to the court.

¶ 16 The State points out, however, that Vant provided the trial court with proof of his out-of-state conviction when he stipulated, on the record, that he was "previously convicted of a felony sex offense." RP (Dec. 20, 2006) at 63. Further, the State argues that comparability analysis was unnecessary because for offender scoring purposes, it...