State v. Ward

Decision Date06 March 2003
Docket NumberNo. 71906-3.,71906-3.
Citation64 P.3d 640,148 Wash.2d 803
PartiesSTATE of Washington, Respondent, v. Darin Lamar WARD, Petitioner. State of Washington, Respondent, v. Rickey B. Baker, Petitioner.
CourtWashington Supreme Court

Nielsen, Broman & Assoc., David Koch, Seattle, for Petitioners.

Norm Maleng, King County Prosecutor, Lee Yates and David Seaver, Deputies, Seattle, for REspondent.

MADSEN, J.

Petitioners Darin Ward and Rickey Baker challenge their convictions of felony violation of a no-contact order under former RCW 10.99.040(4)(b) and 10.99.050(2) (1997) respectively. The statutory language at the time provided that a willful violation of a no-contact order is a gross misdemeanor, but "[a]ny assault that is a violation of an order issued under this chapter ... and that does not amount to assault in the first or second degree under 9A.36.011 or 9A.36.021 is a class C felony." RCW 26.50.110(4).1 Petitioners argue that the provision "does not amount to assault in the first or second degree" establishes an essential element of felony violation of a no-contact order that must be pleaded and proved.

We hold that the provision is not an essential element of felony violation of a no-contact order. The State is required to prove that the predicate assault "does not amount to assault in the first or second degree" only when the State additionally charges the defendant with first or second degree assault. Accordingly, we affirm petitioners' convictions.

Petitioner Baker also challenges his conviction of misdemeanor violation of a no-contact order, arguing that the evidence is insufficient to support a conviction. We hold that a rational trier of fact could have found Baker guilty beyond a reasonable doubt of the misdemeanor and affirm his conviction.

FACTS
Darin Lamar Ward

The State charged Ward with a single count of felony violation of a preconviction domestic violence no-contact order that prohibited him from having contact with his former girlfriend, Rhoda Simmons. The information alleged that Ward violated the no-contact order by "intentionally assaulting Rhoda Simmons." Clerk's Papers (CP) at 58.2

At trial, the jury was presented with evidence that Ward assaulted Simmons while she was visiting an apartment complex. The evidence showed that Ward dragged her down apartment stairs, pulled off her shirt, and attempted to push her into a car. The jury received a "to convict" instruction that read:

To convict [Ward] of the crime of violation of a no-contact order, each of the following elements ... must be proved beyond a reasonable doubt:

(1) That on or about the 9th day of January, 1999, the defendant willfully had contact with Rhoda Simmons;

(2) That such contact was prohibited by a no-contact order;

(3) That the defendant knew of the existence of the no-contact order;

(4) That the acts occurred in King County, Washington.

CP at 22.

Ward's attorney initially proposed a special verdict form asking the jury, "[w]as the conduct that constituted a violation of the protection order an assault which did not amount to an assault in the first or second degree?" CP at 56. The judge declined the proposed instruction stating, "I can't provide this special form without defining assault in the first or second degree. That doesn't work." Verbatim Report of Proceedings (RP) at 41. The State suggested deleting the reference to first and second degree assault and instead simply asking the jury, "[w]as the conduct that constituted a violation of the no-contact order an assault?" Id. Ward's attorney acquiesced to the deletion, and the special verdict form was submitted as the State suggested.

The jury instructions included a definition of "assault" as:

[A]n intentional touching of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching is offensive if the touching would offend an ordinary person who is not unduly sensitive.

CP at 29. The jury answered "yes" to the special verdict form question of assault, finding Ward guilty of felony violation of a no-contact order.

Rickey B. Baker

The State charged Baker with four crimes, but only Counts I and III are at issue before this court. Count I charged Baker with a felony violation of a postsentence court order that prohibited him from contacting his former lover, Oleg Ivanov. During the trial, Ivanov testified that on the night of February 20, he saw Baker drive by his home. Shortly thereafter, a brick came through Ivanov's window, and he ran out of his house and gave chase of the culprit. Unbeknownst to Ivanov, Baker was hiding behind a pole, and when Ivanov ran past, Baker jumped out and struck him. Baker proceeded to kick him in the groin, knocking him to the ground and causing his elbow to split open. Baker subsequently ran away.

The information charged Baker with felony violation of a postsentence domestic violence no-contact order based on Baker's alleged intentional assault of Ivanov. At trial, Baker did not propose jury instructions nor did he object to those offered. The court instructed the jury that:

To convict [Baker] of the crime of violation of a no-contact order in Count I, each of the following elements ... must be proved beyond a reasonable doubt:

(1) That on or about February 20, 2000, [Baker] willfully had contact with Oleg Ivanov;

(2) That such contact was prohibited by a no-contact order;

(3) That the defendant knew of the existence of the no-contact order;

(4) That the acts occurred in the State of Washington County of King City of Seattle.

CP at 28 (Nov. 9, 2000). The jury found Baker guilty of violation of the no-contact order as charged in Count I.

The trial court submitted a special verdict form to the jury which mirrored the special verdict form submitted in Ward's case. It asked the jury, "[w]as the conduct that constituted a violation of the no-contact order in Count I an assault?" CP at 52 (Jan. 13, 2001). The court defined assault for the jury in language identical to that used in Ward's case. The jury answered "yes" to the special verdict question of assault, finding Baker guilty of felony violation of the no-contact order.

In Count III, the State charged Baker with a misdemeanor violation of a court order that prohibited contact with Ivanov "in person, by telephone or letter, through an intermediary, or in any other way." State Ex. 1. The State alleged that Baker's misdemeanor violation of the order occurred on June 1, 2000 when he telephoned Ivanov's home. The telephone call was answered by Ivanov's wife Doreen Cornwell, who resided with him at the time. Cornwell testified on direct examination:

Q: And do you recall on June 1st of 2000 whether or not you were home on that day?

A: Yes, I was home.

Q: On that date do you recall receiving any phone calls of concern?

A: Mr. Baker called. When we moved our—we had had an unlisted phone number. And he called. I picked up the phone. And he said "Doreen," and I tentatively—

Q: How did you know the person on the other end of the phone was Mr. Baker?

A: We have talked before. We have talked before.
Q: What did Mr. Baker state to you at that time?

A: He said something like Oleg had been leaving notes all over town asking him to call. And I said, "thank you for the information." And I hung up. And then later that day I talked to someone else. And they said I needed to report it. And I reported it.

RP at 34 (Nov. 13, 2000). The complete evidence offered of the incident consisted of Cornwell's direct testimony. Based on this evidence, the jury returned a guilty verdict on the misdemeanor violation of the no-contact order.

Both Baker and Ward appealed, challenging the constitutionality of the charging documents and the jury instructions in their respective cases. Their cases were consolidated for appellate review. They argued that the "does not amount to assault in the first or second degree" language of former RCW 10.99.040(4)(b) and 10.99.050(2) functions as an essential element of felony violation of a no-contact order that must be pleaded and proved. Baker also challenged the sufficiency of the evidence for his conviction of a misdemeanor violation of a no-contact order.

The Court of Appeals affirmed both Ward and Baker's convictions of felony violation of a no-contact order. State v. Ward, 108 Wash.App. 621, 630, 32 P.3d 1007 (2001). The court held that the absence of a first or second degree assault is not an essential element of a felony violation that must be proved by the State and affirmed the convictions. Id. at 627, 32 P.3d 1007. The court also found sufficient evidence to support Baker's conviction of misdemeanor violation of a no-contact order and affirmed. Id. at 630, 32 P.3d 1007. We granted Ward and Baker's petition for review.

DISCUSSION
Petitioners' Felony Violations of a No-Contact Order

The legislature has codified violation of a no-contact order in chapter 10.99 RCW, entitled "Domestic Violence—Official Response." The stated purpose of the legislation is "to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide." RCW 10.99.010. One way the legislature has seen fit to protect victims of domestic violence is to enhance the penalty for violation of a no-contact order when the violation is based on an assault rather than on nonassaultive conduct. Former RCW 10.99.040(4)(b), .050(2).

The language of former RCW 10.99.040(4)(b) and 10.99.050(2), now codified under RCW 26.50.110(4), provides that "[a]ny assault that is a violation of an order issued under this chapter ... and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony." The provision serves to elevate what would be a gross misdemeanor to a felony violation; thus, raising the maximum sentence from one year to five...

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