State v. Wofford, 36444-1-II.

• Decision Date: 18 February 2009
• Docket Number: No. 36444-1-II.,36444-1-II.
• Citation: 148 Wn. App. 870,201 P.3d 389
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Donald Anainise WOFFORD, Appellant.

201 P.3d 389

148 Wn. App. 870

STATE of Washington, Respondent, v. Donald Anainise WOFFORD, Appellant.

No. 36444-1-II.

Court of Appeals of Washington, Division 2.

February 18, 2009.

Dana M. Lind, Nielsen Broman & Koch PLLC, Jonathan Michael Palmer, Attorney at Law, Seattle, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

ARMSTRONG, J.

¶ 1 Donald Anainise Wofford appeals his conviction of violating a domestic violence no-contact order. He challenges the sufficiency of the evidence, arguing that the State failed to prove that his conduct was a crime under former RCW 26.50.110(1) (2006) and that he had previous convictions that elevated the crime to a felony under RCW 26.50.110(5).¹ Finding no reversible error, we affirm.

FACTS

¶ 2 On July 8, 2005, a Pierce County commissioner executed a no-contact order under chapters 10.99 and 26.50 RCW prohibiting Wofford from having any contact "directly or indirectly, in person, in writing, by telephone, or electronically, either personally or through any other person, with: Tara Mozer" for five years. Ex. 8, at 1. The order warned that its violation "is a criminal offense under chapter 10.99 RCW and 26.50 RCW and will subject a violator to arrest. . . ." Ex. 8, at 1.

¶ 3 On December 1, 2006, Deputy Sheriff Jeff Reigle, accompanied by community corrections specialist Torrey McDonough, stopped Wofford for speeding. The officers saw Tara Mozer in the car. Wofford attempted to flee on foot, but Reigle stopped him and then learned of the no-contact order between Wofford and Mozer.

¶ 4 The State charged Wofford with one count of violation of a domestic violence no-contact order. The State charged the violation as a felony under RCW 26.50.110(5) because Wofford had two prior convictions for violating no-contact orders.

¶ 5 To prove those prior convictions, the State presented evidence that a "Donald Anainise Wofford" had twice been convicted of wrongfully contacting "Tara Mozer." The charging documents underlying the prior convictions described "Donald Anainise Wofford" as:

Race: Black . . . Height: 6'0" . . . Eyes: Brown Hair: Black DOB: 10/3/72[.]

Exs. 3, 6. His weight was listed as 180 pounds in one complaint and 170 pounds in the other.

¶ 6 The current no-contact order described "Donald Anainise Wofford" as:

Sex Male; Race Black; Eyes Brown; Weight 165; Height 6'0; DOB 10/03/72.

Ex. 8.

¶ 7 Officers Reigle and McDonough identified Wofford in court as the man they arrested on December 1, 2006, for violating that order. In addition, Reigle confirmed that Wofford stated after arrest that "at some previous point he had been convicted of a similar crime." 3 Report of Proceedings (RP) at 197.

¶ 8 Wofford moved to dismiss, arguing that the State failed to prove that he was the same individual who committed the two prior violations. The trial court denied Wofford's motion, stating that the jury could infer from the evidence that Wofford was the same person named and described in the prior convictions. The jury convicted Wofford of violating a no-contact order and found by special verdict that he had violated two prior no-contact orders.

ANALYSIS

¶ 9 Wofford argues that the evidence against him was insufficient to prove that he violated former RCW 26.50.110(1) because his no-contact order violation was not "of the kind for which an arrest is required." Br. of Appellant at 8. Alternatively, he argues that the evidence against him was insufficient to elevate the violation to a felony.

I. Sufficiency of the Evidence Under Former RCW 26.50.110(1)

A. Statutory Background

¶ 10 The State charged Wofford with violating a no-contact order under former RCW 26.50.110(1), which provided:

Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74:34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.

(Emphasis added.)

¶ 11 Under RCW 10.31.100(2)(a), an officer must arrest a suspect when the officer has probable cause to believe that:

[1] An order has been issued of which the person has knowledge under RCW 26.44.063, or chapter 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW restraining the person and [2] the person has violated the terms of the order restraining the person from acts or threats of violence, or restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person.

RCW 10.31.100(2)(b) requires arrest under similar circumstances for foreign protection orders. State v. Bunker, 144 Wash.App. 407, 414, 183 P.3d 1086 (2008). Violating a no-contact order is also punishable as contempt of court under RCW 26.50.110(3).²

¶ 12 In 2007, the legislature amended RCW 26.50.110 to clarify that it intended most no-contact order violations to be criminal offenses. Subsection (1)(a) now provides as follows:

Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section:

(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;

(ii) A provision excluding the person from a residence, workplace, school, or day care;

(iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location; or

(iv) A provision of a foreign protection order specifically indicating that a violation will be a crime.

RCW 26.50.110(1)(a); see Substitute H.B. 1642, 60th Leg., Reg. Sess. (Wash.2007) (SHB 1642). The legislature specifically stated in the session law text that the amendment was not intended to change the substantive law or broaden the scope of law enforcement and that it was amending the statute to make clear its intent that a willful violation of a no-contact order is a criminal offense. Laws of 2007, ch. 173, § 1.

¶ 13 Nonetheless, Wofford contends that only a violation of a no-contact order for which the police must arrest the violator constitutes criminal conduct. This raises an issue of statutory interpretation, which we review de novo. State v. Alvarado, 164 Wash.2d 556, 561, 192 P.3d 345 (2008) (citing Tingey v. Haisch, 159 Wash.2d 652, 657, 152 P.3d 1020 (2007)).

B. Former RCW 26.50.110(1)

¶ 14 Our goal in construing a statute is to carry out the legislature's intent. Am. Continental Ins. Co. v. Steen, 151 Wash.2d 512, 518, 91 P.3d 864 (2004) (citing State v. Watson, 146 Wash.2d 947, 954, 51 P.3d 66 (2002)). If a statute is ambiguous, we look to principles of statutory construction and legislative history to discern the legislature's intent. State ex rel. Citizens Against Tolls v. Murphy, 151 Wash.2d 226, 242-43, 88 P.3d 375 (2004) (citations omitted). If a statute is unambiguous, we apply it according to its plain language. State v. Hogan, 145 Wash. App. 210, 216, 192 P.3d 915 (2008) (citing Watson, 146 Wash.2d at 954, 51 P.3d 66). A statute is ambiguous if its language is susceptible to more than one reasonable interpretation. Bunker, 144 Wash.App. at 415, 183 P.3d 1086 (quoting Cockle v. Dept. of Labor and Indus., 142 Wash.2d 801, 808, 16 P.3d 583 (2001)).

¶ 15 We find former RCW 26.50.110(1) susceptible to more than one reasonable interpretation and, therefore, ambiguous. We recognize that different panels of our court have held that former RCW 26.50.110(1) is unambiguous. See State v. Madrid, 145 Wash.App. 106, 108, 192 P.3d 909 (2008);³ Hogan, 145 Wash.App. at 212, 192 P.3d 915.⁴ But we agree with Division One that former RCW 26.50.110(1) is unclear as to whether the final clause "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" is intended to modify all the preceding phrases or only the immediately preceding phrase dealing with foreign orders. Bunker, 144 Wash.App. at 415, 183 P.3d 1086. Former RCW 26.50.110(1) was not a "virtuosic specimen of legislative drafting," and there is clearly a reasonable dispute as to what the legislature intended. Bunker, 144 Wash. App. at 413, 183 P.3d 1086; contra Madrid, 145 Wash.App. 106, 192 P.3d 909; Hogan, 145 Wash.App. 210, 192 P.3d 915.

¶ 16 Because we find that former RCW 26.50.110(1) is ambiguous, we turn to legislative history and principles of statutory construction to determine whether Wofford's violation must have been one for which an arrest is required to constitute a crime.

C. Legislative History

¶ 17 The legislature's intent as to the elements of the crime of violating a no-contact order is plainly evidenced in the 2000 and 2007 amendments to RCW 26.50.110(1). "To help clarify the original legislative intent of a statute, we may turn to its subsequent history." Woods v. Bailet, 116 Wash.App. 658, 665, 67 P.3d 511 (2003) (citing Littlejohn Constr. Co. v. Dept. of Labor & Indus., 74...