Opinion
No. 51559-4-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-03306-3. Judgment or order under review. Date filed: 12/04/2002. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer L Dobson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Ryan Fink appeals his conviction of five counts of felony violation of a court order. He argues the State's evidence was not sufficient to convict him because the no-contact order lacked an expiration date and was thus invalid. But because no-contact orders need not include expiration dates and the issuing court clearly indicated its intent to lift the order only if certain conditions were met, the no-contact order was valid. We affirm.
FACTS
In February 2000, a King County Superior Court judge issued a no-contact order prohibiting Ryan Fink from contacting Sarah Van Hoy, Fink's girlfriend and the mother of their young daughter. In February 2001, Fink was convicted of violating that no-contact order. The court sentenced Fink to a term of confinement and issued another no-contact order. This later order is the subject of Fink's appeal. The February 2001 no-contact order contained no expiration date despite a pre-printed space created for these dates. The pre-printed portion of the order reads:
IT IS HEREBY ORDERED that pursuant to RCW 10.99.050, and as a condition of sentence in this matter, that the defendant shall have no contact, directly or indirectly, in person, in writing or by telephone, personally or through any other person, with
1 ) (- -) until, 19 [.]
The court wrote `Sarah Van Hoy' and Van Hoy's date of birth in the appropriate spaces, but left the `until' portion blank. Underneath the pre-printed portion, the court wrote, `The defendant may contact Sarah Van Hoy if the defendant is in custody, or if the defendant is actively involved in domestic violence treatment.'
In addition to issuing the no-contact order, the court also included a prohibition on contact as a condition of community custody. It wrote that Fink `[m]ay have contact while incarcerated and [the] court will readdress and consider lifting [the] order upon enrollment in treatment including treatment in custody if appropriate.'
In September 2001, Fink and Van Hoy asked the court to rescind the no-contact order. During the hearing, the judge stated `we are not even getting close to this lifting of this no contact order until he's been through, or at least is in treatment.' Moments later, the following exchange took place:
THE COURT: Actually, the answer is no. Once you are in the program, you can have contact, or at least I'll consider it again.
THE DEFENDANT: So I can have no contact at all no more?
THE COURT: Right.
In its written order, the trial court denied the motion and wrote, `The Court further orders that the defendant is to have no contact whatsoever with Sarah Van Hoy and thereby revokes its previous modification of the No[-]Contact Order allowing contact while the defendant is incarcerated.'
In December 2001, Fink was released from confinement. He alleges that he then contacted various authorities to ask about the no-contact order's expiration date. He testified that he overheard Van Hoy's victim's advocate state that it would expire `in a month or two,' that someone in the victim advocate's office told him it would expire one year after it was issued, and that both the Kent Police Department and his community corrections officer informed him that the order expired one year from its issuance if it did not have an expiration date. None of these people testified at Fink's trial.
In approximately February 2002, Fink stopped reporting to his community corrections officer and, allegedly believing that the no-contact order had expired, moved in with Van Hoy. In June 2002, Van Hoy and Fink got into an argument and punched and hit each other. Van Hoy called the police, and Fink was arrested and charged with five counts of violating the no-contact order. A jury convicted Fink on all counts, and the court sentenced Fink to 30 months of incarceration and 30 months of community custody. The court also issued a five-year no-contact order. Fink appeals his conviction.
DISCUSSION
Fink challenges the sufficiency of the State's evidence. He argues the no-contact order was invalid because it lacked an expiration date and failed to notify him that contacting Van Hoy after February 2002 could constitute a felony. A no-contact order must provide fair warning that a particular act constitutes a crime, and the State must prove the order was in effect at the time of the violation. When reviewing a challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the State. It is sufficient if a reasonable trier of fact could conclude that the State proved each element of the crime beyond a reasonable doubt.
According to his testimony, Fink knew that moving in with Sarah violated his community custody conditions, but he was willing to take that risk. Had he known that he also risked a felony conviction, he would not have moved in with her.
State v. Becker, 132 Wn.2d 54, 61, 935 P.2d 1321 (1997)).
City of Seattle v. Edwards, 87 Wn. App. 305, 308, 941 P.2d 697 (1997) (citing SMC 12A.06.180; United States v. Casciano, 927 F. Supp. 54, 58-60 (N.D.N.Y. 1996), aff'd, 124 F.3d 106 (2nd Cir.), cert. denied, 522 U.S. 1034 (1997); Rohrscheib v. State, 934 S.W.2d 909, 911 (Tex.App. 1996)).
Id. at 308 (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); Jackson v. Virginia, 443 U.S. 307, 319, 99 So. Ct. 2781, 61 L.Ed.2d 560 (1979)).
Id. (citing Green, 94 Wn.2d at 221; Jackson, 443 U.S. at 319).
No statute or case requires that a no-contact order include an expiration date. RCW 10.99.050 only requires a court to record any contact restrictions and to provide a copy of the order to the victim. These requirements are satisfied here. The statute also directs the court to notify the appropriate law enforcement agency of the no-contact order and requires the law enforcement agency to `enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system[.]' Fink argues that this provision creates the presumption that any order lacking an expiration date automatically expires after one year. We disagree. The statutory provision outlines no-contact order procedures by mandating communication between the court and the law enforcement agency, requiring that no-contact orders be in centralized law enforcement databases to put law enforcement officers on notice, and providing that the orders are fully enforceable in any jurisdiction. At most, the one-year provision is a default to ensure that law enforcement does not enforce orders after they have expired. But it does not require, directly or indirectly, that they contain a date or actually expire after one year.
RCW 10.99.050(3) states in full:
Whenever an order prohibiting contact is issued pursuant to this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state.
Fink nevertheless argues that his no-contact order is ambiguous and thus unenforceable based on City of Seattle v. Edwards. In Edwards, the trial court issued a protective order using a standard pre-printed form stating:
87 Wn. App. 305, 941 P.2d 697 (1997).
`THIS ORDER FOR PROTECTION WILL BE EFFECTIVE UNTIL ONE YEAR FROM TODAY. OR
[ ] until (date) or until further order of the court.'
Id. at 308.
The trial court marked the `until further order of the court' portion, but the defendant ostensibly understood that the order expired one year after it was issued. We determined that because the court did not strike the `one year from today' phrase and because the phrase ends in a period, one could easily overlook the `OR' on the next line. The meaning of `until further order of the court' was thus ambiguous because it could either be `meant to provide a means for modifying the explicit one-year duration of the order or was meant to extend the duration beyond one year and until another order was entered.' Under the rules of lenity, we construed the Edwards order to be effective for one year with the possibility that a further court order could change its duration.
Id.
Id.
Id. at 308-09.
Id. at 309.
But unlike the Edwards order, Fink's order did not contain several options that could potentially be confused. Instead it included one line where the court was to enter the expiration date. The court left the expiration line blank and handwrote, `The defendant may contact Sarah Van Hoy if the defendant is in custody, or if the defendant is actively involved in domestic violence treatment.' In other words, the court conditioned the protective order's expiration on Fink's participation in treatment. This provided clear notice to Fink that the order would not expire until he satisfied that condition.
The trial court's desire to condition the duration of the protective order on Fink's participation in treatment and Fink's awareness of this intention are also indicated in other portions of the record. In the community custody portion of the judgment and sentence, the court noted that it would `readdress and consider lifting [the] order upon enrollment in treatment[.]' And at the hearing on the motion to lift the order, the court stated, `[W]e are not even getting close to this lifting of this no contact order until he's been through, or at least is in treatment.' The court later stated, `Once you are in the program, you can have contact, or at least I'll consider it again.' Not only is the protective order itself unambiguous, but the court's later statements and orders are quite clear. Fink had notice that the court would consider lifting the order only when he entered treatment. Because he never participated in this treatment, he had no reason to believe that the protective order had expired. Fink cannot prevail on his claim that authorities informed him that the order expired in February 2002. Not only was he on notice that the order's expiration depended on his participation in treatment, but he also failed to present testimony from any of these authorities.
(Emphasis added.)
We take this opportunity to reiterate our suggestion that courts pattern future orders to include a clearly worded permanent option in order to avoid any future ambiguities. See Edwards, 87 Wn. App. at 311. We previously suggested the following:
`THIS ORDER FOR PROTECTION WILL BE EFFECTIVE:
[ ] until one year from today. [ ] until (date). permanently.'
Id.
AGID, ELLINGTON and KENNEDY, JJ., concur.