Opinion
No. 26941-8-III
November 30, 2010 UNPUBLISHED OPINION
This appeal was stayed while our state Supreme Court decided the proper unit of prosecution for the crime of tampering with a witness. That court decided that the proper unit of prosecution is the attempt to influence a witness, rather than each individual contact with that witness. State v. Hall, 168 Wn.2d 726, 734, 230 P.3d 1048 (2010). We, accordingly, reverse the judgment entered on a jury verdict for eight counts of witness tampering and remand for entry of a judgment for a single count of that crime. We affirm the judgment entered on the verdict of guilty for the four counts of felony violation of a no-contact order.
FACTS
The State charged Aaron Gallegos with one count each of fourth degree assault, unlawful imprisonment, and second degree taking a motor vehicle without permission. It alleged that these crimes involved domestic violence against his girl friend, Heidi Lamarche.
Mr. Gallegos awaited trial in jail. He telephoned Ms. Lamarche more than 10 times from jail. He placed four of these telephone calls after he was ordered to have no contact with Ms. Lamarche. He urged Ms. Lamarche to drop the charges, lie about what happened, and absent herself from his trial. The State listened to these calls and added seven counts of tampering with a witness-domestic violence, one count of intimidating a witness-domestic violence or witness tampering in the alternative, and four counts of felony violation of a protection order-domestic violence to the charges pending against Mr. Gallegos. The court concluded that Mr. Gallegos's three prior convictions for violation of a no-contact order were admissible to support the four counts of felony violation of a protection order because the previously violated orders were issued under requisite statutes listed in former RCW 26.50.110(5) (2007).
A jury acquitted Mr. Gallegos of the three original charges (fourth degree assault, unlawful imprisonment, and second degree taking a motor vehicle without permission) but found him guilty of eight counts of witness tampering and four counts of felony violation of a no-contact order. The jury also found by special verdict that the crimes involved domestic violence and that Mr. Gallegos had been previously convicted of violating a no-contact order twice. The court treated each count of witness tampering as a separate unit of prosecution. And it sentenced Mr. Gallegos to 60-months' confinement for each of the 12 convictions to be served concurrently based on an offender score of 20.
DISCUSSION
Unit of Prosecution — Witness Tampering
Mr. Gallegos argues that the proper unit of prosecution here is based on his ongoing attempt to influence Ms. Lamarche, not on every single contact with her. The state Supreme Court agrees and the State concedes as much. Hall, 168 Wn.2d at 734. We, then, reverse seven of the eight current tampering convictions and remand for entry of judgment on the one remaining tampering conviction.
Violation of No-Contact Order — Predicate Offense — Question of Fact
A violation of a no-contact order is a felony when the offender has at least two prior convictions for violating certain orders:
A violation of a court order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.
Former RCW 26.50.110(5). Mr. Gallegos acknowledges that the jury found he had "twice been previously convicted for violating the provisions of a No Contact Order." E.g., Clerk's Papers at 51. But he contends that the jury, rather than the judge, also had to decide whether the orders he previously violated had been issued under the statute or one of the chapters listed in RCW 26.50.110(5). Our review is de novo. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005).
Mr. Gallegos relies on State v. Arthur, 126 Wn. App. 243, 108 P.3d 169 (2005), overruled by Miller, 156 Wn.2d 23. In Arthur, Division Two of this court held that the issue of whether prior convictions are qualifying convictions under RCW 26.50.110(5) is a question of fact for the jury. 126 Wn. App. at 244. But the Supreme Court overruled Arthur in Miller. Miller held that the validity of a court order is a question of law for the court to resolve. 156 Wn.2d at 30-31. Mr. Gallegos maintains nonetheless that the Miller court did not hold that whether an order has been issued under a qualifying statute is a question of law. We disagree. Miller specifically states that "issues relating to the validity of a court order (such as . . . whether the order was adequate on its face . . .) are uniquely within the province of the court." 156 Wn.2d at 31. And Division One later held so specifically:
Whether the current NCO [no-contact order] and the previously-violated NCOs are admissible to support a felony charge under RCW 26.50.110(5) depends on whether they were issued under the listed statutes. Acting in its "gate-keeping" capacity, a court must make this determination before the jury is allowed to hear the evidence. Under Miller, this applicability determination is "uniquely within the province of the court."
State v. Gray, 134 Wn. App. 547, 555-56, 138 P.3d 1123 (2006) (footnote omitted). The trial judge, then, properly elected to decide whether the orders underlying Mr. Gallegos's prior convictions were issued under a statute or chapter listed in RCW 26.50.110(5). It was a question of law. Miller, 156 Wn.2d at 31.
Statement of Additional Grounds
Mr. Gallegos also contends that a no-contact order should never have been issued in this case because he was not guilty of the initial three charges, and, therefore, the court should have automatically dismissed the charges of witness tampering and felony violation of a no-contact order. He is mistaken. Commission of a crime is not a necessary antecedent to the issuance of a no-contact order under RCW 10.99.040(3). Here, police arrested Mr. Gallegos for three crimes of domestic violence, so the no-contact order was proper. Mr. Gallegos had a duty to obey it, and he did not.
Mr. Gallegos also argues that the trial court should have granted his motion to sever the initial three charges from the charges for witness tampering and violation of a no-contact order. We review the refusal to sever properly joined counts for abuse of discretion. State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648 (1994).
A trial judge must sever offenses if he or she determines "that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b). Mr. Gallegos maintains that "[t]he Judge didn't wanna [sic] [sever the offenses] because she knew that if I beat the First 3 arriginal [sic] charges, then all the others have to Fall off." Statement of Additional Grounds at 1.
The trial court refused to sever the counts because it found no basis to do so. Mr. Gallegos had the burden of demonstrating prejudice that outweighed the need for judicial economy in support of his motion to sever. State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992). "Prejudice may result if a defendant is embarrassed in the presentation of separate defenses, or if joinder of the multiple counts in a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition." Id. Mr. Gallegos does not suggest or argue that he demonstrated prejudice. We, then, find no abuse of discretion.
We reverse and remand for dismissal of all but one conviction for tampering with a witness (RCW 9A.72.120). We affirm the convictions for felony violation of a no-contact order.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SIDDOWAY, J. and KORSMO, A.C.J., concur.