Opinion
No. 31055-4-II (Consolidated w/No. 31225-5-II)
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 03-1-00735-5. Judgment or order under review. Date filed: 10/29/2003. Judge signing: Hon. Stephen M Warning.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Petitioner(s), James Balis Hill (Appearing Pro Se), #839308, Wa Corr Cntr, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Michelle L Shaffer, Cowlitz Co Pros Attorney Office, 312 SW 1st Ave, Kelso, WA 98626-1799.
James Hill appeals his three convictions for felony violation of a no-contact order. He argues, among other issues, that the evidence is insufficient to elevate his convictions from gross misdemeanors to felonies and that the court unconstitutionally commented on the evidence when it instructed the jury. We agree that the State failed to prove the nature of the underlying predicate crimes that would elevate Hill's convictions to felonies and that the court commented on the evidence while instructing the jury. Accordingly, we reverse and remand for trial on possible misdemeanors.
FACTS
On April 29, 2002, Judge Don McCulloch entered a protection order under RCW 26.50.060 in Cowlitz County Superior Court Cause Number 02-2-00627-3, prohibiting Hill from having any contact with Laura Robyn Brown and his children, B., M., and C. On August 7, Cowlitz County Superior Court Judge Jill Johanson sentenced Hill on two counts of felony harassment and one count of felony violation of a no-contact order. This order prohibited contact with Brown and her sister Yael Ramm, but did not mention B., M., or C. Hill sent letters postmarked September 3, 11, and 13 to Brown's post office box in Clark County, Washington. He addressed one letter to Brown and the other two to B., in care of Brown.
The State charged Hill with three felony counts of violating a no-contact order. Hill, his trial attorney, and the State stipulated that: `[a]s of September 3, 2003, the defendant had twice been previously convicted for violating the provisions of a no-contact or protection order.' Clerk's Papers (CP) at 25. According to Hill, he wrote to B. and his other children by addressing the letters in care of Brown; he did not think he was breaking the law.
The court instructed the jury as to the elements of the crime, including that Hill's contact with the victims was prohibited by a no-contact order.
The court also instructed the jury that:
On September 3, 2002, September 11, 2002, and September 13, 2002, there was a valid order issued by the Cowlitz County Superior Court, Cause No. 02-2-00627-3, which prohibited James Balis Hill from having any contact with Laura Robyn Brown, [B., M., and C.].
There is no subsequent order which revokes or modifies that order.
The State submitted this instruction because Hill testified that at sentencing before Judge Johanson, he had asked whether he could write his children and Judge Johanson gave him permission to do so.
CP at 37.
Other than Hill's stipulation that he had been twice convicted of violating no-contact orders, the State presented no evidence as to the nature of the earlier no-contact orders.
The jury convicted Hill as charged and answered `[y]es' to the special verdict form, which asked, `Has the defendant twice been previously convicted for violating the provisions of a no-contact order?' CP at 50. Hill appeals.
ANALYSIS I. Sufficiency of the Evidence
The State charged Hill with violating RCW 26.50.110(5), which provides that a violation of a court order issued under chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW is a class C felony instead of a gross misdemeanor if the offender has at least two previous convictions for violating the provisions of an order issued under one of the same chapters.
Hill argues that insufficient evidence supports his convictions because the State never proved that his prior convictions involved one of the types of no-contact order enumerated in RCW 26.50.110(5). He is correct.
The State and Hill stipulated that `[a]s of September 3, 2003, [Hill] had twice been previously convicted for violating the provisions of a no-contact or protection order.' CP at 25. This stipulation contains no information about the type of earlier convictions. And the State had to prove, as it had charged, that Hill had twice been convicted of violating one of the orders specified in RCW 26.50.110(5). State v. Arthur, No. 31502, 2005 WL 531744, at *1 (Wash.App. Div. 2). A court may issue no-contact orders under sections not specified in section .110(5). See, e.g., RCW 9A.46.050. If Hill had been convicted earlier of orders not specified in section .110(5), the convictions would not raise his current violation to a felony. The State failed to prove that Hill committed a felony with the charged contacts.
II. Comment on the Evidence
Hill argues that the trial court unconstitutionally commented on the evidence when it instructed the jury:
On September 3, 2002, September 11, 2002, and September 13, 2002, there was a valid order issued by the Cowlitz County Superior Court, Cause No. 02-2-00627-3, which prohibited James Balis Hill from having any contact with Laura Robyn Brown, [B., M., and C.].
There is no subsequent order which revokes or modifies that order.
CP at 37.
Hill argues that the second paragraph impermissibly commented on his assertion that Judge Johanson had told him that he could write to his children. The State responds that the second paragraph settles the legal issue of the protection order's validity.
Hill did not object to the instruction, but he may still raise the issue because a comment on the evidence violates the constitution. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997) (citing State v. Lampshire, 74 Wn.2d 888, 893, 447 P.2d 727 (1968)). Article 4, section 16 of the Washington Constitution provides: `[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' An instruction that removes a disputed issue of fact from the jury's consideration is an impermissible comment on the evidence. Becker, 132 Wn.2d at 65.
We conclude that the challenged paragraph violates article 4, section 16. The State had the burden of proving that Hill was subject to a valid no-contact order when he wrote his children. The challenged instruction removed this burden from the State. If Hill's testimony raised an issue as to whether the no-contact had been orally modified, the State, if it was concerned about Hill's claim, could have offered evidence to rebut the testimony. Instead, it enlisted the trial court's aid by instructing the jury that the order was still valid. More than a comment on the evidence, the instruction granted a directed verdict for the State on part of its case.
The State could also have crafted an instruction as to the legal requirements for amending a no-contact order. See RCW 26.50.130; see also State v. Dejarlais, 136 Wn.2d 939, 945, 969 P.2d 90 (1998).
We reverse Hill's felony conviction and remand for a new trial on misdemeanor violations of the no-contact order.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., Concur.