Opinion
No. 54030-1-I
Filed: March 14, 2005
Appeal from Superior Court of King County. Docket No. 03-1-02592-1. Judgment or order under review. Date filed: 11/21/2003. Judge signing: Hon. Richard F. McDermott.
Counsel for Appellant(s), Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
A statute is facially unconstitutional only if there is no set of circumstances in which it can be constitutionally applied. The statute in this case is not facially unconstitutional, and the original no-contact order is not void. Therefore, Tommy Kirk cannot attack this no-contact order. The trial court did not abuse its discretion in imposing a no-contact order as a condition of the judgment and sentence for domestic violence felony violation of a no-contact order. We affirm.
FACTS
Tommy Kirk and Machelle Mitchell are not married and do not live together, but they have two children. Kirk was convicted of a third degree domestic violence assault on Mitchell on January 24, 2003. On January 27, 2003, the trial court entered a no-contact order pursuant to RCW 10.99.050 that provides for imposition of conditions of sentence, restricting the defendant's ability to have contact with the victim. The order stated: `[Kirk] shall have no-contact, directly or indirectly, in person, in writing or by telephone, personally or through any other person, with 1 Machelle Mitchell . . . until January 24, 2008.'
On September 21, 2003, Mitchell attended a birthday party for her grandmother. Kirk came to the party and slapped Mitchell. As a result, Kirk was convicted of domestic violence fourth degree assault and felony violation of the no-contact order. At sentencing, the trial court imposed as a condition of sentence a no-contact order, which stated that Kirk Sshall have no contact, directly or indirectly, in person, in writing or by telephone, personally or through any other person) Machelle D. Mitchell . . . until March 26, 2009. *Third party contact permitted only for purposes of arranging child visitation.'
Kirk appeals, arguing that the original no-contact order is based on a facially unconstitutional statute and that the second no-contact order based on violation of this order is void.
ORIGINAL NO-CONTACT ORDER
Kirk contends that the original no-contact order was entered pursuant to a facially unconstitutional statute and was void. He argues that the statute unconstitutionally allowed prohibition of direct and indirect contact between him and Mitchell, effectively cutting off his ability to have contact with his children, who live with Mitchell. He argues that even though neither order restricted contact with his children, restriction of contact with Mitchell prevented him from arranging visits with his children and violated his fundamental right to parent.
Statutes are presumed constitutional, and a party challenging a statute must prove it is unconstitutional beyond a reasonable doubt. State v. Smith, 111 Wn.2d 1, 5, 759 P.2d 372 (1988). The focus in a facial constitutional challenge is `whether the statute's language violates the constitution, not whether the statute would be unconstitutional `as applied' to the facts of a particular case.' Tunstall v. Bergeson, 141 Wn.2d 201, 221, 5 P.3d 691 (2000). We must reject a facial challenge unless there is no set of circumstances in which the statute can be constitutionally applied. City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004); Tunstall, 141 Wn.2d at 221.
The trial court entered the original no-contact order in this case in order to protect Mitchell from further harmful contact by Kirk. The order did not restrict contact between Kirk and his children. Kirk cites State v. Ancira, 107 Wn. App. 650, 27 P.3d 1246 (2001) to support his argument that the prohibition on contact with Mitchell is excessive because it indirectly restrains his right to contact and parent his children. But Ancira was a direct appeal of a no-contact order that expressly forbade contact with Ancira's wife and children. In this case, the original order only prohibited contact with Mitchell. And Kirk does not maintain that there is no set of circumstances in which the statute as written could be constitutionally applied or where a ban on direct and indirect contact would be appropriate. In a situation where an individual had physically, verbally and emotionally assaulted and threatened to assault another, this type of express prohibition of all contact would be necessary.
Kirk bases his argument not on the statute as written, but on the wording and effect of the original order and its indirect effect on him. As the State notes, there is no evidence in the record that Kirk attempted to exercise his right to parent or that he had any difficulty in exercising that right as the result of the no-contact order. And the no-contact order did not prevent Kirk from arranging contact with his children through the family court. See Ancira, 107 Wn. App. at 656-57. Kirk has not shown that the statute is facially unconstitutional.
CONDITION OF SENTENCE
Kirk contends that because the original order was unconstitutional, the trial court erroneously imposed a no-contact order as a condition of sentence for violating the original no-contact order. We review the imposition of crime-related prohibitions for abuse of discretion. Ancira, 107 Wn. App. at 653. The second no-contact order, imposed as a condition of sentence, specifically allows third-party contact in order to arrange visitation. The prohibition of all other contact is reasonably related to the goal of preventing further harm to Mitchell. And as shown above, the original order on which this no-contact order is based was issued pursuant to a valid statute and was not void. The trial court did not abuse its discretion in imposing the no-contact order.
CONCLUSION
Affirmed.