Opinion
Nos. 44608-8-I c/w 47671-8-I.
Filed: October 15, 2001. PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE RAP 10.4(h).
Appeal from Superior Court of King County, No. 98-1-06776-1, Hon. Norma S. Huggins, May 13, 1999, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
James R. Dixon, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, 320 Central Building, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
James M. Whisman, King County Prosecutors Office, 700 5th Ave #1850, Seattle, WA 98104.
Andrea R. Vitalich, W554, 516 Third Avenue, Seattle, WA 98104.
Allan Parmelee appeals his convictions for one count of felony stalking and three counts of gross misdemeanor violation of either a protection order or a no-contact order. We affirm the convictions but remand for resentencing because two of Parmelee's convictions for violation of a protection order merge with the stalking conviction, and the trial court erred by imposing probation conditions where it did not impose a suspended sentence.
FACTS
Renee Turner and Allan Parmelee married in 1994. They had one child, a son. After they married, Turner discovered that Parmelee corresponded by phone and mail with numerous incarcerated people. Many of the letters were related to Parmelee's efforts to promote a book he had written on how to win a disciplinary hearing. Parmelee's correspondence with prisoners caused Turner great concern. He agreed with Turner that it would be dangerous for prisoners to know where they lived and said he would set up a post office box.
Before marrying Turner, Parmelee had been incarcerated in a federal prison in Illinois.
In April 1997, Turner filed for divorce. She also filed for a protection order against Parmelee, which she obtained for one year. Turner had legal counsel and Parmelee represented himself during the contentious divorce proceedings. After a trial, the dissolution was finalized in April 1998 and the court entered a permanent protection order. The child resided solely with Turner. Parmelee appealed the divorce.
While the dissolution appeal was pending, Turner received two envelopes in the mail containing some highly offensive printouts from a website that Parmelee had created. Turner contacted the police and they investigated. As a result, Parmelee was found guilty in Seattle Municipal Court for violating the protection order. The municipal court issued two no-contact orders, one on March 19, 1998, and the other on May 21, 1998, at the sentencing.
The March 19 no-contact order expired on September 19, 1998, and the May 21 no-contact order expired on May 21, 2000.
During the municipal court proceeding, Parmelee was incarcerated at the Federal Detention Center (FDC) in SeaTac on unrelated charges. Shortly after his conviction for violating the protection order, Turner began receiving letters from prisoners at the FDC. Turner 'was scared to death. I was just traumatized, and it was awful.' Turner suspected that Parmelee had asked prisoners to write to her at her home address; she did not know anyone else who was incarcerated.
Turner testified that the first letter she received 'was a letter like if you wanted to be a pen pal.' The inmate described himself and asked Turner to write him back and send a 'sexy picture.' Because Turner had never sought correspondence with any prisoners, 'anything that was in the letter [she] considered to be offensive.' The second letter Turner received was very graphic and described sexual acts that the prisoner wanted to perform with Turner. It also requested a 'sexy picture' of Turner. Turner contacted the police, who instructed her not to handle any future correspondence. When Turner received a third letter, she handed it over to the police without opening it.
Turner took her son and left town in fear. Two more letters arrived which were collected by Turner's neighbor and turned over to the police. Turner returned after a month and changed the way her mail was delivered. Turner never read any of the letters after the second one. Each of the five letters was written by a different individual. Three of them eventually served as the bases for the court order violation charges at issue here.
The State initially charged Parmelee with one count of felony stalking and five counts of misdemeanor violation of a protection order. At trial, three of the prisoners who wrote letters testified: Randy Ness, Roger Hotrum, and Pedro Alcantar Gutierrez. Ness and Gutierrez were prisoners at the FDC; Hotrum was incarcerated in the Spokane County Jail. Of the three witnesses, only Gutierrez had written a letter that Turner had received and read.
Gutierrez's letter was the second letter Turner received.
Ness and Parmelee met in the law library at the FDC. Ness asked Parmelee if he knew of anyone he could write to, and Parmelee gave him Turner's name and address. Parmelee told Ness that Turner was his ex-wife, that she would send him photos, and that 'she liked people that had been locked up.' Ness also described a flyer that Parmelee had distributed to him and to others. The flyer read:
Renee Turner, 2315 — 41st Avenue East, Seattle, Washington, 98112, age 48, height 5 foot 8, weight 135, hair red, dark, race white, recently divorced ex-husband in jail for long time, likes ex-cons, loves sex, wants men to come live with her, will send money if requested with photo, likes you to talk dirty to her, say you saw her ad in the prison magazine.
Ness testified that he sent Turner a friendly letter along with a prison picture of himself. A week later, police detectives visited Ness at the jail and he gave them a written statement. Ness later saw Parmelee, who wanted Ness to write Turner again. Parmelee told Ness he wanted to make Turner's life a 'living hell' and asked Ness to pass around Turner's address to others. Ness did not write to Turner again.
Gutierrez also met Parmelee in the FDC library. Parmelee told him that he had a woman friend who likes Mexicans and asked if Gutierrez would like to write to her. Gutierrez agreed, and Parmelee gave Gutierrez Turner's address and three stamps. Parmelee encouraged Gutierrez to write a 'nasty' letter. With the help of another inmate, Gutierrez wrote a letter to Turner. A detective visited Gutierrez a week later. Gutierrez became angry that Parmelee had caused him to risk getting into trouble. He visited Parmelee and told him he was 'going to kick his ass.'
Hotrum was in the Spokane County Jail when another prisoner handed out some flyers soliciting letters to Turner. Hotrum wrote to Turner. He included personal information about himself. He also asked Turner to tell him more about herself and to send a picture.
Testimony and evidence at trial revealed that Parmelee had gone to great lengths to distribute the flyer among various prison populations. He asked Randy Keener, an FDC inmate who did work detail in the library, to make copies of the flyer. Keener testified that when he expressed reservations about making the copies, Parmelee said to him: 'Everything [Turner] gets, she deserves,' and 'I hope someone rapes her, kills her, and she dies.' Parmelee asked Keener to give the flyers 'specifically to the blacks and the Mexicans.' Parmelee also wrote to Mike Lee with 'Raze the Walls' publishing. He enclosed one of the flyers and asked Lee to distribute it to as many prisoners as possible, but at least 'the sex unit at Monroe.'
PROCEDURAL HISTORY
The State filed charges on August 13, 1998. Parmelee was in federal custody at that time. The State filed a detainer with the federal authorities on August 21. A writ issued on September 15, and Parmelee was arraigned in State court on September 28. Before trial, there were numerous hearings and status conferences to address the issues for trial. The court denied Parmelee's motion to dismiss for untimely arraignment and violation of speedy trial. At an omnibus hearing on February 26, 1999, the prosecutor indicated that the charges might be amended based on the outstanding no-contact orders. The court instructed the State to notify the defense orally of any intention to amend no later than March 2. The State complied with that direction. Trial began on March 9. The State filed the amended information alleging one count of felony stalking and three counts of gross misdemeanor violation of either a protection order or a no-contact order, based on the letters written by Ness, Gutierrez, and Hotrum. Parmelee objected and asked for a continuance. The court granted the motion to amend and denied the motion for a continuance.
A jury found Parmelee guilty as charged. The jury also returned a special verdict, finding that Parmelee had violated the permanent protection order and the two no-contact orders. The court imposed a standard range sentence of 12 months for felony stalking and ordered that Parmelee have no contact with Turner for the maximum term. It imposed 12-month sentences on each misdemeanor count, to be served consecutively to one another and the stalking charge. The court also ordered probation conditions for a 'suspended sentence,' despite the fact that it had not suspended any portion of Parmelee's sentences. Parmelee appealed.
DISCUSSION 1. Double Jeopardy
Parmelee first contends that his convictions for felony stalking and court order violations violate double jeopardy principles because they were based on the same acts. The State counters that because each court order violation conviction was predicated on a separate letter, the same act or transaction was not the basis for all of Parmelee's convictions and traditional double jeopardy principles do not apply. We agree with the State.
The double jeopardy clauses of the Fifth Amendment and article I, section 9 of the Washington Constitution prohibit multiple punishments for the same offense. The United States Supreme Court set forth the following test for determining whether two actions are the same or separate offenses in Blockburger v. United States: The applicable rule is, that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
State v. Lynch, 93 Wn. App. 716, 723, 970 P.2d 769 (1999).
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Id. at 304 (emphasis added).
This test presumes that 'the same act or transaction' violates two or more criminal statutes. That preliminary requirement is not met here.
Each of the three charges filed against Parmelee for violating one of the no-contact orders or the protection order was based on a different, individual letter mailed to Turner. In contrast, the stalking charge was based on allegations of repeated harassment established by the multiple letters. Thus, each 'act or transaction' in this case does not violate both statutes.
See RCW 10.99.040, 10.99.050; RCW 26.50.110.
See RCW 9A.46.110.
The cases on which Parmelee relies are distinguishable because, in contrast to this one, they do not involve double jeopardy analysis where a collection of crimes served as the basis of another crime. See Lynch, 93 Wn. App. 716 (malicious harassment and fourth degree assault); State v. Potter, 31 Wn. App. 883, 645 P.2d 60 (1982) (reckless driving and reckless endangerment); State v. Springfield, 28 Wn. App. 446, 624 P.2d 208, review denied, 95 Wn.2d 1020 (1981) (first degree robbery and second degree assault); State v. Cunningham, 23 Wn. App. 826, 598 P.2d 756 (1979), reversed on other grounds, 93 Wn.2d 823, 613 P.2d 1139 (1980) (first degree manslaughter and second degree assault); State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975), review denied, 86 Wn.2d 1011 (1976) (robbery and second degree assault).
2. Merger Doctrine
Stalking is defined in RCW 9A.46.110(1). The crime is generally a gross misdemeanor, but it becomes a felony if any one of a number of circumstances is present. One of the grounds for elevating the crime to felony status is that 'the stalking violates any protective order protecting the person being stalked[.]' Parmelee was convicted under this subsection. Based on this provision, Parmelee contends that violation of a protection order is an essential element of stalking, and the merger doctrine therefore prohibits his multiple convictions. He claims the Legislature did not intend the crimes to be separate offenses because it did not enact an 'anti-merger' statute as it has for burglary and malicious harassment. We conclude that two of Parmelee's three convictions for court order violations should merge into the stalking conviction because the statute requires more than one underlying act — repetitive behavior — to constitute stalking.
See RCW 9A.46.110(5).
See RCW 9A.52.050.
See RCW 9A.36.080(5).
The double jeopardy clauses of the United States and Washington constitutions are the foundation for the merger doctrine. The doctrine is a rule of statutory construction and applies only where the Legislature has clearly indicated that in order to prove a particular degree of crime, 'the State must prove not only that the defendant committed that crime but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.' The merger doctrine is relevant only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code. Whether the merger doctrine applies is determined by legislative intent:
State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995).
State v. Frohs, 83 Wn. App. 803, 806, 924 P.2d 384 (1996).
State v. Eaton, 82 Wn. App. 723, 730, 919 P.2d 116 (1996).
[T]he merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping). . . .
State v. Vladovic, 99 Wn.2d 413, 420-421, 662 P.2d 853 (1983).
Where offenses merge and the defendant is punished only once, there is no danger of a double jeopardy violation.
We hold that two of Parmelee's three convictions for protection order violations merge into the felony stalking conviction because the State was required to prove facts to support at least two of the protection order violation convictions in order to establish facts sufficient for a felony stalking conviction under RCW 9A.46.110(5)(b). Stalking requires a finding of repeated harassment or repeated following, i.e., repeated events constitute the crime of stalking. Two harassing events would be sufficient to satisfy the requirement that the behavior be repeated. Thus, with respect to at least two of the three protection order violations, the State was required to prove that those violations occurred in order to secure convictions for both felony stalking and the protection order violations. As such, two of Parmelee's protection order violations are essential elements of the crime of felony stalking and, because they are acts defined elsewhere in the criminal statutes as crimes, they merge into the stalking conviction. The third protection order violation conviction was not an essential element of felony stalking and thus stands as an independent conviction. On remand, the trial court should sentence Parmelee for the stalking conviction and only one of the protection order violation convictions.
See RCW 9A.46.110(1)(a).
The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions as provided in RCW 2.06.040.
3. Motion for Continuance
Parmelee argues that the trial court erred in denying his motion for a continuance after granting the State's motion to amend the information because the amendment required him to change his trial strategy and he therefore needed more time to prepare. We reject this claim because Parmelee had adequate notice of the State's intention to amend, and the amendment did not change the facts the State would need to prove.
The State originally charged Parmelee with five counts of violation of a protection order based on the permanent protection order issued during Parmelee's divorce case. At a pretrial hearing the prosecutor told the court that he might seek to amend the information based on the no-contact orders that stemmed from Parmelee's municipal court conviction for violating the protection order. The prosecutor informed the court: 'I want to look closer at the misdemeanor no-contact orders and make sure we have proceeded under the correct prongs. And if there is any amendment, it won't alter the terrain at all. It will be a shift of prongs.' The court instructed the State to notify the defense of any proposed amendments by March 2, one week before trial was scheduled to begin. The State decided to amend the information to include alternative charges of violation of the no-contact orders contrary to RCW 10.99.040 and/or 10.99.050. The State provided written notice to the defense by the court's March 2 deadline.
When trial began on March 9, the State moved to amend the information. Despite having received notice of the amendment, defense counsel stated that he 'didn't expect that we would be having any substantial formal motion today.' Defense counsel requested more time for investigation and development of legal arguments, noting the amendment required 'a considerable change of strategy.' The State responded that the no-contact order was already in the discovery and that the conduct the State would seek to prove was 'exactly the same . . . namely that [Parmelee] basically got prisoners to violate the no-contact order, at his behest.' The court granted the State's motion to amend and denied defense counsel's request for more time, noting that the State had previously referred to a possible amendment, as well as the basis for that amendment, at the last hearing.
The court surmised:
I don't find anything contained in the record that comes as a surprise to the defense in its ability to defend against this case, only alleging that at a certain time, a certain judge at a certain location issued a no-contact order. As the State argued, the conduct alleged by the defendant does not change the facts that they would be seeking to prove.
On appeal, Parmelee explains that the defense's original strategy was to demonstrate that Parmelee never received notice of the protection order the State claimed he violated; therefore, Parmelee could not have violated the order. Thus, he claims, the State's decision to rely on the no-contact orders compelled him to adopt a new strategy, which required more time.
Whether to grant or deny a motion for continuance rests within the sound discretion of the trial court and will not be disturbed absent a showing that the court either failed to exercise its discretion or manifestly abused its discretion. We will reverse only on a showing that the accused was prejudiced and/or that the result of trial would likely have been different had the continuance been granted.
State v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123, review denied, 125 P.2d 1002 (1994).
Id.
The court properly exercised its discretion in denying Parmelee's request for a continuance. It correctly determined that the amendment did not change the facts the State would be seeking to prove and defense counsel had ample time to prepare for trial on the amended charges. Indeed, the prosecutor indicated two weeks before trial that an amendment was possible, and what the basis for that amendment would be. Despite this forewarning, there is no indication that defense counsel had made any effort to adjust his strategy accordingly. State v. Purdom, the case on which Parmelee relies, does not require a different result. In that case, the trial court allowed the State to amend the charge on the day of trial to a completely different crime with different elements. The defense had learned of the prosecutor's intention to amend only on the Friday before the Monday on which trial began. No such significant change or last minute surprise was involved here.
106 Wn.2d 745, 725 P.2d 622 (1986).
The amendment changed the original charge of conspiracy to deliver a controlled substance to being an accomplice to the delivery of a controlled substance.
4. Validity of the Protection Order
Parmelee next claims that the protection order was invalid because it was not properly served. Therefore, he contends, the order cannot support the convictions. The State responds that any deficiency in the protection order was harmless because the jury's verdict was obviously based on all three court orders. The State is correct.
Each count of violating a court order was charged in the alternative, indicating that guilt could be based on any of the three court orders that had been issued. The jury was instructed in the alternative as well; each 'to convict' instruction informed the jury that guilt could be based on either one of the no-contact orders or the protection order.
The jury was also given a special form to indicate which of the three orders it found that Parmelee had violated. The jury answered 'yes' to each of the three special verdict questions, which read as follows:
1: Did the defendant violate the No Contact Order dated March 19, 1998[?] . . .
2: Did the defendant violate the Order for Protection dated April 10, 1998[?] . . .
3: Did the defendant violate the No Contact Order dated May 21, 1998[?] . . .
Thus, even if we determined that the protection order was invalid and Parmelee could not have been guilty of violating it, the no-contact orders would still support Parmelee's convictions. We therefore do not need to reach Parmelee's extensive argument about the protection order's validity.
Parmelee argues further that the special verdict was insufficient to cure the alleged error because it did not include the element of knowledge; i.e., the jury's special verdict indicates it believed Parmelee violated the orders, but not whether he knowingly violated them. We disagree. Juries are presumed to follow instructions. Jury instructions are to be read as whole, and in context with all other instructions given. Here, the jury was instructed to use the special verdict only after it found the defendant guilty, and the jury was instructed that the elements of the court order violations included a knowledge requirement. Thus, the jury's answers to the special verdict questions reflected their finding that Parmelee knowingly violated the orders. Parmelee's claim that the jury 'could have reasonably answered yes to all of the [special verdict] questions, without necessarily believing that Parmelee was aware of the two municipal court orders' is wrong.
See State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
5. Sufficiency of the Evidence on Counts III and IV
The jury was instructed that to find Parmelee guilty of violation of a no-contact order it must find that Parmelee 'wilfully had contact' with Turner, and that 'such contact was prohibited by a no-contact order.' To find Parmelee guilty of violation of the protection order the jury was required to find that he 'violated the provisions of a protection order that restrained him from having contact with Renee Turner.' Parmelee argues that two of his convictions for violating a court order cannot stand because they were based on letters that Turner never actually received or read. Therefore, he claims, no actual contact ever occurred; rather, '[a]t most, there was an attempt at contact that failed because Turner never received her mail.' According to Parmelee, the evidence supported only convictions for attempted violation of a court order. We reject Parmelee's argument. Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier of fact could find each of the essential elements of the charged crime beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it.
(Emphasis added.)
(Emphasis added.)
Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Id.
After the first letters from inmates, Turner left town for a month with her son because she was afraid. After she left, the letters from Randy Ness and Roger Hotrum arrived at her home. Turner's neighbor collected those letters and turned them over to the police. Turner learned about them from the neighbor and the police. Based on this record, the jury had sufficient evidence to find that each of the two letters that arrived after Turner left town constituted a court order violation. A reasonable jury would understand that 'contact' includes the indirect communication involved here. Turner testified that when she learned about the additional letters she was 'absolutely' in fear. She explained:
I found it very, very frightening that, you know, this was starting to be what I considered like an onslaught. You never receive letters and then you start getting quite a few letters from people that are prisoners. You don't want to have any contact with them, and they know your address and where you live, and they talk about wanting to come visit you, and they want [a] sexy picture of you. No, this is very frightening. I live alone with a small boy, a little child.
As the State notes, to hold otherwise would lead to an absurd result, relieving Parmelee of any criminal liability for his actions because Turner left town in fear and was instructed by the police not to open any more letters. Parmelee's hypothetical situation about the police learning and contacting the victim about someone beginning to write a letter, but never mailing it, in violation of a protection order misses the mark. Here, in contrast, Parmelee's efforts to contact Turner were complete and Turner was aware of them.
Our holding is consistent with the broad definition of 'contact' in the no-contact and protection orders involved here. The no-contact orders instructed Parmelee not to have contact with Turner 'in person, by telephone or letter, through an intermediary, or in any other way[.]' The protection order instructed that he was restrained 'from having any contact whatsoever, in person or through others, by phone, mail, or any means, directly or indirectly[.] RCW 10.99.050 refers to 'contact' only by reference to the terms of the court orders that prohibit contact, like the ones involved here. The Legislature obviously understood the term to mean whatever contact the orders prohibit. Here, Turner learned of the letters from third parties. This was indirect contact prohibited by the court orders. That is sufficient to support the jury's verdicts.
(Emphasis added.)
(Emphasis added.)
RCW 26.50.110 does not explicitly mention 'contact' at all.
6. Speedy Trial Right
Parmelee contends the trial court erred in denying his motion to dismiss for violation of his speedy trial right. We affirm the court's decision. Under these circumstances, the State exercised due diligence in filing a detainer and a writ to ensure that Parmelee was brought to King County from the FDC for the proceedings in this case.
CrR 3.3, the speedy trial rule, provides time limits within which criminal defendants must be brought to trial. CrR 3.3(c)(1) requires arraignment within 14 days after the information or indictment is filed.
In computing the time for trial, the time during which the defendant is detained in federal jail or prison is excluded. To avail itself of that exclusion, however, the State must exercise good faith and due diligence in attempting to bring the defendant to trial.
CrR 3.3(g)(6).
State v. Simon, 84 Wn. App. 460, 464, 928 P.2d 449 (1996).
When the State filed charges against Parmelee on August 13, 1998, it was aware that Parmelee was in custody at the FDC. The State filed a detainer with the federal authorities on August 21. The State did not immediately seek Parmelee's presence in King County for his arraignment. Rather, it sought a writ on September 14, the day after Parmelee was sentenced on a federal probation matter.
Under the Interstate Agreement on Detainers, RCW 9.100, when Washington has charges pending against a prisoner held in another jurisdiction, it may file a detainer with that authority requesting that the prisoner not be released before resolution of the Washington charges. Id. The prisoner may exercise his speedy trial rights only after the detainer is filed. RCW 9.100.010, Art. 3; Simon, 84 Wn. App. at 464.
That matter was subsequently dismissed on appeal.
On September 21, Parmelee filed a demand for a speedy trial and a motion to dismiss based on an untimely arraignment. At the September 28 arraignment he filed a written objection to the date of arraignment. Parmelee alleged that the State should have arraigned him before August 28 according to the 14-day rule in CrR 3.3(c)(1). According to Parmelee, the 60-day speedy trial period would expire on October 26, 1998. The court disagreed with Parmelee's calculations and set an expiration date of November 27. Trial was set for November 24. Parmelee later waived his right to a trial within the court's calculated trial period due to difficulties with his legal representation, but filed a motion to dismiss for violation of his speedy trial right because of the allegedly late arraignment. He argued that the State failed to exercise due diligence because it did not ensure he was brought to King County sooner, despite the fact that he been brought in for both his divorce trial and a sentencing hearing in municipal court during his incarceration at the FDC. The State responded that even if it was possible to bring Parmelee to King County earlier, that does not automatically mean the State failed the due diligence requirement by not doing so.
See CrR 3.3(c)(1).
The court denied the motion to dismiss, finding that the State had acted with due diligence:
I don't think that the law requires that the State exercise all reasonable efforts to gain the defendant's presence, but I think they have to exercise some diligence in allowing the federal authorities to know that this is a person that they want detained for purposes of some state action. And I think certainly the federal government has the authority not to transport anyone while they are in their federal custody, if they deem it appropriate to hold on to that individual and to make sure they get their business done. I think to require the State to apply a standard of reasonableness would change with every single situation that arises, even in the same jurisdictions many times. And so I think what is required is due diligence to attain the person's presence. It does not require that they must attain that person's presence outside of the normal course of business between them and the holding authority. I think that the filing of the detainer in a timely fashion, and as soon as the defendant was available after his federal matter was finished, filing a writ to secure his presence was due diligence by the State in this case.
We hold that although it is a close call, the trial court's ruling should stand. While filing a detainer may not be enough to constitute due diligence under some circumstances, it was sufficient here. The detainer was filed very shortly after the charges, thus giving Parmelee the opportunity to exercise his speedy trial right in a timely manner. The State then filed a writ to procure Parmelee's presence at the arraignment immediately after the federal sentencing proceeding. The arraignment, and therefore the speedy trial period, was just one month behind the time in which it would have occurred had he not been in custody. Dismissal is not required. We note, however, that the State should ensure that steps are taken to arrange for the transfer of a defendant to avoid any unreasonable delay where, as here, there is no evidence that a transfer is not feasible.
Cf. Simon, 84 Wn. App. 460 (holding that the State's failure to make any inquiries for nearly a year after the defendant was available to stand trial did not satisfy the due diligence requirement).
7. Jury Instruction
Parmelee next argues that the jury was instructed on a crime that was not charged. In order to convict a defendant of stalking, the State must prove that the defendant placed the victim in fear that he intended to:
(1) injure her, (2) injure her property, or (3) injure others.
See RCW 9A.46.110(1)(b).
Here, the State charged Parmelee only with the first means of committing the offense, alleging that he 'place[d] her in fear that he intended to injure her.' The 'to convict' instruction, however, went further and listed all three alternative means of committing the offense. Parmelee alleges this was constitutional error requiring reversal. The State concedes error but argues it was harmless because there was 'overwhelming evidence' that Turner feared for her own personal safety. We agree that the error was harmless.
A defendant may not be tried for an uncharged offense. Where, as here, an information charges only one of several alternatives means of committing a crime, 'it is error to instruct the jury that they may consider other ways or means by which the crime could have been committed, regardless of the range of evidence admitted at trial.' That error is presumed prejudicial 'unless it affirmatively appears that the error was harmless.' An error in instructing the jury on an uncharged method of committing a crime may be harmless if "in subsequent instructions the crime charged was clearly and specifically defined to the jury." No later instruction cured the error here. Nonetheless, we conclude that the error was harmless based on the record before us. We are convinced beyond a reasonable doubt that the jury must have found that Turner feared for herself. The letters were addressed and written only to Turner, and there was no evidence that the letters suggested that Parmelee intended to harm the child or Turner's property. As such, there is no possibility that the jury convicted Parmelee without finding that she feared injury to herself.
State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
Id.
Id. at 34-35.
Id. at 35 (quoting State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942)).
State v. Cowen, 87 Wn. App. 45, 51, 939 P.2d 1249 (1997) ('A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result, despite the error.').
Contrary to Parmelee's claim, this decision does not require us to be 'arbiters of credibility.' There was simply no evidence of anything other than Turner's fear for her own safety.
8. Jury Instructions on Stalking
Instruction 15 informed the jurors that to convict Parmelee of stalking, it must find that Parmelee 'intentionally and repeatedly harassed Renee Turner[.]' Instruction 16 stated that '[t]o harass means to carry out a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys or harasses or is detrimental to such person, and which serves no legitimate or lawful purpose.' Instruction 13 stated that '[a] person acts willfully when he or she acts knowingly.' Parmelee argues that, because instruction 16's definition of 'harass' mentions both 'knowing' and 'willful,' a conviction requires something more than mere knowledge — namely, an 'intentional' or 'purposeful' act. Yet instruction 13 equates 'wilfully' and 'knowingly,' which 'allowed the jury to find harassment if Parmelee acted with mere knowledge that his actions would alarm or annoy Turner.' According to Parmelee, this effectively 'lowered the State's burden in proving the harassment element of stalking.'.
We disagree.
Parmelee did not raise this objection below; we therefore do not consider it unless it presents an issue of constitutional magnitude. But even where a jury instruction error constitutes an error of constitutional magnitude, it is harmless 'if the reviewing court is convinced beyond a reasonable doubt that the same result would have been reached in the absence of the error.'
RAP 2.5(a)(3); State v. Strandy, 49 Wn. App. 537, 545-46, 745 P.2d 43 (1987), review denied, 109 Wn.2d 1027 (1988).
State v. Souther, 100 Wn. App. 701, 711, 998 P.2d 350 (2000).
Here, any error was harmless. Even assuming that the instructions were constitutionally defective, as Parmelee contends, the 'to convict' instruction for stalking clearly informed jurors that they must find that the harassing acts Parmelee were intentional. Again, that instruction read:
To convict the defendant of the crime of Felony Stalking, each of the following elements must be proved beyond a reasonable doubt: (1) That . . . the defendant intentionally and repeatedly harassed Renee Turner[.]
We presume that juries follow instructions. Instruction 15 informed the jury that it could not convict Parmelee if he only knowingly committed harassing acts; he must have done them intentionally. Whether Parmelee acted intentionally was not called into question by the defense at trial. Any error was harmless.
See Weber, 99 Wn.2d at 166.
9. Probation Without a Suspended Sentence
The trial court imposed conditions of probation to become effective after Parmelee serves the jail time ordered for his court order violations. Parmelee argues this was error because RCW 9.95.210(1) allows a court to set conditions of probation only where the court suspends part or all of such a sentence, and the court here did not suspend any of Parmelee's sentences. The State concedes this error. Accordingly, we remand for resentencing on the one remaining court order violation conviction.
10. No-Contact Order's Effect on Parmelee's Access to Court
The trial court imposed a no-contact order between Parmelee and Turner. Parmelee argues that the order violates his constitutional right to access to the courts. Parmelee protested the order because there are two pending civil cases between Turner and him — one state and one federal. He claimed the no-contact order would prevent him from pursuing those actions because he could not serve Turner. The trial court disagreed and instructed Parmelee that a judicial officer must serve any legitimate paperwork upon Turner's legal representative. But Turner is representing herself in those matters. The State responds that the trial court has the authority to issue such an order but fails to address the quandary that arises because Turner does not have a legal representative.
In City of Seattle v. Megrey this court determined the proper way to resolve the conflict between 'two legitimate interests: the interest of one party in being free from contact with the other pursuant to an antiharassment or other similar order, and the interest of the other person in pursuing a legal claim.' We determined that the best solution is for the person seeking to make prohibited contact to request permission from the court that entered the order 'to modify the order to allow the appropriate action.' In making its determination, the court would weigh the risk to the protected party versus the need for the restrained party to proceed at that time.
93 Wn. App. 391, 968 P.2d 900 (1998).
Id. at 395.
Id. at 396.
We instruct the trial court to employ a Megrey-type solution in this case if a situation arises in the future in which Parmelee is seeking to serve papers or make other contact with Turner as part of the civil cases. While this responsibility will be burdensome for the court, it recognizes Parmelee's right to access the courts while protecting Turner. It also ensures that Parmelee is pursuing the civil actions for a proper purpose and not to further harass Turner.
Conclusion
We affirm Parmelee's convictions for felony stalking and one of the court order violations and remand for resentencing. The other two of the court order violation convictions merge with the stalking conviction. On remand the trial court may either suspend the sentence for the court order violation and impose probation, or impose the sentence without probation conditions.
The trial court is free to again consider the appropriate sentence in light of this conclusion and the record at trial.
WE CONCUR: BAKER, J., APPELWICK, J.