Opinion
No. 61444-4-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08024-1, Jim Rogers, J., entered March 7, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Cox, J.
John Pitre contends his conviction for felony violation of a no contact order is not supported by sufficient evidence because the State failed to prove the statutory authority for two previous no contact orders, the violation of which elevated his current offense to a felony. But the statutory authority for the previously-violated no contact orders is relevant only to the question of whether evidence of the prior convictions is admissible, and Pitre failed to object to that evidence. Finding no error, we affirm.
BACKGROUND
Pitre was charged with two counts of felony violation of a no contact order (NCO) under RCW 26.50.110(5). The offense is a felony "if the offender has at least two previous convictions for violating the provisions of an order issued under" certain specified statutes or a valid foreign protection order.
RCW 26.50.110(5) ("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 of 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.")
At trial, state employee Demetrius Devers testified regarding two exhibits. The first was a judgment and sentence reflecting Pitre's conviction in June 2006 for violation of a NCO. The second was a judgment and sentence reflecting another conviction for violation of a NCO in September 2006. Pitre made no objections to the testimony. For reasons not clear in the record, only the first of these exhibits was offered into evidence.
The jury convicted Pitre of one count of felony violation of a NCO and returned a special verdict finding that he had two previous convictions for violating the provisions of a NCO.
DISCUSSION
Pitre contends there is insufficient evidence to support his conviction because the State failed to prove that the previously-violated NCOs were issued under the statutes listed in RCW 26.50.110(5). His argument relies on the premise that the statutory authority for the previously-violated NCOs is an essential element of felony violation of an NCO. We have rejected this premise in two other cases:
[P]rior convictions for violating NCOs are only relevant to prove felony violation of an NCO under RCW 26.50.110(5) if the previously-violated NCOs were issued under the listed statutes. . . . [T]he statutory authority for those NCOs is not an essential element of the crime to be decided by the jury, but rather a threshold determination the court makes as part of its `gate-keeping function' before admitting the prior convictions into evidence for the jury's consideration.
State v. Gray, 134 Wn. App. 547, 556, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007) (emphasis added); See also State v. Carmen, 118 Wn. App. 655, 77 P.3d 368 (2003).
"The very relevancy of the prior convictions depended on whether they qualified as predicate convictions under the statute. If they had not so qualified, the jury never should have been permitted to consider them." Thus, had Pitre objected to the State's failure to prove the prior NCO was issued under one of the listed statutes, the court would not have admitted evidence of the Pitre's conviction for violating that NCO, and Pitre would not have been convicted of the felony offense. Pitre never objected, so his objection is waived.
Carmen, 118 Wn. App. at 664.
We do not suggest the State was unable to prove the statutory authority of the previous NCOs. It appears to us that the State's failure to introduce the judgment and sentence for the September 2006 conviction was inadvertent.
See Gray, 134 Wn. App. at 558 (defendant waived objection to lack of evidence of previous NCO's statutory authority by waiting until the State rested to move to dismiss on those grounds); Carmen, 118 Wn. App. at 668 (same).
Pitre contends that his challenge is not to the admissibility of Devers' testimony but to the sufficiency of that testimony to prove the statutory authority for the prior conviction. He points out that the trial courts in Carmen and Gray were able to determine whether the prior convictions were in fact based on NCOs issued under the statutes listed in RCW 26.50.110, and argues that such a determination is a "necessary requirement" for conviction under the plain language that statute. In this case, he argues, there was no evidence from which the court could make that determination.
Pitre's argument is no less at odds with Carmen and Gray because he argues the statutory authority must be determined by the court rather than the jury. The issue is to be resolved at the point of admission of evidence of the prior convictions. Pitre failed to object to evidence of the prior convictions. He has waived the issue.
Essentially Pitre argues that our decisions in Carmen and Gray are incorrect and that State v. Arthur, a contrary decision from Division Two, presents the better rule. But we specifically declined to adopt Arthur in Gray, and the Supreme Court resolved the Carmen-Arthur dispute in Carmen's favor. We see no reason to depart from the reasoning in Carmen and Gray.
126 Wn. App. 243, 249, 108 P.3d 169 (2005) (holding it is an essential element of a charge under RCW 26.50.110(5) that the previous convictions be for violating an order issued under the specified statutes).
See State v. Miller, 156 Wn.2d 23, 30, 123 P.3d 827 (2005).
Affirmed.
WE CONCUR.