Opinion
No. 51885-2-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-07844-0. Judgment or order under review. Date filed: 01/27/2003. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Marcel Sampson challenges his conviction of felony violation of a protection order. Our recent decisions in State v. Carmen and State v. Davis control his claims of instructional and evidentiary error. The prosecutor did not commit misconduct by suggesting during closing argument that the victim's recantation may have been connected to the large number of collect calls placed to her house from the jail where Sampson was housed. We affirm.
118 Wn. App. 655, 77 P.3d 368 (2003).
116 Wn. App. 81, 64 P.3d 661, review granted, 149 Wn.2d 1032 (2003).
Police responded to a domestic violence call at an apartment complex. The caller reported being assaulted by her boyfriend, Marcel Sampson. An officer responding to the call observed C.T., a young woman, talking on the phone to the 911 dispatcher. C.T. was crying and bleeding from her mouth. She told the officer she had been in her car with Sampson, who was the father of her child. Sampson had struck her in the mouth several times. Officers located Sampson nearby. Following advice of his Miranda rights, Sampson told police he had become angry when a male called C.T., which led him to break the windshield with her telephone. Later he requested medical attention for his bleeding hand, which he said resulted from punching a window. A no-contact order prohibiting Sampson from contacting C.T. was in effect.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The State charged Sampson with a felony violation of a no-contact order, alleging both that the violation was an assault and that Sampson had two prior no-contact violation convictions. Between Sampson's arrest and the time of trial, over 50 collect calls were placed to C.T.'s home from telephones in the jail. The State amended the information to add a count of malicious mischief and two additional counts of felony violation of a protection order covering the time period of the phone calls. By the time of trial, C.T. recanted her initial statements to police and the 911 dispatcher. She now blamed a young man named Jason for her injuries. She also denied that any of the collect phone calls had been from Sampson, testifying that she often accepted such calls from other jail inmates. During closing argument, over defense objection, the prosecutor was allowed to suggest that C.T. had recanted as a result of communication with Sampson during the phone calls. The trial court also refused to instruct the jury that the legal applicability of the two prior convictions was a jury question, instead ruling from the bench that the convictions qualified as a matter of law. Accordingly, the court did not allow defense counsel to argue the issue to the jury.
The jury found Sampson guilty of the original charge of violation of the no-contact order, and by special verdicts found both that he had two prior no-contact violation convictions and that the violation in this case was an assault. The jury acquitted Sampson of malicious mischief and the two other no-contact order charges.
Sampson first contends that the court violated his state and federal constitutional rights to a jury trial and to assistance of counsel by deciding the applicability of the two prior convictions from the bench. To prove that a violation of a court order constitutes a class C felony, the State must either prove that the violation of the order is an assault or that the defendant has at least two previous convictions for violating the provisions of an order issued under chapters 26.50, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW.
RCW 26.50.110(4).
RCW 26.50.110(5).
Sampson's argument is controlled by our recent decision in State v. Carmen, in which we held that whether the convictions relied upon by the jury actually were based on violations of protection orders issued under one of the statutes listed in RCW 26.50.110(5) is a legal question for the judge. Sampson's related claim that the court erred in allowing the State to reopen to submit for the jury's consideration a copy of a Renton Municipal Court docket for one of the prior convictions also fails under Carmen. As in Carmen, although the court should have ruled on the applicability of predicate offenses before admitting evidence of the convictions, such error is harmless because, contrary to Sampson's claim, the record demonstrates that the predicate offenses satisfied the statutory requirement. Sampson challenges only the applicability of his prior conviction from Renton Municipal Court. He contends there is no proof that the underlying order he was accused of violating in that case was issued pursuant to Chapter 10.99 RCW. He is incorrect. The certified docket indicates that the conviction, from 1998, was for a violation of RCW 10.99.050. The version of RCW 10.99.050 in effect in 1998 criminalized only a "violation of a court order issued under this section." Former RCW 10.99.050(2) (1997). Accordingly, proving Sampson's conviction was for a violation of RCW 10.99.050 necessarily demonstrated that the underlying restraining order in that case was issued pursuant to RCW 10.99.050, part of Title 10.99 RCW. The conviction thus satisfied the requirement of RCW 26.50.110(4).
118 Wn. App. 655, 77 P.3d 368 (2003).
Id. at 663-64.
Exhibit 18.
Consistent with the certified copy, Section 6-10-1 of the Renton Municipal Code indicates that Renton has adopted RCW 10.99.050 as part of its criminal code.
Sampson also contends the to-convict instruction for the charge of felony violation of a no-contact order omitted the essential element that the contact was an assault. He concedes that this element was set forth in a special verdict form. He also concedes that this court upheld a similar to-convict instruction and special verdict form in State v. Davis. Sampson argues, however, that Davis is distinguishable because the instruction in Davis did not purport to contain all of the crime's elements. But the instruction in this case did not purport to set forth all of the elements of a felony violation of a no-contact order, only the elements of a misdemeanor violation. Just as in Davis, the court properly used pattern instructions to require the jury to determine by special verdict whether the State proved the prior convictions.
116 Wn. App. 81, 64 P.3d 661, review granted, 149 Wn.2d 1032 (2003).
See Clerk's Papers at 32 ("To convict the defendant of the crime of violation of a no-contact order. . . .").
Sampson alternatively argues that Davis conflicts with the Supreme Court's decision in State v. Oster. But we expressly considered and followed Oster's rationale in Davis. For the reasons we gave in Davis, our holding in that case does not conflict with Oster. Moreover, because the jury also found beyond a reasonable doubt that Sampson had two prior convictions, any error regarding the assault special verdict was harmless beyond a reasonable doubt because under Oster, it is proper to address the prior convictions in the special verdict form rather than in the to-convict instruction.
147 Wn.2d 141, 52 P.3d 26 (2002). This issue is currently before the Supreme Court in State v. Davis and State v. Mills, Nos. 73893-9 and 73894-7.
Davis, 116 Wn. App. At 92-93.
Finally, Sampson contends the prosecutor committed misconduct in closing argument by suggesting the collect calls to T.C.'s residence may have influenced her to recant. We review the trial court's determination that there was no misconduct for abuse of discretion. Contrary to Sampson's claim, the prosecutor was not merely speculating, but was drawing inferences from the evidence. On the 911 tape, when she saw Sampson turning back in her direction, C.T. sobbed "Oh God, I'm going to get beat now." During his drive to jail, Sampson spontaneously told the police officer: "A lot more than a window was going to break when I get out. You wait." The phone calls were from locations consistent with Sampson's locations within the jail. The trial court did not abuse its discretion in concluding the challenged remarks did not exceed the wide latitude a prosecutor is accorded in drawing inferences from the evidence. Affirmed.
State v. French, 101 Wn. App. 380, 385, 4 P.3d 857 (2000).
Br. of Resp. at 17.
Report of Proceedings (Dec. 10, 2002) at 124.
State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
SCHINDLER and Appelwick, JJ., concur.