Opinion
No. 21498-2-III
Filed: November 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 01-1-00631-6. Judgment or order under review. Date filed: 04/12/2002. Judge signing: Hon. Carolyn A. Brown.
Counsel for Petitioner(s), Patrick Ray Wingard (Appearing Pro Se), 1326 W 7th Place L-3, Kennewick, WA 99336.
Counsel for Respondent(s), Monica K Hollenberg, Attorney at Law, 607 S Young Pl, Kennewick, WA 99336-9586.
Patrick Wingard appeals the Benton County Superior Court's decision affirming his district court conviction for violating the terms of a restraining order. Mr. Wingard contends the complaint is invalid because it cites the incorrect statutory basis for the charge and fails to include the knowledge element of the crime. He also challenges the sufficiency of the evidence to support his conviction. Because we find that the error in the statutory citation is not grounds for reversal, that the complaint alleges knowledge of the restraining order, and that the restraining order was valid, we affirm.
Facts
On July 6, 2000, a decree was entered in the Benton County Superior Court dissolving the marriage of Patrick Wingard and Loretta Wingard. In a paragraph entitled "Continuing Restraining Order," Mr. Wingard was restrained "from going onto the grounds of or by entering or disturbing the daycare of" the couple's two children. Clerk's Papers (CP) at 43. The restraining order was to remain in effect until August 1, 2001 and superseded all prior temporary restraining orders. Of importance to this appeal, the restraining order also contained the following language: VIOLATION OF A RESTRAINING ORDER IN PARAGRAPH 3.8 WITH ACTUAL KNOWLEDGE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.09 RCW, AND WILL SUBJECT THE VIOLATOR TO ARREST. RCW 26.09.060.
CP at 43 (emphasis added).
RCW 26.09.060 pertains to temporary restraining orders. By its terms, the statute requires a temporary restraining order to terminate upon entry of the final decree of dissolution. RCW 26.09.060(10)(c). RCW 26.09.050 pertains to restraining orders that are contained within a decree of dissolution and is the statute that should have been cited under the facts of this case. Before June 2000, former RCW 26.09.050(2) (1995) required that restraining orders included in a dissolution decree must prominently warn that "VIOLATION OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.09 RCW AND WILL SUBJECT A VIOLATOR TO ARREST." Temporary restraining orders issued pursuant to former RCW 26.09.060(7) (1995) were also required to display this warning.
On June 8, 2000, one month before Mr. Wingard and his wife entered their dissolution decree, the legislature amended both RCW 26.09.050(2) and RCW 26.09.060(7) to require the following warning on the order of restraint: "VIOLATION OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.50 RCW AND WILL SUBJECT A VIOLATOR TO ARREST." Laws of 2000, ch. 119, sec.sec. 6, 7.
On December 13, 2000, Mr. Wingard went to his children's daycare to pick up his son. The facility owner/operator, Jeanette Corriell, recognized Mr. Wingard and knew there was a continuing restraining order in the divorce decree that prohibited him from being on the daycare property. She had a certified copy of the decree in her possession. Ms. Corriell met Mr. Wingard outside the daycare facility and reminded him that he was not to be on the premises. She then went inside to call the police to report the violation of the restraining order. Mr. Wingard followed her inside but then left after screaming obscenities at her. He was later arrested and charged in the Benton County District Court with violating a restraining order. The criminal complaint incorrectly cited the temporary restraining order statute, RCW 26.09.060.
At the conclusion of a jury trial in the Benton County District Court, Mr. Wingard was found guilty of violating a restraining order. He appealed that conviction to the Benton County Superior Court alleging: (1) a contradiction in law existed between RCW 26.09.060 and RCW 26.50.110 that barred his prosecution for violating a continuing restraining order; and (2) the charging document was insufficient. Argument took place on March 8, 2002, after which the court affirmed the lower court conviction. Mr. Wingard's motion for reconsideration was denied in April 2002. Findings of fact and conclusions of law were filed on April 21, 2004, in response to a request from this court.
There is no documentation to support Mr. Wingard's claim that these were the issues addressed in his appeal to superior court. The State essentially agrees these were the issues raised.
Mr. Wingard initially filed a motion for discretionary review with our Supreme Court. That motion was transferred to this court and set on the commissioner's docket. The commissioner granted the motion for discretionary review.
The appeal was originally set for March 2004. During pre-argument workup, it came to this court's attention that the record was incomplete. Argument was stricken and the clerk of court wrote requesting that Mr. Wingard designate the transcripts filed in the district court in August and September 2001, the transcript for the July 2001 district court trial, the district court judgment, and the reports of proceedings before the superior court in December 2001 and January and March 2002. The reports of proceedings before the superior court eventually arrived at this court. Although Mr. Wingard mailed the designation of clerk's papers to the Benton County Superior Court on March 24, 2004, none of the remaining documents from district court have been delivered. There is no indication on the record whether the superior court received or acted upon Mr. Wingard's request.
On March 24, 2004, Mr. Wingard wrote to the Clerk of this court and requested that his appeal continue based upon the record as it stands or as it is completed. In light of his request to decide his appeal on whatever record is before this court, and recognizing that there is no dispute regarding the relevant facts, we address Mr. Wingard's appeal as it stands. Sufficiency of the Charging Document
Mr. Wingard challenges the legal sufficiency of the complaint charging him with violating a restraining order. He points out that the criminal complaint cited a violation of RCW 26.09.060, which refers to temporary restraining orders that, by the terms of the statute, expire upon entry of a decree of dissolution. RCW 26.09.060(10)(c). The correct statutory reference would have been to RCW 26.09.050, which authorizes continuing restraining orders in dissolution decrees. In this appeal, he claims that since the restraining order, as set forth in the decree of dissolution, expired upon entry of the decree of dissolution, there was no restraining order in place on December 13, 2000 for him to violate. He also claims the charging document failed to set forth all the essential elements of the crime — notably proof that Mr. Wingard had notice of the terms of the restraining order.
An improper statutory citation in a charging document generally will not give rise to grounds for reversal unless a defendant can show he was misled by the error to his detriment. State v. Hopper, 118 Wn.2d 151, 159-60, 822 P.2d 775 (1992); State v. Sutherland, 114 Wn. App. 133, 136, 56 P.3d 613 (2002), review denied, 149 Wn.2d 1034 (2003). The error claimed here — that the complaint referred to the violation of a restraining order that should have expired upon the date of the decree — did not affect the elements of the crime charged. Mr. Wingard was on notice with the filing of the decree of dissolution that the included restraining order was in effect until August 1, 2001.
Although the complaint cites the incorrect restraining order statute, it correctly alleges pursuant to RCW 10.31.100(2)(a) that, with knowledge of the restraining order, Mr. Wingard violated the conditions of that order by entering his children's daycare. The complaint further describes the order as restraining Mr. Wingard from contacting his wife and children at the daycare facility and alleges that on the day in question he entered the daycare and told a worker he was there to pick up his son. These allegations, if proved, support conviction for violation of a restraining order under RCW 10.31.100(2)(a). No prejudice is evident from this record. Consequently, the scrivener's error in the statutory citation is not grounds for reversal. Hopper, 118 Wn.2d at 159-60.
Mr. Wingard's remaining argument — that the complaint fails to include the knowledge element of the crime of violation of a restraining order — is without merit. The complaint clearly alleges he had knowledge that the restraining order was issued on July 6, 2000 (upon the filing of the decree of dissolution) and that he was restrained from having contact with his wife and children at the daycare facility. Sufficiency of the Evidence
Next, Mr. Wingard claims the trial court erred when it affirmed his district court jury conviction. He seems to argue that there was insufficient evidence presented at trial to support one of the elements of the offense. Specifically, he asserts that the State failed to prove that a valid restraining order existed on the date in question. State v. Marking, 100 Wn. App. 506, 509, 997 P.2d 461 (2000) (validity of the protective order an implicit element of the crime of violating such order).
When reviewing a challenge to the sufficiency of the evidence, this court must view the evidence in the light most favorable to the State. State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983). The relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 490.
Although the pro se pleadings are inartfully drafted, it appears the crux of Mr. Wingard's argument is that the continuing restraining order contained in the decree of dissolution was invalid and ineffective because it improperly cited chapter 26.09 RCW rather than chapter 26.50 RCW in the statutory warning. Further, the restraining order in the decree cited RCW 26.09.060, which refers to temporary restraining orders that expire upon entry of a decree of dissolution. The proper citation would have been RCW 26.09.050, although the warning required by that statute does not require citation to the statute itself. See RCW 26.09.050(2). Mr. Wingard insists that this error caused the continuing restraining order to be facially invalid.
In Marking, 100 Wn. App. at 509, Division Two of this court reversed a conviction for violation of a domestic violence no-contact order because the order failed to contain the required warning that consent is not a defense to violating the terms of the court's order. Marking concluded that the underlying no-contact order was invalid because the inclusion of a consent warning was mandatory under former RCW 10.99.040(4)(d) (1997) (pretrial no-contact orders). Id. at 510-11. The court reasoned that the policies underlying the domestic violence statute, including giving fair notice to the defendant, favored the result reached. Id. at 511-12.
The continuing restraining order at issue here does not omit the statutorily required language in the required warning, it merely misstates the statutory reference. Mr. Wingard provides no relevant case law, nor did we find any, that supports invalidating the restraining order for what amounts to a scrivener's error. In fact, the opposite is true. In an analogous case, Sutherland, 114 Wn. App. 133, the challenged no-contact order contained a required warning that violation of the order was a criminal offense, but cited the wrong statutory basis. On appeal, the court held that the otherwise correct warning could not be misunderstood to the defendant's prejudice because the operative warning was clear. Id. at 136.
Here, the intent of the restraining order is made clear by the statutory warning, the description of who was refrained from whom and from what places, and the expiration date of August 1, 2001. As with the incorrect citation to statute in the complaint, Mr. Wingard fails to show how the citation to RCW 26.09.060 really prejudiced him. Consequently he is not entitled to relief. Sutherland, 114 Wn. App. at 136.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., Concur.