During the COVID-19 pandemic, courts adopted a number of policies and procedures to prevent infection. A defendant recently appealed his convictions for violation of a no contact order, challenging whether the state proved he had knowledge of the order when he had not signed it during COVID-19 protocols.
According to the appeals court’s opinion, a 2020 domestic violence no-contact order prohibited the defendant from contacting the ex-girlfriend until 2025. In October 2021, the two got into an argument. The ex-girlfriend called 911 and reported that the defendant had strangled her.
The responding officer observed that the ex-girlfriend was “very nervous” and appeared fearful and like she had been crying. He testified she told him the defendant strangled her. He did not see any injuries.
The defendant was arrested. Pre-trial domestic violence no-contact orders prohibiting him from contacting either the ex-girlfriend or their child were entered at his arraignment.
The arraignment was held during the COVID-19 pandemic. A detective testified the defendant was in custody “in a room by himself” during the arraignment. The defendant did not sign the orders, which instead stated in the signature block, “Defendant unable to sign: ic covid.”
The defendant called both the ex-girlfriend and their child from jail.
The defendant was charged with fourth degree assault and four counts of domestic violence court order violations, one of which related to his contact with the child.
The ex-girlfriend testified she put her hands up to push the defendant away and he pushed her back. She testified she grabbed his hair and he grabbed her throat. She also testified he had pushed her by the throat but had not choked or strangled her. She testified he never harmed her.
The defendant was convicted of assault in the fourth degree and three violations of a domestic violence court order. In its findings of fact, the court found that the defendant struck his ex-girlfriend and that it was harmful or offensive. The court also found he knew about no-contact orders prohibiting him from contacting the ex-girlfriend or the child. The court also found that the defendant violated a no-contact order when he contacted the child.
The defendant appealed, challenging the court’s findings that he knew about the no-contact orders and – knowingly violated them. He also challenged the trial court’s conclusions that he was guilty of the fourth degree assault charge and of the domestic violence court order violation involving the child.
Assault Conviction
The defendant argued the state did not prove the touching had been harmful or offensive and the evidence was therefore insufficient to support the assault conviction.
With no statutory definition of assault, the appeals court considered the common law definition set forth in State v. Villanueva-Gonzalez. That case defines assault as “an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless or whether any physical injury is done to the person.” The definition further notes that the touching is offensive if it “would offend an ordinary person who is not unduly sensitive.”
The trial court found the defendant struck the ex-girlfriend in the neck and “intentionally caused a harmful or offensive contact. . .” The court also found she contacted 911 and stated the defendant “strangled” her. The court further found that she “presented with a fearful disposition, adding to the credibility of her statement.” This finding was not challenged and therefore was a verity on appeal. The appeals court concluded this finding was sufficient evidence to support the assault conviction. The appeals court further noted that there was sufficient evidence even if the defendant had challenged the finding: the 911 call, the officer’s testimony regarding the ex-girlfriend’s statements after the incident, and the ex-girlfriend’s testimony. Noting the ex-girlfriend’s statement was not dispositive, the appeals court concluded an ordinary person would find a strike in the neck offensive.
Knowledge of the No-Contact Order
The defendant also argued there was insufficient evidence supporting the finding he knew the no-contact order prohibited him contacting the child.
The state is required to prove three elements for willful violation of a no-contact court order. The state must prove that willful contact occurred, that the contact was prohibited by a valid no-contact order, and that the defendant knew of the no-contact order. The defendant’s signature on a certified copy of the order is sufficient evidence of knowledge.
The no-contact order indicated it had been “E-FILED IN OPEN COURT CD2.” The signature block stated the defendant was unable to sign and referenced covid. The detective testified the defendant was in a room alone during the arraignment and suggested the defendant was not able to sign because of COVID-19 protocols.
The appeals court concluded, drawing reasonable inferences in favor of the state, that the evidence indicated the defendant attended the arraignment and was notified of the no-contact order through the live stream.
The defendant argued the trial court erred in judicially noticing the court’s COVID-19 protocols.
Under the Washington Rules of Evidence, a trial court may take judicial notice of adjudicative facts, which are not subject to reasonable dispute because they are either generally known in the area or capable of being determined through “sources whose accuracy cannot reasonably be questioned.” ER 201.
The trial court found that, when the language stating the defendant is unable to sign and referencing covid is on the court order, the defendant was been given notice but was unable to sign the order because of COVID-19. The trial court also found that the defense attorney types the notation on behalf of the defendant.
The appeals court concluded that it was not improper for the trial court to take notice of these adjudicative facts. The appeals court further noted that it was proper for the trial court to judicially notice the courts had adopted COVID-19 policies, including having the defense attorney sign the orders reflecting that the defendant could not sign because of COVID-19. The appeals court further concluded that the court’s statements did not constitute improper testimony pursuant to ER 605.
The appeals court concluded there was sufficient evidence showing the defendant’s knowledge of the order.
The appeals court affirmed the convictions.
Seek Legal Advice
If you have been involved in a situation that may lead to a no-contact order or civil protection order, an experienced Washington protection order attorney can help. At Blair & Kim, PLLC, we have significant experience in handling protection orders, family law, and criminal defense and are positioned to assist in all aspects of a case involving family violence. Call our office at (206) 622-6562 to set up a consultation to discuss your case.