Seattle Attorneys Blog
Pursuant to RCW 7.105.450(1)(a), a violation of a Washington domestic violence protection order is generally a gross misdemeanor. A violation can be a felony, however, if it constitutes an assault “that does not amount to assault in the first or second degree.” RCW 7.105.450(4). In a recent unpublished case, a Washington appeals court considered whether a defendant can be convicted of both a felony violation of a no contact order under RCW 7.105.450(4) and assault in the second degree under RCW 9A.36.021(1)(a) for the same acts.
An April 2022 no contact order prohibited the defendant from having contact with the protected person, identified by the appeals court as “C.S.,” or coming within 1,000 feet of her or her residence for 10 years.
According to the court’s opinion, C.S. called 911 in September 2022. She said the defendant had been staying with her and had kicked and “beat [her] up.” She said she had refused to give him a cigarette and he tried to steal her purse. She said there was a struggle when she grabbed it back and he punched her and knocked out her tooth. She said he kicked her and dragged her over rocks.
A responding deputy testified she had “some scrapes. . .” and looked like she had been “rolling around in the dirt.” A deputy photographed her injuries, including abrasions, contusions, and her missing tooth.
The defendant was charged with assault in the second degree and felony violation of a court order (“FVCO”), with domestic violence indicators.
In the state’s closing argument, it asked the jury to find him guilty of the second degree assault because the evidence showed he committed an assault that “recklessly” inflicted substantial bodily harm. The state also asked the jury to find the defendant guilty of FVCO based on his actions when “he clearly assaulted her.”
The appeals court noted the state’s closing argument and the jury instructions did not really distinguish between the degrees of assault in the counts. Furthermore, the jury instructions did not indicate that the assault in the FVCO must not constitute assault in the first or second degree.
The jury convicted the defendant of both charges. The defendant appealed, arguing the jury could have convicted him of FVCO on the same acts that constituted the second degree assault.
The appeals court considered the case of State v. Azpitarte, in which the Washington Supreme Court held that “[t]he statute clearly excludes the use of first and second degree assaults to elevate violation of a no-contact order form a gross misdemeanor to a felony.” In that case, the Washington Supreme Court set aside the FVCO conviction because the jury could have relied on the second degree assault to find Azpitarte guilty of FVCO.
The appeals court noted that the Azpitarte holding controls in this case. In the current case, the state implicitly conceded the defendant was charged and convicted “for the same incident.”
The state argued the appeals court should reconsider the holdings of Azpitarte. The appeals court noted it was bound to follow the precedent and did not have the authority to disregard a Washington Supreme Court decision. The state also argued that Azpitarte had ignored the intent of the legislature, but the appeals court noted that the Washington Supreme Court had considered legislative intent and concluded the statute’s purpose was to ensure that an assault that violated a no contact order was treated as a felony. State v. Ward. Furthermore, the statutory language is clear, so the appeals court did not need to address legislative intent.
The state also argued that RCW 7.105.565 could change the interpretation of the statute. RCW 7.105.565(1) provides that any proceeding under Chapter 7.105 “is in addition to other civil or criminal remedies.” The appeals court noted that the legislature has amended the statutory scheme over the years, but has not changed the “does not amount to” language in question. Additionally, specific statutory provisions govern over more general ones.
The appeals court rejected all of the state’s arguments, vacated the FVCO conviction, and remanded.
If you need representation in a matter involving both criminal charges and a protection order, Blair & Kim, PLLC can help. We have experience in criminal defense and protection orders, as well as family law. Schedule a consultation with a skilled Washington civil protection order attorney at (206) 622-6562.