violation of a no contact order

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  1. violation of a no contact order
    1. Generally
    2. Issues relating to the validity of the predicate order
    3. Essential Elements
    4. No contact and geographic areas
    5. Felony Violation no-contact order
    6. Jury Instruction issues
    7. Other
    8. Anti-harassment orders

violation of a no contact order

VIOLATION NO CONTACT ORDER

Generally

Under RCW 10.99.040(3) a no-contact order entered at arraignment remains in effect until after a finding of guilt and until the defendant’s sentencing, when the court may extend it as a sentencing condition by indicating on the judgment and sentence the order is to remain in effect. It is not a nullity upon conviction. State v. Schultz, 146 Wn.2d 540,543 (2002)(J. Sanders, dissenting).

Arraignment no-contact order can not serve as basis of charge where underlying domestic violence case dismissed and the incident occurs after the dismissal. Here, the court analyzes the three types of no-contact orders allowable pursuant to RCW 10.99.040/050. State v. Anaya, 95 Wn. App. 751 (1999). Defendant can violate pre-trial no contact order by making phone contact from the jail. State v. Rodman 94 Wn. App. 930 (1999) (rejecting argument that no?contact orders are inoperative until a defendant's release).

Issues relating to the validity of the predicate order

The “existence” of a no contact order is an element of the crime. The “validity” of the order is a question of law for the trial court to decide as part of the court’s gate-keeping function, and not an element of the crime or an implied element of the crime. The court should decide whether an order is “applicable” to the crime, that is whether the order is issued by a competent court, is not vague or inadequate on its face, or otherwise will nto support a conviction. State v. Miller, 156 Wn.2d 23 (2005) overruling to the extent insconsistent City of Seattle v. Edwards, 87 Wn. App. 305 (1997) and State v. Marking, 100 Wn. App. 506 (2000)[i.e. to extent they declare the validity of the underlying order an implied element of the crime]

Absent a clear and timely challenge to the legal viability of the underlying order, the state need not prove the trial court issuing the order complied with the various procedures surrounding such order, or presume invalidity. RCW 25.52.020 provides a presumption in favor of validity where an order from a foreign jurisdiction appears authentic on its face. State v. Snapp, 119 Wn. App. 614 (2004).

NCO is invalid if it does not include the statutorily required warning that the consent of the person protected is not a defense to a charge of violating the order. Since the state bears the burden of proving the validity of the order as an element of the crime, and statutory language serves a notice function, there was insufficient evidence of a valid order and conviction reversed. State v. Marking, 100 Wn. App. 506 (2000)review denied, 141 Wn.2d 1026 (2000); Cf, State v. Sutherland, 114 Wn. App. 133 (2002)(incorrect statutory reference in “warning” language does not invalidate order and distinguishing Marking); State v. Turner, 118 Wn. App. 135 (2003)(order valid under RCW 26.09.060 and met statutory requirements).

Essential Elements

Knowledge of the order is an essential element of VNCO. State v. Phillips, 94 Wn. App. 829 (1999). Mere knowledge, and not personal service, is sufficient for conviction. City of Auburn v. Solis-Marcial, 119 Wn. App. 398 (2003)(reversing trial court dismissal).

A defendant acts willfully if he acts knowingly with respect to material elements, including the contact element in VNCO. State v. Sizemore, 114 Wn. App. 75 (2002); State v. Clowes, 104 Wn. App. 935 (2001)(person acts knowingly if they act willfully, but elements instruction flawed because it contained only the single “knowing” element).

No contact and geographic areas

Under RCW 26.50. 060(1)(e) a trial court has authority to issue a protection order that restrains a person from entering a particular geographic region surrounding a residence, workplace, school or day care, noting in Fn 59 “[T]his opinion does not approve the one-mile restriction as an absolute”. Such a violation may not constitute a criminal violation in itself, but is sufficient for felony violation of a no contact order where it is the third violation. State v. Chapman, 140 Wn.2d 436 (2000).

Felony Violation no-contact order

An assault “not amounting to” Assault 1 or Assault 2, does not add an essential element to felony violation of a no-contact order. State v. Ward, 108 Wn. App. 621 (2001).

Second degree assault may not serve as the predicate offense for the felony violation of a no-contact order under RCW 10.99.040(4) State v. Azpitarte, 140 Wn.2d 138 (2000).

An implied element in every felony no-contact order charge is the validity of the order allegedly violated. See, Dawson v. Dawwson, 71 Wn.2d 66, 68 (1967) noted in J. Sanders dissent in State v. Schultz, 146 Wn.2d 540, 560 (2002).

The fact whether two violations existed is for the jury. The question whether the orders issued under one of the statutes in RCW 26.50.110(5) is a matter of law for the court. State v. Carmen, 118 Wn. App. 655 (2003)

Cf State v. Arthur, 126 Wn. App. 243 (2005) expressly disagreeing with Carmen, and holding that whether prior convictions fall under the proviso of RCW 26.50.110, i.e. conviction of a specified statute, is an element of the crime. Here, the supporting paperwork didn’t specify the underlying statutes and constituted insufficient evidence so court remands for re-entry of misdemeanor sentence.

In a VNCO prosecution which elevates the third incident to a felony by virtue of two prior convictions, it is sufficient if the two violations are contained in a single Judgment and Sentence. State v. Rice, 116 Wn. App. 96 (2003).

Jury Instruction issues

There is a “special exception” to the ‘to convict’ rule for prior criminal history where the jury is asked by special verdict form to decide, beyond a reasonable doubt, whether or not the accused has committed prior crimes. State v. Oster, 147 Wn.2d 141 (2002)(felony VNCO where fact of prior conviction contained in special verdict form and not to convict); See also, State v. Davis, 116 Wn. App. 81 (2003)(apply logic of Oster to VNCO where “assault” left out of ‘to convict’ but included in special verdict form); State v. Mills, 116 Wn. App. 106 (2003)(applying same logic where “threat to kill” was in special verdict to elevate misdemeanor harassment to felony harassment).

Other

While witnessing domestic violence are circumstances relating to the crime, restrictions on contact with minor non-victim children implicates fundamental due process parenting interests. The fundamental right to parent can be restricted by a condition of criminal sentence only if the condition is reasonably necessary to proven harm to children. In this case the State failed to adequately explain how a complete ban on defendant’s contact with his children furthered their interest on protecting children from witnesses acts of domestic violence. Condition of sentence reversed and remanded. State v. Ancira, 107 Wn. App. 650 (2001).

Arresting officer lacked probable cause to make arrest based on provision of RCW 26.50 order prohibiting a person from entering Magnolia, a neighborhood of Seattle. Only violations of RCW 26.50.060(1)(a), (1)(b), or (1)(g) constitute crimes under RCW 26.50.110 (1). Jacques v. Sharp, 83 Wn. App. 532 (1996). See also, Halsted v. Sallee, 31 Wn. App. (19 )(relating to injunction prohibiting a person from traveling north of Omak, WA).

Anti-harassment orders

District Courts have concurrent jurisdiction with superior after the 1993 amendment to Wash. Const. Art. IV, Sec. 6. The harassment statute, RCW 10.14, implements the constitutional grant of authority. Prior to the 1993 constitutional amendment, district courts did not have the power to issue the orders. The order is void ab initio. A conviction premised on that order must be reversed. State v. Brennan, 76 Wn. App. 347 (1994).
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