State v. Case , 187 Wash. 2d 85 ( 2016 )

[As amended by order of the Supreme Court January 19, 2017.]

González, J.

¶1 Kevin Case was convicted of felony violation of a domestic violence no-contact order. While normally a gross misdemeanor, violating a no-contact order becomes a felony when an offender has at least two prior convictions for violating a no-contact order or similar order issued under qualifying provisions listed in RCW 26.50.110(5).

¶2 In order to limit jury bias, defendants facing a felony charge of violating a domestic violence no-contact order will typically admit to the prior convictions so that the prosecution does not need to introduce the details of those convictions to prove their existence to the jury. Indeed, it would be reversible error for a trial judge to decline to accept such a stipulation. Like many defendants, Case stipulated that he had been convicted of violating no-contact orders before. However, his stipulation did not explicitly state that the previously violated orders had been issued under qualifying provisions listed in the statute. For the first time on appeal, Case argued the State failed to prove its case because his stipulation was inadequate. We find that whether the prior convictions were issued under qualifying provisions listed in RCW 26.50.110(5) is a threshold legal matter to be decided by the judge and that Case’s stipulation, in context, was sufficient. Accordingly, we reverse the Court of Appeals and reinstate his conviction.

Facts

¶3 Case is no stranger to either the victim here or the consequences of violating a no-contact order. On December 18,2013, a bystander saw Case standing over and yelling at a woman crouched in a doorway who was “visibly shaking [and had] the look of just death in her face.” Verbatim Report of Proceedings (VRP) (Mar. 17-18, 2014) at 10. The bystander, a former police officer, was concerned for the woman’s safety. He called 911 and followed Case and Case’s victim until police arrived. Responding officers learned the victim had a no-contact order against Case that ordered Case to stay away from her. Case was arrested.

¶4 The State charged Case with one count of felony violation of a domestic violence no-contact order under RCW 26.50.110(5). The charging document alleged the December 2013 incident was the third or subsequent violation of a similar order and stated that the prior orders were “issued under Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.”¹ Clerk’s Papers at 3. At the time of charging, Case already had 13 prior convictions for violating a no-contact order.

¶5 The parties did not formalize the stipulation before trial. Prior to voir dire, the court confirmed their plan to stipulate and explained, without objection from either party, that the stipulation would relieve the State of the “necessity of having to go into detail about those convictions.” VRP (Mar. 17-18, 2014) at 6. Most relevantly, the following discussion occurred:

THE COURT: All right. I understand there’s going to be a stipulation as to the fact that Mr. Case has two or more prior convictions for violation of orders of protection or no contact.

MR. TAYLOR: That’s correct, Your Honor.

THE COURT: Okay. That relieves the State from the necessity of having to go into detail about those convictions. And so I would expect that that stipulation would be read to the jury and also I’ll have it marked as an exhibit so that it goes to the jury during their deliberation process.

MS. WEVODAU: Thank you, Your Honor. That was going to be the State’s request, and I do also have the limiting instruction to accompany the stipulation.

Id. Near the end of trial, the judge read to the jury Case’s stipulation that

[t]he parties have agreed that certain facts are true. You must accept as true the following facts: The defendant has at least two prior convictions for violating the provisions of a protection order, restraining order, or no-contact order issued under Washington State law.

Id. at 66; see also Ex. 5 (Stipulation).² Neither party objected to the stipulation or to the to-convict instruction. The to-convict instruction mirrored the stipulation and said:

To convict the defendant of the crime of violation of a no-contact order as charged, each of the following elements of the crime must be proved beyond a reasonable doubt:

1) that on or about December 18, 2013, there existed a no contact order applicable to the defendant,

2) that the defendant knew of the existence of this order,

3) that on or about said date, the defendant knowingly violated this order,

4) that the defendant has twice been previously convicted for violating the provisions of a court order, and

5) that the defendant’s acts occurred in the State of Washington.

VRP (Mar. 17-18, 2014) at 75. This instruction mirrored the pattern jury instruction. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 36.51.02, at 640 (3d ed. 2008). Neither party objected to the instruction.

¶6 On appeal, Case argued for the first time that the State presented insufficient evidence because it failed to show the prior convictions he stipulated to were based on violations of qualifying orders. State v. Case, 189 Wn. App. 422, 423, 358 P.3d 432 (2015). Agreeing with Case, the Court of Appeals reversed his conviction and dismissed with prejudice, holding the State failed to satisfy the threshold requirement that Case’s prior convictions were for violating qualifying court orders. Id. at 424.

¶7 The State sought discretionary review, arguing that Case’s stipulation was sufficient and that the question of whether the prior convictions were qualifying convictions is not an element of the crime that goes to the jury. Case argued that his narrow stipulation did not relieve the State of its burden to prove the adequacy of the stipulation because the stipulation’s language encompassed more types of violations than those specifically required for conviction. We granted discretionary review. 185 Wn.2d 1001, 366 P.3d 1243 (2016).

Analysis

¶8 The elements of a crime are those facts that the State must prove to sustain a conviction. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005) (quoting Black’s Law Dictionary 559 (8th ed. 2004) and citing State v. Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953)). Here, the parties agree that the stipulation established the existence of at least two prior convictions and that the validity of the underlying orders is a question of law. The parties disagree whether the stipulation alone was adequate to prove Case had at least two qualifying prior convictions. Ultimately, this case turns on questions of law, which we review de novo. Id. (citing Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)).

¶9 A “stipulation” is an express waiver that concedes, for purposes of trial, the truth of some alleged fact, with the effect that one party need offer no evidence to prove it and the other is not allowed to disprove it. State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (quoting Key Design, Inc. v. Moser, 138 Wn.2d 875, 893-94, 983 P.2d 653 (1999)). While the State must prove every element of the crime beyond a reasonable doubt, for strategic reasons, defendants charged with felony violation of a domestic violence no-contact order regularly stipulate to prior convictions that are elements of the charged crime in order to constrain the prejudicial effect on a jury. See generally State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002) (noting the generally “prejudicial effect of prior convictions”). “When the parties stipulate to the facts that establish an element of the charged crime, the jury need not find the existence of that element, and the stipulation therefore constitutes a waiver of the ‘right to a jury trial on that element.’ ” State v. Humphries, 181 Wn.2d 708, 714-15, 336 P.3d 1121 (2014) (quoting United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996)). The defendant also waives “the right to require the State prove that element beyond a reasonable doubt.” Id. at 715 (citing Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)). Moreover, it would likely be reversible error to admit evidence about the prior convictions beyond the stipulation unless that evidence pertained to another element of the crime and unless the trial judge properly found that the probative value of such evidence outweighed its significant prejudicial effect. See ER 404(b); State v. Gunderson, 181 Wn.2d 916, 925, 927, 337 P.3d 1090 (2014) (finding that erroneous admission of prior acts of domestic violence was reversible error).

¶10 Case argues that his stipulation does not mirror the statutory language for qualifying provisions in RCW 26.50.110(5) and that this should be dispositive. If we had only the stipulation before us, he might be correct. But we have more than the stipulation before us. In the context of the charging document and sidebar, we are satisfied that Case stipulated he had been convicted of violating qualifying no-contact orders.³ Absent a timely and specific objection or exception from Case’s attorney, the stipulation appeared to establish that Case agreed he had two prior qualifying convictions under RCW 26.50.110(5) as alleged in the charging information and was therefore sufficient.⁴

¶11 Moreover, whether the prior convictions met the qualifying statutory requirements is a threshold legal determination to be made by the trial judge, not a question for the jury. Whether the prior convictions qualify under RCW 26.50.110(5) is a substantially similar question to whether a prior no-contact order was valid—a question of law to be decided by a judge, not a jury.Miller, 156 Wn.2d at 24. If the prior convictions do not qualify, they are almost certainly inadmissible on this point under ER 404(b). Case has failed to show that his stipulation was based on nonqualifying, and thus inadmissible, prior convictions. Even if it was error for the trial judge not to explicitly confirm with Case that he was stipulating to qualifying prior convictions, any error was harmless and Case is not entitled to relief on appeal.

Conclusion

¶12 We conclude that Case stipulated to the sufficiency of his prior qualifying convictions. We reverse the Court of Appeals, reinstate Case’s conviction, and remand to the Court of Appeals for any further proceedings consistent with this opinion.

Owens, Stephens, Wiggins, and Yu, JJ., concur.

1 The information stated in relevant part:

COUNT I - FELONY VIOLATIONS OF POST CONVICTION NO CONTACT ORDER/DOMESTIC VIOLENCE - THIRD OR SUBSEQUENT VIOLATION OF ANY SIMILAR ORDER, RCW 26.50.110(5), RCW 10.99-.020 AND RCW 10.99.050 - CLASS C FELONY:

In that the defendant, KEVIN RAY CASE, in the State of Washington, on or about December 18, 2013, with knowledge that the Olympia Municipal Court had previously issued a no contact order, pursuant to Chapter 10.99 in Olympia Municipal Court on July 15, 2013, Cause No. 3Z0193715, did violate the order while the order was in effect by knowingly violating the restraint provisions therein pertaining to [the victim], a family or household member, pursuant to RCW 10.99.020; and furthermore, the defendant has at least two prior convictions for violating the provisions of a protection order, restraining order, or no-contact order issued under Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.

Clerk’s Papers at 3.

2 Case and his attorney signed the stipulation on March 17, 2014, which said in relevant part, “The defendant and the defendant’s attorney hereby stipulate the above is a correct statement of the stipulated facts to be presented to the jury.” Ex. 5.

3 We note that Case does not dispute he has been convicted of violating qualifying no-contact orders in the past.

4 We respectfully disagree with the dissent that there are any hidden holdings in this opinion undoing the state’s burden of proof or changing the elements of felony violation of a no-contact order. Nor does this opinion overrule Oster, 147 Wn.2d 141, or State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). The question here is merely whether the stipulation—offered to constrain the prejudice that would inevitably follow disclosing the specifics of prior convictions—was sufficient to sustain the State’s burden to prove every essential element of the crime beyond a reasonable doubt.