State Of Washington v. Dranoel Brown ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75627-3-1
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
DRANOEL ENAJ BROWN,
Appellant. ) FILED: February 12, 2018
)
LEACH, J. — A jury convicted Dranoel Brown of two counts of felony
violation of a no-contact order. Brown makes several challenges to his
conviction and sentence. He asserts that his counsel was ineffective, that
insufficient evidence supports the jury's verdict on count 2, and that the
prosecutor committed misconduct. But these claims lack merit, so we affirm
Brown's conviction.
We agree, however, with Brown's contention that insufficient evidence
supports the domestic violence designation on count 2. In addition, the trial court
abused its discretion when it imposed no-contact orders without adequately
considering their impact on Brown's fundamental parental rights. Thus, we
remand for the trial court to reconsider the no-contact orders and amend the
judgment and sentence consistent with this opinion.
No. 75627-3-1 /2
FACTS
Melody Sykes and her husband, Dranoel Brown, had three children
together, including a daughter, E.S., who was six years old in 2015. In
September 2015, no-contact orders prevented Brown from contacting Sykes or
E.S. or from coming within 500 feet of their residence.
On September 17, 2015, several King County sheriffs deputies, believing
that Brown was at Sykes's residence, went to the residence. The deputies
knocked on the front door. After receiving no immediate answer, they walked the
perimeter of the house. All the windows that the deputies observed were closed.
Eventually, Sykes answered the door and let the deputies into the house.
Inside the house, Deputy Jaron Smith encountered a locked bedroom
door. He heard noises that sounded like a window being slammed open and
someone jumping out of it. Deputy Smith forced the door open. He saw no one
in the room but did see men's shoes and clothing on the bed and a wide open
window. The deputies had seen the same window closed during their perimeter
search.
The police dispatched a helicopter and a K-9 tracking unit. The K-9 dog
tracked Brown's scent from outside the open bedroom window to some thick
sticker bushes. With a thermal-detecting device, the helicopter confirmed a heat
signature in those bushes. Deputies found Brown in those thick sticker bushes.
-2-
No. 75627-3-1/ 3
They took him into custody. Brown had cuts all over him and had no shoes on.
The State charged Brown with two counts of felony violation of a court
order, count 1 for violating the no-contact order for Sykes and count 2 for
violating the no-contact order for E.S. The jury convicted Brown of both counts.
The jury found that the crime charged in count 1 was an aggravated domestic
violence offense that was part of an ongoing pattern of abuse. The jury also
found that both Sykes and E.S. were members of the same family or household
as Brown.
The court sentenced Brown to 60 months' confinement on count 1 and 0
days' confinement and 12 months' community custody on count 2. Because of
the domestic violence aggravator, the court imposed an exceptional sentence
and ordered the sentences to be served consecutively) The court also ordered
Brown to have no contact with Sykes or E.S. for 10 years.
Brown appeals his conviction and sentence and challenges the no-contact
orders.
ANALYSIS
Ineffective Assistance
First, Brown claims he received ineffective assistance of counsel. To
prove a felony violation of a no-contact order, the State must establish that the
I See RCW 9.94A.535(2).
-3-
No. 75627-3-1 /4
defendant has two prior convictions for violating the provisions of a court order.2
Defendants often stipulate to two prior convictions to avoid any prejudice from
introducing the details of those convictions.3 The United States Supreme Court
held in Old Chief v. United States4 that a trial court must accept a defendant's
offer to stipulate to the existence of a prior conviction when evidence of the prior
conviction is unduly prejudicial. Brown claims defense counsel provided
ineffective assistance by failing to stipulate to Brown's prior convictions
Claims of ineffective assistance present mixed questions of law and fact
that this court reviews de novo.5 We examine the entire record to decide
whether the appellant received effective representation and a fair tria1.6 To
succeed on his ineffective assistance claim, Brown must show that his attorney's
performance fell below an objective standard of reasonableness and that this
deficient performance prejudiced him.7 If Brown fails to establish either prong of
this test, we need not consider the other.5
2 RCW 26.50.110(5).
3 State v. Case, 187 Wash. 2d 85, 87, 384 P.3d 1140(2016).
4 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); see also
State v. Johnson, 90 Wash. App. 54, 62-63, 950 P.2d 981 (1998).
5 In re Pers. Restraint of Fleming, 142 Wash. 2d 853, 865, 16 P.3d 610
(2001).
6 State v. Hicks, 163 Wash. 2d 477, 486, 181 P.3d 831 (2008)(quoting State
v. Ciskie, 110 Wash. 2d 263, 284, 751 P.2d 1165 (1988)).
7 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
8 State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563(1996).
-4-
No. 75627-3-1/ 5
On review, we give defense counsel's performance a great deal of
deference and employ a strong presumption of reasonableness.9 The
reasonableness inquiry requires the defendant to show the absence of legitimate
strategic or tactical reasons for the challenged conduct.1° We first note that Old
Chief does not require the defense to stipulate to prior convictions.11 And, as we
have previously observed, a defendant may have a strategic reason for deciding
not to stipulate.12
Here, the record shows that defense counsel intended to use the
judgment and sentence (J&S) documents as part of the defense strategy. Brown
was charged with felony violations of no-contact orders issued in 2014. To
convict Brown of these offenses, the State had to prove that Brown knew about a
no-contact order and knowingly violated a provision of the order.13 To show two
prior convictions of a court order, the State offered the J&S documents for 2012
and 2015 convictions for a domestic felony violence of a no-contact order. The
court admitted redacted versions of the J&S documents. At defense counsel's
request, the court did not redact a portion of the 2015 J&S about Brown's contact
9 State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011).
19 State v. McFarland, 127 Wash. 2d 322, 336, 899 P.2d 1251 (1995).
11 See State v. Humphries, 181 Wash. 2d 708, 717, 336 P.3d 1121 (2014)
(stating that Old Chief holds "that a trial court abuses its discretion when it fails to
accept a stipulation to a prior conviction upon defense counsel's request"
(emphasis omitted)).
12 State v. Streepv, 199 Wash. App. 487, 502-04, 400 P.3d 339, review
denied, 189 Wn.2d 1025(2017).
13 RCW 10.99.040(4); RCW 26.50.110(5).
-5-
No. 75627-3-1/6
with Sykes. Defense counsel claimed that part of the 2015 J&S document was
relevant to the State's burden to show that Brown knowingly violated a provision
of a court order. The issuing court had crossed out part of the judgment that
stated that Brown should have no contact with Sykes for five years and, in a
corresponding appendix, stated, "Defendant shall have no contact with: Melody
Sykes" without specifying a time limit for the prohibition. Trial counsel indicated
that this was relevant to Brown's knowledge of the scope of the prohibition.
Counsel argued that the confusing nature of the most recent no-contact order
created reasonable doubt as to what Brown understood of the conditions of the
2014 no-contact orders. Trial counsel could not have made this argument
without introducing the 2015 J&S. Thus, introducing this document was a part of
a defense strategy.
Brown contends that the State's argument fails because the defense
strategy does not apply to the plea agreements and 2011 J&S, which the court
also admitted. But Brown's counsel treated the admission of the J&S documents
thoughtfully. She objected to admission of the plea statements and successfully
asked the court to redact portions of the documents to omit prejudicial
information. Further, Brown provides no authority to show that counsel may
stipulate to some but not all J&S documents offered by the State. Here, the court
allowed plea statements in so the State could use them to rebut Brown's
-6-
No. 75627-3-1/ 7
defense. The decision not to stipulate to one of two necessary qualifying
convictions does not constitute deficient performance in light of counsel's
strategy and the court's inclination to give a comprehensive view of the
circumstances involved in Brown's defense.
Brown also contends that the strategy was not a legitimate tactic because
jury instructions limited the purpose for which the jury could consider the prior
convictions. The State counters that this argument critiques the execution of the
strategy, not its legitimacy. Indeed, despite the limiting instruction, counsel
presented the defense to the jury. We will not decide counsel's tactics were not
part of a legitimate strategy simply because the strategy failed.14
Because counsel had a legitimate strategic reason for not stipulating to
the prior convictions, counsel did not provide deficient representation. Because
Brown does not show deficient performance, his ineffective assistance claim
fails.
Sufficiency of Evidence
Next, Brown contends that insufficient evidence supports count 2, violation
of the no-contact order involving E.S. "The test for determining the sufficiency of
the evidence is whether, after viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found guilt beyond a reasonable
Streepv, 199 Wash. App. at 504 (noting that the fact that a tactic did not
14
succeed does not make it any less tactical).
-7-
No. 75627-3-1 /8
doubt."15 The reviewing court must draw all reasonable inferences in favor of the
State.16 A jury may make inferences based on circumstantial evidence.17 But
those inferences must be reasonable and cannot be based on speculation.15
The no-contact order provision for E.S. prohibited Brown from knowingly
entering, remaining, or coming within 500 feet of E.S.'s residence, school,
workplace, or person. No evidence shows that Brown came within 500 feet of
E.S.'s person. Thus, the State's case depends on Sykes's home being E.S.'s
residence.
Brown contends that the State did not prove beyond a reasonable doubt
that E.S. lived at her mother's residence. Multiple witnesses testified that they
did not see E.S. at Sykes's house that day. And Brown points out that no
witness had personal knowledge that E.S. lived there. Still, while the jury heard
no direct evidence about E.S.'s residence, it heard sufficient circumstantial
evidence to support its conclusion. Laurel Kelly, an investigator with
Muckleshoot Child and Family Services for the Muckleshoot Tribe, testified that
she saw E.S. at Sykes' home six times in 2015 before the police arrested Brown.
Kelly also testified that in May 2014, a tribal support program ordered beds for
Sykes's children when Sykes moved into the house. Kelly testified that she had
15 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
16 Salinas, 119 Wash. 2d at 201.
17 State v. Vasquez, 178 Wash. 2d 1, 16, 309 P.3d 318(2013):
18 Vasquez, 178 Wash. 2d at 16.
-8-
No. 75627-3-1/ 9
no reason to believe that E.S. lived somewhere other than Sykes's residence.
She believed that Sykes's home was also E.S.'s home. The jury could
reasonably infer from the evidence that E.S. had been seen at Sykes's house,
Sykes was E.S.'s mother, E.S. was only six years old, and the house was also
E.S.'s residence. Sufficient evidence supports the jury's verdict on count 2.
Brown contends that the open Child Protective Services (CPS) case
shows that Sykes's children might have been removed from her care. Kelly
testified that a CPS investigator went to Sykes's home on the day of Brown's
arrest. But Brown identifies nothing else in the record to corroborate his claim
about an open CPS case for Sykes and her children. Nothing in the record
shows that E.S. had been removed from the home. The mention of a CPS
representative does not conclusively rebut the evidence that shows E.S. lived
with her mother.
Prosecutor Misconduct
Brown contends that the prosecutor committed misconduct during closing
argument. A defendant claiming prosecutorial misconduct has the burden of
proving that the prosecutor's conduct was both improper and prejudicia1.19 We
evaluate the challenged statements in "the context of the prosecutors entire
argument, the issues in the case, the evidence discussed in the argument, and
19 State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43(2011).
-9-
No. 75627-3-1 /10
the jury instructions."20 If the defendant does not object at trial, he must show
that the alleged misconduct was "so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice."21 "Under this heightened standard,
the defendant must show that (1)``no curative instruction would have obviated
any prejudicial effect on the jury' and (2)the misconduct resulted in prejudice that
tad a substantial likelihood of affecting the jury verdict."22
Brown contends that the prosecutor misrepresented Kelly's testimony
about Sykes's custody of E.S. The prosecutor stated, "Laurel Kelly told you that
was [E.S.'s] residence. There's no question." Brown asserts that Kelly's
testimony was not so clear about E.S.'s residence. Brown also claims that the
prosecutor stated facts not in evidence. In closing, the prosecutor stated,
"[W]hen I asked her was there anyone besides Melody Sykes that had custody or
guardianship of the child, she said no." Brown asserts that the prosecutor never
asked about custody or guardianship of E.S.
Brown is correct that these statements contain some errors. Kelly did not
testify with certainty that E.S. lived with Sykes, only that she believed that was
the case. And the State admits that the prosecutor's statement about Sykes's
custody of E.S. was a mistake. Thus, the prosecutor's statements departed from
testimony slightly. But Brown does not show that these errors were so egregious
20 State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432(2003).
21 State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653(2012).
22 Emery, 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at 455).
-10-
No. 75627-3-1/ 11
that a jury instruction could not have cured them. Further Brown does not show
that this conduct "resulted in prejudice that 'had a substantial likelihood of
affecting the jury verdict."23 While the prosecutor may have misstated the
evidence, substantial evidence supports the finding that Sykes's residence was
also E.S.'s residence, as explained in the preceding section. Because Brown
does not show that "no curative instruction would have obviated any prejudicial
effect on the jury" or that the statements had a substantial likelihood of affecting
the verdict, Brown waived this challenge by failing to object at tria1.24
Law of the Case
Next, Brown contends that the domestic violence designation should be
stricken as to count 2 because insufficient evidence supports the jury's finding
that Brown and E.S. were members of the same family or household.
Brown relies on the law of the case doctrine. This doctrine provides that
"jury instructions not objected to become the law of the case."25 And we evaluate
a challenge to the sufficiency of the evidence by looking at the jury instructions.26
Our Supreme Court explained in State v. Hickman27 that "a defendant may
23Emery, 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at 455).
24 Emery, 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at 455).
25 State v. Hickman, 135 Wash. 2d 97, 102, 954 P.2d 900(1998).
26 Hickman, 135 Wash. 2d at 102-03.
27 135 Wash. 2d 97, 102, 954 P.2d 900(1998)(citing State v. Ng, 110 Wash. 2d
32, 39, 750 P.2d 632 (1988); State v. Barringer, 32 Wash. App. 882, 887-88, 650
P.2d 1129 (1982), overruled in part on other grounds by State v. Monson, 113
Wash. 2d 833, 849-50, 784 P.2d 485 (1989)).
-11-
No. 75627-3-1 /12
assign error to elements added under the law of the case doctrine" and "[s]uch
assignment of error may include a challenge to the sufficiency of evidence of the
added element." In addition, the law of the case doctrine is not limited to
circumstances where an element is added to a to-convict instruction.28 "It is a
broad doctrine that has been applied to to-convict instructions and definitional
instructions."29
The law of the case doctrine applies here. RCW 10.99.020(3)'s definition
of "family or household members" includes "persons who have a biological or
legal parent-child relationship."3° The jury instructions, however, omitted the
parent-child relationship from its definition. The jury instructions stated only that
"[for purposes of this case, 'family or household members' means spouses or
former spouses or persons who have a child in common, regardless of whether
28 State
v. Calvin, 176 Wash. App. 1, 21, 316 P.3d 496(2013).
29 Calvin, 176 Wash. App. at 21.
39 The full definition is as follows:
"Family or household members" means spouses, former
spouses, persons who have a child in common regardless of
whether they have been married or have lived together at any
time, adult persons related by blood or marriage, adult persons
who are presently residing together or who have resided together
in the past, persons sixteen years of age or older who are
presently residing together or who have resided together in the
past and who have or have had a dating relationship, persons
sixteen years of age or older with whom a person sixteen years
of age or older has or has had a dating relationship, and persons
who have a biological or legal parent-child relationship, including
stepparents and stepchildren and grandparents and
grandchildren.
RCW 10.99.020(3).
-12-
No. 75627-3-1/13
they have been married or have lived together at any time." The State is bound
by this error.31 The erroneous jury instruction is the law of the case.32
The State contends, however, that this error is harmless. The State
emphasizes that the error involves an omission and likens this case to our
Supreme Court's decision in State v. Brown33 that holds when an erroneous jury
instruction omits an element of the offense, it is subject to harmless error
analysis. The court held that the omission or misstatement of an element of a
charged crime is harmless if the court can conclude beyond a reasonable doubt
that the jury would have reached the same verdict absent the error.34 The State
contends that this harmless error analysis should apply to the instruction here
and because sufficient evidence supports a finding that E.S. is part of Brown's
family or household based on the statutory language, the omission of the parent-
child prong of the definition is harmless.
But the concerns underlying Brown's decision are not present here. In
Brown, the court was concerned about the defendant's constitutional rights and
31 Hickman, 135 Wash. 2d at 105 (noting that "the law of the case doctrine
benefits the system by encouraging trial counsel to review all jury instructions to
ensure their propriety before the instructions are given to the jury").
32 The State claims that the United States Supreme Court overruled
Hickman in Musacchio v. United States, U.S. , 136 S. Ct. 709, 193 L. Ed.
2d 639(2016). But the Washington Supreme Court recently affirmed that the law
of the case doctrine is still good law in Washington. State v. Johnson, 188
Wash. 2d 742, 756-62, 399 P.3d 507(2017).
33 147 Wash. 2d 330, 340, 58 P.3d 889 (2002) (quoting Neder v. United
States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
34 Brown, 147 Wash. 2d at 341.
-13-
No. 75627-3-1/14
the State's burden to prove every element of a crime beyond a reasonable
doubt.35 The due process guaranteed by the Fourteenth Amendment to the
United States Constitution requires "evidence necessary to convince a trier of
fact beyond a reasonable doubt of the existence of every element of the
offense."36 The erroneous instructions in Brown lowered the State's burden and
permitted the jury to convict a defendant when the State had not proved every
element of the crime charged.37 For this reason, application of the law of the
case doctrine would be inappropriate in cases like Brown. Here, by contrast, the
error effectively elevated the State's burden. Thus, we need not be concerned
that the misstatement deprived Brown of a fair trial. There was no risk of the jury
convicting Brown without the State establishing every element of this offense
beyond a reasonable doubt. Due process prevents application of the law of the
case doctrine in Brown, but it does not prevent its application here.
On the other hand, this case is similar to Hickman. A circumstance where
the jury instructions state additional nonessential elements of a charged crime is
functionally the same as when the instructions omit an alternative basis for a
35 Brown, 147 Wash. 2d at 339 ("It is a fundamental precept of criminal law
that the prosecution must prove every element of the crime charged beyond a
reasonable doubt.").
36 Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979).
37 See Brown, 147 Wash. 2d at 339.
-14-
No. 75627-3-1 / 15
jury's finding. In each scenario, the State is held to a higher burden than the law
requires.
In sum, the law of the case doctrine applies here, but the harmless error
standard does not. The State does not dispute that based on the jury
instructions, insufficient evidence supports a finding that E.S. was a member of
Brown's family or household. Thus, insufficient evidence supports the domestic
violence designation.
No-Contact Orders
Finally, Brown contends that the court erred when it entered orders
preventing Brown from contacting Sykes and E.S. for 10 years. In general,
appellate courts review sentencing conditions for abuse of discretion.38 A trial
court abuses its discretion when "the decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons."39 But we "more
carefully review conditions that interfere with a fundamental constitutional right."40
And we review whether the duration of the crime-related prohibition exceeds the
sentencing court's statutory authority de novo.41
38 Statev. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 (2008).
39 Statev. Ancira, 107 Wash. App. 650, 653, 27 P.3d 1246 (2001).
40 In re Pers. Restraint of Rainey, 168 Wash. 2d 367, 374, 229 P.3d 686
(2010).
41 State v. Weller, 197 Wash. App. 731, 734, 391 P.3d 527, review denied,
188 Wn.2d 1017(2017).
-15-
No. 75627-3-1 /16
Brown contends, and the State concedes, that the orders violated due
process and statutory limits. We agree that the orders violated due process but
disagree that the court exceeded its statutory authority.
First, Brown contends that the no-contact orders exceed the statutory
maximum. Courts may impose a crime-related prohibition like a no-contact order
as a condition of a sentence.42 In general, that prohibition may not exceed the
statutory maximum sentence for the crime for which the defendant is convicted.43
However, in State v. Weller," Division Two held that when the court imposes an
exceptional consecutive sentence, the court may stack the statutory maximums
consecutively to determine the maximum prohibition it may impose. In Weller,
the trial court imposed an exceptional sentence when it ran the standard range
sentences for each individual conviction consecutively.45 Division Two decided
that the trial court could impose a no-contact order for a period equal to the sum
of the maximum sentences on each count.46 Here, the court also imposed
consecutive sentences. Thus, consistent with Weller, to calculate the statutory
maximum, the trial court properly stacked the individual maximum sentences for
each count. A felony violation of a court order is a class C felony.47 The
42 Statev. Armendariz, 160 Wash. 2d 106, 120, 156 P.3d 201 (2007).
43 Armendariz, 160 Wash. 2d at 120.
44 197 Wash. App. 731, 734-35, 397 P.3d 527, review denied, 188 Wn.2d
1017(2017).
45 Weller, 197 Wash. App. at 735.
46 Weller, 197 Wash. App. at 734-35.
47 RCW 26.50.110(5).
-16-
No. 75627-3-1 / 17
maximum sentence for a class C felony is 5 years.° Because the court imposed
consecutive sentences, the maximum period for the no-contact order is 10 years.
In explaining its concession, the State distinguishes Weller. But the
distinctions the State observes are not material. First, the State claims that this
case is different because it involves single counts against multiple victims while
Weller involved multiple counts against individual victims. Indeed, in Weller, the
two defendants were charged and convicted with several counts of assaulting
two children.° But contrary to the State's contention, while the defendants in
Weller were convicted of multiple counts with respect to each victim, the trial
court still properly stacked counts for the separate victims. Thus, the stacking in
Weller is functionally the same as the stacking here. Second, the State observes
that here the domestic violence aggravator applies to only one victim, while in
Weller the aggravator applied to all counts. But this distinction does not matter.
Brown does not challenge the trial court's authority to impose the exceptional
sentence. So long as the court had the authority to impose the exceptional
sentence, it had the authority to stack the statutory maximums. Despite the
State's assertions, Weller is not readily distinguishable. Consistent with Weller,
the trial court properly stacked the statutory maximum sentences for each count
to determine the maximum duration of the crime-related prohibition.
48 RCW 9A.20.021(1)(c).
49 State v. Weller, 185 Wash. App. 913, 917, 344 P.3d 695 (2015) ("The
convictions arose from their abuse of their 16-year-old twins.").
-17-
No. 75627-3-1 / 18
We agree, however, with Brown's contention that the court failed to
adequately consider the need for the conditions. The rights to marry and parent
natural children are fundamental rights.50 "Conditions that interfere with
fundamental rights must be reasonably necessary to accomplish the essential
needs of the State and public order."51 The court must narrowly draw any
condition affecting a fundamental right after deciding that no reasonable
alternative exists to achieve the State's interest.52
Here, nothing in the record shows that when the court imposed the no-
contact orders, it considered Brown's fundamental rights as a spouse and parent.
We further note that the court's reasons for preventing contact with E.S. are
questionable. The court stated,
. . . I don't believe you should have contact with [E.S.] either, not
until you've engaged in some treatment to assist you in
understanding the effect of domestic violence on children, and I am
concerned that with any potential contact you have with Ms. Sykes,
that chaos continues. At some point your children are going to
intervene. That's what happens when they get older—they step in
and then they get hurt.
This court disapproved of similar reasoning in State v. Ancira.53 In Ancira,
the court ordered that the defendant have no contact with his wife and two minor
50 Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982) (right to parent natural children is a fundamental right); Loving v.
Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967)(marriage is a
fundamental right).
51 Warren, 165 Wash. 2d at 32.
52 Warren, 165 Wash. 2d at 34-35.
53 107 Wash. App. 650, 27 P.3d 1246 (2001).
-18-
No. 75627-3-1/ 19
children for a period of five years.54 The trial court explained that it included the
children in the no-contact order because "[t]he history of violence between you
and your wife has been conducted before your children. 1 don't want any further
harm to them. Even if they just witnessed it and aren't direct victims of physical
violence themselves, it is extremely harmful to children."55 On appeal, this court
determined that both the nature and the scope of the sentencing condition were
not shown to be reasonably necessary.58 As the State notes in its concession,
the facts in Ancira are similar to those here. Here, the trial court provided some
explanation for its decision to impose no-contact orders but seemed to rely on
the harm caused when children witness domestic violence between spouses.
The trial court should have conducted more thorough and individualized analyses
about the prohibitions.
The trial court abused its discretion in issuing the prohibition without
making an adequate effort to "to tailor the scope of the no contact order or
consider less restrictive alternatives."57 We remand so the trial court can
consider the constitutional limitations on sentencing conditions. Consistent with
our decision in Ancira,58 the trial court should also consider whether the family or
juvenile courts provide a better forum to address Brown's future contact with his
54 Ancira, 107 Wash. App. at 652-53.
Ancira, 107 Wash. App. at 653.
56 Ancira, 107 Wash. App. at 654-55.
57 Warren, 165 Wn.2d at 49(Sanders, J., dissenting).
Ancira, 107 Wash. App. at 655.
-19-
No. 75627-3-1 /20
child. And any sentencing condition limiting Brown's contact with his child should
clearly describe how that condition may be modified in the future in appropriate
circumstances.
CONCLUSION
Brown does not show that his trial counsel's performance was deficient.
Sufficient evidence supports the jury's verdict on count 2. Brown's prosecutorial
misconduct claim fails. We affirm Brown's conviction.
We remand for resentencing, however, because insufficient evidence
supports the domestic violence designation on count 2. Further, the trial court
imposed no-contact orders without considering the defendant's constitutional
rights. We affirm Brown's conviction but reverse his sentence and remand for
further proceedings consistent with this opinion.
WE CONCUR:
cr
.
)
, .,
1.1
CN-1
-20-