State Of Washington, V Jerome P. Medina ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 8, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48053-1-II
Respondent,
v.
JEROME PATRICK MEDINA, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Jerome Medina appeals his convictions of eight counts of felony
violation of a court order.1 He argues (1) the State provided insufficient evidence to support his
convictions, (2) the no-contact order prohibiting contact except by e-mail was unconstitutionally
vague, (3) the trial court violated double jeopardy by entering multiple convictions for messages
sent within the same day, and (4) the trial court exceeded its authority by imposing a $100
“expert witness fund” obligation. We affirm Medina’s convictions, but remand to strike the
expert witness fund obligation.
FACTS
Medina and Heather Mattox dated for a few years and have a child in common. A no-
contact order prohibits Medina from contacting Mattox, except “written contact by U.S. Post
Office or e-mail is permitted ONLY.” Ex. 16.
1
RCW 26.50.110(5).
No. 48053-1-II
The State charged Medina with nine counts of felony violation of a court order against a
family or household member.2 Count I is based on a picture sent to Mattox’s phone showing
Medina holding a shotgun with the caption, “I’m ready.” Ex. 1. Counts II-IX are based on
several text messages sent to Mattox’s phone on April 28, 2014. The picture and text messages
were sent from a phone number Mattox recognized as being associated with Medina.
A jury found Medina guilty of counts I-III and counts V-IX, but rendered no verdict on
count IV. The sentencing court concluded that Counts V-IX included the same criminal conduct
and therefore merged those counts for sentencing purposes. The sentencing court imposed
various legal financial obligations, including a $100 contribution to the Kitsap County expert
witness fund.
ANALYSIS
I. SUFFICIENT EVIDENCE
Medina argues that the State produced insufficient evidence to support his convictions
because the State presented no evidence that he sent the messages to Mattox as text messages as
opposed to e-mails. We disagree.
Sufficient evidence supports a conviction if, when viewed in the light most favorable to
the State, any rational trier of fact could have found the essential elements of the charged crime
proved beyond a reasonable doubt. State v. Hosier, 157 Wash. 2d 1, 8, 133 P.3d 936 (2006). A
claim of insufficient evidence admits the truth of the State’s evidence and all reasonable
inferences that can be drawn therefrom. State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182
(2014). We draw all reasonable inferences from the evidence in favor of the State and interpret
2
RCW 10.99.020.
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No. 48053-1-II
them most strongly against the defendant. Hosier, 157 Wash. 2d at 8. In the sufficiency context,
we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150
Wash. 2d 774, 781, 83 P.3d 410 (2004). We defer to the fact finder on issues of conflicting
testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash. 2d
821, 874-75, 83 P.3d 970 (2004).
To prove felony violation of a no-contact order, the State must prove beyond a reasonable
doubt that Medina knew of the existence of a no-contact order, and that he violated a provision
of that order. See RCW 26.50.110.
For the first time on appeal, Medina argues that because the messages he sent to Mattox
could have been sent via e-mail and then converted to text messages via email-to-text
technology, the State failed to prove the messages violated the provisions of the no-contact order,
which permitted written contact via e-mail.3 He contends that because the State did not offer
evidence as to how Medina sent the messages, no rational jury could have found beyond a
reasonable doubt that Medina violated the court order. But Medina misunderstands our standard
of review in the sufficiency context.
Taking all the State’s evidence as true and drawing all reasonable inferences therefrom in
favor of the State, the evidence was sufficient to support Medina’s convictions. The State
presented evidence that Mattox received text messages on her phone, which listed a phone
number as the sender. Mattox testified that she recognized the phone number as one associated
with Medina. From this evidence, a rational juror could have found beyond a reasonable doubt
that Medina sent the messages to Mattox as text messages in violation of the no-contact order.
3
Medina’s defense theory at trial was that he had not personally sent the offending messages.
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No. 48053-1-II
II. VAGUENESS
Medina also argues that the court order prohibiting contact with Mattox except by e-mail
is unconstitutionally vague and therefore violates his due process rights. We disagree.
The due process vagueness doctrine under the Fourteenth Amendment requires that
citizens have fair warning of proscribed conduct. State v. Bahl, 164 Wash. 2d 739, 752, 193 P.3d
678 (2008) (plurality opinion). An order is unconstitutionally vague if it is insufficiently definite
such that ordinary people cannot understand what conduct is proscribed, or if it does not provide
ascertainable standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wash. 2d at
752-53.
“Generally, ‘imposing conditions of community custody is within the discretion of the
sentencing court and will be reversed if manifestly unreasonable.’” State v. Sanchez Valencia,
169 Wash. 2d 782, 791-92, 239 P.3d 1059 (2010) (quoting Bahl, 164 Wash. 2d at 753). An
unconstitutional condition is manifestly unreasonable. Bahl, 164 Wash. 2d at 753. Unlike statutes
or ordinances, conditions of community custody are not presumed to be constitutional. Sanchez
Valencia, 169 Wash. 2d at 793.
In deciding whether a term is unconstitutionally vague, we do not consider the term in a
vacuum, rather, it is considered in the context in which the term is used. Bahl, 164 Wash. 2d at
754. “If ‘persons of ordinary intelligence can understand what the [law] proscribes,
notwithstanding some possible areas of disagreement, the [law] is sufficiently definite.’” Bahl,
164 Wash. 2d at 754 (alterations in original) (quoting City of Spokane v. Douglass, 115 Wash. 2d 171,
179, 795 P.2d 693 (1990)). “‘[A] community custody condition is not unconstitutionally vague
merely because a person cannot predict with complete certainty the exact point at which his
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No. 48053-1-II
actions would be classified as prohibited conduct.’” State v. Sanchez Valencia, 169 Wash. 2d 782,
793, 239 P.3d 1059 (2010) (internal quotations omitted) (quoting State v Sanchez Valencia, 148
Wash. App. 302, 321, 198 P.3d (2009)).
Contrary to Medina’s contention, an ordinary person would understand what the term “e-
mail” as used in the no-contact order entails. E-mail, as used in common practice, means
electronic mail, or mail sent electronically from one network system to another. An ordinary
person would associate the act of “e-mailing” with sending a written message from one e-mail
address to another e-mail address. Whereas a “text message” is ordinarily associated with a short
SMS (short message service) message sent directly between cell phones.
Medina urges us to rely on one particular dictionary definition of e-mail, namely “a
means or system for transmitting messages electronically (as between computers on a
network).”4,5 Br. of Appellant 10. He argues that this definition could encompass text messages,
Facebook messages, or communications on other social networking platforms. Alternative
definitions offered for the term “e-mail” offer slight variations including (1) “a system for
sending messages from one computer to another computer,” (2) “messages that are sent
electronically from one computer to another,” (3) “messages sent and received electronically
4
Merriam-Webster Dictionary of the English Language, http://www.merriam-
webster.com/dictionary/e-mail (accessed Oct. 28, 2016).
5
We may consider the plain and ordinary meaning of a term as set forth in a standard dictionary.
Bahl, 164 Wash. 2d at 754.
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No. 48053-1-II
through an e-mail system.” On the other hand, “text message” is defined as “a short message
sent electronically usually from one cell phone to another.”6
While these dictionary definitions may not provide the most clear-cut distinctions
between “e-mail” and “text message” because they are both forms of electronic communication,
to an ordinary person the distinction between the forms of electronic communication remains
clear. We hold that the ordinary meaning of the word provides sufficient guidance regarding
what kind of contact in this context is permitted and which is prohibited.
Medina also argues that the no-contact order fails to provide ascertainable standards to
protect against arbitrary enforcement. He reiterates the possibility that a message could be sent
as an e-mail but received as a text message through the use of e-mail-to-text technology. As
previously discussed, an ordinary person would understand what conduct is proscribed and what
conduct is permitted by the no-contact order. This is not a condition like that in Bahl or State v.
Sansone, 127 Wash. App. 630, 638, 111 P.3d 1251 (2005), where courts held that community
custody conditions that required further definition from community custody officers were
unconstitutionally vague for their lack of ascertainable standards for enforcement. See Bahl, 164
Wash. 2d at 758.
Here, the sentencing condition is definite and enforceable; it is not unconstitutionally
vague.
6
Merriam-Webster Dictionary of the English Language, http://www.merriam-
webster.com/dictionary/text%20message (accessed Oct. 28, 2016).
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No. 48053-1-II
III. DOUBLE JEOPARDY
Medina also argues that the trial court violated the prohibition on double jeopardy by
entering convictions for seven different counts based on multiple messages sent over the course
of a day. We disagree.
The Fifth Amendment to the United States Constitution provides that no “person be
subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I,
section 9 of the Washington Constitution provides, “No person shall . . . be twice put in jeopardy
for the same offense.” These double jeopardy provisions prohibit, among other things, multiple
convictions for the same offense. State v. Hall, 168 Wash. 2d 726, 729-30, 230 P.3d 1048 (2010).
We review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180 Wash. 2d 975, 979-
80, 329 P.3d 78 (2014).
“If a defendant is charged with violating the same statutory provision more than once,
multiple convictions can withstand a double jeopardy challenge only if each is a separate ‘unit of
prosecution.’” State v. Allen, 150 Wash. App. 300, 313, 207 P.3d 483 (2009) (quoting State v.
Turner, 102 Wash. App. 202, 206, 6 P.3d 1226 (2000)). “The first step in the unit of prosecution
inquiry is to analyze the criminal statute.” Allen, 150 Wash. App. at 313. Once the unit of
prosecution is determined, we must conduct a factual analysis to determine if more than one unit
of prosecution is present. Hall, 168 Wash. 2d at 735.
RCW 26.50.110(1) makes it unlawful for a person to violate any restraint provision
contained in a no-contact order. We have held that an individual violation of a no-contact order
constitutes a single unit of prosecution. Allen, 150 Wash. App. at 313-14 (each act of sending an e-
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No. 48053-1-II
mail constituted a statutory violation); see also State v. Brown, 159 Wash. App. 1, 10-13, 248 P.3d
518 (2010).
Here, the essential question is whether Medina’s multiple text messages to Mattox
constituted one continuing offense or if Medina committed the crimes anew with each message.
Medina argues that messages sent on the same day constitute just one violation of the no-contact
order. The State responds that each message was a discreet communication with Mattox in
violation of the no-contact order and therefore the multiple counts did not violate double
jeopardy. Because Washington case law makes it clear that each individual contact in violation
of a no-contact order constitutes one unit of prosecution, we agree with the State.
As Medina correctly points out, the multiple violations in Allen and Brown were based on
violations occurring on separate days. However, the court’s focus in those cases was not on the
temporal separation between each violation. Rather, the court focused on the defendant’s
actions. See Allen, 150 Wash. App. at 313-14 (each act of sending an e-mail constituted a statutory
violation). Indeed, in Brown, Division One of this court emphasized that RCW 26.50.110
criminalizes each contact, explaining, “The Supreme Court ‘has consistently interpreted the
legislature’s use of the word ‘a’ in a criminal statute as authorizing punishment for each
individual instance of criminal conduct, even if multiple instances of such conduct occurred
simultaneously.” Brown, 159 Wash. App. at 11 (emphasis added) (quoting State v. Ose, 156
Wash. 2d 140, 147, 124 P.3d 635 (2005)).
Each time Medina messaged Mattox, he took the affirmative action of picking up the
phone, typing a message to Mattox, and pressing “send.” Consequently, Medina’s seven
convictions of violation of a no-contact order did not violate double jeopardy protections.
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No. 48053-1-II
IV. EXPERT WITNESS FUND
Finally, Medina argues that the trial court exceeded its statutory authority by ordering
him to pay $100 into the Kitsap County expert witness fund. We agree.
The trial court’s authority to impose costs and fees is statutory. See State v. Hathaway,
161 Wash. App. 634, 652-53, 251 P.3d 253 (2011); RCW 10.01.160. Under RCW 10.01.160(2)
“costs shall be limited to expenses specially incurred by the State in prosecuting the defendant.”
RCW 10.01.160(2) also provides that costs “cannot include expenses . . . in connection with the
maintenance and operation of government agencies that must be made by the public irrespective
of specific violations of law.”
Here, Medina’s case did not require the testimony of an expert witness. Therefore, the
trial court exceeded its statutory authority by imposing costs that were not incurred by the State
in Medina’s prosecution.
We affirm Medina’s convictions, but remand to strike the expert witness fund obligation.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Lee, J.
Sutton, J.
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