State Of Washington v. Anthony L. Kozey ( 2014 )

FILED
a OJ'R1 OF A P'EAg r
DIVISION IT
20iLI SEP . 16
AN 10: 00
IN THE COURT OF APPEALS OF THE STATE OF WASHING O ._
DIVISION II
STATE OF WASHINGTON, No. 44594 -8 -II
Cons. with No. 44610 -3 - II)
Appellant,
v. PUBLISHED OPINION
ANTHONY KOZEY,
Respondent.
BJORGEN, A.C. J. — The State appeals Anthony Kozey' s sentences for two felony
violations of domestic violence no- contact orders. The State argues that the trial court erred by
interpreting RCW 9. 94A.030( 20) as conjunctively incorporating the definitions of "domestic
violence" found in RCW 10. 99. 020 and RCW 26. 50. 010. Agreeing with the State, we reverse
and remand for resentencing consistently with a disjunctive interpretation of the definition of
domestic violence" in RCW 9. 94A.030( 20).
FACTS
In violation of a no- contact order, Kozey contacted his longtime girl friend, Chalene
Johnston, on at least two occasions in September 2011. Kozey was convicted of gross
misdemeanor no- contact order violations for these offenses. His sentences included a post -
conviction no- contact order that again forbad him from contacting Johnston.
In spite of this order; Johnston called Kozey in November 2011 and asked for help
transporting and pawning some power tools. A police officer investigating a different matter at
the pawn shop saw Kozey and Johnston together, discovered the no- contact order after running
the plates of the vehicle they used, and arrested Kozey for violating the order. Because Kozey
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already had two convictions for no- contact order violations, the State charged him with a felony
for the new violation under RCW 26. 50. 110( 5).
Johnston again initiated contact with Kozey in February 2012 while he was out on bail
and awaiting trial for the November 2011 no- contact order violation. As a result, Kozey visited
Johnston and their children at her grandmother' s house. During the visit, one of Johnston' s
grandmother' s checks disappeared, and Kozey later cashed it. Police learned of Kozey' s
violation of the no- contact order when the grandmother reported the theft of the check, and the
State charged Kozey with another felony for the no- contact order violation.
During pretrial proceedings,-Kozey argued that RCW 9. 94A.030(20) defines " domestic
violence" by conjunctively incorporating the definitions of "domestic violence" codified at RCW
10. 99. 020 and RCW 26. 50. 010, thereby requiring proof of both definitions. 1' 2 Because the
parties agreed that Kozey did not violate the no- contact order with the type of conduct necessary
to constitute domestic violence under RCW 26. 50. 010, Kozey maintained that the State had not
pleaded and could not prove domestic violence under its definition in RCW 9. 94A.030( 20), thus
1 As relevant, RCW 10. 99. 020( 5) states that
d] omestic includes but is not limited to any of the following crimes
violence"
when committed by one family or household member against another:
r) Violation of the provisions of a restraining order, no- contact order, or
protection order restraining or enjoining the person.
2 RCW 26. 50. 010( 1) states that
doomestic violence" means: ( a) Physical harm, bodily injury, assault, or the
infliction of fear of imminent physical harm, bodily injury or assault, between
family or household members; ( b) sexual assault of one family or household
member by another; or (c) stalking as defined in RCW 9A.46. 110 of one family or
household member by another family or household member.
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precluding any enhanced sentence. The State argued that RCW 9. 94A.030( 20) disjunctively
incorporated RCW 10. 99. 020 and RCW 26. 50. 010, such that conduct falling under either
definition constituted domestic violence for purposes of the enhanced domestic violence
penalties of the Sentencing Reform Act ( SRA), chapter 9. 94A RCW.
The trial court adopted Kozey' s reading of RCW 9. 94A.030( 20) and entered findings of
fact and conclusions of law to that effect. These conclusions prevented the State from seeking
enhanced penalties under RCW 9. 94A. 525( 21).
After a bench trial on stipulated facts, the trial court found Kozey guilty of both the
November 2011 and the February 2012 no- contact order violations. Based on its interpretation
of the definition of "domestic violence" in RCW 9. 94A.030( 20), the trial court calculated his
offender score as zero for the November 2011 felony no- contact order violation and as one for
the February 2012 felony no- contact order violation. The trial court imposed a standard 12-
month term of incarceration for the November 2011 violation and a standard 14 -month term of
incarceration for the February 2012 violation, ordering that Kozey serve the terms concurrently.
The State appeals, asking us to reverse Kozey' s sentence and to remand the matter for
resentencing consistent with a disjunctive interpretation of the definition of "domestic violence"
in RCW 9. 94A.030( 20).
ANALYSIS
The parties contest the same issue they contested before the trial court: whether the word
and" in RCW 9. 94A.030( 20) conjunctively or disjunctively joins the definitions of "domestic
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violence" found in RCW 10. 99. 020 and RCW 26. 50. 010 for purposes of enhancing sentences for
crimes involving domestic violence.
We review a statute' s meaning de novo. Dep' t of Ecology v. Campbell & Gwinn, LLC,
146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). Our " fundamental objective" when interpreting a statute is to
ascertain and carry out the [ l] egislature' s intent." Campbell & Gwinn, 146 Wash. 2d at 9.
Washington' s courts have long recognized that, despite the common, conjunctive usage of "and,"
service of the legislature' s intent may require reading the word disjunctively. State v. Keller, 98
Wash. 2d 725, 728 -31, 657 P.2d 1384 ( 1983); see State v. Tiffany, 44 Wash. 602, 603 -05, 87 P. 932
1906) ( discussing the interchangeability of "and" and " or "). To determine if the legislature
intended " and" to read disjunctively, we must apply general rules of statutory interpretation. See
Tiffany, 44 Wash. at 603 -04 ( quoting G.A. Endlich, A COMMENTARY ON THE INTERPRETATION OF
STATUTES § 2 ( 1888)).
Under those rules, we first attempt to discern the plain meaning of the legislature' s use of
and" from the text of the provision at issue and any related provisions which disclose legislative
intent about the provision in question. See Campbell & Gwinn, 146 Wash. 2d at 11 - 12; Tiffany, 44
Wash. at 603 -04 ( requiring courts to examine the " context" of the legislature' s use of "and" or
or "). If, after this plain meaning analysis, the statute remains " susceptible to more than one
reasonable meaning," it is ambiguous, and we resort to aids to construction, including legislative
history. Campbell & Gwinn, 146 Wash. 2d at 12.
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A. The Statutory Scheme
Under RCW 9. 94A. 525( 21), the offender score used in sentencing is increased due to
certain prior convictions when " the present conviction is for a felony domestic violence offense
where domestic violence as defined in RCW 9. 94A.030 was plead[ ed] and proven." Among the
prior convictions triggering this enhancement is a felony violation of a no- contact order
conviction. RCW 9. 94A. 525( 21)( a). Kozey was convicted of two felony violations of a no-
contact order: one in November 2011 and one in February 2012. Under RCW 9. 94A.589( 1)( a),
whenever a person is to be sentenced for two or more current offenses, the sentence
range for each current offense shall be determined by using all other current and
prior convictions as if they were prior convictions for the purpose of the offender
score.
Thus, Kozey' s felony convictions are among the prior convictions for which the offender score
may be enhanced under RCW 9. 94A.525( 21)( a). With that, the remaining issue is whether each
present felony conviction is one " where domestic violence as defined in RCW 9. 94A.030 was
plead[ ed] and proven." RCW 9. 94A.525( 21).
RCW 9. 94A. 030( 20) states simply that "[ d] omestic violence' has the same meaning as
defined in RCW 10. 99. 020 and 26. 50. 010." RCW 10. 99. 020( 5), in turn, states that "``[ d] omestic
violence' includes but is not limited to any of the following crimes when committed by one
family or household member against another." The nonexclusive list includes violent crimes,
such as assault, kidnapping, and rape; property crimes, such as criminal trespass and malicious
mischief; and other miscellaneous crimes, including the "[ v] iolation of the provisions of a
restraining order, no- contact order, or protection order restraining or enjoining the person."
RCW 10. 99. 020( r).
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RCW 26. 50. 010( 1), the second statute referenced in RCW 9. 94A. 030( 20), states that
d] omestic violence" a) Physical harm, bodily injury, assault, or the
means: (
infliction of fear of imminent physical harm, bodily injury or assault, between
family or household members; ( b) sexual assault of one family or household
member by another; or ( c) stalking as defined in RCW 9A.46. 110 of one family or
household member by another family or household member.
RCW 26. 50. 010 thus defines an offense as a domestic violence offense when it is an assault,
sexual assault or stalking committed by one family or household member against another family
or household member.
The defendant' s conduct in November 2011 and February 2012 falls under the definition
of "domestic violence" of RCW 10. 99. 020, but not that of RCW 26. 50.010. Thus, the validity of
the challenged sentence enhancement hangs on whether the definitions in these statutes are read
conjunctively or disjunctively.
B. The Plain Meaning of "and" in RCW 9. 94A.030( 20)
The plain meaning analysis begins with the text of RCW 9. 94A.030( 20). As Kozey
notes, the legislature used the term " and" in the provision, and we presume " and" functions
conjunctively. Tiffany, 44 Wash. at 603 -04. On the other hand, our courts have recognized that
and" must sometimes be given disjunctive force to preserve legislative intent. See Keller, 98
Wash. 2d at 728 -31; Tiffany, 44 Wash. at 603 -05; Bullseye Distrib., LLC v. Wash. State Gambling
Comm' n, 127 Wn. App. 231, 239 -40, 110 P.3d 1162 ( 2005). The plain meaning analysis also
requires us to go beyond the text of RCW 9. 94A.030( 20) and to examine the text of related
statutes. Campbell & Gwinn, LLC, 146 Wash. 2d at 11 - 12. RCW 9. 94A.030( 20) incorporates
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RCW 10. 99. 020 and RCW 26. 50. 010, making them related statutes. See Jametsky v.Olsen, 179
Wash. 2d 756, 766, 317 P.3d 1003 ( 2014).
We begin by noting the way in which RCW 9. 94A.030( 20) refers to these related
statutes. RCW 9. 94A.030( 20) does not state that conduct must meet the requirements of both
RCW 10. 99. 020 and RCW 26. 50. 010 to count as domestic violence. Rather, it states domestic
violence " has the same meaning as defined in RCW 10. 99. 020 and 26. 50. 010." RCW
9. 94A.030( 20).
RCW 10. 99. 020 sets out a nonexclusive list of specific crimes the legislature has deemed
to be domestic violence when committed by one family or household member against another.
RCW 26. 50.010 eschews a specific list of crimes and instead sets out the types of acts the
legislature has determined generally constitute domestic violence when perpetrated by one
family member against another. With these differing conceptual approaches, there is no " same
meaning" shared by both RCW 10. 99. 020 and RCW 26. 50. 010. Instead, RCW 9. 94A.030( 20)
most logically reads as using RCW 10. 99. 020 to set out per se crimes of domestic violence and
RCW 26. 50. 010 to define when a crime otherwise omitted from the nonexclusive list is
nonetheless also deemed to involve domestic violence. For example, RCW 10. 99. 020 omits
crimes such as third degree rape and child molestation, which would fall under the definition of
domestic violence" in RCW 26. 50. 010. Reading RCW 9. 94A.030( 20) to require conduct
simultaneously to meet both RCW 10. 99. 020 and RCW 26. 50. 010 in order to constitute domestic
violence for sentence enhancement purposes would forfeit this logic.
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Although involving different types of statutes, our conclusion is consistent with the
reasoning in Mount Spokane Skiing Corp. v. Spokane County, 86 Wash. App. 165, 171, 936 P.2d
1148 ( 1997). In that appeal those challenging a public authority pointed out that RCW
35. 21. 730( 4) authorized a public authority to
1) administer and execute federal grants or programs; ( 2) receive and administer
private funds, goods or services for any lawful public purpose; ( 3) and perform any
lawful public purpose or function.
Mount Spokane Skiing Corp., 86 Wn. App. at 171. Because these elements were connected with
the word " and," the challengers argued that a public authority must perform all three functions to
be valid. Division Three of our court disagreed. It held that based on common sense and
legislative intent, the plain meaning of the terms was that, despite the presence of "and," the
public authority had to carry out only one of the listed functions. Mount Spokane Skiing Corp.,
86 Wash. App. at 174.
Turning now to RCW 10. 99. 020 and RCW 26. 50.010 themselves, their presence virtually
compels adoption of the disjunctive reading of RCW 9. 94A.030( 20), since the conjunctive
reading would effectively rob one of them of any effect. As discussed above, RCW 10. 99.020
defines " domestic violence" through a nonexclusive list of crimes; RCW 26. 50.010 defines
domestic violence" through a list of qualifying behaviors. If the conjunctive reading of RCW
9. 94A.030( 20) were correct, then the list of crimes found in RCW 10. 99. 020 would have
meaning only where the offender commits an act encompassed by RCW 26. 50. 010. The
reference to RCW 10. 99. 020 would be superfluous.
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In contrast, as noted above, a disjunctive reading gives meaning to both of the cross -
references in RCW 9. 94A. 030( 20): RCW 10. 99. 020 defines the nonexclusive list of per se
crimes of domestic violence and RCW 26. 50. 010 tells the court how to determine if a crime not
on the list constitutes domestic violence. The examination of related statutes therefore requires a
disjunctive reading of RCW 9. 94A.030( 20). 3
Further, these same considerations show that reading RCW 9. 94A.030( 20) conjunctively
quickly descends into self -
contradiction. The conjunctive interpretation of "and" in RCW
9. 94A.030( 20) would mean that the requirements of both referenced statutes must be met before
a crime can be deemed domestic violence. As just shown, requiring both statutes to be met
reduces the definition of domestic violence to that of RCW 26. 50. 010 only. Thus, the
conjunctive interpretation defeats itself by making RCW 10. 99. 020 superfluous. When our court
interprets a statute, we attempt to avoid interpretations that render statutory language
meaningless or superfluous." Cockle v. Dep' t of Labor & Indus., 142 Wash. 2d 801, 809, 16 P.3d
583 ( 2001). A disjunctive reading, therefore, is the only way to give meaning to all the language
in RCW 9. 94A.030( 20).
3 At trial Kozey suggested that a conjunctive reading gave meaning to RCW 10. 99. 020 by
ensuring that only domestic violence crimes were punished under the SRA. However, the
definition of "domestic violence" in RCW 9. 94A.030( 20) informs the penalty provisions in
RCW 9. 94A. 525( 21), which punish an offender more severely for a current domestic violence
conviction based on past domestic violence convictions. Due process forbids the State from
convicting an offender for something that is not a crime. Johnson v. United States, 805 F.2d
1284, 1288 ( 7th Cir. 1986). RCW 10. 99. 020, therefore, does not serve the purpose Kozey
ascribes to it; the state and federal constitutional due process clauses already function to ensure
that the State can seek to enhance a domestic violence offender' s punishment only for criminal
acts.
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Finally, a conjunctive reading of RCW 9. 94A.030( 20) would defeat the legislature' s
intent in enacting the statute. The statement of intent accompanying the 2010 domestic violence
amendments reads:
The legislature intends to improve the lives of persons who suffer from the
adverse effects of domestic violence and to require reasonable, coordinated
measures to prevent domestic violence from occurring. The legislature intends to
give law enforcement and the courts better tools to identify violent perpetrators of
domestic violence and hold them accountable. The legislature intends to: Increase
the safety afforded to individuals who seek protection of public and private
agencies involved in domestic violence prevention; improve the ability of agencies
to address the needs of victims and their children and the delivery of services;
upgrade the quality of treatment programs; and enhance the ability of the justice
system to respond quickly and fairly to domestic violence. In order to improve the
lives of persons who have, or may suffer, the effects of domestic violence the
legislature intends to achieve more uniformity in the decision -
making processes at
public and private agencies that address domestic violence by reducing
inconsistencies and duplications allowing domestic violence victims to achieve
safety and stability in their lives.
LAWS OF 2010, ch. 274, § 101. Kozey correctly notes that this statement of intent speaks, in part,
to enabling law enforcement and the courts to respond to violent perpetrators of domestic
violence. He claims that this shows the legislature intended to capture only the type of violent
behavior defined as " domestic violence" in RCW 26. 50.010. The statement of legislative intent,
though, also generally speaks to " prevent[ ing] domestic violence from occurring" and
i]ncreas[ ing] the safety afforded to individuals who seek protection" from law enforcement or
the courts. LAWS OF 2010, ch. 274, § 101. One way the 2010 amendment accomplishes these
goals is to deter contact between a victim and an offender by stiffening the penalties associated
with violations of a protection or no- contact order. Reading RCW 9. 94A.030( 20) disjunctively
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preserves this legislative purpose by capturing the wider range of behaviors that the legislature
has already deemed to constitute domestic violence in RCW 10. 99.020 and RCW 26. 50. 010.
In ordinary English, it may seem incongruous that the plain meaning of "and" could be
taken as creating a disjunctive series of items in a list. Our job in interpreting a statute, though,
is not the mapping of popular usage, but the determination of legislative intent. As just
discussed, the plain meaning of the two related statutes linked by " and" in RCW 9. 94A.030( 20)
leaves little doubt that in this specific context, the legislature intended domestic violence to
include the conduct described in either RCW 10. 99. 020 or RCW 26. 50. 010. Because the term is
not ambiguous in this context, further construction is not needed.
C. Ambiguity and Extrinsic Evidence of Legislative Intent
Alternatively, even if RCW 9. 94A.030( 20) were deemed ambiguous, Kozey' s challenge
would still fail. Under Campbell & Gwinn, 146 Wn:2d at 12, we would resolve the ambiguity by
resorting to aids to construction, including legislative history. This examination shows even
more forcefully that the legislature used " and" disjunctively in RCW 9. 94A.030( 20).
1. Legislative History
We may use legislative history as evidence of the legislature' s intent where the plain
meaning of a statute is ambiguous. Cockle, 142 Wash. 2d at 808. Here, the legislative history
suggests a disjunctive reading of RCW 9. 94A.030( 20)' s use of "and."
In 2010 the legislature enacted an extensive array of new measures designed to provide
enhanced punishment for domestic violence offenders. See LAws OF 2010, ch. 274, § 101, 401-
07. Among these new provisions were RCW 9. 94A.030( 20) and RCW 9. 94A. 525( 21), measures
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at the heart of the issue raised by this appeal. The bill proposing the 2010 legislation, ESHB
2777, originated as an attorney general proposal to the legislature. See State v. Sweat, 174 Wn.
App. 126, 131 n. 5, 297 P.3d 73 ( 2013), aff'd, 180 Wash. 2d 156 ( 2014). The proposal asked the
legislature to amend "[ RCW] 9. 94A. 030 ... to add `` domestic violence,' defined as a criminal
offense committed between defendant and a victim having a relationship as defined in RCW
10. 99. 020 or 26. 50. 010." WASHINGTON STATE ATTORNEY GENERAL —ROB MCKENNA, AG
REQUEST LEGISLATION —2009 SESSION: SUPPORTING LAW ENFORCEMENT: DOMESTIC VIOLENCE
SANCTIONS, at 1 ( 2009) ( AG PROPOSAL) ( emphasis added). 4 The proposal also suggested
amending RCW 9. 94A.525 to increase the scoring for prior domestic violence convictions..
The sentencing amendments the legislature enacted in 2010 tracked the amendments
proposed by the attorney general in function, but the amendments used " and" in the place of "or"
when adding what became RCW 9. 94A.030( 20). Compare LAws OF 2010, §§ 401, 403 with AG
PROPOSAL at 1 ( proposing amendments to RCW 9. 94A. 030 and RCW 9. 94A. 525). The intended
effect of this change, if any, is plain from the surrounding circumstances. The legislation
implements both the attorney general' s proposal and the vigorous statement of intent in LAWS OF
2010, ch. 274, § 101, cited above. A conjunctive reading of RCW 9. 94A.030( 20) narrows the
scope of its protections and starkly contradicts the statement of legislative intent to " prevent
domestic violence" and to "[ i] ncrease the safety afforded to individuals who seek protection."
4 The AG request is located at:
http: / atg.wa.gov /uploadedFiles /Home /Office :Initiatives /Legislative Agenda/ 2009/
/
D V_S anctions %20 (20- sided) .pdf.
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LAWS OF 2010, ch. 274, § 101. The disjunctive reading of RCW 9. 94A.030( 20) is necessary to
preserve that intent.'
2. Principles of Statutory Construction
Our court may also use principles of statutory construction to determine legislative intent
when a statutory provision remains ambiguous after a plain meaning analysis. Cockle, 142
Wash. 2d at 808. Here, the relevant canons of construction point without question to a disjunctive
reading of RCW 9. 94A.030( 20).
When our court interprets a statute, we attempt to avoid rendering statutory language
meaningless or superfluous." Cockle, 142 Wash. 2d at 809. As shown in the plain meaning
analysis above, reading RCW 9. 94A.030( 20)' s list conjunctively would make its reference to
RCW 10.99. 020 superfluous. A disjunctive reading, therefore, is the only way to give meaning
to all the language in RCW 9. 94A.030( 20).
Kozey contends that chapter 9. 94A RCW is a penal statute and must be strictly construed,
requiring us to reject the State' s interpretation of RCW 9. 94A.030( 20). Strict construction
cannot defeat the intent of the legislature. State v. Rinkes, 49 Wash. 2d 664, 667, 306 P.2d 205
1957). Here, even if the plain meaning of the statute is ambiguous, the legislature' s intent is
not, after considering its statement of intent, the history of the amendments that added RCW
We recognize that, under the canons of construction, the change from " or" to " and" could also
be taken as a sign of a change in legislative intent. However, the purpose of the 2010 legislation,
and its consistency with the attorney general' s proposal, clearly support the much more direct
message of legislative intent: that the disjunctive reading of RCW 9. 94A.030( 20) should be
preserved.
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9. 94A. 030( 20), and the need to give effect to all the portions of RCW 9. 94A.030( 20).
Construing RCW 9. 94A.030( 20) as Kozey advocates would defeat this intent, and we decline his
invitation.
Kozey next invokes the rule of lenity and contends that, because RCW 9. 94A.030( 20)' s
meaning is, at best, ambiguous, the rule requires that we adopt his reading of RCW
9. 94A.030( 20). The rule of lenity applies to the SRA and it requires that, where a statutory
provision remains ambiguous after we exhaust all means of attempting to ascertain the
legislature' s intent, we interpret the statute in the manner favorable to the defendant. State v.
Roberts, 117 Wash. 2d 576, 586, 817 P.2d 855 ( 1991). Even if RCW 9.94A.030( 20) is assumed
ambiguous after the plain meaning inquiry, our examination of legislative history and application
of the principles of statutory construction clarify how that ambiguity is resolved, leaving no
room for application of the rule of lenity.
We reverse Kozey' s sentence and remand for resentencing consistently with a disjunctive
interpretation of the definition of "domestic violence" in RCW 9. 94A.030( 20).
N, A. C. J.
A
We concur:
HUNT, J.
LSE, J.
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