State of Washington v. Frank James Willing, Jr. ( 2020 )

FILED
JUNE 16, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36749-5-III
Respondent, )
)
v. )
)
FRANK JAMES WILLING, JR, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Frank Willing, Jr. appeals his conviction for violating a protection
order, RCW 26.50.110(5). We affirm the conviction but remand for resentencing.
FACTS
Mr. Willing agreed to drive his girlfriend to the home of her granddaughter, L.K.
Like her grandmother, L.K. had a valid anti-harassment order in place against Mr.
Willing. It required that he “stay away” from L.K. and her home. Willing parked the car
about 20 feet from the house and let his passenger out. Kristina saw Mr. Willing deliver
her mother and confronted him about driving to her home.
Mr. Willing admitted to law enforcement that he knew he should not go to the
house, but he did not intend to violate the order. Multiple charges were filed, all of which
were felony offenses due to Mr. Willing’s prior conviction history. Mr. Willing pleaded
No. 36749-5-III
State v. Willing
guilty to three felony domestic violence protection order violations, but proceeded to
bench trial on the anti-harassment protection order count involving L.K., a charge that did
not involve domestic violence. Mr. Willing argued that his conduct did not violate the
order protecting L.K. and that the “stay away” language was vague.
The court concluded that the language was understandable and convicted him of
the offense. At sentencing, the defense agreed that the three domestic violence offenses
all scored as “9” and carried a 60 month sentence. Without discussion, count 4 involving
L.K. was scored and treated in the same manner.
The court rejected Mr. Willing’s request, supported by his girlfriend, for an
exceptional sentence and imposed concurrent 60 month sentences on all four counts. Mr.
Willing timely appealed to this court. A panel heard the appeal without conducting
argument.
ANALYSIS
Mr. Willing argues that the evidence was insufficient and the “stay away” order
was vague. He also notes that the offender score was wrongly calculated for count 4.
We address those three issues in the order stated.
Evidentiary Sufficiency
Mr. Willing argues that the evidence was insufficient because he did not enter
L.K.’s residence or come within a specified distance. Since the order is not couched in
those terms, the trial court did not err in its ruling.
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We review this argument under well settled principles of law. “Following a bench
trial, appellate review is limited to determining whether substantial evidence supports the
findings of fact and, if so, whether the findings support the conclusions of law.” State v.
Homan, 181 Wash. 2d 102, 105-106, 330 P.3d 182 (2014). “‘Substantial evidence’ is
evidence sufficient to persuade a fair-minded person of the truth of the asserted premise.”
Id. at 106. In reviewing insufficiency claims, the appellant necessarily admits the truth of
the State’s evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). Finally, this court defers to the finder of fact’s
resolution of conflicting evidence and credibility determinations. State v. Camarillo, 115
Wash. 2d 60, 71, 794 P.2d 850 (1990).
It is a criminal offense to violate a protection order that excludes an individual
from the protected person’s residence. RCW 26.50.110(1)(a)(i). Protection orders that
are covered under this statute include anti-harassment orders issued under RCW 9A.46.
RCW 26.50.110. An anti-harassment order may restrict respondent from contacting the
protected person.1 RCW 9A.46.080.
A home or residence constitutes where one normally lives and a valid protection
order need not list the protected party’s address. State v. Vant, 145 Wash. App. 592, 598-
1
The pretrial anti-harassment protection order statute also specifically states a
court may order the defendant to “stay away” from the protected person’s home. RCW
9A.46.040(1)(a).
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599, 186 P.3d 1149 (2008). The fact-finder need only establish the defendant knew the
protected party resided at a location and knowingly went to that location. Id. at 599. It is
irrelevant whether the defendant actually made contact with the victim so long as the
violation was knowing. State v. Ward, 148 Wash. 2d 803, 815-816, 64 P.3d 640 (2003).
The anti-harassment order clearly directed Mr. Willing to “stay away” from L.K.’s
home. Mr. Willing cites no authority suggesting that he must have entered the house to
violate the order or that the order is invalid because it did not establish a specified
distance that he needed to stay away from the residence. It was a factual question
whether Mr. Willing went to the proscribed location. The trial court reviewed the
undisputed evidence and found Mr. Willing went to L.K.’s home despite the valid
protection order. Mr. Willing also knew he should not go to the residence. We agree that
this evidence allowed the trial judge to conclude that Mr. Willing violated the order.
The evidence was sufficient to support the judgment.
Vagueness
Mr. Willing next contends that the anti-harassment order’s “stay away” language
was unconstitutionally vague. Foreign authority, which we adopt, concludes otherwise.
A statute or court order with criminal penalties must give fair notice of the
prohibited conduct pursuant to Fourteenth Amendment due process requirements. City of
Seattle v. May, 171 Wash. 2d 847, 855-856, 256 P.3d 1161 (2011). An order is
unconstitutionally vague if it does not define criminal conduct with sufficient definiteness
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for an ordinary person to understand what is forbidden. State v. Bahl, 164 Wash. 2d 739,
752-753, 193 P.3d 678 (2008). This is essential to protect against arbitrary enforcement.
Id. However, an order is not unconstitutional merely because a person cannot predict
with complete certainty when conduct becomes proscribed. State v. Watson, 160 Wash. 2d
1, 7, 154 P.3d 909 (2007). Instead, we look to whether a person of ordinary intelligence
can reasonably comprehend what they are or are not allowed to do. Id.
The purpose of Washington’s anti-harassment laws is to prevent invasion of the
protected person’s privacy. RCW 9A.46.010. There is no significant Washington case
law discussing the “stay away” language. California’s courts have ruled that an order to
“stay away” from a location is such a common and generic term that it hardly needs a
definition from the court. People v. Holzmann, 18 Cal. App. 5th 1251, 1244-1245, 227
Cal. Rptr. 3d 409 (2018). An order to “stay away” from a designated location is
reasonably clear even without a specified distance and the question is solely whether the
defendant knew he should not be at the given location. Id. at 1246. Similarly, a
Massachusetts court determined that a “stay away” provision in a protection order is not
subject to arbitrary enforcement because it is necessarily limited to when a defendant
comes near enough to a prohibited place to violate the order’s objectives to prohibit
contact or harassment. Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 237-238,
113 N.E.3d 382 (2018).
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We agree with California and Massachusetts that “stay away” is an obvious phrase
that a reasonable person can comprehend and obey. Mr. Willing was on notice not to go
to L.K.’s house. The trier-of-fact could evaluate the facts to determine if Mr. Willing
intentionally failed to “stay away.” His admission that he should not have gone to the
house showed that he comprehended what he could not do. The anti-harassment order is
not constitutionally vague.
Sentencing
Lastly, Mr. Willing argues, and the State concedes, that the offender score
calculation for count 4 is incorrect. We agree with the parties that the correct offender
score was 4 and that the standard range should have been 22-29 months. Resentencing is
appropriate. State v. Kilgore, 141 Wash. App. 817, 824-825, 172 P.3d 373 (2007).
Conviction affirmed. Sentence reversed and the case is remanded for sentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________ _________________________________
Lawrence-Berrey, J. Siddoway, J.
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