State Of Washington v. Kailen Hall ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 79128-1-I
Respondent, )
) DIVISION ONE
v. )
)
KAILEN EARL HALL, ) UNPUBLISHED OPINION
)
Appellant. )
)
SMITH, J. — Kailen Hall appeals his conviction for felony violation of a no-
contact order protecting Shalina Mays. He argues that the evidence was
insufficient to support his conviction. He also argues that the trial court erred by
ordering him to have no contact with Mays for five years. Specifically, he asserts
that the trial court, which sentenced him to five years’ total confinement but
ordered that he receive credit for time served, erred by not also reducing the term
of the no-contact condition to account for time served. Finally, Hall argues that
because he is indigent, the trial court erred by ordering him to pay Department of
Corrections (DOC) supervision fees. We affirm but remand to the trial court to
strike the DOC supervision fees.
FACTS
In December 2016, the Pierce County District Court entered a no-contact
order (2016 NCO) that identified Hall as the “Defendant.” The 2016 NCO
directed the “Defendant” as follows with regard to Shalina Mays, the “protected
person”:
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A. [D]o not i) cause, attempt or threaten to cause bodily injury to,
assault, sexually assault, harass, stalk or keep under
surveillance the protected person or, ii) engage in other
conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner or child, or iii) use, attempt to
use or threaten to use physical force against the intimate
partner or child that would reasonably be expected to cause
bodily injury.
B. [D]o not contact the protected person, directly, indirectly, in
person or through others, by phone, mail, or electronic means,
except for mailing or service of process of court documents
through a third party, or contact by the defendant’s lawyers.
C. [D]o not knowingly enter, remain, or come within 500 feet . . .
of the protected person’s residence, school, [or] workplace.
The second page of the 2016 NCO bore an acknowledgment stating, “I
acknowledge receipt of a copy of this order.” Below the acknowledgment was a
signature line for “Defendant,” and a signature appeared on that line. The
expiration date of the 2016 NCO was May 14, 2019.
In 2018, the State charged Hall with two counts of domestic violence
felony violation of a court order for violating the 2016 NCO. At trial, Sergeant
Robert Constant of the Kent Police Department testified that on June 3, 2018, at
about 6:30 p.m., multiple police units were dispatched to a house located at
22707 114th Place Southeast in Kent in response to a 911 call. On that call, a
part of which was played for the jury, a woman who identified herself as Mays
reported that she was at a house in Kent and that “he just busted my . . .
window.” When the 911 dispatcher asked the caller, “What’s his last name,” the
caller responded, “Hall.” The dispatcher then asked the caller, “And his first
name?” The caller responded, “Kailen.”
Sergeant Constant testified that he was the first to arrive at the house. He
ran up to the front door, and just as he was getting to the door, he heard a noise
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that he believed was caused by someone jumping over a chain link fence in the
backyard. He did not see anyone, but he called out on his radio that someone
had gone into the woods behind the house.
Sergeant Constant testified that he then returned to the front door area of
the house and spoke with a woman who later identified herself as Mays. The
woman told Sergeant Constant that someone had been at the house and “busted
the window.” She also told Sergeant Constant that the person ran off when
Sergeant Constant approached. Three suspects—none of whom was Hall—
were later stopped in connection with this incident, which served as the basis for
the first count against Hall (count 1).
The second count (count 2) arose from another 911 call made later that
same evening. In that call, which also was played for the jury, a woman who
identified herself as Mays explained to the dispatcher that “I’m calling
because . . . the police just left here . . . . My ex-boyfriend is calling and
threatening me right now.” The dispatcher asked the caller, “How long ago did
you hear from him?” and the caller responded, “Just right before I called you.”
The dispatcher then asked the caller, “Is he saying he’s gonna come back over to
the house?” The caller responded, “Yes, and he’s in a . . . Subaru Outback, I
think it is.” The caller then confirmed that she was referring to Hall. When the
dispatcher asked the caller again how many minutes ago Hall had called, the
caller responded, “About one. He called like four times.”
About 15 seconds later, while still on the phone with the dispatcher, the
caller said, “Somebody’s here,” and then, “Yep, it’s him, he’s here . . . in a
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silver . . . Subaru . . . [Forester].” The caller then reported a license plate number
to the dispatcher. About 30 seconds later, after describing Hall to the dispatcher,
the caller reported, “He got out [of] the car; he’s at the window. And my window’s
. . . busted open.” The dispatcher later asked, “Can he see you from
where . . . he is?” The caller responded, “Yes, yes.” When the dispatcher asked,
“What is he doing,” the caller responded, “Talking.” The dispatcher asked,
“Talking to you, or talking to someone else?” The caller responded, “I don’t
know.” Later on the call, a woman’s voice could be heard in the background
saying, “Don’t threaten me. Get away from my fucking window.” It is unclear
whether that voice belonged to the caller. Later, however, the caller could be
heard saying, “Go away. Go away.” A man’s voice could then be heard in the
background, though his words were indiscernible. Over the next minute or so,
bits and pieces of a background dialogue could be heard on the call, including
the caller’s voice saying, “I don’t want anything from [indiscernible],” followed by
a response from a male voice, and then the caller’s voice saying, “No.” About
six-and-a-half minutes into the call, the caller confirmed to the dispatcher that
Hall was still outside. The caller later told the dispatcher that she had moved to
the back of the house and did not know whether Hall was still there.
Officer William Morrison was dispatched to the house. He later testified
that he drove to the intersection of 116th Avenue Southeast and 227th Place
Southeast. From there, he “observed a silver Subaru Forester drive northbound
out of 114th Place and turn left westbound onto Southeast 227th Place.” He
explained that 114th Place is “just a little drive that immediately turns into a cul-
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de-sac” and that the Forester exited from the only entry or exit point for a vehicle.
Officer Morrison advised via radio that he saw the Forester and that it had turned
left and was heading westbound on 227th Place. Officer Morrison testified that
he then started following the Forester and, at some point, another officer turned
in front of him. The officers then stopped the Forester and detained two subjects,
later identified as Hall and his girlfriend, Brandy Lahue.
Sergeant Constant arrived at the scene after Lahue and Hall had been
detained. He explained to Hall why he was contacting him and talked to him
about the first incident. Sergeant Constant later testified that Hall “denied
basically the whole incident.” Sergeant Constant then asked Hall questions
about going to the house a second time. According to Sergeant Constant, Hall
“said, no, he had hung out by the mailboxes, and . . . there was a woman that
was with him, [and] he had the woman go up to the house in his place.”
Sergeant Constant testified that Hall said, “[h]e was aware of the court order
between himself and . . . Mays,” but “he didn’t violate the order because he
stayed at the mailboxes.”
Before trial, Hall moved in limine to redact parts of the 2016 NCO. He
pointed out that because the 2016 NCO was a domestic violence no-contact
order, it contained references to his being convicted of a domestic violence
crime. He also pointed out that the 2016 NCO “notifies the defendant about
possible consequences, such as being charged with a criminal offense, should
the order be violated.” Hall argued that “[t]his information is clearly more
prejudicial than probative in a Violation of No Contact Order trial.” The State
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No. 79128-1-I/6
opposed the motion, arguing that Hall’s redaction request was “too broad.” After
the parties presented their respective proposed redacted versions to the trial
court, Hall again proposed that the warning language in the 2016 NCO be
redacted, and the court granted Hall’s request. Thus, the version of the 2016
NCO that was later admitted at trial did not include the redacted warning
language.
After Hall’s case was submitted to the jury, the trial court declared a
mistrial on—and later dismissed—count 1 after concluding that the jury was
deadlocked. The jury found Hall guilty on count 2.
On October 31, 2018, the trial court sentenced Hall to a total of five years’
confinement, with credit for time served as determined by the King County
Correctional Facility. The court also ordered that Hall have no contact with Mays
“[f]or the maximum term of 5 years.” The court entered a separate Domestic
Violence No-Contact Order protecting Mays that expires on October 31, 2023,
i.e., five years after the sentencing date (2018 NCO). The court also imposed
community custody for “0 months, plus all accrued early release time at the time
of release” and ordered Hall to pay supervision fees as determined by DOC. Hall
appeals.
DISCUSSION
Sufficiency of the Evidence
Hall argues that the evidence was insufficient to support the following
findings required by the court’s to-convict instruction: (1) “[t]hat on or about June
3, 2018, there existed a protection order or a no-contact order applicable to
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No. 79128-1-I/7
[Hall]” and (2) “[t]hat on or about said date, [Hall] knowingly violated a provision
of [that] order.” We disagree.
To satisfy the Fourteenth Amendment’s due process guarantee, the State
“bears the burden of proving every element of every crime beyond a reasonable
doubt.” State v. Chacon, 192 Wash. 2d 545, 549, 431 P.3d 477 (2018); U.S. CONST.
amend. XIV. When a defendant challenges the sufficiency of the evidence
presented to meet this burden, “he or she admits the truth of all of the State’s
evidence.” State v. Cardenas-Flores, 189 Wash. 2d 243, 265, 401 P.3d 19 (2017).
“In such cases, appellate courts view the evidence in the light most favorable to
the State, drawing reasonable inferences in the State’s favor.” Cardenas-Flores,
189 Wash. 2d at 265-66. “Evidence is sufficient to support a guilty verdict if any
rational trier of fact, viewing the evidence in the light most favorable to the State,
could find the elements of the charged crime beyond a reasonable doubt.”
Cardenas-Flores, 189 Wash. 2d at 265. For the reasons that follow, a rational trier
of fact could find both that there existed a no-contact order applicable to Hall and
that Hall knowingly violated a provision of that order.
Existence of Order Applicable to Hall
Hall contends that the evidence was insufficient for a jury to find that the
2016 NCO was applicable to him. We disagree.
Hall was named as the “Defendant” on exhibit 12 (the redacted version of
the 2016 NCO that was admitted into evidence), and the no-contact prohibitions
in exhibit 12 were expressly directed at “Defendant.” Additionally, it is clear from
exhibit 12 that the 2016 NCO expressly prohibited the “Defendant” from, among
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No. 79128-1-I/8
other things, contacting Mays “directly, indirectly, in person or though others.”
Finally, it was clear from exhibit 12 that the 2016 NCO’s expiration date was May
14, 2019. For these reasons, there was sufficient evidence for the jury to find
“[t]hat on or about June 3, 2018, there existed a protection order or a no-contact
order applicable to [Hall].”
Hall disagrees and argues that because exhibit 12 did not contain
statutorily required warning language because it had been redacted, it was not
sufficient to sustain a finding that the order was applicable to him. But Hall’s
argument conflates the threshold question of an order’s validity, which is a
question of law decided by the trial court, with the factual question of an order’s
existence—a jury question. See State v. Miller, 156 Wash. 2d 23, 31, 123 P.3d 827
(2005) (“[I]ssues relating to the validity of a court order (such as whether the
court granting the order was authorized to do so, whether the order was
adequate on its face, and whether the order complied with the underlying
statutes) are uniquely within the province of the court.”); see also City of Seattle
v. May, 171 Wash. 2d 847, 853, 256 P.3d 1161 (2011) (“[T]he validity of the order,
as opposed to its existence, [is] neither a statutory nor an implied element of the
crime. Instead, . . . ‘[t]he court, as part of its gate-keeping function, should
determine as a threshold matter whether the order alleged to be violated is
applicable and will support the crime charged.’” (emphasis added) (third
alteration in original) (citation omitted) (quoting Miller, 156 Wash. 2d at 31)).
Here, Hall did not—and does not—argue that the 2016 NCO was not valid
as a threshold matter of law such that it would not support the crime charged.
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No. 79128-1-I/9
See Miller, 156 Wash. 2d at 31 (“Questions of law are for the court, not the jury, to
resolve.”). Rather, he argues that exhibit 12 was insufficient for a jury to find,
necessarily as a matter of fact, that there existed an order applicable to Hall at
the relevant time. See State v. Roth, 131 Wash. App. 556, 561, 128 P.3d 114
(2006) (“[I]t is the function and the province of the jury to . . . decide disputed
questions of fact.”). This argument fails because, as discussed, exhibit 12 was
sufficient to support that factual finding.
Hall also contends, relying on the law of the case doctrine, that although
the validity of a no-contact order is not an element of the crime of violating a no-
contact order,1 the to-convict instruction given in his case made it an element.
Specifically, he asserts that because the court’s to-convict instruction required a
finding that the 2016 NCO was applicable to him, the State was required—and
failed—to prove that the 2016 NCO was valid.2 Hall relies on State v. Turner,
156 Wash. App. 707, 235 P.3d 806 (2010), to support his assertion, but his reliance
is misplaced.
In Turner, we did, as Hall points out, state that “‘[a]n order is not applicable
to the charged crime if it is not . . . statutorily sufficient.’” 156 Wash. App. at 712-13
(quoting Miller, 156 Wash. 2d at 31). But we quoted Miller for that proposition, and
a careful reading of Miller reveals that the term “applicability,” as used in the
1 See Miller, 156 Wash. 2d at 31 (holding that “the validity of [a] no-contact
order is not an element of the crime” of violating such an order).
2 Under the “law of the case” doctrine, the State must prove all elements
included without objection in the to-convict instruction, whether or not those
elements are required by statute. State v. Johnson, 188 Wash. 2d 742, 754, 399
P.3d 507 (2017).
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No. 79128-1-I/10
context of that case, refers not to applicability in the factual sense, but to an
order’s legal validity. See Miller, 156 Wash. 2d at 31 (“[I]ssues relating to the
validity of a court order (such as whether . . . the order was adequate on its face,
and whether the order complied with the underlying statutes) are uniquely within
the province of the court. Collectively, we will refer to these issues as applying to
the ‘applicability’ of the order to the crime charged.” (emphasis added)); cf. May,
171 Wash. 2d at 854-55 (distinguishing an order’s validity from its applicability and
describing an “inapplicable” order as one that “either does not apply to the
defendant or does not apply to the charged conduct”).
In short, Turner does not, despite its reference to “applicability,” support
Hall’s contention that by using the word “applicable,” the to-convict instruction
added an element and required the jury to determine the 2016 NCO’s validity.
Rather, the jury was merely asked to determine whether the order was applicable
in the factual sense.3 And as already discussed, the evidence was sufficient to
support the jury’s finding that it was.
Knowing Violation of Order
Hall next contends that the evidence was insufficient for the jury to find
“[t]hat on or about [June 3, 2018], [Hall] knowingly violated a provision of” the
2016 NCO. Again, we disagree.
The 2016 NCO prohibited Hall from contacting Mays, “directly, indirectly,
3 Our conclusion is supported by the fact that the relevant pattern
instruction, WPIC 36.51.02, also includes the term “applicable.” See 11
WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
36.51.02, at 674 (4th ed. 2016).
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No. 79128-1-I/11
in person or through others, by phone, mail, or electronic means.” And as
discussed, the jury heard a 911 call in which a caller who identified herself as
Mays told the dispatcher that Hall had just called her multiple times and then,
while still on the phone with the dispatcher, reported that Hall had arrived and
was standing at the broken window, talking. Later, a dialogue could be heard in
the background between the caller and an unidentified male voice.
A rational juror could reasonably have inferred from the 911 call that the
caller was Mays and that Hall had just telephoned Mays multiple times, in
violation of the 2016 NCO’s prohibition on contacting Mays “directly, indirectly, in
person or through others, by phone . . . or electronic means.” A juror also could
reasonably have inferred that Hall was the man heard talking in the background
and that Hall was talking to Mays, also in violation of the 2016 NCO’s prohibition
on contact. Finally, a juror could reasonably have inferred that Hall’s violations
were knowing based both on (1) a reasonable inference that the signature on the
2016 NCO was Hall’s and (2) Sergeant Constant’s testimony that Hall stated he
was aware of the court order between himself and Mays.4 For these reasons, the
evidence was sufficient to support a finding that Hall knowingly violated a
provision of the 2016 NCO.
Hall disagrees and contends that merely “[b]eing outside the house does
not constitute contact with Mays,” and the second 911 call did not establish that
4The jury was instructed that “[i]f a person has information that would lead
a reasonable person in the same situation to believe that a fact exists, the jury is
permitted but not required to find that he or she acted with knowledge of that
fact.”
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No. 79128-1-I/12
Hall actually communicated with Mays. But Hall cites no authority to support his
contention that standing outside a broken window from which he could see Mays
inside the house was not enough to constitute contact. Additionally, and as
discussed, reasonable inferences from the second 911 call support a finding that
Hall did communicate with Mays, both by telephoning her and talking through the
window. Therefore, Hall’s argument fails.
Hall also contends that the evidence was insufficient to show that the
house from which Mays called 911 was her residence and, thus, the State failed
to prove that Hall violated the provision of the 2016 NCO prohibiting him from
coming within 500 feet of the protected person’s residence. But as discussed,
the evidence was sufficient to support Hall’s conviction based on the provision of
the 2016 NCO prohibiting Hall from contacting Mays. Thus, Hall’s contention
fails.
2018 NCO
Hall argues that the 2018 NCO’s October 31, 2023, expiration date is
erroneous because it fails to take into account credit for time served. We
disagree.
The trial court issued the 2018 NCO under chapter 10.99 RCW. To that
end, RCW 10.99.050(1) provides that “[w]hen a defendant is found guilty of a
crime and a condition of the sentence restricts the defendant’s ability to have
contact with the victim, such condition shall be recorded and a written certified
copy of that order shall be provided to the victim.” In other words,
RCW 10.99.050(1) directs the court to issue a no-contact order “to record a no-
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No. 79128-1-I/13
contact condition of the sentence.” State v. Granath, 190 Wash. 2d 548, 556, 415
P.3d 1179 (2018).
Here, Hall was found guilty of felony violation of a no-contact order. The
maximum term for that crime, based on Hall’s offender score, was five years.
Thus, the trial court was authorized, as part of Hall’s felony sentence, to order
Hall to have no contact with the victim, Mays, for five years beginning on October
31, 2018, the date of sentencing. State v. Armendariz, 160 Wash. 2d 106, 108, 156
P.3d 201 (2007); see also State v. France, 176 Wash. App. 463, 473, 308 P.3d 812
(2013) (“[T]he S[entencing ]R[eform A[ct] . . . authorize[s] trial courts to impose
crime-related prohibitions as a condition of sentence.”). The trial court did so
and, consistent with RCW 10.99.050(1), entered the 2018 NCO, with an
expiration date of October 31, 2023, to record that condition. There was no error.
Hall disagrees. Relying on State v. Navarro, 188 Wash. App. 550, 354 P.3d
22 (2015), he argues that because he received credit for time served in
confinement, that credit also applied to the no-contact condition of his sentence
and, thus, the 2018 NCO’s expiration date was erroneous. But the part of
Navarro on which Hall relies involved sexual assault protection orders. See
Navarro, 188 Wash. App. at 555. By statute, sexual assault protection orders
expire “‘two years following the expiration of any sentence of imprisonment and
subsequent period of community supervision, conditional release, probation, or
parole.’” Navarro, 188 Wash. App. at 554 (emphasis added) (quoting
RCW 7.90.150(6)(c)). In other words, the term of the protection orders at issue
in Navarro were, by statute, tied to the defendant’s term of confinement. We thus
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No. 79128-1-I/14
held, in Navarro, that “[b]ecause an offender’s actual release date is unknowable
at the time of sentencing, a sexual assault protection order should not provide a
fixed expiration date.” Navarro, 188 Wash. App. at 555-56.
Here, by contrast, the trial court entered a no-contact order, which is not
the same as a sexual assault protection order. See Navarro, 188 Wash. App. at
552 (“A sexual assault protection order protects a victim from contact with an
offender who is not otherwise restrained. Conviction of the offender is not a
prerequisite. No-contact orders, on the other hand, are not limited to victims, and
they are entered only after the offender is convicted of a crime. There are
different provisions governing the length of time these orders may remain in
effect.” (emphasis added)). And as discussed, the trial court was authorized to
enter a no-contact order for the maximum term of five years. Armendariz, 160
Wash. 2d at 108. Therefore, Hall’s reliance on Navarro is misplaced.
Hall’s reliance on Granath is also misplaced. There, our Supreme Court
held that RCW 10.99.050(1) does not give a district court, whose jurisdiction is
limited by statute, independent authority to issue no-contact orders. Granath,
190 Wash. 2d at 556-57. Rather, RCW 10.99.050(1) merely authorizes a district
court to enter a no-contact order that records the no-contact condition of a
sentence. Granath, 190 Wash. 2d at 556. And because the no-contact condition of
the sentence at issue in Granath lasted only two years, the district court erred by
entering a five-year no-contact order. Granath, 190 Wash. 2d at 557.
Here, the no-contact condition of Hall’s sentence was properly ordered to
last a maximum of five years from the date of sentencing. Thus, consistent with
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No. 79128-1-I/15
Granath, the no-contact order issued to record this condition was set to expire
five years after the date of sentencing, on October 31, 2023. This was not error.
DOC Supervision Fees
Hall argues that remand is required for the trial court to strike the DOC
supervision fees. We agree.
RCW 9.94A.703(2)(d) provides that “[u]nless waived by the court, as part of
any term of community custody, the court shall order an offender to . . . [p]ay
supervision fees as determined by the [DOC].” Because supervision fees can be
waived by the court, they constitute discretionary LFOs. See RCW 9.94A.030(31)
(“‘Legal financial obligation’ means a sum of money that is ordered by a superior
court of the state of Washington for legal financial obligations which may include
. . . any . . . financial obligation that is assessed to the offender as a result of a
felony conviction.”); State v. Lundstrom, 6 Wash. App. 2d 388, 396 n.3, 429 P.3d
1116 (2018) (costs of community custody are discretionary LFOs). To this end, a
trial court’s decision whether to impose a discretionary LFO is reviewed for abuse
of discretion. State v. Ramirez, 191 Wash. 2d 732, 741, 426 P.3d 714 (2018).
Here, the record reflects that the trial court intended to waive all
discretionary LFOs. Specifically, when explaining why it was ordering Hall to pay
a $500 victim penalty assessment, the trial court stated, “A $500 victim penalty
assessment; that’s mandatory. I can’t waive that even though I understand
you’re going to be locked up and you’re not going to have any money, but I can’t
– I don’t have any discretion to not impose that.” (Emphasis added.) Because
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the trial court intended to waive all discretionary LFOs but did not waive DOC
supervision fees, we remand to the trial court to strike the DOC supervision fees.
The State contends that the trial court properly ordered Hall to pay DOC
supervision fees because they are not “costs” that the trial court is prohibited
from imposing on an indigent defendant under RCW 10.01.160. But assuming
without deciding that DOC supervision fees are not costs within the meaning of
RCW 10.01.160, they nonetheless constitute discretionary LFOs. And as we
recently observed, “The barriers that LFOs impose on an offender’s reintegration
to society are well documented . . . and should not be imposed lightly merely
because the legislature has not dictated that judges conduct the same inquiry
required for discretionary costs.” State v. Clark, 191 Wash. App. 369, 376, 362
P.3d 309 (2015). Furthermore, and as discussed, the record in this case reflects
that the trial court intended to waive any discretionary LFOs. For these reasons,
remand is appropriate. Cf. State v. Dillon, ___ Wn. App. 2d ___, 456 P.3d 1199,
1209 (2020) (striking DOC supervision fee where “[t]he record demonstrate[d]
that the trial court intended to impose only mandatory LFOs”).
We affirm but remand to the trial court to strike the DOC supervision fees.
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WE CONCUR:
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