State of Washington v. Kenneth Golladay ( 2020 )

FILED
OCTOBER 6, 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. 37005-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KENNETH GOLLADAY, )
)
Appellant. )
LAWRENCE-BERREY, J. — Kenneth Golladay appeals after a jury found him guilty
of count 4, felony violation of a no-contact order under RCW 26.50.110(5). Count 4
alleged that Golladay surveilled his wife, a protected person.
Golladay argues his conviction should be reversed because surveillance of a
protected person is not a gross misdemeanor under RCW 26.50.110(1)(a), and the State
was required to prove that the felony violation of the no-contact order also would have
been a gross misdemeanor. He also argues there is insufficient evidence to sustain his
conviction. We disagree with both arguments and affirm.
FACTS
Rebecca Golladay and Kenneth Golladay were married for 10 years. During that
time, Rebecca1 and Golladay lived in a trailer on Rebecca’s parents’ property. After they
1
We often refer to persons by first names to avoid overuse of “Ms.” and “Mr.”
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State v. Golladay
separated, Rebecca continued to live in the trailer. A court issued a domestic violence no-
contact order against Golladay. Among other things, the order prohibited Golladay from
keeping Rebecca under surveillance. Before Golladay’s acts that give rise to this case, he
was twice convicted for violating the no-contact order.
On May 11, 2019, Golladay called Deputy Ashley Hackett and asked her to
perform a welfare check on animals in Rebecca’s trailer. Deputy Hackett drove by and
could see the trailer from the road. She learned that Rebecca was not home, but a friend
was caring for the animals. Deputy Hackett also knew that a court order prohibited
Golladay from keeping Rebecca under surveillance. She then called Golladay and asked
why he had suspected the animals were not being cared for. Golladay responded that a
code enforcement officer had told him that he had issued a letter that prohibited Rebecca
from living in the trailer.
On May 16, Golladay contacted Deputy Hackett again, claiming that a friend told
him that a man had entered Rebecca’s trailer. Deputy Hackett did not indulge Golladay’s
request to check the trailer.
Golladay made numerous public posts on his Facebook account about people
visiting Rebecca’s trailer. One post referred to Rebecca seeing a new man and the post
included a description of the man’s car, its license plate number, and the man’s telephone
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number. Rebecca later testified that Golladay made the post on the same day she had a
friend over for dinner, the friend’s car was in the driveway, the details in Golladay’s post
were accurate, and a person had to have been close to her trailer to read the car’s license
plate. Rebecca contacted the police and gave them this and other public Facebook posts
made by Golladay.
The State charged Golladay with four counts of felony violation of a no-contact
order, in violation of RCW 26.50.110(5). That subsection elevates a violation of a no-
contact order to a felony if the restrained party has at least two previous convictions for
violating a no-contact order. The State’s theory on count 4 was that Golladay’s multiple
Facebook posts showed that Golladay was surveilling Rebecca in violation of the no-
contact order.
Regarding count 4, the trial court gave the following to-convict instruction:
To convict the defendant of the crime of violation of a court order as
charged in Count 4, each of the following five elements of the crime must
be proved beyond a reasonable doubt:
(1) That on or between March 30, 2019 and May 17, 2019, there
existed a protection order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or between said dates, the defendant knowingly violated
a provision of this order;
(4) That the defendant has twice been previously convicted for
violating the provisions of a court order; and
(5) That the defendant’s act occurred in the State of Washington.
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If you find from the evidence that elements (1), (2), (3), (4) and (5)
have been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of the five elements, then it will be your duty
to return a verdict of not guilty.
Clerk’s Papers at 75.
The jury returned not guilty verdicts on counts 1, 2, and 3, and a guilty verdict on
count 4, together with a special finding that Golladay had committed the violation against
a family or household member.
The trial court entered a judgment convicting Golladay on count 4 and sentenced
him to 17 months’ imprisonment, followed by 12 months of community custody.
Golladay timely appealed.
ANALYSIS
A. CONSTRUCTION OF RCW 26.50.110(5)
Golladay argues the trial court’s to-convict instruction for count 4 lowered the
State’s burden of proof by allowing him to be convicted for surveilling Rebecca even
though surveilling a protected person is not a crime. Golladay additionally argues that
this issue may be raised for the first time on appeal because the error violated due process,
which requires the State to prove every element of the offense beyond a reasonable doubt.
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The State responds that RCW 26.50.110(5) criminalizes any violation of a no-
contact order. Binding precedent requires us to agree.
Former RCW 26.50.110 (2017) reads in relevant part:
Violation of order—Penalties. (1)(a) Whenever an order is granted under
this chapter . . . and the respondent or person to be restrained knows of the
order, a violation of any of the following provisions of the order is a gross
misdemeanor, except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of violence
against, or stalking of, a protected party, or restraint provisions prohibiting
contact with a protected party;
(ii) A provision excluding the person from a residence, workplace,
school, or day care;
(iii) A provision prohibiting a person from knowingly coming
within, or knowingly remaining within, a specified distance of a location;
(iv) A provision prohibiting interfering with the protected party’s
efforts to remove a pet owned, possessed, leased, kept, or held by the
petitioner, respondent, or a minor child residing with either the petitioner or
the respondent; or
(v) A provision of a foreign protection order specifically indicating
that a violation will be a crime.
(Emphasis added.) Consistent with Golladay’s argument, we note that provisions (i)-(v)
do not make surveilling a protected person a gross misdemeanor.
RCW 26.50.110(5) reads in relevant part:
A violation of a court order issued under this chapter . . . is a class C felony
if the offender has at least two previous convictions for violating the
provisions of an order . . . .
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Consistent with the State’s argument, we note that RCW 26.50.110(5) does not limit the
type of no-contact order violations to those described in RCW 26.50.110(1)(a)(i)-(v).
Statutory construction
To determine the meaning of a statute, courts apply the general rules
of statutory construction to ascertain and carry out the intent of the
Legislature. If the language of a statute is clear on its face, courts must give
effect to its plain meaning and should assume the Legislature means exactly
what it says. If a statute is unambiguous, its meaning must be derived from
the working of the statute itself. A statute that is clear on its face is not
subject to judicial interpretation.
State v. Chapman, 140 Wash. 2d 436, 450, 998 P.2d 282 (2000) (footnotes omitted).
In Chapman, our high court construed an earlier version of RCW 26.50.110(1) and
RCW 26.50.110(5). Although the statutory language has changed in the past two
decades, both subsections discussed in Chapman contained the same operative language
as the subsections here. Specifically, the version of former RCW 26.50.110(1) (1996)
discussed in Chapman provided: “‘[A] violation of the restraint provisions or of a
provision excluding the person from a residence, workplace, school, or day care is a gross
misdemeanor except as provided in subsections (4) and (5) of this section. . . .’”
Chapman, 140 Wash. 2d at 447 (emphasis added). And RCW 26.50.110(5) made the third
violation of a no-contact order a felony. Id. at 448.
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The Chapman court determined that RCW 26.50.110(1) and RCW 26.50.110(5)
are clear and unambiguous, are not inconsistent, and should be read together. Chapman,
140 Wash. 2d at 448-51. Notably, the Chapman court held, “RCW 26.50.110(5) applies to a
third violation without reference to whether that violation, standing alone, would subject
the offender to criminal prosecution.” Id. at 449.
We are bound by Chapman. We decline to consider legislative history because
Chapman concluded that both subsections are plain and unambiguous. We also reject
Golladay’s argument that the third violation, standing alone, must also subject the
offender to criminal prosecution. Golladay’s argument would require us to overrule
Chapman. This we cannot do.
B. SUFFICIENCY OF THE EVIDENCE
Golladay contends the State presented insufficient evidence for a jury to find him
guilty of felony violation of a no-contact order.
When a defendant challenges the sufficiency of the evidence, the proper inquiry 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 doubt.” State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). “[A]ll reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most strongly against the defendant.”
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Id. In a challenge to the sufficiency of the evidence, circumstantial evidence and direct
evidence carry equal weight. State v. Goodman, 150 Wash. 2d 774, 781, 83 P.3d 410
(2004).
Here, Golladay does not argue the State presented insufficient evidence that he
was surveilling Rebecca's trailer. Rather, he argues that the State did not prove he
violated any of the enumerated provisions under RCW 26.50.1 lO(l)(a). Because the
State was not required to prove this, we reject Golladay's sufficiency challenge.
Affirmed.
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.
Lawrence-Berrey, J.
WE CONCUR:
Pennell, C.J. Siddoway, J.
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