State Of Washington v. Joshua Dean Rouse ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
October 20, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53294-8-II
Respondent,
v.
JOSHUA DEAN ROUSE, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Joshua Rouse appeals his conviction and sentence for felony violation
of a no contact order. After his jury trial conviction, Rouse requested a drug offender sentencing
alternative (DOSA), but the trial court declined and instead sentenced him to a standard range
sentence.
On appeal, Rouse argues that his trial counsel was ineffective for failing to move to
redact the prior no contact order that was admitted into evidence, and that the DOSA statute is
unconstitutionally vague and violates due process. In a Statement of Additional Grounds (SAG)
for Review, Rouse argues there was insufficient evidence to convict because of discrepancies in
eyewitness testimony.
We hold that Rouse did not receive ineffective assistance of counsel. We further hold
that the DOSA statute is not unconstitutionally vague and does not create a constitutionally
protected liberty interest. Finally, we hold that there was sufficient evidence to determine the
jury could have found the State proved each element to convict beyond a reasonable doubt.
Thus, we affirm.
No. 53294-8-II
FACTS
Beginning in December 2017, Rouse was subject to a post-conviction no contact order
that prohibited him from coming within 500 feet of Megan Hopson or her residence. Rouse was
previously convicted of no contact order violations in December 2017. The no contact order was
titled “Domestic Violence No Contact Order,” and ordered Rouse to surrender all firearms. Ex.
3. The order stated that the order was needed to “prevent possible recurrence of violence.” Ex.
3.
In November 2018, Megan Hopson’s neighbor called 911 to report that she had seen a
man, later identified as Rouse, wearing khakis and a red backpack coming from Hopson’s lawn.
The neighbor also told the operator the man had tattoos on his arms. The neighbor saw Rouse
come from the direction of Hopson’s house, and saw that one of Hopson’s windows was open
with the blinds mangled. Police apprehended Rouse a short distance away and brought the
neighbor to the arrest scene. Rouse admitted to being in the area to see Hopson. The neighbor
identified him as the same man who crossed her lawn. Rouse had no tattoos on his arms.
The State charged Rouse with residential burglary—domestic violence, and felony
violation of a no contact order—domestic violence. At trial, the jury heard testimony consistent
with the facts above. Also, the trial court admitted into evidence an unredacted copy of Rouse’s
December 2017 no contact order. Rouse’s counsel did not object.
The jury found Rouse not guilty of burglary, but found him guilty of one count of
violation of a no contact order—domestic violence. At the sentencing hearing, Rouse requested
a DOSA sentence. The State filed a sentencing memorandum, arguing against a DOSA
sentence. The State’s memorandum included information that Rouse had previously received a
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DOSA sentence. Before imposing the sentence, the trial court noted that it had reviewed
Rouse’s criminal history. The trial court denied Rouse’s request stating, “Based on all of the
factors that have been put forth to me, though, I don’t think the [DOSA] is appropriate.”
Verbatim Report of Proceedings (Feb. 20, 2019) at 25. The court imposed a standard range
sentence of 48 months’ confinement plus community supervision. Rouse appeals.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Rouse argues that he received ineffective assistance from his trial counsel because
counsel did not request redaction of—or object to admission of—the prior no contact order. We
disagree.
A claim of ineffective assistance of counsel presents a mixed question of fact and law
that this court reviews de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009).
For Rouse to demonstrate ineffective assistance of counsel, he must show that (1) defense
counsel’s performance was deficient, and (2) that the deficient performance resulted in prejudice
to the defendant. State v. Linville, 191 Wash. 2d 513, 524, 423 P.3d 842 (2018) (citing Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We may deem
counsel’s performance deficient if it is not objectively reasonable. State v. Estes, 188 Wash. 2d
450, 458, 395 P.3d 1045 (2017). Prejudice results if the outcome of the trial below would have
been different if counsel had not performed deficiently. Estes, 188 Wash. 2d at 458. This court
strongly presumes counsel’s performance was effective. State v. Emery, 174 Wash. 2d 741, 755,
278 P.3d 653 (2012). The failure to demonstrate either prong ends our enquiry. State v. Classen,
4 Wash. App. 2d 520, 535, 422 P.3d 489 (2018).
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No. 53294-8-II
Rouse cannot show that the outcome below would have been different had the no contact
order been redacted. Accordingly, he cannot show prejudice. First, there was an abundance of
evidence presented to the jury on the charge of violation of the no contact order. This evidence
included the neighbor’s eyewitness account, followed by a showup identification, and Rouse’s
admission to police officers that he was in the area of Hopson’s house attempting to work on his
relationship with her.
Second, there is nothing in the record to suggest the jury was so prejudiced that it did not
“reasonably, conscientiously, and impartially” apply the law. Strickland, 466 U.S. at 695.
Indeed, the jury’s decision to acquit Rouse of the more serious burglary charge suggests that the
jury did not have an emotional response to the evidence in the record. Because Rouse cannot
show that defense counsel’s failure to redact the no contact order resulted in prejudice, he cannot
show ineffective assistance of counsel, and this claim fails.
II. DOSA CONSTITUTIONAL CLAIMS
Rouse argues that he was improperly denied a DOSA because the DOSA statute, RCW
9.94A.660, is unconstitutionally vague. He further argues that because the DOSA statute does
not require a trial court to state its reasons for denying a DOSA sentence, the statute violated his
right to due process. We disagree on both counts.
A. Vagueness
A trial court’s decision whether to grant a DOSA is not generally reviewable. State v.
Lemke, 7 Wash. App. 2d 23, 27, 434 P.3d 551 (2018). However, the imposition of a standard
range sentence, instead of an alternative, may be challenged on constitutional grounds. In re
Pers. Restraint of Tricomo, 13 Wash. App. 2d 223, 234-35, 463 P.3d 760 (2020). This court
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No. 53294-8-II
reviews constitutional challenges de novo. In re Pers. Restraint of Troupe, 4 Wash. App. 2d 715,
721, 423 P.3d 878 (2018). We presume a statute’s constitutionality, and the challenger bears the
burden of proving the statute is unconstitutional beyond a reasonable doubt. Troupe, 4 Wash. App.
2d at 721.
A constitutional due process vagueness analysis contains two points. First, the criminal
statute “must be specific enough that citizens have fair notice of what conduct is proscribed.”
State v. Baldwin, 150 Wash. 2d 448, 458, 78 P.3d 1005 (2003). Second, the statute “must provide
ascertainable standards of guilt to protect against arbitrary arrest and prosecution.” Baldwin, 150
Wash. 2d at 458. A statute that fails on both points is unconstitutionally vague.
In Baldwin, our Supreme Court analyzed a constitutional vagueness challenge to two
sentencing guideline statutes in the Sentencing Reform Act (SRA) of 1981, chapter 9.94A. 150
Wash. 2d at 458-49. On the first point, the court explained that “[s]entencing guidelines do not
inform the public of the penalties attached to a criminal conduct nor do they vary the statutory
maximum and minimum penalties assigned to illegal conduct by the legislature.” Baldwin, 150
Wash. 2d at 459. Second, the court noted that guideline statutes do not force citizens to guess at
potential consequences of prosecution because the guidelines do not set the penalties. Baldwin,
150 Wash. 2d at 459. As a result, the court held that “the due process considerations that underlie
the void-for-vagueness doctrine have no application in the context of sentencing guidelines.”
Baldwin, 150 Wash. 2d at 459.
The same logic applies here. Like the portions of the SRA at issue in Baldwin, the
DOSA sentencing guidelines in RCW 9.94A.660 do not set the penalties for particular crimes.
Instead, the DOSA guidelines at issue here lay out eligibility criteria for a trial court to decide
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whether to impose a sentencing alternative. As a result, under Baldwin, a vagueness challenge to
RCW 9.94A.660 fails.
Furthermore, Rouse’s vagueness argument is self-defeating. Should the DOSA sections
of the SRA be held void for vagueness, the sentencing alternative made available by the statute
would be struck down. All that would remain would be the standard range sentence—just like
the one imposed. The case could not be remanded for a prison based DOSA sentence as Rouse
requests, because there would be no sentencing alternative. In either situation, Rouse’s argument
fails. Accordingly, we hold the DOSA statute is not unconstitutionally vague.
B. Due Process
Rouse argues for the first time on appeal that the DOSA statute violates procedural due
process because it does not require the trial court to articulate the basis for denying a DOSA
sentence. We do not consider Rouse’s procedural due process argument for the first time on
appeal because the DOSA statute does not create a protected liberty interest, thus, this is not
manifest constitutional error.
Generally, this court will not review a claim of error raised for the first time on appeal.
RAP 2.5(a); State v. A.M., 194 Wash. 2d 33, 38, 448 P.3d 35 (2019). However, this general rule
includes an exception when the claimed error is a manifest error affecting a constitutional right.
State v. Burns, 193 Wash. 2d 190, 207, 438 P.3d 1183 (2019). A party raising such an error must
show that the error is manifest and “truly of constitutional dimension.” State v. O’Hara, 167
Wash. 2d 91, 98, 217 P.3d 756 (2009). We analyze the argument to determine if a constitutional
interest is implicated. O’Hara, 167 Wash. 2d at 98. “We do not assume the alleged error is of
constitutional magnitude.” O’Hara, 167 Wash. 2d at 98.
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Protected liberty or property interests generally arise either from the Due Process Clause
or from a state-created statutory entitlement. See Board of Regents v. Roth, 408 U.S. 564, 576-
77, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) (plurality opinion). Our Supreme Court in Baldwin
examined the due process implications of a sentencing guideline statute, and held that statutes
granting a significant degree of discretion cannot create a liberty interest. 150 Wash. 2d at 460.
The court noted that the sentencing guidelines did “not specify that a particular sentence must be
imposed.” Baldwin, 150 Wash. 2d at 461. The court then held that because the sentencing
guideline statutes required no certain outcome, “the statutes create[d] no constitutionally
protectable liberty interest.” Baldwin, 150 Wash. 2d at 461.
Here, Rouse cannot show that the alleged error is of constitutional magnitude. The
DOSA statute here, like the statutes at issue in Baldwin, does not specify a particular sentence.
RCW 9.94A.660; 150 Wash. 2d at 461. As a result, the DOSA statute creates no constitutionally
protected liberty interest. Baldwin, 150 Wash. 2d at 461. Because Rouse has no constitutionally
protected liberty interest in a DOSA sentence, he cannot demonstrate manifest constitutional
error. RAP 2.5(a). Because there is no manifest constitutional error, this ends our inquiry.
III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Rouse makes an additional claim in his SAG, arguing that the discrepancies in the
eyewitness’s testimony regarding tattoos creates a factual question regarding the accuracy of the
witness’s identification. This amounts to an argument that his conviction is not supported by
sufficient evidence. We disagree.
When an appellant challenges the sufficiency of evidence, this court examines the record
to determine if a “rational finder of fact could have found that the State proved each element
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No. 53294-8-II
beyond a reasonable doubt.” State v. Farnsworth, 185 Wash. 2d 768, 775, 374 P.3d 1152 (2016)
(plurality opinion). Upon this challenge, the appellant admits the truth of all the State’s
evidence. Farnsworth, 185 Wash. 2d at 775; State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182
(2014). This court views the evidence in the light most favorable to the State, and draws
reasonable inferences in the State’s favor. Farnsworth, 185 Wash. 2d at 775; Homan, 181 Wash. 2d at
106. We consider circumstantial and direct evidence as equally reliable. Farnsworth, 185
Wash. 2d at 775; State v. Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 (2004).
The elements for conviction of felony violation of a no contact order, as noted in the jury
instructions are (1) that at the time of the event, there existed a protection order applicable to the
defendant; (2) that the defendant knew of the existence of this order; (3) that on or about said
date, 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. Rouse’s argument challenges the third
element.
Given that Rouse admits to the truth of the State’s evidence, there was sufficient evidence
for the jury to determine that Rouse knowingly violated the no contact order. Despite the
discrepancy in the eyewitness’s observations regarding tattoos, there is other evidence, both
direct and circumstantial, for the jury to rely on. First, the neighbor saw Rouse coming from the
direction of Hopson’s open window. She confirmed at a showup that the person she saw was
Rouse. She also identified Rouse in the courtroom as the person she saw cross her lawn.
Finally, Rouse admitted to police to being in the area to see Hopson.
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Viewing this evidence in the light most favorable to the State, and drawing reasonable
inferences in the State’s favor, this evidence is enough to determine that the jury could have
found the State proved each element beyond a reasonable doubt. Farnsworth, 185 Wash. 2d at 775.
We therefore hold that the evidence was sufficient for conviction.
We hold that Rouse’s counsel was not ineffective because there was no showing of
prejudice affecting the jury’s determination. We hold that the DOSA statute is not
unconstitutionally vague and that it does not create a constitutionally protected liberty interest.
Finally, we hold that sufficient evidence supports conviction. Accordingly, we affirm.
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.
_____________________________
Melnick, J.
_____________________________
Cruser, J.
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