State Of Washington v. Tristan James Melland

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 76617-1-1
Respondent,
ORDER ON MOTIONS
V. FOR RECONSIDERATION
AND TO WITHDRAW
TRISTAN JAMES MELLAND, AND SUBSTITUTE OPINION
Appellant.
Respondent the State of Washington filed a motion for reconsideration and
appellant Tristan James Melland filed a motion for reconsideration of the opinion filed on
May 6, 2019. We grant the State's motion to reconsider, grant in part and deny in part
Melland's motion to reconsider, withdraw the opinion filed on May 6, 2019, and file a
substitute opinion. Now, therefore, it is hereby
ORDERED that the State's motion to reconsider is granted, Melland's motion to
reconsider is granted in part and denied in part, and the opinion filed on May 6, 2019
shall be withdrawn and a substitute opinion shall be filed.
DATED this I q 44''day of AlA9U.S-k" , 2019.
FILED
8/19/2019
Court of Appeals
Division I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 76617-1-1
Respondent,
V. PUBLISHED OPINION
TRISTAN JAMES MELLAND,
Appellant. FILED: August 19, 2019
SCHINDLER, J. — The State charged Tristan James Melland with assault in the
second degree of D.J. and felony violation of a court order prohibiting contact with D.J.
The jury convicted Melland of assault in the second degree and the lesser included
offense of misdemeanor violation of a no-contact order. Melland seeks reversal,
arguing sufficient evidence does not support the jury finding he committed the crimes.
Melland also argues sufficient evidence does not support the jury finding an essential
element of assault in the second degree, reckless infliction of substantial bodily harm;
and police officer testimony violated his right to confrontation. In the alternative,
Melland seeks dismissal without prejudice of the misdemeanor violation of a no-contact
order conviction on the grounds that the charging document is deficient. We conclude
sufficient evidence supports the jury finding Melland committed the crimes but sufficient
evidence does not support the jury finding Melland recklessly inflicted substantial bodily
No. 76617-1-1/2
harm. We conclude police officer testimony did not violate MeIland's right to
confrontation and the charging document contains the essential elements of the lesser
included offense of misdemeanor violation of a no-contact order. Accordingly, we
reverse the assault in the second degree conviction and affirm the misdemeanor
violation of a no-contact order conviction.
FACTS
In 2016, 29-year-old Tristan James Melland and 31-year-old D.J. lived together in
her apartment in Queen Anne. D.J. worked as a bartender.
On March 31, 2016, D.J. experienced severe vomiting and nausea after she
stopped drinking alcohol. The Virginia Mason Hospital records state, "'[R]elationship
stressors led to excessive alcohol intake.'" A Virginia Mason doctor diagnosed D.J.
with alcohol withdrawal and prescribed Librium and potassium chloride.
On April 4, 2016, the Seattle Municipal Court(SMC)entered a domestic violence
no-contact order in City of Seattle v. Tristan J. Melland, case no. 614080. The no-
contact order prohibited Melland from having any contact with D.J. "directly" or
"indirectly." Melland was present. Melland signed and acknowledged receipt of a copy
of the no-contact order. The no-contact order expired on April 4, 2018. The order
states, in pertinent part:
A. do not cause, attempt, or threaten to cause bodily injury to, assault,
sexually assault, harass, stalk, or keep under surveillance the
protected person.
B. do not contact the protected person directly, indirectly, in person or
through others, by phone, mail, electronic or any other means, except
for mailing or service of process of court documents through a third
party, or contact by the defendant's lawyers.
C. do not knowingly enter, remain, or come within 500 [feet] . . . of the
protected person's residence, school, workplace,[or] . . . anywhere
protected party is.
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No. 76617-1-1/3
The order warns Melland,"You have the sole responsibility to avoid or refrain from
violating the order's provisions," and violation of the terms of the no-contact order "is a
criminal offense."
On June 11,2016, Seattle Police Officer Kevin Stewart responded to a June 10
911 call reporting a "domestic violence assault incident" and "possible violation of a no-
contact order." When Officer Stewart arrived at the apartment, D.J. was "visibly
shaking" and "crying," "complaining of an injury," and holding her hand. Officer Stewart
noticed her right pinky finger and ring finger were "discolored and bruised." Officer
Stewart took photographs of her right hand and her two hands side-by-side. Officer
Stewart checked the police database for a no-contact order. There was a valid no-
contact order in effect that prohibited Melland from having any contact with D.J.
On June 15, 2016, the State charged Melland with domestic violence felony
violation of a no-contact order in violation of RCW 26.50.110(1) and (4) and interfering
with domestic violence reporting in violation of RCW 9A.36.150. The information
alleged Melland committed the crimes against a family or household member.
On June 26, D.J. experienced severe nausea and abdominal pain. D.J. told the
Virginia Mason Hospital emergency room physician Dr. David Frank that she
"'managed to stay away from alcohol until two weeks ago when, again, relationship
stressors (boyfriend's trial for domestic dispute) led' "her to" le]ngage[]in a one-week
long binge where she was drinking a fifth [of a gallon] of bourbon per day as a way of
coping with recent stressors in her life.'" Dr. Frank noted D.J. "'lives in Queen Anne
with boyfriend of six years who is abusive'" but"'is no longer living with her.'" Dr.
Frank diagnosed alcohol withdrawal and admitted D.J. to the hospital. Dr. Frank
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No. 76617-1-1/4
ordered an X-ray of her right hand. X-rays showed a "``nondisplaced fracture'"of her
right pinky finger.
On June 29, Detective Jeffrey Page interviewed D.J. at Virginia Mason.
Detective Page took photographs of her right hand "splinted and wrapped" in a bandage
and "unwrapped" to show the "bruising to [her] right pinky finger."
A Virginia Mason social worker met with D.J. before discharge from the hospital
on July 1 to discuss "concerns of domestic violence." D.J. told the social worker that
"'following a fight with her boyfriend about a week or so ago, she was feeling lonely and
consumed significantly more alcohol than usual.'"
On July 14, 2016, Virginia Mason emergency room physician Dr. Huma Memon
admitted D.J. for alcohol withdrawal. D.J. told Dr. Memon she drank "'about a fifth-and-
a-half of bourbon the night before."
Before her discharge the next day, social worker Janelle Moore met with D.J.
because doctors "had raised the concern that there was a history of domestic violence,
and they wanted to make sure that the patient had a safe place to go." D.J. expressed
"concern about her ex-boyfriend with DV[1] history, and a concern about her safety."
D.J. told Moore her "ex-boyfriend was violating a protection order that prevents him from
being near her." D.J. said she planned to "get her things from her apartment, which she
indicated was her own private lease but where [Melland] had also lived and had a key."
D.J. told Moore her "lease was up at the end of July and she wouldn't be returning
there."
On November 10, 2016, the State filed an amended information to add a charge
of domestic violence assault in the second degree in violation of RCW 9A.36.021(1)(a).
1 Domestic violence.
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No. 76617-1-1/5
The amended information alleged that "on or about June 10, 2016," Melland "did
intentionally assault another and thereby recklessly inflict substantial bodily harm upon
[D.J.]" in violation of RCW 9A.36.021(1)(a).
Before trial, the court ruled the statements D.J. made to the Virginia Mason
health care providers for purposes of medical diagnosis or treatment were admissible
under ER 803(a)(4).2 The court granted the defense motion to redact other statements
in the medical records, such as references to Melland being in "jail." The court also
granted the defense motion to redact the findings of fact in the certified copy of the April
4, 2016 SMC no-contact order.
The prosecutor conceded the 911 call and the statements D.J. made to the
police were not admissible if she did not testify. The prosecutor told the court that
according to the victim advocate, D.J. "did not indicate whether she was going to show
up or not," and the victim advocate "expressed low confidence to me that [D.J.] would
show up. So at this point, unless something changes, it's my understanding she's not
going to show up."
In opening statement, the prosecutor told the jury, "I don't know if [D.J.]'s going to
testify and if she does, I don't know what she's going to say; but I want to talk about
what I do know the evidence will show and what you can expect to see in this case."
The prosecutor asserted Melland committed the charged crimes of interfering with
domestic violence reporting, felony violation a no-contact order, and assault in the
2 ER 803(a)(4), "Statements for Purposes of Medical Diagnosis or Treatment," provides, "The
following are not excluded by the hearsay rule, even though the declarant is available as a witness":
Statements made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
5
No. 76617-1-1/6
second degree. The prosecutor displayed the redacted April 4, 2016 no-contact order
and told the jury:
You can see that the listed defendant is Tristan Me!land, the defendant
here today. You can see that the no-contact order expires on April 4,
2018. We all know we haven't reached that date yet, so it's still
applicable.
We know that it protects [D.J]; it lists her by name, birth date,
gender, and race. We know that it identifies the defendant by name,
gender, birth date, and race. But it also describes at the bottom of this
page, what the defendant is not allowed to do. Let's zoom in on that.
There's a number of very important provisions that are at issue in
this case, and this order prohibits the defendant from doing a number of
very harmful things, including assaulting [D.J]. Right in there on number
(A), "Do not cause or attempt to threaten to cause bodily injury through
assault," so on and so forth.
The prosecutor asserted the evidence would show Me!land
broke her finger when he grabbed her right hand so hard, squeezed, and
twisted it that the bone broke; it was a redisplayed [sic] fracture. The
abuse th[at][D.J] suffered in this relationship with Mr. Me!land was a
trigger. It was a trigger for her alcoholism.
In the defense opening statement, counsel conceded,"Yes, there is a no-contact
order, and, yes, there's an injury to [D.J.]'s finger." But defense counsel asserted the
State could not prove beyond a reasonable doubt that Melland committed "the specific
charges that they have filed against him."
Officer Stewart, Detective Page, and Virginia Mason health care providers Dr.
Frank, Dr. Memon, and social worker Moore testified at the trial. The court admitted into
evidence a redacted certified copy of the April 4, 2016 SMC domestic violence no-
contact order, a certified copy of Melland's driver's license, and a number of
photographs of D.J.'s hands and the bruising and swelling to her right pinky and ring
fingers. Neither D.J. nor Me!land testified.
6
No. 76617-1-1/7
Officer Stewart and Detective Page testified about the steps taken to verify the
April 4, 2016 SMC domestic violence no-contact order that prohibited Me!land from
contacting D.J. was in effect until April 4, 2018. Detective Page confirmed there were
no other no-contact orders in effect that pertained to D.J. Detective Page testified the
name and date of birth on the no-contact order matched the name and date of birth on
MeIland's driver's license.
Dr. Frank testified that D.J. said,"'My boyfriend broke my finger.'" Dr. Frank
"could tell that her finger looked injured because it was pretty tender and painful. It had
some bruising and was somewhat swollen." Dr. Frank testified that D.J. told him,
"'During domestic dispute with boyfriend, he grabbed the[] phone from patient's hand
which hurt her finger.'"
Dr. Memon testified that D.J. said her"'boyfriend of six years has abused her in
the past and is responsible for breaking her finger.'" Dr. Memon noted "'[d]omestic
abuse'"and that" Ic]ounseling was provided regarding area resources for victims of
domestic violence and that is able to contact any of these resources for help.'"
At the conclusion of the evidence, the court dismissed the charge of interfering
with domestic violence reporting. The court ruled, "[T]here is not evidence upon which a
reasonable juror could properly rely to conclude that the phone grab was an
interference with reporting. . . and there is not evidence that there was an attempt or
intent to call for any kind of help at that point."
The court instructed the jury on assault in the second degree and felony violation
of a no-contact order. At the request of the defense and without objection from the
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No. 76617-1-1/8
State, the court also instructed the jury on the lesser included offense of misdemeanor
violation of a no-contact order.
The assault in the second degree to-convict jury instruction states, in pertinent
part:
To convict the defendant of the crime of assault in the second
degree, as charged in Count THREE, each of the following elements of
the crime must be proved beyond a reasonable doubt:
(1) That on or about June 10, 2016, the defendant intentionally
assaulted [D.J.];
(2) That the defendant thereby recklessly inflicted substantial
bodily harm on [D.J.].
The felony violation of a no-contact order to-convict jury instruction states, in
pertinent part:
To convict the defendant of the crime of felony violation of a court
order as charged in Count ONE, each of the following five elements of the
crime must be proved beyond a reasonable doubt:
(1) That on or about June 10, 2016, there existed a no-contact
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's conduct was an assault that did not
amount to assault in the first or second degree.
The to-convict jury instruction on the lesser included offense of misdemeanor
violation of a no-contact order states, in pertinent part:
To convict the defendant of the crime of violation of a court order,
each of the following four elements of the crime must be proved beyond a
reasonable doubt:
(1) That on June 10, 2016, there existed a no-contact order
applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on said date, the defendant knowingly violated a restraint
provision of this order prohibiting contact with the protected
party.
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No. 76617-1-1/9
The prosecutor addressed the jury instructions in closing argument. The
prosecutor told the jury that if the jury found Melland guilty of assault in the second
degree, it should find Melland not guilty of felony violation of a no-contact order and
guilty of the lesser included offense of misdemeanor violation of the no-contact order.
I'm asking you to find the defendant not guilty of felony violation of a no-
contact order because if you have found him guilty of Assault 2, I cannot
then prove felony violation because one of the elements is that the assault
in the felony violation is not Assault 2. So I'm asking you to find the
defendant guilty of Assault 2, not guilty of felony violation of a no-contact
order; and then I'm also asking you to find the defendant guilty of the
lesser included on Count 1, which is nonfelony violation of a no-contact
order because he violated the order that prohibited him from having any
contact with [D.J.] the second he walked in the door in her building on
June 10, 2016.
The prosecutor argued the statements D.J. made to the Virginia Mason health
care providers established Melland committed assault in the second degree. "So [D.J.]
described the incident on June 10 as an altercation with her boyfriend. This is what she
said to the hospital staff,'He ripped the phone out of her hand so hard that it broke her
finger.'" The prosecutor argued Melland recklessly inflicted substantial bodily harm by
"twist[ing]" and "turn[ing]" D.J.'s hand and finger "so hard that it breaks":
And just to go into Assault 2. What does recklessly inflict mean? It
means he knows of and disregards the substantial risk of his conduct.
You're going to grab someone's hand really hard and twist it and turned it
so hard that it breaks, of course, you are disregarding a substantial risk of
your conduct, which is a gross deviation from conduct of a reasonable
person. A reasonable person does not go up to someone and twist her
fingers so hard that it breaks. That's what recklessly inflict means.
Recklessly inflicts substantial bodily harm. What's substantial bodily
harm? It defines it in your jury instruction. It's a fracture. You break a
bone, that's substantial bodily harm.
9
No. 76617-1-1/10
The prosecutor argued the certified copy of the SMC no-contact order established
Melland knew of the existence of the no-contact order and on June 10, 2016, he
knowingly violated the order by having contact with D.J.
Defense counsel argued the State did not prove that Melland violated the no-
contact order or that he "is responsible for breaking her finger."
[T]here was a no-contact order put in place between two individuals that
you have not heard from throughout this trial, [D.J.] and Tristan Melland.
You have no idea why that no-contact order came to be.
. . . You haven't heard anything about the nature of Mr. Melland and
[D.J.]'s relationship.
You don't know — and you have a jury instruction explaining what
domestic violence could be, what a domestic relationship is — you don't
know whether Mr. Melland and [D.J.] have ever lived together. You don't
know what the nature of their relationship, if it was dating, if they lived
together as roommates at some point in that past, whether they're family
members. There could be a wide variety of things.
In rebuttal, the prosecutor argued the evidence established Melland committed
the crimes of assault in the second degree and violation of a no-contact order:
[D.J.'s] finger was broken by the defendant on June 10, she called 911,
the next day a police officer responded and saw her freshly broken finger,
so we know it was already injured on June 11. It was fresh, so we know it
was probably on June 10 when the first 911 call came. We know it was on
Queen Anne because that's where the 911 calls came from, and that's
where the police officer responded to, [D.J.]'s apartment. We know that
[D.J.] was living there with a boyfriend of six years, and this is the same
boyfriend where she referred in the medical records as the one that she
was protected from in the no-contact order.
The prosecutor argued the statements D.J. made to the Virginia Mason health care
providers "quite clearly" identify Melland as "the person who's not supposed to contact
me because of the no-contact order."
Now, defense also said you haven't heard evidence of where,
when, why, how, all that kind of stuff, unnamed boyfriend. Well, [D.J.]
doesn't need to name her boyfriend to hospital staff. She identified him
quite clearly; this is the person who's not supposed to contact me because
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No. 76617-1-1/11
of the no-contact order. We already went over that. She's talking about
Mr. Melland.
The prosecutor reiterated the assault "happened when he grabbed her fingers so hard,
twisted and grabbed and squeezed it that it broke."
Now, how did this happen? Well, you do know how it happened
actually. It happened when he grabbed her fingers so hard, twisted and
grabbed and squeezed it that it broke, that's how; but the thing is, how it
happened is not one of the elements that I bear [the] burden of proving
beyond a reasonable doubt.
The jury found Melland guilty of assault in the second degree and the lesser
included offense of misdemeanor violation of the no-contact order. By special verdict,
the jury found D.J. and Melland were "members of the same family or household prior to
or at the time" Melland committed the crimes.
ANALYSIS
Sufficiency of the Evidence
Melland claims sufficient evidence does not support the jury finding he committed
assault in the second degree or misdemeanor violation of a no-contact order. In the
alternative, Melland contends the State did not prove beyond a reasonable doubt the
essential element of assault in the second degree—that he recklessly inflicted
substantial bodily harm.
The State has the burden to prove every element of the crime charged beyond a
reasonable doubt. U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3; In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). "[T]he Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged." Winship, 397
U.S. at 364; State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Sufficiency of the
11
No. 76617-1-1/12
evidence is a question of constitutional law that we review de novo. Rich, 184 Wn.2d at
903.
Evidence is sufficient to support a conviction if any rational trier of fact could have
found the essential elements of the crime charged beyond a reasonable doubt. State v.
Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507 (2017). A challenge to the sufficiency
of the evidence admits the truth of the State's evidence. State v. Witherspoon, 180
Wn.2d 875, 883, 329 P.3d 888 (2014). "[A]ll reasonable inferences from the evidence
must be dawn in favor of the State and interpreted most strongly against the
defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); Jackson v.
Virginia, 443 U.S. 307, 319, 99S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In determining
sufficiency, circumstantial evidence is no less reliable than direct evidence. State v.
Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on
"issues of witness credibility." Witherspoon, 180 Wn.2d at 883.
Evidence Me!land Committed the Crimes
Melland contends the evidence does not support the jury finding he committed
the crimes of assault in the second degree and misdemeanor violation of a no-contact
order. We disagree.
Me!land does not challenge admission of the statements D.J. made to the
Virginia Mason health care providers under ER 803(a)(4) or the certified copies of the
no-contact order and his driver's license.
The medical records show that in March 2016, "'relationship stressors'"were a
cause of D.J.'s excessive drinking and alcohol withdrawal. On April 4, 2016, an SMC
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No. 76617-1-1/13
judge entered a no-contact order prohibiting "Tristan J. Melland" from having any
contact with D.J.
The certified copy of the April 4, 2016 domestic violence no-contact order
identifies D.J. and Melland by name, birth date, gender, and race. The no-contact order
identifies Tristan Melland with a date of birth of "12-15-1986," the gender of "Male," and
his race as "White." The no-contact order establishes Melland was "present. . . in open
court" when the order was issued. Melland signed the no-contact order on April 4, 2016
at "4:01 pm" and "acknowledged receipt of a copy of this order." The certified copy of
the SMC domestic violence no-contact order was in effect until "4/4/2018." The
uncontroverted testimony established the SMC no-contact order prohibiting Melland
from contacting D.J. was the only no-contact order in effect in 2016. Detective Page
testified the name and date of birth on the no-contact order matched the identifying
information on the certified copy of Melland's driver's license.
The undisputed evidence showed Officer Stewart responded to a June 10, 2016
domestic violence 911 call and interviewed D.J. on June 11, 2016. Officer Stewart took
photographs of the injuries to D.J.'s right hand and fingers. The police verified there
was an SMC no-contact order in effect that prohibited Melland from having contact with
D.J.
When admitted to Virginia Mason on June 26, 2016, D.J. was wearing a "poorly
applied nonmedical splint" on her right pinky finger. Dr. Frank noted her alcohol use
"'has been progressive, more recently drinking one-fifth of hard alcohol daily. She was
a bartender for years and feels this fueled her abuse. . . . She has also been drinking to
deal with the stress of a long-term abusive relationship.'" Dr. Frank testified the "15
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No. 76617-1-1/14
days" between the date D.J. stated her boyfriend broke her finger and the date she
arrived at the hospital was consistent with the injury.
I think because she had a very ineffective splint on her hand which was
allowing excessive movement, I thought the date which was 15 days, I
guess, before I saw her seemed quite compatible with the picture I was
seeing with some bruising, and swelling, and tenderness to touch.
Dr. Memon testified that on July 14, "'Patient reports that boyfriend of six years
has abused her in the past and [is] responsible for breaking her finger.'" Social worker
Moore testified that in mid-July, D.J. said her "ex-boyfriend with DV history" was
"violating a protection order that prevents him from being near her."
Viewing the evidence in the light most favorable to the State, sufficient evidence
supports the jury finding Melland was the boyfriend who committed the crimes of
domestic violence assault of D.J. on June 10, 2016 and misdemeanor violation of the
April 4, 2016 SMC no-contact order.
Reckless Infliction of Substantial Bodily Harm
In the alternative, Melland contends sufficient evidence does not support the jury
finding he committed assault in the second degree in violation of RCW 9A.36.021(1)(a).
Melland asserts the State did not prove beyond a reasonable doubt the essential mens
rea element that he recklessly inflicted substantial bodily harm. We agree.
A person is guilty of assault in the second degree if he "[i]ntentionally assaults
another and thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a).
To convict Melland of assault in the second degree, the State has the burden of proving
beyond a reasonable doubt that Melland "recklessly inflicted substantial bodily harm on
[D.J]." The State must prove "an intentional assault, which thereby recklessly inflicts
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No. 76617-1-1/15
substantial bodily harm." State v. R.H.S., 94 Wn. App. 844, 846, 974 P.2d 1253(1999)
(citing RCW 9A.36.021(1)(a)).
RCW 9A.08.01 0(1)(c) defines "recklessness" as follows:
A person is reckless or acts recklessly when he or she knows of and
disregards a substantial risk that a wrongful act may occur and his or her
disregard of such substantial risk is a gross deviation from conduct that a
reasonable person would exercise in the same situation.
There is both a subjective and an objective component to the mens rea of
"recklessness." Rich, 184 Wn.2d at 904. Whether sufficient evidence supports finding
a defendant acted recklessly"'depends on both what the defendant knew and how a
reasonable person would have acted knowing these facts.'" State v. Graham, 153
Wn.2d 400, 408, 103 P.3d 1238(2005)(quoting R.H.S., 94 Wn. App. at 847); Rich, 184
Wn.2d at 904. "The trier of fact is permitted to find actual subjective knowledge if there
is sufficient information that would lead a reasonable person to believe that a fact
exists." R.H.S., 94 Wn. App. at 847; see RCW 9A.08.010(1)(b)(defining "knowledge");
see also State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082(1992)("The jury is
permitted to find actual subjective knowledge if there is sufficient information which
would lead a reasonable person to believe that a fact exists."3).
Viewing the evidence and all reasonable inferences in the light most favorable to
the State, the evidence showed Melland fractured D.J.'s finger. But nothing in the
record shows what Melland knew of or that he disregarded a substantial risk that a
wrongful act may occur. The only evidence that describes the assault is from a Virginia
Mason medical record that states, "'During domestic dispute with boyfriend, he grabbed
3 Emphasis omitted.
15
No. 76617-1-1/16
the[] phone from patient's hand which hurt her finger. Found in EDP]to be
nondisplaced fracture.'" The evidence does not support finding that Melland knew of
and disregarded a substantial risk that he would fracture D.J.'s finger when he grabbed
the phone from her hand.
Contrary to the repeated assertions of the prosecutor in opening statement and
closing argument, there was no evidence that Melland "grabbed her right hand so hard,
squeezed, and twisted it that the bone broke" or that Melland grabbed D.J.'s hand
"really hard and twist[ed] it and turned it so hard that it breaks."
The State argues the severity of the injury to D.J.'s finger shows Melland acted
recklessly. The State's argument ignores the mens rea of recklessness. Evidence of
the seriousness of the injury supports finding the infliction of substantial harm on D.J.
but does not support finding that Melland "acted recklessly in inflicting those injuries."
State v. Hayward, 152 Wn. App. 632, 648, 217 P.3d 354 (2009).
We conclude no reasonable trier of fact could find beyond a reasonable doubt
that Melland disregarded a substantial risk that a wrongful act may occur and recklessly
inflicted substantial bodily harm. Where sufficient evidence does not support a
conviction, such a conviction "cannot constitutionally stand." Jackson, 443 U.S. at 317-
18. Reversal for insufficient evidence is "equivalent to an acquittal" and bars retrial for
the same offense. State v. Wright, 165 Wn.2d 783, 792, 203 P.3d 1027 (2009); see
also Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1(1978)("The
Double Jeopardy Clause forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which it failed to muster in the first
proceeding."); U.S. CONST. amend. V; WASH. CONST. art. 1, § 9. Because sufficient
4 Emergency department.
16
No. 76617-1-1/17
evidence does not support the essential element of recklessness, we reverse the
assault in the second degree conviction.
Right to Confrontation
Melland seeks reversal of the misdemeanor violation of a no-contact order
conviction on the ground that police officer testimony violated his right to confrontation.5
We review an alleged violation of the confrontation clause de novo. State v.
Jasper, 174 Wn.2d 96, 108, 271 P.3d 876(2012)(citing Lilly v. Virginia, 527 U.S. 116,
137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)). The Sixth Amendment to the United
States Constitution provides that "[i]ri all criminal prosecutions, the accused shall enjoy
the right. . . to be confronted with the witnesses against him."
The confrontation clause applies to witnesses against the accused; in other
words, those who "'bear testimony.'" Crawford v. Washington, 541 U.S. 36, 51, 124 S.
Ct. 1354, 158 L. Ed. 2d 177(2004)(quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY
OF THE ENGLISH LANGUAGE (1828)). The confrontation clause bars the admission of
testimonial hearsay statements where the declarant does not testify at trial and the
defendant had no prior opportunity to confront the witness under oath. Crawford, 541
U.S. at 53-54; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009).
Melland contends the admission of testimonial hearsay violated his right to
confrontation.
5 A defendant must assert violation of the right to confrontation at trial or the right is waived.
State v. Burns, 193 Wn.2d 190, 206-07, 438 P.3d 1183(2019); accord Melendez-Diaz v. Massachusetts,
557 U.S. 305, 311, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). We conclude Melland sufficiently
preserved the right to confrontation claim. The constitutional ground is apparent from his objection to the
admission of Officer Stewart's testimony.
17
No. 76617-1-1/18
In Crawford, the United States Supreme Court held that the admission of
testimonial statements by a nontestifying witness without a prior opportunity for cross-
examination violates the defendant's right to confrontation under the Sixth Amendment.
541 U.S. at 68. While the Court did not provide a "precise articulation" or
comprehensive definition of "testimonial hearsay" for purposes of the confrontation
clause, the Court defined "testimony" as" la] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51-526(quoting AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE). The Court states the
term "testimonial" "applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations." Crawford, 541
U.S. at 68. The Court held the statements of an unavailable witness made while in
custody at the police station in response to police questioning were testimonial and
improperly admitted. Crawford, 541 U.S. at 68.
In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224(2006), the Court distinguished statements made in a 911 call from the interrogation at
the police station in Crawford. The Court held:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
Davis, 547 U.S. at 822. The Court concluded the statements a domestic violence victim
made to a 911 operator were not testimonial. Davis, 547 U.S. at 828.
6 Alteration in original.
18
No. 76617-1-1/19
In Michigan v. Bryant, 562 U.S. 344, 360, 131 S. Ct. 1143, 179 L. Ed. 2d 93(2011), the Court clarified the "primary purpose" test:
[T]he relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the purpose that
reasonable participants would have had, as ascertained from the
individuals, statements and actions and the circumstances in which the
encounter occurred.
When "the primary purpose of an interrogation is to respond to an 'ongoing emergency,'
its purpose is not to create a record for trial and thus is not within the scope of the
[Confrontation] Clause." Bryant, 562 U.S. at 358. However, the Court states, "[T]he
existence vel non of an ongoing emergency is not the touchstone of the testimonial
inquiry." Bryant, 562 U.S. at 374. Instead, "whether an ongoing emergency exists is
simply one factor—albeit an important factor—that informs the ultimate inquiry regarding
the 'primary purpose' of an interrogation." Bryant, 562 U.S. at 366.
Melland contends the testimony of Officer Stewart violated his right to confront
and cross-examine the victim who did not testify. We "determine the primary purpose of
a police interrogation" by "'objectively'" evaluating "'the circumstances in which the
encounter occurs and the statements and actions of the parties.'" State v. Scanlan, No.
95971-4, slip op. at 11 (Wash. Aug. 1, 2019), http://www.courts.wa.gov/opinions/pdf/
959714.pdf(quoting Bryant, 562 U.S. at 359).
Before Officer Stewart testified, Melland moved to preclude Officer Stewart from
testifying "that he directed officers to contact Tristan Melland." In response, the
prosecutor argued:
All I'm doing is asking the officer, what did you do? What are the things
that you did when you were making your response, and responsible for
the initial investigation? One of those things was to look at the no-contact
order, it listed Tristan Melland, he asked officers to go contact him.
19
No. 76617-1-1/20
The court denied the motion "to exclude the reference to directing that Mr. Melland be
contacted."
At trial, Officer Stewart testified that on June 11, 2016, he responded to a 911
call "to investigate a domestic violence assault incident and possible violation of a no-
contact order." In response to the question, "Did you ask her how the injury happened,"
Officer Stewart answered,"Yes." In response to the question, "Did you ask her who
caused the injury," Officer Stewart answered, "Yes." Officer Stewart testified that he
checked the police database and "[t]here was a valid and served no-contact order that's
in the system, which is WASIC[7] and NCIC[8]." "[T]he protected person of that court
order — and it was a no-contact order — was [D.J.]" and "the respondent or the person
that is supposed to stay away from the petitioner, the protected person, was a . . .
Tristan Melland." Officer Stewart testified that after determining there was a recorded
no-contact order, he directed officers to contact Melland:
Okay. All right. So now, let's get back to your conversation with
[D.J.] and what were you doing when you respond to this call. After
you looked up this no-contact order, did you make any efforts to
contact Mr. Melland?
A I did.
And do you know whether any other officers contacted Mr.
Melland?
A I do; and they did.
We conclude the circumstances, statements, and actions of the parties show the
testimony of Officer Stewart did not violate the confrontation clause. The
uncontroverted record establishes Officer Stewart was responding to a 911 call
reporting a domestic violence assault and possible violation of a no-contact order.
7 Washington State Criminal Information Center.
8 National Crime Information Center.
20
No. 76617-1-1/21
Officer Stewart met D.J. outside her Queen Anne apartment building. D.J. "was visibly
shaking, crying, and she was holding her hand complaining of an injury." Officer
Stewart examined the injury to her hand and took photographs. Officer Stewart did not
testify about the statements made by D.J. or any other person. The primary purpose of
asking D.J. how the injury happened and who caused the injury was to assess the
situation, protect the safety of D.J., and determine whether there was a no-contact order
that prohibited contact with D.J.9
But even if the testimony violated the confrontation clause, we conclude beyond
a reasonable doubt that the jury would have reached the same result in the absence of
the error. Confrontation clause violations are subject to a harmless error analysis.
State v. Fisher, 185 Wn.2d 836, 847, 374 P.3d 1185 (2016). A constitutional error is
harmless if the appellate court is "persuaded beyond a reasonable doubt that the jury
would have reached the same result in absence of the error." Fisher, 185 Wn.2d 847.
Constitutional error is presumed prejudicial. State v. Gulov, 104 Wn.2d 412, 425, 705
P.2d 1182(1985). "The test is whether the untainted evidence is so overwhelming that
it necessarily leads to a finding of guilt." Fisher, 185 Wn.2d 847.
The overwhelming untainted evidence supports the jury finding Melland guilty of
misdemeanor violation of the SMC no-contact order. The undisputed evidence
established the court entered a domestic violence no-contact order on April 4, 2016.
The order prohibits Melland from having any contact with D.J. The order was in effect
9 The 1991 case Melland cites, State v. Johnson, 61 Wn. App. 539, 811 P.2d 687, predates
evolution of the confrontation clause jurisprudence and is distinguishable. In Johnson, the court allowed
a police officer to testify that based on statements in the affidavit of a confidential informant, the officer
"had reason to suspect" the defendant was involved in drug trafficking. Johnson, 61 Wn. App. at 546.
The court held the improper inference from the testimony was that the affidavit provided evidence of guilt.
Johnson, 61 Wn. App. at 547. Unlike in Johnson, Officer Stewart made no reference to what D.J. said in
response to the questions he asked.
21
No. 76617-1-1/22
until April 4, 2018. Melland was present in court on April 4, 2016. He signed and
acknowledged receipt of the order. Detective Page testified that the identifying
information in the no-contact order matched the information in the certified copy of
Melland's driver's license. The uncontroverted testimony establishes D.J. called 911 on
June 10, 2016 to report a domestic violence assault and violation of a protection order.
When admitted to the hospital on June 26, D.J. told Dr. Frank that during a "'domestic
dispute with boyfriend, he grabbed the[] phone from patient's hand which hurt her
finger.'" When admitted to the hospital on July 14, D.J. told Dr. Memon her"'boyfriend
of six years has abused her in the past and is responsible for breaking her finger.'" D.J.
also told social worker Moore that her "ex-boyfriend with DV history" violated "a
protection order that prevents him from being near her." We conclude any confrontation
clause error was harmless beyond a reasonable doubt.
Sufficiency of Char-cling Document
For the first time on appeal, Melland claims he is entitled to dismissal without
prejudice of the jury conviction on the lesser included offense of misdemeanor violation
of the SMC no-contact order because the information omitted an essential element of
the crime of felony violation of a court order in violation of RCW 26.50.110(4).
We review the adequacy of a charging document de novo. State v. Johnson,
180 Wn.2d 295, 300, 325 P.3d 135 (2014). "In criminal cases, the accused has the
constitutional right to know the charges against them." Johnson, 180 Wn.2d at 300
(citing U.S. CONST. amend. VI; WASH. CONST. art. I, § 22). Under the Sixth Amendment
and article I, section 22 of the Washington State Constitution, 141 essential elements of
a crime, statutory or otherwise, must be included in a charging document in order to
22
No. 76617-1-1/23
afford notice to an accused of the nature and cause of the accusation against him."
State v. Kiorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). "The information is
constitutionally sufficient 'only if all essential elements of a crime, statutory and
nonstatutory, are included in the document.'" Johnson, 180 Wn.2d at 300 (quoting
State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995)). Essential elements
include facts that must be proved beyond a reasonable doubt to convict a defendant of
the charged crime. State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712(2013).
"'An essential element is one whose specification is necessary to establish the
very illegality of the behavior charged.'" Zillyette, 178 Wn.2d at 15810 (quoting State v.
Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)); Johnson, 180 Wn.2d at 300. "This
essential elements rule exists ``to apprise the accused of the charges against him or her
and to allow the defendant to prepare a defense.'" Johnson, 180 Wn.2d at 300
(quoting Vangerpen, 125 Wn.2d at 787). "If the State fails to allege every essential
element, then the information is insufficient and the charge must be dismissed without
prejudice." Johnson, 180 Wn.2d at 300-01 (citing State v. Nonoq, 169 Wn.2d 220, 226
n.3, 237 P.3d 250 (2010)).
The amended information charged Melland with assault in the second degree
and felony violation of a court order. The amended information states, in pertinent part:
Count 1 Domestic Violence Felony Violation Of A Court Order
That the defendant Tristan James Melland in King County,
Washington, on or about June 10, 2016, did know of and willfully violate
the terms of a court order issued on April 4, 2016 by the Seattle Municipal
Court. . . pursuant to RCW chapter 10.99, for the protection of [D.J.], 12y
(a) intentionally assaulting the said ID.J.1; or (b) conduct which was
reckless and created substantial risk of death or serious physical injury to
[D.J.];
10 Internal quotation marks omitted.
23
No. 76617-1-1/24
Contrary to RCW 26.50.110(1),(4), and against the peace and
dignity of the State of Washington.[111
The amended information charging Melland with felony violation of a no-contact
order does not inform Melland that the assault "does not amount to assault in the first or
second degree." RCW 26.50.110(4).
RCW 26.50.110(1)(a) states a party is guilty of misdemeanor violation of a
protection order if(1) there is an order,(2) the person to be restrained knows of the
order, and (3) the person violates the order. RCW 26.50.110(1)(a) provides, in pertinent
part:
Whenever an order [for protection] is granted . . . 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.
RCW 26.50.110(4) elevates violation of a no-contact order from a gross
misdemeanor to a felony. RCW 26.50.110(4) states, in pertinent part:
Any assault that is a violation of an order rfor protectionl . . . that does not
amount to assault in the first or second degree under RCW 9A.36.011 or
9A.36.021 is a class C felony, and any conduct in violation of such an
order that is reckless and creates a substantial risk of death or serious
physical injury to another person is a class C felony.[12]
In Ward, the court concluded that" '[t]he statute clearly states that second degree
assault cannot serve as the predicate to make the violation a felony.'" Ward, 148
11 Emphasis added.
12 Emphasis added.
24
No. 76617-1-1/25
Wn.2d at 81213 (quoting State v. Azpitarte, 140 Wn.2d 138, 141, 995 P.2d 31 (2000)).
The court held that an information alleging felony violation of a no-contact order must
state an assault that is in violation of a no-contact order"'does not amount to assault in
the first or second degree'"only if the State also charges a defendant with first or
second degree assault. Ward, 148 Wn.2d at 813-14 (quoting RCW 26.50.110(4)).
"It is an 'ancient doctrine' that a criminal defendant may be held to answer for
only those offenses contained in the indictment or information." State v. Fernandez-
Medina, 141 Wn.2d 448, 453,6 P.3d 1150 (2000)(quoting Schmuck v. United States,
489 U.S. 705, 717-18, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989)); see also State v.
Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432(1988). The Sixth Amendment and article!,
section 22 of the Washington Constitution "preserve[]a defendant's 'right to be
informed of the charges against him and to be tried only for offenses charged.'"
Fernandez-Medina, 141 Wn.2d at 453 (quoting State v. Peterson, 133 Wn.2d 885, 889,
948 P.2d 381 (1997)). However, it is well established that "under RCW 10.61.006, a
defendant can be convicted of an offense that is a lesser included offense of the crime
charged, without being separately charged." Fernandez-Medina, 141 Wn.2d at 453-54.
RCW 10.61.006 states, "In all other cases the defendant may be found guilty of an
offense the commission of which is necessarily included within that with which he or she
is charged in the indictment or information."
The plain and unambiguous language of RCW 26.50.110 establishes
misdemeanor violation of a no-contact order is a lesser included offense of felony
violation of a no-contact order. RCW 26.50.110(1)(a)(violation of a no-contact order "is
a gross misdemeanor, except as provided in subsections (4) and (5) of this section").
13 Alteration in original.
25
No. 76617-1-1/26
Here, the amended information unequivocally contains the essential elements of the
lesser included offense of domestic violence misdemeanor violation of a no-contact
order in violation of RCW 26.50.110(1)(a).
We affirm the jury conviction of domestic violence misdemeanor violation of a no-
contact order, reverse the conviction of domestic violence assault in the second degree,
and remand to dismiss the assault conviction.
WE CONCUR:
Avk.oUttAA...4.,1
9-
26