State Of Washington v. Aron Dean Shelley

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON c)
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DIVISION ONE CD
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STATE OF WASHINGTON, ) No. 77761-1-I --11
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) PUBLISHED OPINION — CD —
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ARON DEAN SHELLEY, )
) FILED: April 9, 2018
Appellant. )
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VERELLEN, C.J. — Aron Shelley was convicted of one count of assault against
his girlfriend, Cheri Burgess, one count of assault of a child against A.S., Burgess's
son, and one count of felony harassment for threatening to kill A.S. The jury found
each count was a crime of domestic violence. Shelley appeals the domestic violence
special verdicts as to assault of a child and felony harassment. Because the State
failed to establish that Shelley and A.S. are family or household members, these
special verdicts are invalid.
We affirm the convictions, but find the special verdicts on counts 3 and 4
invalid as a matter of law and remand for resentencing.
FACTS
From late 2013 until April 2015, Shelley, Burgess, and A.S. lived with Shelley's
aunt and uncle.
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On the evening of April 29, 2015, Shelley became angry and wanted Burgess
to leave the house. After attempting to force Burgess out of the house, Shelley
placed a knife against Burgess's throat and stated he was going to kill her because
she was not leaving. Shelley's uncle, Tom Sovey, intervened and convinced Shelley
to give him the knife.
While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to
the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S.
made a choking noise, "like he couldn't breathe." And when Burgess tried to grab
A.S., Shelley said, "If you don't leave or get away, I'm just gonna squeeze him, keep
squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my
boy."2 After Sovey came outside, Burgess walked away and called the police.
The State charged Shelley with, among other things, two counts of second
degree assault as to Burgess, one count of second degree assault of a child as to
A.S., and one count of felony harassment for threatening to kill A.S. The State
alleged each crime was one of domestic violence.
The jury convicted Shelley of one count of assault as to Burgess. The jury
found this was a crime of domestic violence because Shelley and Burgess were
"members of the same family or household."3 The jury also convicted Shelley of one
count of assault as to A.S. and one count of felony harassment.
1 Report of Proceedings(RP)(Oct. 24, 2017) at 86.
2 RP (Oct. 24, 2017) at 87.
3 Clerk's Papers(CP)at 49.
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At sentencing, the court calculated Shelley's offender score at 9 for each count
and sentenced Shelley to 132 months of total confinement.
Shelley appeals.
ANALYSIS
Domestic Violence Special Verdict
Shelley contends his offender score was miscalculated, and he asks this court
to remand for resentencing under the correct offender score.4
The panel reviews a trial court's calculation of an offender score de novo.5
"The offender score is the sum of points accrued as a result of prior convictions."6 A
defendant's offender score may be increased if he has committed a felony "domestic
violence offense" that was "pleaded and proven" using the definition of "domestic
violence" in RCW 9.94A.030.7
Under RCW 9.94A.030(20), Idiomestic violence' has the same meaning as
defined in RCW 10.99.020 and 26.50.010." RCW 10.99.020(5) provides a
nonexclusive list of crimes and states, "[d]omestic violence includes but is not limited
to any of the following crimes when committed by one family or household member
against another."5 And RCW 26.50.010(3) defines "domestic violence" as "[p]hysical
4 We grant Shelley's motion to file a supplemental brief raising an additional
assignment of error.
5 State v. Olsen, 180 Wash. 2d 468, 472, 325 P.3d 187 (2014).
6 Id.
7 RCW 9.94A.525(21)(a).
8(Emphasis added.)
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harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily
injury or assault, between family or household members."9
Under RCW 10.99.020(3) and RCW 26.50.010(6), "family or household
members" includes
spouses, former spouses, persons who have a child in common
regardless of whether they have been married or have lived together at
any time, adult persons related by blood or marriage, adult persons who
are presently residing together or who have resided together in the
past, persons sixteen years of age or older who are presently residing
together or who have resided together in the past and who have or
have had a dating relationship, persons sixteen years of age or older
with whom a person sixteen years of age or older has or has had a
dating relationship, and persons who have a biological or legal parent-
child relationship, including stepparents and stepchildren and
grandparents and grandchildren.(101
And the court properly instructed the jury about the definition of "family or
household members" in jury instruction 33.
The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship. It is undisputed that Shelley is not A.S.'s biological
father because Shelley and Burgess did not meet until she was six months
pregnant.
As to a legal parent-child relationship, the State argues that the jury could
have found such a relationship between A.S. and Shelley under the presumed
parent or de facto parentage doctrines. But the State fails to cite any authority to
support the argument that these doctrines may be adjudicated in a criminal
9(Emphasis added.)
10 RCW 26.50.010(6) adds domestic partners and former domestic partners to
the definition.
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proceeding. Rather, these doctrines allow a court in a civil action to make a judicial
declaration of parentage.
The presumption of parentage is contained in RCW 26.26.116 of the Uniform
Parentage Act. RCW 26.26.116(2) provides "[a] person is presumed to be the parent
of a child if, for the first two years of the child's life, the person resided in the same
household with the child and openly held out the child as his or her own." But this
"presumption" does not operate independent of the other requirements of the Uniform
Parentage Act. RCW 26.26.500 provides that "[a] civil proceeding may be
maintained to adjudicate the parentage of a child."11 And under RCW 26.26.605,
"[t]he court, without a jury, shall adjudicate the parentage of a child." Similarly, the de
facto parent doctrine allows a court in a civil proceeding to adjudicate parentage.12 It
would be incongruous with the statutory scheme and existing case law to allow a
parentage determination in a criminal proceeding.
The State did not present the trial court with any evidence of such a judicial
determination. On this record, the State's presumptive parent and de facto parent
theories fail.13
Because A.S. and Shelley are not family or household members, the
domestic violence special verdicts on count 3, second-degree assault of a child, and
11 (Emphasis added.)
re Parentacte of L.B., 155 Wash. 2d 679, 122 P.3d 161 (2005); In
12 See, e.q., In
re Custody of Shields, 157 Wash. 2d 126, 136 P.3d 117 (2006); In re Custody of B.M.H.,
179 Wash. 2d 224, 315 P.3d 470(2013); In re Custody of A.F.J., 179 Wash. 2d 179, 314
P.3d 373(2013).
13 Any suggestion that the jury in this criminal matter may have applied the
presumptive parent or de facto parent theories also fails because the State did not
argue or request any instructions on either theory in the trial court.
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count 4, felony harassment, are invalid as a matter of law. These invalid special
verdicts directly affect the court's calculation of Shelley's offender score for counts 3
and 4 and indirectly affect the calculation of his offender score for count 1.
We therefore remand for resentencing based upon an offender score
consistent with this opinion.
Statement of Additional Grounds
In the statement of additional grounds, Shelley contends the court failed to
address his mental stability at trial.
On July 29, 2015, the court ordered a pretrial mental evaluation to determine
Shelley's competency to stand trial. In her report, Melissa Dannelet, a licensed
psychologist at Western State Hospital, opined Shelley "has the capacity to
understand the nature of proceedings against him and to assist in his defense."14 On
August 31, 2015, the court entered an agreed order of competency.
On June 22, 2016, the court ordered a second pretrial mental evaluation to
determine Shelley's mental state. In her report, Dannelet opined Shelley "had the
capacity to form the requisite mental state to commit the alleged offenses."15
At trial, Shelley asserted a defense of diminished capacity. The defense
offered David Dixon, a forensic clinical psychologist, who testified that Shelley "was
not able to form the intent to commit the crimes he's charged with."16 The State
14 CP at 28.
15 CP at 44.
16 RP (Oct. 26, 2016) at 254.
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offered Dannelet, who testified Shelley "did have the capacity to form intent [at] the
time of his actions."17
Shelley's mental stability was adequately addressed by the two mental
evaluations and the expert testimony presented at trial.
Shelley also claims Burgess's statement changed between the night of the
incident and trial. But defense counsel cross-examined Burgess on this issue during
trial.
We conclude the statement of additional grounds does not support any relief
on appeal.
We affirm the convictions, but find the special verdicts on counts 3 and 4
invalid as a matter of law and remand for resentencing based upon an offender score
consistent with this opinion.
WE CONCUR:
17 RP (Oct. 26, 2016) at 328.
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