State Of Washington, V Christopher Noel Mcdonald ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 72037-6-1
Respondent, DIVISION ONE
v.
CHRISTOPHER NOEL MCDONALD, UNPUBLISHED OPINION
Appellant. FILED: July 28, 2014
Lau, J. — Christopher Noel McDonald appeals his felony conviction for tampering
with a witness, arguing that the trial court erred in instructing the jury on an uncharged
alternative. He further argues that his six convictions for violating a domestic violence
no-contact order cannot be included in his offender score. Because we accept the
State's concession that the instructional error was not harmless, we reverse and
remand McDonald's tampering with a witness conviction for a new trial. And because
violations of a domestic violence no-contact order are properly included in an offender
score for a felony domestic violence conviction, the trial court correctly calculated
McDonald's offender score.1
We address this issue because it may arise on retrial.
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FACTS
In August 2012, Christopher McDonald and Julianne Vanas were living together
in a romantic relationship. On August 27, 2012, McDonald and Vanas went to visit
some friends. At some point, Vanas realized that McDonald had taken her car. When
McDonald returned, he got out of the car and moved to the passenger seat. Vanas got
in the driver's seat and they left. As they drove home, they argued. When McDonald
called Vanas a "bitch," she stopped the car and told him to get out. McDonald refused
to move, so Vanas said, "Then I'm getting out of the car." Report of Proceedings (Nov.
19, 2012) (RP) at 104. A passing motorist, David Medack, said that Vanas signaled him
to stop. When Medack pulled over, Vanas approached the car and told him that
McDonald had choked her. Medack did not allow Vanas to get into his car, but he
called 911. A few minutes later, police found Vanas sitting alone in her car "crying
hysterically." RP at 246. Vanas told the officer that McDonald had punched and
choked her and that he needed to be arrested. At trial, however, Vanas denied that
McDonald actually choked her. She claimed he merely grabbed her and tried to pull her
back into the car.
McDonald was arrested and transported to Cowlitz County Jail. The trial court
entered pretrial domestic violence no-contact orders prohibiting McDonald from having
any contact with Vanas. McDonald nevertheless called Vanas from jail and spoke with
her on multiple occasions. These calls were recorded and provided to the prosecutor.
During one of the calls, McDonald told Vanas that the only way he would beat his case
is if "the victim" refused to testify against him. McDonald also told Vanas that "the
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victim" needed to "be persistent" about contacting the prosecutor and saying she would
not follow through with the charges. RP (Nov. 20, 2012) at 334.
By amended information, the State charged McDonald with assault in the second
degree (strangulation), unlawful imprisonment, assault in the fourth degree, harassment
(threaten bodily injury), tampering with a witness, and six counts of violation of a no-
contact order.2 The information alleged that the offenses involved domestic violence as
defined in RCW 10.99.020. The harassment charge was dismissed at the end of the
State's case for lack of evidence. The jury found McDonald guilty of felony tampering
with a witness and six gross misdemeanor violations of a no-contact order. Regarding
the charge of assault in the second degree, the jury returned a guilty verdict on the
lesser offense of assault in the fourth degree, also a gross misdemeanor. By special
verdicts, the jury found each count was domestic violence. The jury returned not guilty
verdicts on unlawful imprisonment and assault in the fourth degree.
At sentencing, the court calculated McDonald's offender score as 7 points based
on prior convictions. Because McDonald's current conviction for tampering with a
witness constituted a felony domestic violence offense, the court added 1 additional
point for each of the current domestic violence gross misdemeanors, yielding a total
offender score of 14 points. Defense counsel did not object to the addition of the
misdemeanor convictions to his offender score. The court sentenced McDonald to 51
months for tampering with a witness and imposed consecutive sentences for the fourth
degree assault and no-contact order violations. McDonald appeals.
2 The harassment and assault in the fourth degree charges were based on a
separate incident that allegedly occurred on August 24, 2012. Neither of these charges
resulted in a conviction, and the underlying facts are not relevant to this appeal.
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ANALYSIS
McDonald argues that his felony conviction for tampering with a witness should
be reversed because the jury was instructed only on uncharged alternatives. He
contends that this is a manifest constitutional error that can be raised for the first time
on appeal. RAP 2.5(a)(3); State v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256 (2003).
The State acknowledges that it charged McDonald with one alternative means of
committing tampering with a witness but instructed the jury on only the other two
alternative means. Instructing the jury on uncharged alternatives is not harmless unless
other instructions clearly and specifically define the charged crime. Chino, 117 Wn.
App. at 540. Based on this standard, the State concedes that the instructional error was
not harmless and that McDonald's conviction for tampering with a witness should be
reversed and remanded for a new trial. We accept the State's concession.
Accordingly, we need not reach McDonald's argument that defense counsel was
ineffective for failing to object to the erroneous instructions or to the offender score
associated with that conviction.
In the alternative, McDonald argues that the trial court improperly included his six
current convictions for violating a domestic violence no-contact order in calculating his
offender score for tampering with a witness—a felony domestic violence conviction.
Because this issue is likely to arise again on retrial if McDonald is convicted of
tampering with a witness, we address it. See State v. Gregory, 158 Wn.2d 759, 800,
147 P.3d 1201 (2006).
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McDonald's argument arises from two statutes enacted in 2010 relating to the
calculation of a defendant's offender score for felony sentencing purposes: RCW
9.94A.525(21) and RCW 9.94A.030(20).
RCW 9.94A.525(21) provides:
If the present conviction is for a felony domestic violence offense where domestic
violence as defined in RCW 9.94A.030 was plead and proven, ... count points as
follows:
(c) Count one point for each adult prior conviction for a repetitive domestic
violence offense as defined in RCW 9.94A.030, where domestic violence as
defined in RCW 9.94A.030, was plead and proven after August 1, 2011.
RCW 9.94A.030(20) in relevant part defines "domestic violence" as having "the same
meaning as defined in RCW 10.99.020 and 26.50.010."
Based on the legislature's use of the word "and" in the latter statute, McDonald
contends that RCW 9.94A.525(21) does not apply unless the definition of "domestic
violence" in both RCW 10.99.020 and RCW 26.50.010 are met. These definitions are
significantly different. RCW 10.99.020(5) defines "domestic violence" through a non
exclusive list of crimes committed by one family or household member against another.
One of these crimes is "[vjiolation of the provisions of a restraining order, no-contact
order, or protection order restraining or enjoining the person or restraining the person
from going onto the grounds of or entering a residence, workplace, school, or day care,
or prohibiting the person from knowingly coming within or knowingly remaining within, a
specified distance of a location." RCW 10.99.020(5)(r). In contrast, RCW 26.50.010
provides that "domestic violence" means: "(a) Physical harm, bodily injury, assault, or
the infliction of fear of imminent physical harm, bodily injury or assault, between family
or household members; (b) sexual assault of one family or household member by
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another; or (c) stalking as defined in RCW 9A.46.110 of one family or household
member by another family or household member."
Because there was no evidence of physical harm, bodily injury, assault, infliction
of fear of imminent physical harm, sexual assault, or stalking with respect to the
tampering with a witness conviction or the violation of a domestic violence no-contact
order convictions, these nonviolent crimes meet the definition of "domestic violence" in
RCW 10.99.020 but not RCW 26.50.010. Accordingly, McDonald asserts that the State
cannot prove that the enhanced sentencing provisions for felony domestic violence
offenses apply in his case. We disagree.
The fundamental purpose of statutory construction is "to determine and give
effect to the intent of the legislature." State v. Sweanv, 174 Wn.2d 909, 914, 281 P.3d
305 (2012). "When possible, we derive legislative intent solely from the plain language
enacted by the legislature, considering the text of the provision in question, the context
of the statute in which the provision is found, related provisions, and the statutory
scheme as a whole." State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). "[W]e
must avoid constructions that yield unlikely, strange or absurd consequences." State v.
Contreras, 124 Wn.2d 741, 747, 880 P.2d 1000(1994).
Under McDonald's construction of RCW 9.94A.030(20), a crime does not qualify
as "domestic violence" for sentencing purposes unless it meets the definition found in
both RCW 10.99.020 and 26.50.010. This construction rests on an overly narrow and
constrained interpretation of the word "and." Where the plain language and intent of the
statute so indicate, "[t]he disjunctive 'or' and conjunctive 'and' may be interpreted as
substitutes." Mount Spokane Skiing Corp. v. Spokane County, 86 Wn. App. 165, 174,
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936P.2d 1148 (1997); see also CLEAN v. City of Spokane, 133 Wn.2d 455, 473-74,
947 P.2d 1169 (1997); Bullseve Distrib. LLC v. State Gambling Comm'n, 127 Wn. App.
231, 238-40, 110 P.3d 1162 (2005).
It is unreasonable to apply the definition found in chapter 26.50 RCW to chapter
10.99 RCW. Nothing in either statute indicates that the legislature intended such a
result. To the contrary, RCW 26.50.010 makes clear that its definition of domestic
violence applies specifically to that chapter.3 A common sense reading of RCW
9.94A.030's plain meaning indicates that the legislature's use of the word "and" means
that in order to qualify for enhanced sentencing, the crime must meet either the
definition of domestic violence in RCW 10.99.020 or the definition in RCW 26.50.010.
Both definitions are independently sufficient.
CONCLUSION
We reverse McDonald's conviction for tampering with a witness and remand for a
new trial. If McDonald is again convicted, his misdemeanor domestic violence
convictions will count towards his total offender score, pursuant to RCW 9.94A.525(21).
Reversed and remanded.
WE CONCUR:
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3 RCW 26.50.010 states, "As used in this chapter, the following terms shall have
the meanings given them. . . ."