State Of Washington v. Frank Wofford ( 2020 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80539-8-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
FRANK WILLIAM WOFFORD, III, )
)
Appellant. )
)
ANDRUS, A.C.J. — Frank William Wofford, III appeals his conviction for
felony violation of a no-contact order. He argues the State did not provide sufficient
evidence to prove beyond a reasonable doubt that he had two prior convictions for
no-contact order violations. He further argues the State’s offender score, adopted
by the trial court, was not supported by the preponderance of the evidence. We
conclude there was sufficient evidence of Wofford’s prior convictions, but agree
Wofford’s offender score is not adequately supported by the record. We remand
for a recalculation of his offender score and for resentencing.
FACTS
In December 2016, Island County Superior Court entered a post-conviction
no-contact order (NCO) against Frank William Wofford, III (Wofford), restraining
him from contacting or being within 500 feet of his parents, Linda Wofford and
Citations and pin cites are based on the Westlaw online version of the cited material.
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Frank Wofford Jr. 1 The order allowed Wofford to have telephonic contact and
limited physical contact with Linda at her discretion, as long as that contact did not
take place at Linda and Frank’s residence in Coupeville, Washington.
On April 7, 2019, Frank contacted the Island County Sheriff’s Office to report
the presence of his son on his property in violation of the no-contact order.
Sergeant Shawn Warwick responded to Frank’s call. Sergeant Warwick confirmed
en route that a valid protection order existed prohibiting Wofford from having
contact with his parents. When he arrived, he spoke to Frank who explained that
Wofford was inside his shed. Sergeant Warwick walked to the shed, opened the
door and found Wofford inside. He then arrested Wofford. Sergeant Warwick
confirmed, at trial, the existence and terms of the December 2016 no-contact order
on which he based his arrest.
The State charged Wofford with felony violation of a no-contact order based
on the existence of two prior convictions for similar no-contact order violations. At
trial, to establish Wofford had twice been previously convicted of violating
provisions of a court order, the State offered two judgment and sentences, one
from Island County Superior Court from March 2014, in which Wofford was found
guilty of violating a court order in violation of RCW 26.50.110(1) (the 2014
Judgment) and one from Island County District Court dated June 2015, in which
he was similarly found guilty of violating a no-contact order in violation of RCW
26.50.110 and RCW 9A.230.040 (the 2015 Judgment).
1
Because Wofford and his parents share the same last name, and father and son share the same
first name, we refer to the appellant as Wofford, his father as Frank, and his mother as Linda. We
mean no disrespect in doing so.
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The 2014 Judgment identified Wofford by his full name, Frank William
Wofford, III. It bore his signature and identified his address as “General Delivery,
Cpvl., WA 98239.” The 2015 Judgment identified the case number as 66546, and
the defendant as “Frank Wofford,” but contained no additional identifying
information. To prove that the individual identified in the 2015 Judgment was
Wofford, the State offered, and the trial court admitted over Wofford’s objection,
the corresponding district court citation, with the case number 66546, which
identified Wofford by his full name, driver’s license number, date of birth, address,
and physical characteristics.
The trial court instructed the jury that, in order to convict Wofford of the
charged crime of violating a court order, the State had to prove that there was a
no-contact order in existence on April 7, 2019 applicable to Wofford, that Wofford
knew of the existence of this order, that on April 7, 2019, Wofford knowingly
violated the order, that Wofford had twice been convicted of violating provisions of
a court order, and the act occurred in Island County, Washington. The jury found
Wofford guilty of this crime. By special verdict, it also found that Wofford and Frank
were members of the same family.
At sentencing, the State asserted Wofford had an offender score of seven
based on six prior convictions and his commission of the crime while on community
custody. Based on this offender score, the State identified his sentencing range
to be 51 to 60 months and recommended a sentence of 52 months of incarceration,
followed by eight months of community custody. Wofford did not comment on the
offender score but acknowledged the sentencing range was 51 to 60 months.
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The trial court adopted the State’s offender score and sentencing
recommendation. The court orally indicated its intent to waive any financial
obligations other than the mandatory $500 victim assessment. Wofford’s judgment
and sentence, however, included a requirement that, during the eight months of
community custody, Wofford had to “pay supervision fees as determined by
[Department of Corrections].”
On appeal, Wofford challenges (1) the sufficiency of the State’s evidence
that he was twice previously convicted of violations of a court order, (2) the trial
court’s admission of the criminal citation corresponding to the 2015 Judgment, (3)
the sufficiency of the evidence supporting his offender score, and (4) the inclusion
of DOC supervision fees in the final judgment and sentence.
ANALYSIS
1. Sufficiency of the evidence of Wofford’s prior convictions for violation of
a court order
To prove that Wofford committed felony violation of a no-contact order
under RCW 26.50.110(5), the State must prove that Wofford committed two prior
violations beyond a reasonable doubt. State v. Carmen, 118 Wash. App. 655, 667,
77 P.3d 368 (2003). Wofford argues the evidence the State offered, the 2014 and
2015 Judgments, are insufficient to meet the State’s evidentiary burden. We
disagree.
The test for determining sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could
have found the defendant guilty beyond a reasonable doubt. State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the
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evidence must be drawn in favor of the State and interpreted most strongly against
the defendant. Id. A claim of insufficiency admits the truth of the State's evidence
and all inferences that reasonably can be drawn therefrom. Id. Credibility issues
are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wash. 2d
60, 71, 794 P.2d 850 (1990).
Wofford contends the State failed to prove that he was the Frank Wofford
identified in the 2014 Judgment. 2 “It is axiomatic in criminal trials that the
prosecution bears the burden of establishing beyond a reasonable doubt the
identity of the accused as the person who committed the offense.” State v. Hill, 83
Wash. 2d 558, 560, 520 P.2d 618 (1974). “Identity involves a question of fact for the
jury and any relevant fact, either direct or circumstantial, which would convince or
tend to convince a person of ordinary judgment, in carrying on his everyday affairs,
of the identity of a person should be received and evaluated.” Id.
Wofford relies on State v. Huber, 129 Wash. App. 499, 119 P.3d 388 (2005),
to argue that the State failed to prove that he was the person named in the 2014
judgment. In that case, the State charged Huber with bail jumping. The State
introduced certified copies of the defendant’s charging document, a written court
order requiring his appearance at a hearing, clerk's minutes indicating that he had
failed to appear, and a bench warrant commanding the defendant’s arrest, but it
did not call any witness or otherwise present any other evidence to demonstrate
that the defendant was the same individual named in those documents. Id. at 500-
01. Division Two of this court stated:
2
Although Wofford challenges the admissibility of the citation leading to the 2015 Judgment, he
does not contend the State failed to prove he was the defendant named in that judgment.
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[W]hen criminal liability depends on the accused's being the person
to whom a document pertains . . . the State must do more than
authenticate and admit the document; it also must show beyond a
reasonable doubt that the person named therein is the same person
on trial. Because in many instances men bear identical names, the
State cannot do this by showing identity of names alone. Rather, it
must show, by evidence independent of the record, that the person
named therein is the defendant in the present action.
Id. at 502 (quotations omitted). The court reversed Huber’s conviction because
there was no independent evidence establishing that the person on trial for bail
jumping was the same person named in the charging document, court order,
clerk’s minutes and bench warrant. Id. at 504.
We conclude Huber is distinguishable because the jury here had more
evidence than merely matching names. As Huber noted, the State may prove
identity through several different means, such as booking photographs,
fingerprints, eyewitness identifications, a certified copy of a driver’s license, or
other “distinctive personal information.” Id. at 503. The jury had distinctive
personal information here. First, the 2014 Judgment identified the defendant as
“Frank William Wofford, III.” Wofford’s father confirmed his son’s full name is Frank
William Wofford III. Second, the 2014 Judgment proved that a man with Wofford’s
exact same name resided in Coupeville, in Island County and was convicted of
committing a crime in that county. Wofford’s father confirmed he and his wife lived
in Coupeville. Lastly, the 2014 Judgment contained Wofford’s signature, which is
strikingly similar to Wofford’s signature on the 2016 no-contact order. A
reasonable jury could compare that signature to the signature on the no-contact
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order and conclude that the individual named in both documents was the same. 3
Unlike Huber, we have a very unique name, an identity of county of residence, and
similar signatures. We conclude the State provided sufficient independent
evidence to prove Wofford was the Frank William Wofford, III named in the 2014
Judgment.
2. Admission of the 2015 citation
Wofford next contends the trial court erred in admitting the citation that led
to the 2015 Judgment. Wofford first argues the citation was inadmissible under
ER 402 because it had no probative value and was thus irrelevant under ER 401.
ER 401 defines relevant evidence as evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Relevant
evidence is admissible under ER 402. A trial court’s decision to admit relevant
evidence will not be reversed absent manifest abuse of discretion. State v.
Hughes, 106 Wash. 2d 176, 201, 721 P.2d 902 (1986).
Wofford cites Hadley v. Maxwell, 144 Wash. 2d 306, 27 P.3d 600 (2001), for
the proposition that a citation is a charging document analogous to an information
or complaint, containing mere allegations that are not probative of any fact. This
argument is not persuasive. Hadley was a personal injury lawsuit in which an
injured motorist argued that an allegedly negligent defendant who paid a traffic fine
was collaterally estopped from claiming she had not committed the traffic
3
Because the no-contact order contained additional descriptors, such as Wofford’s birthdate and
the birthdates of his parents, Frank and Linda, Wofford does not contend that the State failed to
prove he was the party identified as the restrained person in that order.
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infraction. Id. at 308. The Supreme Court held it was inappropriate to apply
collateral estoppel because nothing more than a nominal fine was at stake and
there was little incentive to vigorously litigate the issue. Id. In a footnote, the court
noted that “Washington has long held a traffic citation is not admissible in a
subsequent civil case to prove the party committed the driving lapse.” Id. at 314
n.3.
While Wofford’s 2015 citation would not be relevant to prove guilt, the State
did not offer it for that purpose. It offered the document to establish that the Frank
Wofford named in the 2015 Judgment was not Wofford’s father, but was in fact,
the son:
So the reason why I include the citation there is because—so the
defendant’s name is Frank Wofford and one of the protected party’s
names is Frank Wofford. The defendant is Frank Wofford, III, and
the Judgment and Sentence from the City of Oak Harbor just says
Frank Wofford. It doesn’t say “III.”
The State has to prove the identity of—the validity of the prior
protection order violations, and that’s why . . . I didn’t include the
incident report for that. It’s basically just a citation which lists his
name and his identify [sic].
The trial court admitted the citation on this basis. The citation was relevant to
establish the identity of the convicted defendant listed in the 2015 judgment and
the trial court did not abuse its discretion in so concluding.
Wofford next maintains that, even if relevant, the citation is inadmissible
hearsay. But this argument is equally unpersuasive. RCW 5.44.040 provides that
certified copies of public records are admissible. The statute is a recognized
exception to the hearsay rule. State v. Monson, 53 Wash. App. 854, 857, 771 P.2d
359 (1989). The only limitation on the admissibility of certified copies of public
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documents is they must contain facts only and not conclusions involving the
exercise of judgment or discretion. Id. at 856.
As the trial court noted, the State offered a certified copy of the 2015 citation
and required the State to redact any information in the citation that was not “of a
routine nature” and anything “in the nature of opinion[].” Its evidentiary ruling was
consistent with RCW 5.44.040 and case law interpreting that statute. The trial
court did not abuse its discretion in admitting the redacted 2015 citation.
3. Sufficiency of the evidence of Wofford’s offender score
Wofford next argues that the State did not meet its burden of proving his
offender score. We agree.
At sentencing, the State bears the burden to prove the existence of prior
convictions by a preponderance of the evidence. State v. Hunley, 175 Wash. 2d 901,
909-10, 287 P.3d 584 (2012). The best evidence of a prior conviction is a certified
copy of the judgment, but the State may introduce other comparable documents
of record or transcripts of prior proceedings to establish a defendant’s criminal
history. Id. at 910.
The State contended Wofford’s offender score was seven because he had
six prior felony convictions or gross misdemeanor convictions in which domestic
violence was pleaded and proved, and Wofford was on community custody at the
time of the April 2019 offense. 4 To prove the prior convictions, the State offered a
4
Under RCW 9.94A.525(21), because the conviction is a felony domestic violence offense where
domestic violence was pleaded and proved, the court counts one point for each prior felony
conviction and one point for each prior domestic violence conviction for a “repetitive domestic
violence offense defined in RCW 9.94A.030 where domestic violence as defined in RCW
9.94A.030, was pleaded and proven.” RCW 9.94A.525(19) provides that an additional point is
added if the present conviction is for an offense committed while the defendant was under
community custody.
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“Certification of Criminal History and Current Offense Sentencing Data,” and the
declaration of Jennifer Wallace, an employee at the Island County Prosecutor’s
Office, who testified under oath that she had researched the Washington State
Patrol Criminal History database and the Judicial Information System database to
verify Wofford’s prior convictions.
The certification contained a list of convictions, identified by crime, the date
of each crime and sentence, the sentencing court and each case’s cause number.
Included in this list was (1) the March 2014 conviction in Island County Superior
Court for the violation of a protection order, domestic violence; (2) a September
2014 conviction for assault in the fourth degree, domestic violence; (3) the June
2015 conviction for violation of a protection order from the Oak Harbor Municipal
Court; (4) a October 2016 conviction for unlawful possession of a firearm in the
second degree; (5) a second October 2016 conviction for unlawful possession of
a firearm in the second degree; and (6) a November 2018 conviction for a crime
identified as “community custody violator.” The first and third of these convictions
are the only ones supported by certified copies of judgments or any other
documents of record.
We conclude the prosecutor’s certification is insufficient to support the
offender score. First, the March 2014 conviction, a misdemeanor, may be properly
counted as a “repetitive domestic violence offense” under RCW 9.94A.525(21) and
RCW 9.94A.030(42), but there is insufficient information in the prosecutor’s
certification from which to draw this conclusion. Second, the November 2018
conviction merely states “community custody violator.” While we could assume
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this reference means Wofford was convicted under RCW 72.09.310, for failing to
maintain contact with the Department of Corrections while on community custody, 5
there is nothing in the certification to support this assumption. Third, there is
nothing in the certification to establish that Wofford was on community custody at
the time of the 2019 offense.
Wofford relies on Hunley to support his contention that a summary of a
defendant’s criminal history is insufficient evidence to prove prior convictions.
While the State correctly points out that Hunley is distinguishable because that
case involved nothing more than a prosecutor’s unsworn summary of a
defendant’s criminal history and here it provided a sworn certification, we still
conclude the State’s sworn statement is insufficient for this court to evaluate the
appropriateness of including the six listed convictions in Wofford’s offender score.
The State also argues that it need not prove Wofford’s criminal history and
community custody status because he acknowledged the existence of the prior
convictions in his sentencing memo. The record does not support this argument.
Although the State need not produce evidence of a defendant’s criminal history
when the defendant acknowledges their prior convictions, RCW 9.94A.530(2);
Hunley, 175 Wash. 2d at 909, the State’s evidentiary burden is only relieved if a
defendant affirmatively acknowledges the criminal history. Id. at 917. The
5
RCW 72.09.310, entitled “Community custody violator,” provides:
An inmate in community custody who willfully discontinues making himself or
herself available to the department for supervision by making his or her
whereabouts unknown or by filing to maintain contact with the department as
directed by the community corrections officer shall be deemed an escapee and
fugitive from justice, and upon conviction shall be guilty of a class C felony under
chapter 9A.20 RCW.
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defendant does not affirmatively acknowledge their criminal history just by
agreeing with the prosecutor’s ultimate sentencing recommendation. State v.
Mendoza, 165 Wash. 2d 913, 928, 205 P.3d 113 (2009). And a defendant’s
acceptance of a sentencing range is similarly insufficient to constitute an
affirmative acknowledgement of their criminal history. State v. Allen, 150 Wash. App.
300, 315-16, 207 P.3d 483 (2009). Wofford accepted the State’s sentencing range
of 51 to 60 months. He did not affirmatively acknowledge the accuracy of the
State’s certification of his criminal history.
Because the State failed to provide sufficient evidence to prove Wofford’s
prior convictions and his community custody status at the time of the 2019 offense,
we reverse his sentence and remand for resentencing.
4. Supervision fees
Wofford’s judgment and sentence includes a provision that requires him to
“pay supervision fees as determined by DOC.” The State concedes that the trial
court’s inclusion of supervision fees in the judgment and sentence was made in
error. As in State v. Dillon, 12 Wash. App. 2d 133, 152, 456 P.3d 1199 (2020), it
appears from the record that the trial court intended to waive all discretionary fees.
We therefore accept the State’s concession and remand to strike the requirement
that Wofford pay supervision fees while in community custody.
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We affirm Wofford’s conviction, reverse his sentence, and remand to the
trial court for resentencing consistent with this opinion.
WE CONCUR:
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