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Felony Violation of a Protection Order in Washington

A person who repeatedly violates a Washington protection order may be charged with a felony.  Violation of certain protection orders is a class C felony when the defendant has at least two previous convictions for violating a protection order. RCW 26.50.110(5).  The defendant in a recent case appealed a felony violation of a no-contact order conviction arguing that the alleged action that constituted the violation was not itself a crime.

The defendant and his wife separated after 10 years of marriage.  When they separated, they lived in a trailer on the wife’s parents’ property, and she remained there after the separation.  A domestic violence no-contact order was issued against the defendant prohibiting him from keeping his wife under surveillance.  The defendant was convicted of violating the no-contact order twice before the events that led to this case.

The defendant asked a deputy to perform a welfare check on the animals at his wife’s trailer.  After learning a friend was caring for the animals, the deputy asked why the defendant was concerned about the animals.  He told her a code enforcement officer told him he issued a letter prohibiting the wife from living in the trailer.

The defendant called the deputy several days later and said a friend told him a man went in the trailer.  The deputy declined to check.

The defendant made multiple Facebook posts about people visiting the trailer.  He referenced his wife seeing a man and described the man’s vehicle and gave the license plate number and telephone number.  The defendant’s wife testified a friend had come over for dinner on the day of the post and that the posted information was correct.  She also testified that someone would have to be close to the trailer to read the license plate of the vehicle parked in her driveway.  She notified the police of the Facebook posts.

The defendant was charged with four counts of felony violation of a no-contact order.  A violation is elevated to a felony if the defendant has at two or more previous convictions for violation of a no-contact order.  Count 4 was based on the Facebook posts that the state alleged showed the defendant was surveilling his wife.

The jury found the defendant not guilty of the first three counts, but guilty on count 4.  The court sentenced the defendant to 17 months’ imprisonment and 12 months’ community service.

The defendant appealed.  He argued the jury instruction for count 4 allowed him to be convicted for surveilling his wife even though surveilling a protected person is not a crime. The state argued the statute criminalizes any violation of a no-contact order.

The statute provides that a violation of certain specified provisions of a protection order is a gross misdemeanor, except as provided in subsections (4) and (5).  The specified provisions do not include surveilling a protected person.  RCW 26.50.110(1)(a). Subsection 5 provides that a violation of a protection order is a Class C felony when the defendant has two or more previous convictions for violation of a protection order.  The appeals court noted that subsection (5) does not limit the violations to those specified in RCW 26.50.110(1)(a).

The appeals court considered a previous Washington Supreme Court case that addressed how subsections (1) and (5) work together. The appeals court noted the Supreme Court found the two subsections were “clear and unambiguous, . . . not inconsistent, and should be read together.”   The Supreme Court also found that subsection (5) applies to a third violation regardless of whether it would independently subject the offender to criminal prosecution.

The defendant also argued there was insufficient evidence to support a guilty verdict.  He argued the state failed to prove he violated any of the provisions enumerated in subsection (1)(a).  The appeals court found the state was not required to prove violation of those specific provisions, because subsection (5) makes any violation of a protection order a felony if the other circumstances are met.

The appeals court affirmed the conviction.

This case shows that violation of any provision of a protection order can have serious consequences.  If you are seeking or opposing a protection order, you need an experienced Washington protection order attorney on your side.  Blair & Kim, PLLC, also has extensive experience in criminal law, so we can handle all aspects of your case.  Call us at (206) 622-6562 to set up a consultation.

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