Washington Appeals Court Affirms Stalking Conviction Related to Violation of a CPO

Violation of a Washington civil protection order can result in serious criminal charges.  A woman recently challenged her conviction for stalking and sentence for convictions for violation of a protection order, stalking, and malicious mischief.

The defendant was in a romantic relationship with a man for several years.  According to the appeals court’s opinion, she made a number of allegations against him and his ex-wife after the relationship soured.  The ex-boyfriend sought a protection order shortly after they broke up in 2015.

He testified the protection order did not stop her from continuing to harass him and his children.  He said she kept making false allegations related to pornography.  He obtained another protection order in July 2017 and a third in August 2018.

The ex-boyfriend’s ex-wife moved in with him in March 2020 for the benefit of their children due to COVID-19 concerns.  On March 10, the ex-wife discovered her car had been vandalized.  She did not file a police report regarding this first incident.  She did contact the police when it was vandalized again on March 25.  The police recommended a motion-activated camera.  The vehicle was again vandalized on March 29, but the camera did not capture the perpetrator.  She reported the incident to the police and more cameras were installed.

The ex-boyfriend received an alert that his cameras captured motion at about 3.30 a.m. on March 31.  The video showed the defendant walking around his car and looking into the ex-wife’s vehicle.  He reported the incident to police.

The police did not go to the home to investigate the vandalism due to COVID-19 restrictions and therefore did not measure the distance between the vehicle and the home.  The video did, however, show the defendant going within 1,000 feet of the residence.

The defendant was charged with violation of a protection order, malicious mischief in the second degree, and felony stalking. The jury found her guilty of all charges, but the trial court merged the stalking and violation of a protection order charges at sentencing.  The court issued a domestic violence no-contact order until April 19, 2099.  It also imposed fees for community custody and a mental health treatment condition.

The defendant appealed, arguing there was insufficient evidence to support the stalking conviction.  She argued the state failed to show repeated acts of harassment as required for a felony stalking conviction, and, in the alternative that the state failed to prove the vandalism was directed at the ex-boyfriend.

She argued that, pursuant to the jury instructions, only one kind of violation of the protection order qualified to support a felony stalking conviction, coming or remaining within 1,000 feet of the ex-boyfriend’s residence. She argued there was evidence of only one incident within 1,000 feet of the residence and therefore the evidence was insufficient to show repeated violations.

The appeals court acknowledged that instructions 7 and 8, addressing “the crime of violation of a court order,” only related to a “distance-based violation.” The state had to show that the defendant came within 1,000 feet of the ex-boyfriend’s residence to convict her of violation of a no-contact order.  There was no dispute they had done so with regard to the March 31 incident.

The appeals court explained that stalking is a separate crime from violation of a court order.  Instructions 9 and 10, which addressed stalking, required violation of a protection order, not specifically violation based on distance.  Nor did they require that the violation constitute the “crime of violation of a court order” as set forth in instruction 7.  For purposes of the stalking charge, the terms of the protection order governed whether it was violated.

Based on the terms of the protection order, the defendant could have violated it by harassing or stalking the ex-boyfriend at any location.

The appeals court concluded there was sufficient evidence to show the protection order had been violated multiple times.  There was, therefore, sufficient evidence to support the stalking conviction.

The defendant also argued the state failed to prove stalking because the evidence showed vandalism directed at the ex-wife, not the ex-boyfriend who was the protected party under the protection order.  The appeals court concluded the messages written on the ex-wife’s car had meaning only if interpreted to be directed at both the ex-boyfriend and his ex-wife.  References to sex and pornography in the vandalism were similar to the accusations that had been made against the ex-boyfriend.  Vandalism of the ex-wife’s vehicle with messages directed at both her and the ex-boyfriend constituted repeated acts of harassment sufficient to satisfy the jury instructions.

The state conceded the trial court erred in imposing supervision fees, imposing a community custody condition of mental health treatment condition without evidence of a proven mental health condition related to the crime, and including both the stalking and violation of a no-contact order convictions in the judgment and sentencing when the trial court concluded those crimes merged.  The state also conceded error in the length of the no-contact order when the statutory maximum for the defendant’s stalking offense was 10 years. The appeals court remanded to the trial court to remove the improper sentencing terms and to correct the term of the domestic violence restraining order.

Although the appeals court upheld the conviction, the trial court erred in the sentencing and the term of the domestic violence protection order.  Whether you are seeking or opposing a civil protection order or even facing charges for violating one, the Washington CPO attorneys at Blair & Kim, PLLC, have the experience to help. Schedule a consultation by calling our office at (206) 622-6562.



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