Washington Appeals Court Reverses Conviction for Violation of a No-Contact Order

Washington felony violation of a court order occurs when a person, who has at least two previous convictions for violating a court order, knows a no-contact order exists and knowing violates a provision of it.  Willful violation of a court order occurs when a person has willful contact with another that is prohibited by a valid court order and the person has knowledge of the order.  Accidental contact is not willful.  A person must both know of the no-contact order and intend the contact. Washington case law has held that proof that the defendant acted knowingly constitutes proof they acted willfully. Previous Washington cases have held that the defendant does not have to have specific knowledge of the terms of a no-contact order, but instead must have knowledge of the no-contact order and know that the willful contact violated it.

A defendant recently appealed his conviction, arguing the prosecution had misstated the law regarding the meaning of “knowingly.”  He was charged with two counts of violation of a court order – domestic violence.  According to the appeals court’s published opinion, the protected party under the no-contact order testified that she heard knocking on her bedroom window and saw the defendant outside. She called the police.  She also testified that she received two text messages that she translated and summarized as saying “he hates me for everything I’ve done to him, for not letting him see the kids.” She further stated that he hoped the kids started hating her for not letting them see their father.

The state’s closing arguments included multiple statements about the knowledge requirement of violation of a no-contact order. The state stated “This element does not say [the defendant] knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The state further stated, “What I have to prove to you is that [the defendant] knowingly violated a provision of this order.”

The defendant’s attorney stated in his closing argument, that the state was required to “prove that he knew what the term was and he knowingly violated that term.”

The jury convicted the defendant of the charges and he was sentenced to 60 months of incarceration and prohibited from contacting the protected person until July 2030.

The defendant appealed, arguing the state misstated the law and he was entitled to a new trial. To prove prosecutorial misconduct, the defendant had to show the statements were improper and prejudicial. A misstatement of law by the state constitutes an improper comment.

The appeals court concluded the state misstated the law because it did not fully explain a knowing violation and misled the jury to think it only needed to prove the defendant knew the order existed.  The state actually needed to prove that he “knew what he was doing and that he knew his conduct was a violation of the order.”  This misstatement of the law relieved the state of the burden of proof to show the defendant’s knowledge of the order and knowledge that his willful contact with the protected person violated it.

The defendant objected at trial, so the appeals court considered whether the prosecutorial misconduct resulted in prejudice with a substantial likelihood of affecting the verdict.  The appeals court determined some of the state’s comments suggested it did not have to prove the defendant knew he was violating the order.  Those statements, within the context of the state’s other comments, were misleading and blurred the burden of proof.

The appeals court acknowledged a distinction between knowing about the existence of a no-contact order and knowingly violating it.  The appeals court concluded a juror could misinterpret the state’s comments and find the defendant guilty without finding that the state had proved both elements beyond a reasonable doubt.  The appeals court further concluded the state’s actions had a substantial likelihood of affecting the verdict.

The appeals court reversed the conviction and remanded the case for a new trial.

Violation of a no-contact order or a civil protection order can result in criminal charges.  Whether you are seeking or opposing a protection order, the skilled Washington civil protection order attorneys at Blair & Kim, PLLC, can help.  We are also experienced in criminal defense and can fight to protect your rights if you are facing criminal charges arising from violation of a protection order or a no-contact order.  Call (206) 622-6562 to set up a consultation.


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