Some custody cases can become so acrimonious they result in Washington civil protection orders and even criminal court. In a recent unpublished case, a mother challenged her convictions of felony harassment and felony violation of a protection order.
When the parents divorced, the mother was awarded sole custody of the children. After the father obtained treatment for a brain injury he incurred in the military, he was given visitation. The mother would not comply with the visitation order and the father was given sole custody in September 2018.
According to the appeals court’s opinion, the father found the mother attempting to break in to his home the day he took custody. She physically attacked him and his father.
The father had previously sought a protection order for himself, and obtained one protecting the children after that incident. The mother was prohibited from contacting him or the children, either directly or indirectly. The order also prohibited her from threatening or attempting to cause bodily injury to them, or from knowingly coming within 1,000 feet of the home or the father’s workplace.
The mother called 911 and asked for a welfare check on the children’s birthday. She specifically asked for a search of the father’s home. She told an officer she believed the father still had weapons and he was supposed to have turned them in. That officer testified the mother sometimes requested welfare checks for her children. The officer’s supervisor testified he had personally spoken with her between 15 and 20 times regarding her children or their father. The officer and supervisor discussed the call, but did not perform a welfare check or search.
She called 911 back. The police department staff believed she threatened to kill the father. 911 subsequently received a call to perform a welfare check on the mother. It was reported she had made statements regarding self-harm and harm of others. There were also reports of a woman matching her description behaving erratically in the road and throwing a rock at a car.
The mother was charged with felony harassment and felony violation of a protection order.
The state presented a recording of the 911 calls at trial without objection from the defense. The defense attorney referenced a 911 call in the opening statement.
In closing argument, the state said the mother had said “Kill [the father]” repeatedly on the 911 call. The defense attorney argued the 911 call was “a cry for help.” The defense attorney argued the mother was “trying to get their attention to get some help” and that she had also said “she was going to stab herself in the head.”
The jury reached a guilty verdict in less than an hour and a half. The mother appealed, arguing there was insufficient evidence, instructional error, and an abuse of discretion in the allowance of excessive evidence.
To prove felony harassment, the state had to show the mother knowingly threatened to kill the father and that her words or actions put him in reasonable fear she would follow through with the threat. RCW 9A.46.020. The mother argued there was insufficient evidence to prove these elements. The verbatim report of the trial reported portions of the 911 call as “inaudible” and “muffled.” The mother argued that the verbatim report did not show that even made a threat. The appeals court pointed out, however, that the evidence was not the verbatim report, but the recording of the call, admitted into evidence as exhibit 2. The mother did not include exhibit 2 as part of the record in her appeal. The appeals court noted that the attorneys and the court agreed the jurors should determine whether the mother threatened to kill the father based on hearing the recording. The court declined to hear the sufficiency challenge because the recording was not in the record before it.
The mother also argued the father’s own testimony showed he did not believe the threat. When the father was asked if he was afraid the mother could kill him he answered, “. . .I have no idea and it does scare me.” The appeals court pointed out that he went on to say that it scared the children and that they had moved to a “confidential location.” The appeals court found the father’s testimony did indicate a concern of being killed. He testified that some of the mother’s actions had been “unusual or very extreme or scary.” The appeals court stated that a victim does not have to say he thinks the defendant will actually kill him; instead there just must be evidence that the victim was “scared.”
The appeals court found there was sufficient evidence that the father reasonably feared the threat would be carried out. The mother had broken into his home and attacked him and his father. He testified the mother repeatedly violated the protection order. He said they had changed their lives due to their fear of her and that she was capable of following through on her threats. The appeals court found there was sufficient evidence the father reasonably feared she would carry out the threat to kill.
The appeals court rejected the mother’s arguments regarding error in the jury instructions. The appeals court also found she had not objected to the evidence that she argued was excessive and therefore rejected that argument as well. The appeals court affirmed the conviction.
This case illustrates how family law, civil protection orders, and criminal cases can intersect. In such cases, it can be a tremendous asset to have an experienced Washington civil protection order attorney who is knowledgeable in all three areas of law. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule your consultation.