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Washington Court Must Accept Defendant’s Stipulation of No-Contact Order

To convict a defendant of felony violation of a no-contact order, the state must prove that an order existed and that the defendant knew of the order.  The order is therefore generally relevant and likely admissible.  In a recent case, however, the defendant challenged the admission of a no-contact order because he had stipulated to the existence of his order and his knowledge of it.prison bars

The defendant was charged with several Washington domestic violence offenses, including felony violation of a no-contact order, after the woman with whom he was living told police he assaulted her.  The defendant was under Department of Corrections supervision at the time.  The defendant pleaded guilty to some of the charges, but the charge for felony violation of a no-contact order went to trial.

The state planned to admit two no-contact orders into evidence.   To prove the charge, the state would have to prove that there was a no-contact order in place and that the defendant knew of it.  The defendant requested that the no-contact order be excluded because he had agreed to stipulate to knowing of its existence.  The judge ultimately admitted the no-contact order over the defendant’s objection.

The presiding judge had also signed the no-contact order.  The no-contact order included the trial court’s findings of fact and stated that the court found the defendant had been charged with, arrested for, or convicted of domestic violence and that he represented a credible threat to the alleged victim’s safety.  The order was dated less than a week before the incident that led to the current charges.  The defendant was convicted of felony violation of a no-contact order.

The defendant appealed.  He argued that the rule requiring a trial court to accept a defendant’s stipulation of felony status and exclude documentary proof when the status is an element of the offense applied.  The state argued the rule did not apply to a no-contact order.  This case was the first time this issue had been addressed by a Washington appeals court.

Under Rule ER 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Evidence is considered unfairly prejudicial when, instead of leading to a rational decision, it is “likely to provoke an emotional response…”  The court should consider whether there is other available proof in determining whether the prejudicial evidence should be admitted.  The U.S. Supreme Court has held that a court must accept a defendant’s offer to stipulate to a prior conviction when the existence of the conviction is an element of a charged offense.

The Supreme Court held that there is no prejudice to the prosecution when the defendant’s legal status is proved through stipulation instead of admission of documents.  The U.S. Supreme Court held evidence of the prior conviction is prejudicial to the defendant because the jury may “generaliz[e] a defendant’s earlier bad act into bad character.” The risk is greater when the prior conviction is similar to the one currently charged.

The appeals court noted that the existence of a post-conviction no-contact order is dependent on a judgment that was rendered independent of the current charges, similar to a prior conviction.  The defendant’s legal status is also at issue here.  If there had been some other justification for admitting the evidence, like motive or opportunity, the evidence might be admissible.  However, in this case, the state did not argue that the evidence had any relevance in addition to the elements the defendant offered to stipulate.

The appeals court found that the no-contact order had no additional probative value beyond what the defendant agreed to stipulate.  The appeals court noted that no-contact orders generally have information on prior charges, convictions, and allegations of violence.  Here, the no-contact order stated that it was “Post Conviction,” and therefore it indicated the defendant had previously been found guilty of assaulting the alleged victim.  It stated he “represents a credible threat to the physical safety of [the alleged victim].”  The appeals court found a “substantial” risk of unfair prejudice that outweighed the probative value of the evidence.  The appeals court found the trial court abused its discretion in admitting the no-contact order and not accepting the stipulation.

The appeals court also found the trial court had not confirmed the defendant’s guilty plea was knowing, voluntary, and intelligent as to one of the charges.  The appeals court therefore reversed the conviction and remanded to the trial court for both a new plea hearing and a new trial.

This case shows that a defendant charged with violating a no-contact order may be able to avoid the prejudice inherent in allowing the jury to see the order by offering a stipulation.  The experienced domestic violence protection order attorneys and criminal defense attorneys at Blair & Kim, PLLC can handle the pursuit and defense of civil protection orders, as well as the defense of criminal charges related to an alleged violation of a protection order. If you are facing a situation involving a civil protection order, call us at (206) 622-6562 to discuss your case.

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