Opinion
No. 36050-1-II.
May 20, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01000-9, Theodore F. Spearman, J., entered March 14, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Ryan Hinrichsen appeals his conviction for felony violation of a no contact order, arguing that the State's evidence was insufficient to support a conviction. He also argues that even if he violated the order, he should have been convicted only of a misdemeanor because his prior no contact order violations were not applicable under RCW 26.50.110(5). Because the evidence presented allowed a rational jury to find Hinrichsen guilty beyond a reasonable doubt, and at least two of his prior violations fell within the scope of RCW 26.50.110(5), we affirm.
FACTS
One morning, Ella Rae called 911 to report an altercation in the back yard of her neighbor's residence. Rae stated that "Bev and Brian," who were mother and son, were "beatin' the hell out of each other," and she could see the tops of their heads running in and out of the house. Ex. 1A, at 1, 3. Rae described "Bev" as a white female in her 40s and "Brian" as a white male in his 20s.
Bremerton police officer Jeffrey L. Inklebarger responded to the 911 call and contacted Beverly Hinrichsen-Helm at the house. Beverly was the protected party in a no contact order against her son, Ryan Hinrichsen; the order forbade Hinrichsen from having any contact with Beverly and from knowingly coming within 500 feet of her residence. Inklebarger testified that as he approached the residence, before he made any inquiry, Beverly stated, "Ryan is not here." 3 Report of Proceedings (RP) at 178. Beverly then told Inklebarger that she had been in a confrontation with a boyfriend she identified only as "David," and that David had since left. 2 RP at 98-99. Inklebarger characterized Beverly's demeanor as evasive, and she refused to complete a domestic violence supplemental report. The police then unsuccessfully searched the area for anyone matching Beverly's description of David.
We refer to Beverly Hinrichsen-Helm by her first name.
A few minutes later, while driving near Beverly's residence in his patrol car, Inklebarger saw Hinrichsen walking along the street. When Inklebarger turned around, Hinrichsen started to run and was able to evade Inklebarger twice on foot before another officer, Dana Clevenger, apprehended him. Clevenger and Inklebarger arrested Hinrichsen, then returned to the location where Inklebarger had initially seen him. Using a LIDAR unit, the officers measured the distance from where Hinrichsen had been standing to Beverly's residence at 99.5 feet.
LIDAR stands for "light detection and ranging." 3 RP at 143. The unit works similarly to a radar gun, except that it uses light waves instead of radio waves.
Inklebarger returned to Beverly's residence to inform her that he had arrested Hinrichsen for violating the no contact order. Beverly told Inklebarger that Hinrichsen had medication he Page 3 needed to take for a broken jaw. Inklebarger asked where the medication was, and Beverly responded that it was in her house. Inklebarger asked why it would be there if Hinrichsen wasn't living there and a court order forbade him from coming within 500 feet of the house. Beverly then gave three different explanations, stating first that the doctor had delivered the medication to her, then that the pharmacy had delivered it, and finally that she herself picked it up. According to Rae, Beverly approached her later that day and "began yelling and cussing at her for calling the police." 3 RP at 232.
Hinrichsen testified that he was aware that the no contact order forbade him from having contact with Beverly, but he did not know that he could come no closer than 500 feet to her house. He also testified that he had not been at Beverly's residence at any time that day. Rather, he was walking from his residence to get a milkshake when Inklebarger first saw him and he was unaware that he was in the vicinity of his mother's house. Hinrichsen testified that he ran from the police because he was afraid he had an warrant outstanding on an unrelated matter.
The State charged Hinrichsen with felony violation of a no contact order and obstructing a law enforcement officer. Because the first charge requires that the offender have two previous convictions for violating a protective order under RCW 26.50.110(5), the State sought to admit evidence of Hinrichsen's prior no contact order violations. Hinrichsen objected, arguing that the prior violations were not relevant because the orders he had violated were issued under statutes not specifically listed in RCW 26.50.110(5). The trial court admitted the evidence. After the State rested, Hinrichsen moved to dismiss the felony portion of the charge, again arguing that the prior convictions were for violations of no contact orders that were not issued under a statute listed in RCW 26.50.110(5). The trial court denied the motion.
The jury convicted Hinrichsen as charged. It also found by special verdict that Hinrichsen had two convictions for violating a no contact order and that he had knowingly contacted Beverly and come within 500 feet of her residence.
ANALYSIS I. Previous Convictions for Violation of No Contact Orders
On appeal, Hinrichsen argues first that the trial court erred in admitting the evidence of his previous no contact order violations because no evidence showed that the underlying orders were issued under a statutory authority enumerated in RCW 26.50.110(5). He also argues that insufficient evidence supports the jury's finding that he knowingly contacted his mother or that he knowingly came within 500 feet of his mother's residence.
RCW 26.50.110(5) provides that violation of a no contact order is a felony if the violator has two previous convictions for violating a no contact order that was issued under certain statutes. Specifically, that statute provides:
A violation of a court order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.
RCW 26.50.110(5). Hinrichsen argues that the trial court erred by admitting evidence of his prior convictions for violations of no contact orders because there was insufficient evidence that those no contact orders were issued under one of the chapters listed in RCW 26.50.110(5).
Hinrichsen incorrectly frames this issue as a question of sufficiency of the evidence. At trial, he objected to the State's evidence of his previous convictions on relevance grounds because he contended that the underlying orders had not been issued under any of the statutory authorities listed in RCW 26.50.110(5). Typically we review relevance determinations for a manifest abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). However, here the conclusion on relevance depends entirely on the legal question of whether the convictions fall within the scope of RCW 26.50.110(5), and we review questions of law de novo. See State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005); Labriola v. Pollard Group, Inc., 152 Wn.2d 828, 832, 100 P.3d 791 (2004); State v. Carmen, 118 Wn. App. 655, 663, 77 P.3d 368 (2003).
The trial court admitted court documents showing four convictions for violation of a no contact order. The State concedes that one of them should not have been admitted because the underlying protection order had been issued under chapter 10.14 RCW, which is not enumerated in RCW 26.50.110(5). It argues that the error was harmless, however, because only two convictions are required to satisfy RCW 26.50.110(5) and all three of the other convictions were applicable. We agree.
Hinrichsen appears to argue that all four of his previous convictions arose from orders issued under chapter 10.14 RCW, but the record does not support this assertion. The records for three of the convictions do not state the statutory authority under which the orders were issued.
Of the other three convictions, one was for a violation of RCW 26.50.110(1), and the other two were for violations of Bremerton Municipal Code (BMC) 9A.32.080, which adopts RCW 26.50.110(1). RCW 26.50.110(1) prohibits violation of a no contact order if the order was "granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or . . . is a valid foreign protection order as defined in RCW 26.52.020." This list of statutory issuing authority is identical to the list in RCW 26.50.110(5). As such, a conviction under section .110(1) means that the underlying order must have been issued under an applicable statutory Page 6 authority, which also means that the conviction is necessarily applicable to a later charge of felony violation under section .110(5). See also State v. Gray, 134 Wn. App. 547, 559, 138 P.3d 1123 (2006). The trial court correctly found that these convictions were relevant under RCW 26.50.110(5) and admitted evidence of them for the jury to consider on the felony claim.
We also agree with the State that the trial court's erroneous admission of the fourth conviction was harmless because RCW 26.50.110(5) requires only two convictions to give rise to a felony. See State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981) (holding that error is harmless "unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred."). We affirm Hinrichsen's conviction of felony violation of a no contact order.
We do not consider, therefore, whether a violation of a protection order issued under chapter 10.14 RCW could apply under RCW 26.50.110(5) merely because it is "tag[ged]" as a domestic violence offense under chapter 10.99 RCW.
II. Sufficiency of the Evidence
Hinrichsen argues that the State presented insufficient evidence to support the jury's finding that he knowingly contacted his mother or that he knowingly came within 500 feet of his mother's residence. We review a defendant's challenge to the sufficiency of the evidence by asking whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999) (quoting State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995)). In testing the sufficiency of the evidence, we view it in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) (quoting State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001)). We also treat circumstantial evidence and direct evidence as equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
At trial, the State argued two theories for how Hinrichsen violated the no contact order. First, it asserted that Hinrichsen was involved in the altercation with Beverly; thus, he knowingly contacted Beverly. Second, the State argued that even if Hinrichsen was not at the residence, he was within 500 feet of it a few minutes later when Inklebarger saw him there. Hinrichsen contends that the evidence presented is insufficient to support the jury's special findings on either theory.
Hinrichsen first argues that because no one testified at trial that they had actually seen him at Beverly's house that day, there was insufficient evidence to find that he knowingly contacted his mother. But even without a positive identification, the circumstantial evidence supports such a finding when we draw all reasonable inferences from it in favor of the State. See Thomas, 150 Wn.2d at 874. Inklebarger's testimony that Beverly greeted him with "Ryan is not here" before he had even spoken and that she made conflicting statements about Hinrichsen's medication lead to the reasonable inference that Beverly was covering for Hinrichsen. That Hinrichsen was two houses away from Beverly's residence on the same street soon after the incident is also circumstantial evidence of his involvement. Furthermore, the jury could also have been persuaded by Rae's identification of "Bev and Brian" as the people fighting next door during her 911 call. Viewing this evidence with all reasonable inferences drawn in favor of the State, it is sufficient for a jury to conclude beyond a reasonable doubt that Hinrichsen contacted his mother.
Even if we were to find that the evidence was insufficient to support this conclusion, however, Hinrichsen must also show that insufficient evidence demonstrated that he was knowingly within 500 feet of Beverly's residence. Hinrichsen argues that he was merely on his way to get a milkshake and did not know that he was within 500 feet of his mother's house. But the jury was entitled to find that even if he did not actually realize he was near his mother's house, the knowledge requirement is met "[i]f [he] ha[d] information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime." Clerk's Papers at 39; RCW 9A.08.010(1)(b)(ii). Regardless of whether Hinrichsen realized that he was within 500 feet of Beverly's home, a reasonable person in the same situation would know that he was two houses down from the house where he spent nearly 20 years of his life. Thus, there was sufficient evidence for the jury to conclude that Hinrichsen knowingly passed within 500 feet of Beverly's residence.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and VAN DEREN, A.C.J., concur.