Opinion
No. 54048-3-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 03-1-01480-4. Judgment or order under review. Date filed: 03/23/2004. Judge signing: Hon. George N Bowden.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
To convict a defendant of felony violation of a domestic violence court order under RCW 26.50.110(5), the State must prove the defendant has at least two prior convictions for violations of no-contact orders. Certified copies of court records showed Christina Marie Lux had three prior convictions for violating no-contact orders. The trial court found the certified court records were authentic and admissible, despite the fact that the records did not have the seal of the court affixed as required by RCW 5.44.010. We conclude the trial court did not abuse its discretion in admitting the certified court records and affirm Lux's conviction for felony violation of a no-contact order.
FACTS
On January 23, 2003, Christina Marie Lux was served with two protection orders. The orders prohibited Lux from contacting her mother, Dianna White, and her sister, Michelle Casto. The orders were effective through February 6, 2003. On January 25, 2003, Lux repeatedly called the house where White and Casto lived. Lux was arrested for violating the protection orders.
Because Lux had prior convictions for violations of no-contact orders, the State charged Lux with two counts of felony violation of a domestic violence court order in violation of RCW 26.50.110.
COUNT I — DOMESTIC VIOLENCE COURT ORDER VIOLATION, committed as follows: That the defendant, on or about the 25th day of January, 2003, being subject to a valid and effective order under RCW 10.99, 26.09, 26.10, 26.26, 26.50 or 74.34 or a valid foreign protection order as defined in RCW 26.52.020, and knowing of the order, did violate the order, to wit: having contact with Michelle Casto and the defendant had at least two prior convictions for violating the provisions of a no contact order issued under Chapter 10[.]99, 26.09, 26.10, 26.26, 26.50 or 74.34 or a valid foreign protection order as defined in RCW 26.52.020; proscribed by RCW 26.50.110, a felony and
COUNT II — DOMESTIC VIOLENCE COURT ORDER VIOLATION, committed as follows: That the defendant, on or about the 25th day of January, 2003, being subject to a valid and effective order under RCW 10.99, 26.09, 26.10, 26.26, 26.50 or 74.34 or a valid foreign protection order as defined in RCW 26.52.020, and knowing of the order, did violate the order, to wit: having contact with Dianna White and the defendant had at least two prior convictions for violating the provisions of a no contact order issued under Chapter 10[.]99, 26.09, 26.10, 26.26, 26.50 or 74.34 or a valid foreign protection order as defined in RCW 26.52.020; proscribed by RCW 26.50.110, a felony.
Amended Information, CP at 82.
Before trial, Lux moved to bifurcate the trial and require the State to present evidence of the two prior convictions only if she was convicted. The court denied her request, but gave Lux the option of either having the State submit all of the evidence to the jury with a special instruction on the prior convictions or having the State present evidence of the prior convictions to the court if she was convicted. Lux stipulated that evidence of the two prior convictions would be presented to the court at the end of trial.
The jury found Lux guilty of violating the protection order prohibiting contact with her sister. In the subsequent bench trial, the State introduced as exhibits certified copies of court records from King County District Court Issaquah Division and King County District Court East Division. The three court dockets show Lux pleaded guilty to violating no-contact orders on January 11, 2000, and June 14, 2000, and she was found guilty of violating a no-contact order on March 18, 2000. Each of the three dockets has a certification stamp and the records are each certified and signed by the court clerk. None of the court dockets has a court seal.
Count II was dismissed at trial because the State did not present any evidence that Lux contacted her mother, Dianne White.
The State's evidence was presented in Exhibits 14, 15 and 16. All three were copies of dockets sent by facsimile. Exhibit 14 states Lux pleaded guilty to violating a no-contact order on June 14, 2000. Exhibit 15 states Lux pleaded guilty to violating a no-contact order on January 11, 2000. Exhibit 16 states Lux was found guilty of violating a no-contact order on March 18, 2000. The State later submitted original printouts from King County District Court Issaquah Division and King Court District Court East Division of two dockets as Exhibits 17 and 18.
Lux objected to admission of the three court docket exhibits because the court records did not have a court seal as required by RCW 5.44.010. In a declaration, Lux submitted a copy of the King County District Court seal in an unsworn and unsigned letter from the director of the Western Division of the King County District Court.
The State relied on RCW 5.44.040 as an alternative basis to admit the court records where public officials do not have a seal. The State submitted the affidavit of the prosecutor's office manager stating that she contacted the clerk of the East Division of the King County District Court, and the clerk told her the East Division did not have a raised seal. The East Division clerk said that when certifying court records, the East Division only uses a certification stamp and the clerk's signature.
The trial court did not consider the declaration or the affidavit submitted by Lux and the State. The court ruled the declaration and affidavit contained hearsay. The court found the certified copies of the court records submitted by the State were authentic under the evidence rules and admitted the court dockets as exhibits.
I accept what the documents purport to be, which are certified records of the convictions. I will admit the exhibits for that purpose. I think they were timely submitted and do support a conclusion that the conviction here constitutes a felony, and I will make a finding that it was a felony level offense based on those prior convictions.
RP (03/23/04) at 6.
At sentencing, the court granted Lux's request for a first time offender waiver. Lux appeals.
ANALYSIS
Lux contends her conviction for felony violation of a domestic violence court order must be reversed because the trial court erred in admitting court records that do not have the seal of court `annexed' as required by RCW 5.44.010.
Under RCW 26.50.110(1), violation of a protection order issued under chapter 26.50, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW is a gross misdemeanor, except as provided in RCW 26.50.110(4) and (5). RCW 26.50.110(5) provides that violation of a protection order, which otherwise would be a gross misdemeanor, is a Class C felony if the offender has at least two previous convictions for violating the provisions of a similar order. The State has the burden of proving the required prior convictions beyond a reasonable doubt to convict the defendant of felony violation of a no-contact order. State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002); State v. Carmen, 118 Wn. App. 655, 663-64, 77 P.3d 368 (2003), review denied, 151 Wn.2d 1039 (2004).
We review a trial court's decision to admit or exclude evidence for abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. Id.
Authentication of evidence is a condition precedent to admissibility and is designed to ensure that evidence is what it purports to be. ER 901; State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003), review denied, 150 Wn.2d 1028 (2004). RCW 5.44.010 and .040 provide a means of self-authentication for certain types of court records and public records without the necessity of presenting testimony. But self-authentication under RCW 5.44.010 and .040 is not the exclusive means to authenticate court records. Court records can also be authenticated under ER 901, ER 902 or CR 44. In re Personal Restraint of Connick, 144 Wn.2d 442, 455, 28 P.3d 729 (2001); Payne, 117 Wn. App. at 105-10.
Under ER 901, the requirement of authentication is satisfied if the proponent of the evidence makes a prima facie showing of authenticity. Payne, 117 Wn. App. at 108. The party seeking to introduce the evidence must produce sufficient proof to permit a reasonable juror to find in favor of authenticity. Id.; see also State v. Danielson, 37 Wn. App. 469, 471, 681 P.2d 260 (1984). Authenticity is a preliminary determination governed by ER 104. Bellevue v. Mociulski, 51 Wn. App. 855, 860, 756 P.2d 1320 (1988). "Rule 901 does not limit the type of evidence allowed to authenticate a document. It merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be." Payne, 117 Wn. App. at 106 (quoting United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989)). Thus, in deciding the issue of authenticity, the court may consider evidence that might otherwise be objectionable under the rules. Id.
Authenticity may be shown by circumstantial evidence. Payne, 117 Wn. App. at 109; see also ER 901(b)(4); 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 901.9, at 188 (4th ed. 1999). The substance of evidence sought to be authenticated may itself provide evidence of authenticity. Danielson, 37 Wn. App. at 471.
Lux contends the State offered no evidence to authenticate the exhibits. But there is no dispute that Exhibits 14, 15, and 16 are certified court dockets. Although the court dockets do not have a court seal, each of them has a certification stamp and the signature of the clerk of court. The dockets in Exhibits 15 and 16 also have facsimile transmission headings. The headings include the date, a transmission number, time of transmission and state `ISSAQUAH DIVISION.' In addition, Exhibit 15 includes a cover page from the King County District Court Issaquah Division. Exhibit 14, the court docket from the King County District Court East Division, has an identical format to the dockets in Exhibits 15 and 16. The trial court found the exhibits were what they purported to be and authentic. Sufficient evidence supports the trial court's determination that the court documents were authentic. The court did not abuse its discretion in admitting the exhibits.
We affirm Lux's conviction on one count of felony violation of a no-contact order.
SCHINDLER, APPELWICK and AGID, JJ.