Opinion
No. 35814-0-II.
April 29, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-02208-4, Robert L. Harris, J., entered January 12, 2007.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Armstrong, J.
Robb Eugene York appeals his conviction of one count of felony violation of a no-contact order. York challenges the sufficiency of the evidence supporting his conviction. In the alternative, York asserts that the trial court's evidentiary rulings, prosecutorial misconduct, and the ineffective assistance of his counsel deprived him of his due process rights to a fair trial and his rights under the confrontation clause. Because the State failed to produce competent evidence of York's identity and failed to prove that the woman York was with was Nicole McNeel, the subject of the no-contact order, we reverse and remand with instructions to dismiss the charge with prejudice.
In the record, McNeel's last name is spelled in two ways: it appears as "McNeel" in all the exhibits (no-contact orders), but in the report of proceedings the name appears as "McNeil." We spell the name as it appears in the exhibits.
FACTS
On November 2, 2006, Clark County Sheriff Deputy Sean Boyle happened upon York at the Ridgefield Junction Chevron gasoline station in Clark County, Washington. Boyle recognized York and ordered a records check on him and on the Ford Explorer sports utility vehicle (SUV) in which York was a passenger. The dispatch operator told Boyle that the SUV was registered to "Nicole McNeel," and provided the deputy with McNeel's physical description. Report of Proceedings at 11. The dispatch operator also told Deputy Boyle that a confirmed no-contact order had been issued for McNeel against York.
Deputy Boyle testified that he asked dispatch to confirm the no-contact order. The process of confirming an order includes a person from the dispatch office calling the records department and pulling a copy of the order to confirm it was valid and served.
On March 30, 2006, the Clark County District Court issued two separate protection orders directing York to have no contact with his former girl friend, McNeel. The orders were valid until March 30, 2008. Exhibit 1 was issued under cause number 57282, and Exhibit 5 was issued under cause number 14307V.
Noting that the woman driving the SUV matched the dispatcher's description of McNeel, Deputy Boyle stopped the SUV and asked the driver if she was McNeel; the driver said, yes. To confirm her identity, Boyle asked her to show him her driver's license. The name and physical description shown on the license matched the information the dispatch operator provided. Boyle ordered York to get out of the SUV and informed him that he was under arrest for violating a no-contact protection order. York got out of the SUV and spontaneously told Boyle that the order was not served.
The State charged York with violation of a no-contact order under former RCW 26.50.110(5) (2006), alleging the violation was a felony because York had two prior convictions for violation of no-contact orders. Following a CrR 3.5 hearing, the trial court admitted York's spontaneous statement that the no-contact order was not served. Subsequently, a jury found York guilty as charged and returned a special verdict form finding that York had two prior no-contact order violations. York timely appeals.
ANALYSIS
Sufficiency of the Evidence
York argues that the evidence is insufficient to support his conviction of violating a no-contact order. We agree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)), cert. denied, 127 S. Ct. 440 (2006). A sufficiency claim admits the truth of the State's evidence. Luther, 157 Wn.2d at 77-78 (citing State v. Alvarez, 105 Wn. App. 215, 223, 19 P.3d 485 (2001)). In considering the sufficiency of evidence, we give equal weight to circumstantial and direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We do not substitute our judgment for that of the jury on factual issues. State v. King, 113 Wn. App. 243, 269, 54 P.3d 1218 (2002) (citing State v. Farmer, 116 Wn.2d 414, 425, 805 P.2d 200, 812 P.2d 858 (1991)), review denied, 149 Wn.2d 1015 (2003).
York contends that the State failed to meet its burden of producing independent evidence that he was the same man named in the no-contact orders and in the prior no-contact order Page 4 convictions entered into evidence. Citing State v. Hunter, 29 Wn. App. 218, 627 P.2d 1339 (1981), York asserts that the State's failure to present any evidence identifying him as the person previously convicted compels that we reverse his conviction. We agree.
York also contends that his trial counsel should have objected to admission of the State's exhibits because it failed to first present independent evidence of his identity. But admission of a document is a necessary first step to proving a prior conviction. See, e.g., State v. Kelly, 52 Wn.2d 676, 678, 328 P.2d 362 (1958). And when a prior conviction is an element of a charged crime, a certified court record showing that a person with an identical name has such a prior conviction is relevant admissible evidence. ER 401, 902, 1005. Here, exhibits 1 through 5 were related to the no-contact order the State alleged York had violated and to any prior convictions. The documents were, therefore, relevant evidence and admissible. York's defense counsel did not ineffectively assist him by failing to object to admissible documents.
To prove felony violation of a no-contact order, as charged, the State had to prove that York had two prior convictions for violating chapter 10.99 RCW no-contact orders. As we have previously held:
[W]hen criminal liability depends on the accused's being the person to whom a document pertains[,] . . . the State must do more than authenticate and admit the document; it also must show beyond a reasonable doubt "that the person named therein is the same person on trial." Because "in many instances men bear identical names," the State cannot do this by showing identity of names alone. Rather, it must show, "`by evidence independent of the record,'" that the person named therein is the defendant in the present action.
State v. Huber, 129 Wn. App. 499, 502, 119 P.3d 388 (2005) (emphasis added) (footnotes omitted). Such independent evidence need only establish prima facie that the defendant is the same person named in the document. Hunter, 29 Wn. App. at 221-22. And once the State has introduced this evidence, the defendant has the burden to produce evidence casting doubt on the named person's identity. Hunter, 29 Wn. App. at 222. But if the State presents only a document bearing an identical name, the State produces insufficient evidence to support a criminal conviction beyond a reasonable doubt. Hunter, 29 Wn. App. at 221.
Here, the State produced five documents bearing the name of Robb Eugene York, but it presented no evidence to show that the person named in those documents was the same person who was the defendant at trial. Hunter, 29 Wn. App. at 222. On appeal, the State baldly asserts that the evidence was sufficient because "[t]here is no question" that York was in contact with McNeel and that the contact was prohibited. Br. of Resp't at 8. But McNeel did not appear or testify at trial. Deputy Boyle recounted the dispatcher's hearsay description of McNeel and testified that the woman he saw matched that description and that she was driving an SUV registered to a McNeel. There was no evidence independent of the hearsay description that the driver was the McNeel in the no-contact order or that the driver had obtained the no-contact order in question. In addition, the State based its argument for conviction primarily on the deputy's testimony that York told him the order was not served.
The evidence the State provided relating to York's identity was Deputy Boyle's testimony that when Boyle contacted York at the Chevron gasoline station, he recognized York because the two had attended junior high school together, and that he knew York from prior contacts in his capacity with the sheriff's department. But this testimony did not link York to the defendant named in the previous no-contact orders. Cf. Hunter, 29 Wn. App. at 221 (work release supervisor's testimony provided sufficient independent evidence to establish a prima facie case that defendant was the same person named in the judgments and sentences). Moreover, other than Boyle's stated belief, no competent evidence established that the woman York was with was the McNeel named in the no-contact order.
The State did not otherwise attempt to show that the exhibits were related to the same person who was then before the trial court. See Huber, 129 Wn. App. at 501-03 (the State can meet its burden of establishing identity of defendant in a variety of specific ways including otherwise admissible booking photographs, booking fingerprints, eyewitness identification, or distinctive personal information). York's statement that the order was not served, alone without more, does not alleviate the State's burden to prove that York was the man named in each order. Huber, 129 Wn. App. at 502.
Additionally, the State does not meet its burden to prove the elements of the charge merely because the defense opts not to present evidence; a defendant's election not to rebut does not suddenly cause an insufficient case-in-chief to become sufficient. Huber, 129 Wn. App. at 503 (citing United States v. Jackson, 368 F.3d 59, 65, 68 (2d Cir. 2004)).
The State's reliance on State v. Ammons, 105 Wn.2d 175, 189-90, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986), is misplaced. Ammons is a sentencing case under the Sentencing Reform Act, ch. 9.94A RCW, and is distinguishable. This case does not involve sentencing, and we note that sentencing proceedings differ because the rules of evidence do not generally apply at sentencing, ER 1101(c)(3), nor does the presumption of innocence. State v. Finch, 137 Wn.2d 792, 865, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999).
The State also appears to argue that York's trial defense counsel's remarks during closing arguments that York had one prior conviction for violation of a no-contact order constituted evidence sufficient to show that the person named in the documents was the person on trial. We cannot agree. The statement was a remark by counsel, and such a remark is not evidence. See State v. Rice, 120 Wn.2d 549, 573, 844 P.2d 416 (1993) (any potential prejudice in closing argument was minimized by trial court's instructions to the jury that counsel's statements are not evidence and should not be considered).
Even drawing all reasonable inferences from the evidence in favor of the State and interpreting all reasonable inferences from the evidence strongly against York, we cannot say that the State presented sufficient evidence to prove beyond a reasonable doubt that York was the man referred to in the no-contact orders and that the woman Deputy Boyle saw him with was McNeel.
Because York's sufficiency of the evidence argument is dispositive, we do not address his other contentions. We reverse and remand with directions that the trial court dismiss the violation of the no contact order felony charge in Clark County Superior Court cause number 06-1-02208-4 with prejudice. State v. Smith, 155 Wn.2d 496, 505, 120 P.3d 559 (2005).
We note that exhibit 4 did not satisfy the predicate protection order requirements because the order was not granted under "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." Former RCW 26.50.110(1). In addition, the judgment and sentence, exhibit 3, does not indicate the type of no-contact order York was convicted of violating. But exhibit 5, the no-contact order based on the guilty plea noted in exhibit 2, shows that the no-contact order was issued pursuant to chapter 10.99 RCW. Thus, the latter satisfied the predicate protection order requirements of former RCW 26.50.110(1).
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.
We concur:
HOUGHTON, CJ.
ARMSTRONG, J.