Appeal from Clark Superior Court. Docket No: 12-1-00031-0. Date filed: 05/15/2012. Judge signing: Honorable Barbara D Johnson.
Lisa E. Tabbut, for appellant.
Anthony F. Golick, Prosecuting Attorney, and Rachael R. Probstfeld, Deputy, for respondent.
AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Thomas R. Bjorgen, J.
[180 Wn.App. 309] Worswick, C.J.
¶ 1 Robert Wayne Rice appeals his convictions and sentence for felony harassment--death threat and for violation of a civil antiharassment protection order. Rice argues that (1) insufficient evidence supports his conviction for felony harassment--death threat; (2) the trial court improperly instructed the jury on the elements of violation of a civil antiharassment protection order; and (3) the trial court ordered an impermissibly long period of probation. The State concedes that insufficient evidence supports Rice's conviction for felony harassment. In the published portion of this opinion, we reverse the trial court's imposition of 48 months of probation and remand for resentencing. In the unpublished portion of this opinion, we accept the State's concession and reverse Rice's conviction for felony harassment--death threat, but we affirm Rice's conviction for violation of a civil antiharassment protection order.
¶ 2 While Robert Wayne Rice served time at the Clark County Jail he met Jody Beach, a custody officer at the jail. [180 Wn.App. 310] Rice subsequently made unwelcome advances toward Beach, such as sending her flowers, writing her notes, and asking her out to breakfast. In response to Rice's unwelcome advances toward Beach, a Clark County Sheriff's sergeant instructed sheriff's deputies Jason Hafer and Scott Bain to tell Rice that Beach did not want Rice to contact her.
A. Rice's Threats To Kill Bain
¶ 3 Hafer and Bain met Rice when he was at the courthouse on unrelated business. Hafer walked with Rice into an interview room in the courthouse and there told Rice that Beach did not want Rice to contact her. The conversation between Hafer and Rice became heated, at which point Bain entered the conference room and informed Rice that Beach did not want Rice to contact her. Rice responded by repeatedly threatening to kill Bain. Bain responded by stepping back and unsnapping the holster on his stun gun. Rice continued to repeat his threats to kill Bain, at which time Bain arrested Rice for felony harassment--death threat (felony harassment).
¶ 4 Bain later testified as to how he felt when Rice threatened to kill him:
[Rice] was causing me fear of an assault.
Somebody who's that angry and upset with me, telling me they're going to kill me, causes me concern.
2A Verbatim Report of Proceedings (VRP) at 298-99.
[Rice] was in a different position that day. He was not quiet, content, sitting peacefully. He was extremely angry, livid. A--a
wild look to him. His--his eyes--he was extremely aggressive.
2A VRP at 311.
B. Beach's Civil Antiharassment Protection Order
¶ 5 At a hearing attended by both Beach and Rice, a court granted Beach a civil antiharassment protection order [180 Wn.App. 311] (antiharassment order) against Rice under chapter 10.14 RCW. During the time that this antiharassment order was effective, Rice wrote a letter to Beach and sent it to the jail.
C. Trial and Sentencing
¶ 6 The State charged Rice with felony harassment for threatening to kill Bain. The State also charged Rice with misdemeanor stalking for his advances towards Beach and with violation of an antiharassment order under RCW 10.14.120 and RCW 10.14.170 for writing a letter to Beach and sending it to the jail.
¶ 7 The trial court provided the following instruction to the jury on the charge of violation of an antiharassment order:
To convict the defendant of the crime of violation of a court order, each of the following elements of the crime must be ...