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State v. Kozey

Court of Appeals of Washington, Division 2

September 16, 2014

The State of Washington, Appellant ,
v.
Anthony Kozey, Respondent

Appeal from Kitsap Superior Court. Docket No: 12-1-00414-3. Judge signing: Honorable Jeanette M Dalton. Judgment or order under review. Date filed: 02/01/2013.

Russell D. Hauge, Prosecuting Attorney, and Kellie L. Pendras, Deputy, for appellant.

Lise Ellner, for respondent.

Authored by Thomas R Bjorgen. Concurring: Linda CJ Lee, J. Robin Hunt.

OPINION

Page 1171

[183 Wn.App. 693] Bjorgen, A.C.J.

¶ 1  The State appeals Anthony Kozey's sentences for two felony violations of domestic violence no-contact orders. The State argues that the trial court erred by interpreting RCW 9.94A.030(20) as conjunctively incorporating the definitions of " domestic violence" found in RCW 10.99.020 and RCW 26.50.010. Agreeing with the State, we reverse and remand for resentencing consistent with a disjunctive interpretation of the definition of " domestic violence" in RCW 9.94A.030(20).

FACTS

¶ 2 In violation of a no-contact order, Kozey contacted his longtime girlfriend, Chalene Johnston, on at least two occasions in September 2011. Kozey was convicted of gross misdemeanor no-contact order violations for these offenses. His sentences included a postconviction no-contact order that again forbade him from contacting Johnston.

¶ 3 In spite of this order, Johnston called Kozey in November 2011 and asked for help transporting and pawning [183 Wn.App. 694] some power tools. A police officer investigating a different matter at the pawn shop saw Kozey and Johnston together, discovered the no-contact order after running the plates of the vehicle they used, and arrested Kozey for violating the order. Because Kozey already had two convictions for no-contact order violations, the State charged him with a felony for the new violation under RCW 26.50.110(5).

¶ 4 Johnston again initiated contact with Kozey in February 2012 while he was out on bail and awaiting trial for the November 2011 no-contact order violation. As a result, Kozey visited Johnston and their children at her grandmother's house. During the visit, one of Johnston's grandmother's checks disappeared, and Kozey later cashed it. Police learned of Kozey's violation of the no-contact order when the grandmother reported the theft of the check, and the State charged Kozey with another felony for the no-contact order violation.

¶ 5 During pretrial proceedings, Kozey argued that RCW 9.94A.030(20) defines " domestic violence" by conjunctively incorporating the definitions of " domestic violence" codified at RCW 10.99.020 and RCW 26.50.010, thereby requiring proof of both definitions.[1],[2] Because the parties agreed

Page 1172

that Kozey did not violate the no-contact order with the type of conduct necessary to constitute domestic violence under RCW 26.50.010, Kozey maintained that the State had not pleaded and could not prove domestic violence under its [183 Wn.App. 695] definition in RCW 9.94A.030(20), thus precluding any enhanced sentence. The State argued that RCW 9.94A.030(20) disjunctively incorporated RCW 10.99.020 and RCW 26.50.010, such that conduct falling under either definition constituted domestic violence for purposes of the enhanced domestic violence penalties of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.

¶ 6 The trial court adopted Kozey's reading of RCW 9.94A.030(20) and entered findings of fact and conclusions of law to that effect. These conclusions prevented the State from seeking enhanced penalties under RCW 9.94A.525(21).

¶ 7 After a bench trial on stipulated facts, the trial court found Kozey guilty of both the November 2011 and the February 2012 no-contact order violations. Based on its interpretation of the definition of " domestic violence" in RCW 9.94A.030(20), the trial court calculated Kozey's offender score as zero for the November 2011 felony no-contact order violation and as one for the February 2012 felony no-contact order violation. The trial court imposed a standard 12-month term of incarceration for the November 2011 violation and a standard 14-month term of incarceration for the February 2012 violation, ordering that Kozey serve the terms concurrently.

¶ 8 The State appeals, asking us to reverse Kozey's sentence and to remand the matter for resentencing consistent with a disjunctive interpretation of the definition of " domestic violence" in RCW 9.94A.030(20).

ANALYSIS

¶ 9 The parties contest the same issue they contested before the trial court: whether the word " and" in RCW 9.94A.030(20) conjunctively or disjunctively joins the definitions of " domestic violence" found in RCW 10.99.020 and RCW 26.50.010 for purposes of enhancing ...


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