Appeal from Grant Superior Court. Docket No: 13-1-00518-5. Judge signing: Honorable Evan E Sperline. Judgment or order under review. Date filed: 10/28/2013.
Dennis W. Morgan, for appellant.
Garth L. Dano, Prosecuting Attorney, and Elise H. Abramson, Deputy, for respondent.
Authored by Robert E. Lawrence-Berrey. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
[187 Wn.App. 150] ¶ 1 RCW 26.50.110(4) increases the penalty for an assault violation of a no-contact order from a misdemeanor to a felony when the assault does not amount to first or second degree assault or when the conduct is reckless and creates a substantial risk of death or physical injury to another person. A jury convicted Steven Olsen of second degree assault and felony violation of a court order after he nearly cut his girlfriend with a large hunting knife and then beat her over the head, back, and side with a baseball bat. On appeal, he contends that his conviction for felony violation of a court order must be reversed because under the plain language of RCW 26.50.110(4), a conviction of second degree assault precludes a conviction for felony violation of a court order. We disagree. Mr. Olsen focuses only on one of two options of committing felony violation of a court order. We hold that a second option contained in RCW 26.50.110(4) permits a jury to convict a defendant for felony violation of a court order, despite having also convicted the defendant of second degree assault, when the former is predicated on reckless conduct that creates a substantial risk of death or serious bodily injury to another. We therefore affirm.
¶ 2 Mr. Olsen and Terri Wortham began arguing in the early morning hours of August 11, 2013. The argument turned physical when Mr. Olsen, much larger and stronger than Ms. Wortham, pounced on her and pinned her to her [187 Wn.App. 151] bed. Mr. Olsen held a large hunting knife in his hand. But because of how he held the knife, and perhaps due also to his equivocal efforts, he only scratched her neck with the dull side of the blade. Ms. Wortham grabbed an aluminum baseball bat that was next to her bed and hit Mr. Olsen in the face. This caused Mr. Olsen to become extremely angry. As Ms.
Wortham struggled to her feet, Mr. Olsen wrestled the bat from her. He then swung the bat and hit Ms. Wortham on the back of her head. Ms. Wortham tried to escape and began running down the hallway. Mr. Olsen followed her with the bat and struck her three times on the back and side. The struggle continued, and Mr. Olsen pushed Ms. Wortham back to her bedroom, also dragging her by her hair. In the bedroom, Mr. Olsen again struck her with the bat on the top of her head. Sometime during these strikes, Ms. Wortham briefly lost consciousness. She awoke in her bedroom with Mr. Olsen standing over her. Eventually, Ms. Wortham escaped and obtained medical care. Her injuries required 3 staples on the back of her head, 2 staples on the top of her head, and 12 stitches in her lip. At the time of the attack, Mr. Olsen and Ms. Wortham were living together, despite a no-contact order in effect between the two.
¶ 3 The State charged Mr. Olsen with one count of second degree assault (domestic violence) and one count of felony violation of a court order. The State also charged an aggravating circumstance for domestic violence with one or more of the following present: (1) a pattern of ongoing abuse of the victim, (2) the abuse occurred within sight or sound of the victim's or defendant's minor children, or (3) manifest, deliberate cruelty or intimidation of the victim by the defendant.
¶ 4 Prior to trial, the court held a preliminary hearing on whether evidence of Mr. Olsen's prior bad acts of abuse should be excluded. After taking the testimony of Ms. Wortham, the trial court ruled that the evidence of prior conduct was relevant to the charged aggravator but would [187 Wn.App. 152] also interfere with Mr. Olsen's right to a fair trial. For that reason, the court bifurcated the aggravating factor from the trial. The court said it would allow testimony regarding prior bad acts at a supplemental hearing on a finding of guilt.
¶ 5 At trial, Ms. Wortham testified to the events that occurred on August 11. The State questioned Ms. Wortham about the no-contact order against Mr. Olsen that was in effect on August 11. Ms. Wortham testified that she was aware of the no-contact order because there was an " incident that happened" and they were not supposed to be talking to each other. Report of Proceedings (RP) (Oct. 9, 2013) at 97. She also said that despite the no-contact order, they were living together to try to work ...