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State v. Shelley

Court of Appeals of Washington, Division 1

April 9, 2018

STATE OF WASHINGTON, Respondent,
v.
ARON DEAN SHELLEY, Appellant.

          VERELLEN, C.J.

         Aron Shelley was convicted of one count of assault against his girlfriend, Cheri Burgess, one count of assault of a child against A.S., Burgess's son, and one count of felony harassment for threatening to kill A.S. The jury found each count was a crime of domestic violence. Shelley appeals the domestic violence special verdicts as to assault of a child and felony harassment. Because the State failed to establish that Shelley and A.S. are family or household members, these special verdicts are invalid.

         We affirm the convictions, but find the special verdicts on counts 3 and 4 invalid as a matter of law and remand for resentencing.

         FACTS

         From late 2013 until April 2015, Shelley, Burgess, and A.S. lived with Shelley's aunt and uncle.

         On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess's throat and stated he was going to kill her because she was not leaving. Shelley's uncle, Tom Sovey, intervened and convinced Shelley to give him the knife.

         While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, "like he couldn't breathe."[1] And when Burgess tried to grab A.S., Shelley said, "If you don't leave or get away, I'm just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy."[2] After Sovey came outside, Burgess walked away and called the police.

         The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

         The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were "members of the same family or household."[3] The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

         At sentencing, the court calculated Shelley's offender score at 9 for each count and sentenced Shelley to 132 months of total confinement.

         Shelley appeals.

         ANALYSIS

         Domestic Violence Special Verdict

         Shelley contends his offender score was miscalculated, and he asks this court to remand for resentencing under the correct offender score.[4]

         The panel reviews a trial court's calculation of an offender score de novo.[5]"The offender score is the sum of points accrued as a result of prior convictions."[6] A defendant's offender score may be increased if he has committed a felony "domestic violence offense" that was "pleaded and proven" using the definition of "domestic violence" in RCW 9.94A.030.[7]

         Under RCW 9.94A.030(20), "'[d]omestic violence' has the same meaning as defined in RCW 10.99.020 and 26.50.010." RCW 10.99.020(5) provides a nonexclusive list of crimes and states, "[d]omestic violence includes but is not limited to any of the following crimes when committed by one family or household member against another."[8] And RCW 26.50.010(3) defines "domestic violence" as "[p]hysical harm, bodily injury, assault, or the infliction of fear of ...


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