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.
affirm the convictions, but find the special verdicts on
counts 3 and 4 invalid as a matter of law and remand for
late 2013 until April 2015, Shelley, Burgess, and A.S. lived
with Shelley's aunt and uncle.
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.
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." 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." After Sovey came outside, Burgess
walked away and called the police.
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.
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." The jury also convicted Shelley of one
count of assault as to A.S. and one count of felony
sentencing, the court calculated Shelley's offender score
at 9 for each count and sentenced Shelley to 132 months of
Violence Special Verdict
contends his offender score was miscalculated, and he asks
this court to remand for resentencing under the correct
panel reviews a trial court's calculation of an offender
score de novo."The offender score is the sum of
points accrued as a result of prior
convictions." 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.
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." And RCW 26.50.010(3) defines
"domestic violence" as "[p]hysical harm,
bodily injury, assault, or the infliction of fear of ...