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State v. Melland

Court of Appeals of Washington, Division 1

May 6, 2019

THE STATE OF WASHINGTON, Respondent,
v.
TRISTAN JAMES MELLAND, Appellant.

          SCHINDLER, J.

         The State charged Tristan James Melland with assault in the second degree of D.J. and felony violation of a court order prohibiting contact with D.J. Melland seeks reversal of the jury convictions on assault in the second degree and the lesser included offense of misdemeanor violation of a no-contact order. Melland contends sufficient evidence does not support the jury finding he committed the charged crimes. In the alternative, Melland seeks reversal of the assault in the second degree conviction, arguing sufficient evidence does not support the jury finding he recklessly inflicted substantial bodily harm. Melland seeks dismissal without prejudice of the lesser included misdemeanor violation of a no-contact order conviction on the grounds that the charging document did not include an essential element of the crime. We conclude sufficient evidence supports the jury finding Melland committed the crimes charged. Because the charging document contains the essential elements of misdemeanor violation of a no-contact order, we affirm the jury conviction on the lesser included offense. Because we conclude sufficient evidence does not support the jury finding Melland recklessly inflicted substantial bodily harm, we reverse the assault in the second degree conviction.

         FACTS

         In 2016, 29-year-old Tristan James Melland and 31-year-old D.J. lived together in her apartment in Queen Anne. D.J. worked as a bartender.

         On March 31, 2016, D.J. experienced severe vomiting and nausea after she stopped drinking alcohol. The Virginia Mason Hospital records state," '[R]elationship stressors led to excessive alcohol intake.'" A Virginia Mason doctor diagnosed D.J. with alcohol withdrawal and prescribed Librium and potassium chloride.

         On April 4, 2016, a Seattle Municipal Court (SMC) judge in City of Seattle v. Tristan J. Melland, case no. 614080, entered a domestic violence no-contact order to protect D.J. Melland was present and he signed and acknowledged receipt of a copy of the no-contact order. The no-contact order expired on April 4, 2018.

         The no-contact order prohibited Melland from having any contact with D.J. "directly" or "indirectly." The order states, in pertinent part:

A. do not cause, attempt, or threaten to cause bodily injury to, assault, sexually assault, harass, stalk, or keep under surveillance the protected person.
B. do not contact the protected person directly, indirectly, in person or through others, by phone, mail, electronic or any other means, except for mailing or service of process of court documents through a third party, or contact by the defendant's lawyers.
C. do not knowingly enter, remain, or come within 500 [feet]. . . of the protected person's residence, school, workplace, [or]. . . anywhere protected party is.

         The order warns Melland, "You have the sole responsibility to avoid or refrain from violating the order's provisions," and violation of the terms of the no-contact order "is a criminal offense."

         On June 11, 2016, Seattle Police Officer Kevin Stewart responded to a 911 call that reported a "domestic violence assault incident" on June 10 "and possible violation of a no-contact order." When Officer Stewart arrived at the apartment, D.J. was "visibly shaking" and "crying," "complaining of an injury," and holding her hand. Officer Stewart noticed her right pinky finger and ring finger were "discolored and bruised." Officer Stewart took photographs of her right hand and both hands side-by-side. Officer Stewart searched the police database and verified there was a valid no-contact order in effect that prohibited Melland from having any contact with D.J.

         On June 15, 2016, the State charged Melland with domestic violence felony violation of a no-contact order in violation of RCW 26.50.110(1) and (4) and interfering with domestic violence reporting in violation of RCW 9A.36.150. The information alleged Melland committed the crimes against a family or household member.

         On June 26, D.J. experienced severe nausea and abdominal pain. D.J. told the Virginia Mason Hospital emergency room physician Dr. David Frank that she" 'managed to stay away from alcohol until two weeks ago when, again, relationship stressors (boyfriend's trial for domestic dispute) led'" her to" 'engage[ ] in a one-week long binge where she was drinking a fifth [of a gallon] of bourbon per day as a way of coping with recent stressors in her life.'" Dr. Frank noted D.J." 'lives in Queen Anne with boyfriend of six years who is abusive'" but" 'is no longer living with her.'" Dr. Frank diagnosed alcohol withdrawal and admitted D.J. to the hospital. Dr. Frank ordered an X-ray of her right hand. X-rays showed a" 'nondisplaced fracture'" of her right pinky finger.

         On June 29, Detective Jeffrey Page interviewed D.J. at Virginia Mason. Detective Page took photographs of her right hand "splinted and wrapped" in a bandage and "unwrapped" to show the "bruising to her right pinky finger."

         A Virginia Mason social worker met with D.J. before her discharge from the hospital on July 1 to discuss "concerns of domestic violence." D.J. told the social worker that" 'following a fight with her boyfriend about a week or so ago, she was feeling lonely and consumed significantly more alcohol than usual.'"

         On July 14, 2016, Virginia Mason emergency room physician Dr. Huma Memon admitted D.J. for alcohol withdrawal. D.J. told Dr. Memon she drank" 'about a fifth-and-a-half of bourbon the night before."

         Before her discharge the next day, social worker Janelle Moore met with D.J. because doctors "had raised the concern that there was a history of domestic violence, and they wanted to make sure that the patient had a safe place to go." D.J. expressed "concern about her ex-boyfriend with DV[1] history, and a concern about her safety." D.J. told Moore her "ex-boyfriend was violating a protection order that prevents him from being near her." D.J. said she planned to "get her things from her apartment, which she indicated was her own private lease but where [Melland] had also lived and had a key." D.J. told Moore her "lease was up at the end of July and she wouldn't be returning there."

         On November 10, 2016, the State filed an amended information, charging Melland with domestic violence assault in the second degree in violation of RCW 9A.36.021(1)(a). The amended information alleged that "on or about June 10, 2016," Melland "did intentionally assault another and thereby recklessly inflict substantial bodily harm upon [D.J.]" in violation of RCW 9A.36.021(1)(a).

         The court addressed motions in limine before trial. The court ruled the statements D.J. made to the Virginia Mason health care providers for purposes of medical diagnosis or treatment were admissible under ER 803(a)(4).[2] The court granted the defense motion to redact other statements in the medical records, such as references to Melland being in "jail." The court also granted the defense motion to redact the findings of fact in the certified copy of the April 4, 2016 SMC no-contact order.

         The prosecutor conceded the 911 call and the statements D.J. made to the police were not admissible if she did not testify. The prosecutor told the court that according to the victim advocate, D.J. "did not indicate whether she was going to show up or not," and the victim advocate "expressed low confidence to me that [D.J.] would show up. So at this point, unless something changes, it's my understanding she's not going to show up." However, the prosecutor argued that if D.J. did testify, the 911 call and the statements D.J. made to the police would be admissible to impeach her.

         In opening statement, the prosecutor told the jury, "I don't know if [D.J.]'s going to testify and if she does, I don't know what she's going to say; but I want to talk about what I do know the evidence will show and what you can expect to see in this case." The prosecutor asserted Melland committed the charged crimes of interfering with domestic violence reporting, felony violation a no-contact order, and assault in the second degree.

         The prosecutor displayed the redacted April 4, 2016 no-contact order to the jury:

You can see that the listed defendant is Tristan Melland, the defendant here today. You can see that the no-contact order expires on April 4, 2018. We all know we haven't reached that date yet, so it's still applicable.
We know that it protects [D.J]; it lists her by name, birth date, gender, and race. We know that it identifies the defendant by name, gender, birth date, and race. But it also describes at the bottom of this page, what the defendant is not allowed to do. Let's zoom in on that.
There's a number of very important provisions that are at issue in this case, and this order prohibits the defendant from doing a number of very harmful things, including assaulting [D.J]. Right in there on number (A), "Do not cause or attempt to threaten to cause bodily injury through assault," so on and so forth.
The prosecutor told the jury the evidence showed Melland
broke her finger when he grabbed her right hand so hard, squeezed, and twisted it that the bone broke; it was a redisplayed [sic] fracture. The abuse th[at] [D.J] suffered in this relationship with Mr. Melland was a trigger. It was a trigger for her alcoholism.

         In opening statement, the defense conceded, "Yes, there is a no-contact order, and, yes, there's an injury to [D.J.]'s finger." But defense counsel asserted the State could not prove beyond a reasonable doubt that Melland committed "the specific charges that they have filed against him."

         Officer Stewart, Detective Page, and Virginia Mason health care providers Dr. Frank, Dr. Memon, and social worker Moore testified at the trial. The court admitted into evidence a redacted certified copy of the April 4, 2016 SMC domestic violence no-contact order, a certified copy of Melland's driver's license, and a number of photographs of D.J.'s hands and the bruising and swelling to her right pinky and ring fingers. Neither D.J. nor Melland testified.

         Officer Stewart and Detective Page testified about the steps taken to verify the April 4, 2016 SMC domestic violence no-contact order that prohibited Melland from contacting D.J. was in effect until April 4, 2018. Detective Page confirmed there were no other no-contact orders in effect that pertained to D.J. Detective Page testified the name and date of birth on the no-contact order matched the name and date of birth on Melland's driver's license.

         Dr. Frank testified that D.J. said," 'My boyfriend broke my finger.'" Dr. Frank "could tell that her finger looked injured because it was pretty tender and painful. It had some bruising and was somewhat swollen." Dr. Frank testified that D.J. told him," 'During domestic dispute with boyfriend, he grabbed the[ ] phone from patient's hand which hurt her finger.'"

         Dr. Memon testified that D.J. said her" 'boyfriend of six years has abused her in the past and is responsible for breaking her finger.'" Dr. Memon noted" '[d]omestic abuse'" and that" '[c]ounseling was provided regarding area resources for victims of domestic violence and that is able to contact any of these resources for help.'"

         At the conclusion of the evidence, the court dismissed the charge of interfering with domestic violence reporting. The court ruled, "[T]here is not evidence upon which a reasonable juror could properly rely to conclude that the phone grab was an interference with reporting . . . and there is not evidence that there was an attempt or intent to call for any kind of help at that point."

         The court instructed the jury on assault in the second degree and felony violation of a no-contact order. At the request of the defense and without objection from the State, the court also instructed the jury on the ...


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