ON MOTIONS FOR RECONSIDERATION AND TO WITHDRAW AND SUBSTITUTE
the State of Washington filed a motion for reconsideration
and appellant Tristan James Melland filed a motion for
reconsideration of the opinion filed on May 6, 2019. We grant
the State's motion to reconsider, grant in part and deny
in part Melland's motion to reconsider, withdraw the
opinion filed on May 6, 2019, and file a substitute opinion.
Now, therefore, it is hereby
that the State's motion to reconsider is granted,
Melland's motion to reconsider is granted in part and
denied in part, and the opinion filed on May 6, 2019 shall be
withdrawn and a substitute opinion shall be filed.
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. The jury convicted Melland of
assault in the second degree and the lesser included offense
of misdemeanor violation of a no-contact order. Melland seeks
reversal, arguing sufficient evidence does not support the
jury finding he committed the crimes. Melland also argues
sufficient evidence does not support the jury finding an
essential element of assault in the second degree, reckless
infliction of substantial bodily harm; and police officer
testimony violated his right to confrontation. In the
alternative, Melland seeks dismissal without prejudice of the
misdemeanor violation of a no-contact order conviction on the
grounds that the charging document is deficient. We conclude
sufficient evidence supports the jury finding Melland
committed the crimes but sufficient evidence does not support
the jury finding Melland recklessly inflicted substantial
bodily harm. We conclude police officer testimony did not
violate Melland's right to confrontation and the charging
document contains the essential elements of the lesser
included offense of misdemeanor violation of a no-contact
order. Accordingly, we reverse the assault in the second
degree conviction and affirm the misdemeanor violation of a
no-contact order conviction.
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
March 31, 2016, D.J. experienced severe vomiting and nausea
after she stopped drinking alcohol. The Virginia Mason
Hospital records state," '[Relationship stressors
led to excessive alcohol intake.'" A Virginia Mason
doctor diagnosed D.J. with alcohol withdrawal and prescribed
Librium and potassium chloride.
April 4, 2016, the Seattle Municipal Court (SMC) entered a
domestic violence no-contact order in City of Seattle v.
Tristan J. Melland, case no. 614080. The no-contact
order prohibited Melland from having any contact with D.J.
"directly" or "indirectly." Melland was
present. Melland signed and acknowledged receipt of a copy of
the no-contact order. The no-contact order expired on April
4, 2018. 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
C. do not knowingly enter, remain, or come within 500 [feet]
. . . of the protected person's residence, school,
workplace, [or]. . . anywhere protected party is.
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."
11, 2016, Seattle Police Officer Kevin Stewart responded to a
June 10 911 call reporting a "domestic violence assault
incident" 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 her two hands
side-by-side. Officer Stewart checked the police database for
a no-contact order. There was a valid no-contact order in
effect that prohibited Melland from having any contact with
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
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" '[e]ngage[ ] 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.
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."
Virginia Mason social worker met with D.J. before 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.'"
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."
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
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
November 10, 2016, the State filed an amended information to
add a charge of 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).
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). 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
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."
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 and told 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 asserted the evidence would show 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.
defense opening statement, counsel 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
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.
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.
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.'"
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.'"
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."
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 lesser included offense of
misdemeanor violation of a no-contact order.
assault in the second degree to-convict jury instruction
states, in pertinent part:
convict the defendant of the crime of assault in the second
degree, as charged in Count THREE, each of the following
elements of the crime must be proved beyond a reasonable
(1) That on or about June 10, 2016, the defendant
intentionally assaulted [D.J.];
(2) That the defendant thereby recklessly inflicted
substantial bodily harm on [D.J.].
felony violation of a no-contact order to-convict jury
instruction states, in pertinent part:
convict the defendant of the crime of felony violation of a
court order as charged in Count ONE, each of the following
five elements of the crime must be proved beyond a reasonable
(1) That on or about June 10, 2016, there existed a
no-contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly
violated a ...