Washington Court of Appeals, Division 3.
STATE OF WASHINGTON, Respondent, v. MARTIN DALE JONES, Appellant.
Decided: November 18, 2010
- This feature follows a successful prosecution for violation of a no contact order. The defendant contests the convictions on two constitutional grounds. First, he says that the word “contact” is vague when applied here. He then says that the statute he was convicted of violating (RCW 26.50.110) sweeps away, or has the potential to sweep away, protected speech and is therefore facially invalid. We conclude that no error attribution rises to the level of “manifest” and therefore we do not need to review these objections for the first time on appeal. State v. Lynn, 67 Wn.App. 339, 345, 835 P.2d 251 (1992). But we further conclude that the statutory scheme here is not constitutionally invalid face to face or as applied to this defendant. Therefore, we affirm conviction for violation of a non-contact order.
A jury found Mr. Jones guilty of criminal violation of a no-contact order.
Mr. Jones raises two constitutional challenges to the statute under which he was prosecuted (RCW 26.50.110). He does so for the first time in a feature. The first is an “as enforced” challenge (the word “contact” is too vague here) and the second is a “face” challenge (the statute has the potential to wipe out protected speech). We address the issue raised for the first time on appeal if it is a manifest error that affects constitutional law. PAR 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Manifest error requires a display of real prejudice. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). An error is "manifest" if it had "practical and identifiable consequences in the judgment of the case". Lynn, 67 Wn.App. at 345. And "[i]in normal usage, 'manifest' means unmistakable, evident or indisputable, as distinct from obscure, concealed or concealed." I went. Mr. Jones must then show how, in the context of the trial, any mistake actually affected his rights. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
Certainly, there are practical and identifiable consequences if this statute or the statutory scheme that Mr. Jones claims to be constitutionally invalid. Lynn, 67 Wn.App. at 345. But that said, there is nothing here that strikes us as unmistakable, evident, indisputable, or even clear about any of the constitutional improprieties that Mr. Jones claims. I went. In fact, on the surface, the statute only prohibits conduct and, incidentally, may entail speech. And, as applied to Mr. Jones, only forbids him to contact Mrs. Selke directly or indirectly. This record does not suggest that the 12-person jury that approved Mr. Jones had no difficulty understanding what was prohibited.
We do, however, take the time to convey Mr. Jones to reassure him further. We review the constitutionality of a law again. Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 978, 216 P.3d 374 (2009).
Void of “contact” for inaccuracy
The claim of Mr. Jones here was denied due process because he did not receive adequate notice of the prohibited conduct. City of Pasco v. Shaw, 127 Wn.App. 417, 426, 110 P.3d 1200 (2005), aff'd, 161 Wn.2d 450, 166 P.3d 1157 (2007). Mr. Jones argues that the word "contact" in RCW 26.50.110 is null for imprecision. We begin with the presumption that the statute is constitutional. City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988). And we reviewed a challenge that the statute is void for inaccuracy based on how the law was actually applied to Mr. Jones. City of Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693 (1990).
The law "does not demand impossible standards of specificity or absolute agreement." I went. at 179. The fact that some terms of the law are undefined does not make the law unconstitutionally vague. I went. at 180. To determine whether a law gives fair warning, the law must be considered as a whole, giving statutory language “a sensible, meaningful and practical interpretation”. I went.
A statute is “ 'void by imprecision if it is formulated in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application.' ” Eze, 111 Wn.2d at 26 (quoting O'Day v King County, 109 Wn.2d 796, 810, 749 P.2d 142 (1988)). The statute must provide (1) adequate notice of prohibited conduct and (2) adequate standards to prevent arbitrary enforcement. I went.
The statute allows the court to prohibit “contact with a protected party”.
RCW 26.50.110(1)(a)(i). The sentencing court then had the privilege of “[r]encouraging the defendant from having any contact with the victim of domestic violence or with the victim's children or family members of the victim”. RCW 26.50.060(1)(h). And it did so by forbidding Mr. jones de
“[coming] near and having any contact, in person or through others, by telephone, mail or any direct or indirect means, except for correspondence or service of process by third parties or contact by attorneys for the defendant, with [Ms. Selke].”
2 RP a 87; Ex. 1.
Mr. Jones argues, however, that he failed to properly notify him of what specific conduct was prohibited. This record suggests that Mr. Jones understood and agreed that the restriction included indirect contact with Ms. Selke through family members:
Again, I am concerned that there has been a report of contact between a family member of yours and the victim in this case. There must be no further contact between you and the victim, nor anyone else you can talk to about this. OK? You understand?
[Sir. Jones]: I understand, Your Honor. But at the same time, my mother and she are having contact. And she periodically calls there, my sisters. I have no control over it.
THE COURT: No, I understand that. But, I think, in terms of your best interests and peace of mind among your family members, it would be a great step in furthering this if you would make this known to all who feel inclined to speak to Mrs. Selke. OK?
RP (February 4, 2009) at 7; Ex. 6.
He, however, wrote to Mrs. Selke at his address and complained specifically about Mrs. Selke. The suggestion that he did not expect this to result in contact with her was a claim that was rejected by the jury; and we reasonably believe so.
Mr. Jones sent the letter to the prohibited address; such conduct reasonably falls within the prohibition of direct or indirect contact with Ms. Selke. Persons of ordinary intelligence could understand the meaning of the term and specifically understand that sending mail to the address was prohibited by the no-contact order. And this is true whether or not the letter is addressed to the specific individual named in the order. Requiring further definition would invoke a standard of specificity not contemplated in the due process review. Eze, 111 Wn.2d at 27-28.
We have no difficulty articulating what the word “contact” means, and we concluded that a person of ordinary intelligence would have no difficulty understanding what conduct was prohibited. I went. The word “contact” applied here is not vague.
Then Mr. Jones maintains that RCW 26.50.110 is unconstitutionally broad because the term “contact” in the statute prohibits, or has the potential to prohibit, constitutionally protected speech. Br. of the Appellant on 9.
Again, any error, even assuming a constitutional error, does not fall under the rubric of “manifest”. Lynn, 67 Wn.App. at 345.
First, what is prohibited here is contact. And certainly contact can include speech. State v. Noah, 103 Wn.App. 29, 41-42, 9 P.3d 858 (2000). But the statute and order contested here regulate conduct and, therefore, touch only obliquely on discourse. State v. Dyson, 74 Wn.App. 237, 243, 872 P.2d 1115 (1994).
We have already concluded that the word contact is not vague and would be easily understood by a person of average intelligence. The conduct prohibited here may well include speech, but it is not protected speech. I went. at 245. The State did not have to allow contact, even if it restricted speech, since the sentencing judge concluded that Mr. Jones posed a threat to Ms. Selke. Spence v. Kaminski, 103 Wn.App. 325, 331, 12 P.3d 1030 (2000). Before the court imposed this no-contact order, it was discovered that Mr. Jones broke the windows of Mrs. Selke and made threatening calls to her home.
A statute is only excessively broad if it criminalizes a substantial amount of constitutionally protected speech. Eze, 111 Wn.2d at 31. A statute regulating conduct rather than speech is not excessively broad, unless the excess is both real and substantial when compared to the clearly legitimate scope of the statute. I went.
By its terms, RCW 26.50.110 regulates conduct and not true speech. To the extent that the statute addresses “speech,” it does not do so in violation of the First Amendment. See State v. Talley, 122 Wn.2d 192, 858 P.2d 217 (1993) (addressing the malicious harassment statute, RCW 9A.36.080). Mr. Jones is simply not free to make contact (a touch or encounter; establish communication with someone1) Mrs. Selke. And he was banned from contacting her for very good reason - a sentencing judge found him to be a threat to her after Mr. Jones was convicted of malicious mischief and tampering with a witness (Ms. Selke). This is certainly not protected speech, if speech at all.
In Talley, our Supreme Court rejected an exaggerated challenge to a harassment statute, concluding that the statute's impact on speech was not substantial. I went. at 212. Defendants argued that the statute was a content-based speech regulation and therefore an unconstitutional restriction of First Amendment rights. I went. at 210. The court in Talley concluded that the statute prohibited criminal conduct and only incidentally affected speech. I went. at 210-11. The court stated that “[t]he nexus between the criminal conduct and any implied speech ensures that [the statute] does not impede a substantial amount of protected speech.” I went. at 211.
RCW 26.50.110 is similar. It does not impede a substantial amount of speech. It regulates conduct and only entails speech when the speaker knowingly violates “restrictive provisions prohibiting contact with [the] protected party”. The incidental impact on discourse does not render RCW 26.50.110 unconstitutionally broad.
Statement of Additional Reasons (SAG)
Mr. Jones makes a number of error attributions in addition to those raised by his attorney. He argues that it is unreasonable to conclude that his letter was intended for Mrs. Selke. He does this by polling 20 people and soliciting their opinions on whether the letter could be interpreted as being addressed to Ms. Selke. The problem with this approach is that it ignores the fact that a properly instructed jury concluded that contact with Ms. Selke is exactly what he intended.
Mr. Jones pleaded guilty to witness tampering and malicious damage. A no-contact order was issued in accordance with the allegations, and Mr. Jones had a duty to obey her. He cannot now make a collateral challenge to a final judgment in another matter. For example, Bullock v. Bullock, 131 Wash. 339, 342-43, 230 p. 130 (1924).
Mr. Jones also claims that his attorney was ineffective because he failed to call certain witnesses or conduct the defense properly. We are very respectful of the decisions defense attorneys make during the trial. McFarland, 127 Wn.2d at 335. There is no necessary demonstration here that mistakes were made. And Mr. Jones admits, “I don't want it to seem like I'm blaming the guilty verdict on my lawyer. I just want you to know the facts, that I feel he could have done a lot better.” SAG at 3-4. Nor does Mr. Jones identifies any bias. His claim is insufficient to satisfy any of Strickland's test points. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We affirm convictions.
A majority of the panel determined that this opinion will not be printed in the Washington Reports of Appeal, but will be filed for public record pursuant to RCW 2.06.040.
FN1. Websters Third New Int'l Dictionary 490 (1993)..FN1. Websters Third New Int'l Dictionary 490 (1993).
Sweeney, J. FACTS Martin Jones and Tanya Selke had a relationship that ended badly. Mr. Jones is the uncle of Mrs. Selke, Antony Jones. After the separation, Mr. Jones and an accomplice broke the windows of Ms. Selke and made threatening calls to her home. Mr. Jones was charged with malicious malice and witness tampering. The case went to trial, but Mr. Jones finally pleaded guilty. Mrs. Selke testified against him. The court sentenced Mr. Jones and also ordered him not to approach or have “any contact, personally or through others, by telephone, mail or any direct or indirect means, except for mailing or service of process of court documents by a third party or contact of the attorneys for the defendant, with [Ms. Selke].” 2 Process Report (RP) in 87; Ex. 1. The court also instructed Mr. Jones to avoid any contact with the victim or anyone else who might transmit messages to her. The court did so because of reports of contact between Mr. Jones and Mrs. Selke. Mr. Jones understood that the order restricted contact with Ms. Selke through anyone else, including family members. Mr. Jones sent a letter to his nephew, Antony, at Mrs. Selke. He wrote on the back of the letter: “ 'This letter was written to my nephew. It was nowhere intended for Tanya R. Selke. ' ” 2 RP at 97. The letter had two “Attention” notices written on the back flap to the effect that the letter was not intended for Ms. Selke. Antonio immediately showed the letter to his mother. The letter spoke of Mr. Jones to recover his possessions and his resentment of Mrs. Selke testify against him. The letter refers to Mrs. Selke directly and indirectly. Mrs. Selke notified the police and handed them the letter. The State accused Mr. Jones of criminal violation of a non-contact order. RCW 26.50.110(5). Mrs. Selke testified, without objection, that she read all correspondence sent to her home, even if addressed to her minor children, and that Mr. Jones knew this. She testified, again without objection, that she believed Mr. Jones intended the letter for her, although it was addressed to her 15-year-old son.