                                                                           FILED
                                                                        JUNE 16, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 36749-5-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
FRANK JAMES WILLING, JR,                      )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Frank Willing, Jr. appeals his conviction for violating a protection

order, RCW 26.50.110(5). We affirm the conviction but remand for resentencing.

                                          FACTS

       Mr. Willing agreed to drive his girlfriend to the home of her granddaughter, L.K.

Like her grandmother, L.K. had a valid anti-harassment order in place against Mr.

Willing. It required that he “stay away” from L.K. and her home. Willing parked the car

about 20 feet from the house and let his passenger out. Kristina saw Mr. Willing deliver

her mother and confronted him about driving to her home.

       Mr. Willing admitted to law enforcement that he knew he should not go to the

house, but he did not intend to violate the order. Multiple charges were filed, all of which

were felony offenses due to Mr. Willing’s prior conviction history. Mr. Willing pleaded
No. 36749-5-III
State v. Willing


guilty to three felony domestic violence protection order violations, but proceeded to

bench trial on the anti-harassment protection order count involving L.K., a charge that did

not involve domestic violence. Mr. Willing argued that his conduct did not violate the

order protecting L.K. and that the “stay away” language was vague.

       The court concluded that the language was understandable and convicted him of

the offense. At sentencing, the defense agreed that the three domestic violence offenses

all scored as “9” and carried a 60 month sentence. Without discussion, count 4 involving

L.K. was scored and treated in the same manner.

       The court rejected Mr. Willing’s request, supported by his girlfriend, for an

exceptional sentence and imposed concurrent 60 month sentences on all four counts. Mr.

Willing timely appealed to this court. A panel heard the appeal without conducting

argument.

                                          ANALYSIS

       Mr. Willing argues that the evidence was insufficient and the “stay away” order

was vague. He also notes that the offender score was wrongly calculated for count 4.

We address those three issues in the order stated.

       Evidentiary Sufficiency

       Mr. Willing argues that the evidence was insufficient because he did not enter

L.K.’s residence or come within a specified distance. Since the order is not couched in

those terms, the trial court did not err in its ruling.

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State v. Willing


       We review this argument under well settled principles of law. “Following a bench

trial, appellate review is limited to determining whether substantial evidence supports the

findings of fact and, if so, whether the findings support the conclusions of law.” State v.

Homan, 181 Wn.2d 102, 105-106, 330 P.3d 182 (2014). “‘Substantial evidence’ is

evidence sufficient to persuade a fair-minded person of the truth of the asserted premise.”

Id. at 106. In reviewing insufficiency claims, the appellant necessarily admits the truth of

the State’s evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). Finally, this court defers to the finder of fact’s

resolution of conflicting evidence and credibility determinations. State v. Camarillo, 115

Wn.2d 60, 71, 794 P.2d 850 (1990).

       It is a criminal offense to violate a protection order that excludes an individual

from the protected person’s residence. RCW 26.50.110(1)(a)(i). Protection orders that

are covered under this statute include anti-harassment orders issued under RCW 9A.46.

RCW 26.50.110. An anti-harassment order may restrict respondent from contacting the

protected person.1 RCW 9A.46.080.

       A home or residence constitutes where one normally lives and a valid protection

order need not list the protected party’s address. State v. Vant, 145 Wn. App. 592, 598-



       1
        The pretrial anti-harassment protection order statute also specifically states a
court may order the defendant to “stay away” from the protected person’s home. RCW
9A.46.040(1)(a).

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State v. Willing


599, 186 P.3d 1149 (2008). The fact-finder need only establish the defendant knew the

protected party resided at a location and knowingly went to that location. Id. at 599. It is

irrelevant whether the defendant actually made contact with the victim so long as the

violation was knowing. State v. Ward, 148 Wn.2d 803, 815-816, 64 P.3d 640 (2003).

       The anti-harassment order clearly directed Mr. Willing to “stay away” from L.K.’s

home. Mr. Willing cites no authority suggesting that he must have entered the house to

violate the order or that the order is invalid because it did not establish a specified

distance that he needed to stay away from the residence. It was a factual question

whether Mr. Willing went to the proscribed location. The trial court reviewed the

undisputed evidence and found Mr. Willing went to L.K.’s home despite the valid

protection order. Mr. Willing also knew he should not go to the residence. We agree that

this evidence allowed the trial judge to conclude that Mr. Willing violated the order.

       The evidence was sufficient to support the judgment.

       Vagueness

       Mr. Willing next contends that the anti-harassment order’s “stay away” language

was unconstitutionally vague. Foreign authority, which we adopt, concludes otherwise.

       A statute or court order with criminal penalties must give fair notice of the

prohibited conduct pursuant to Fourteenth Amendment due process requirements. City of

Seattle v. May, 171 Wn.2d 847, 855-856, 256 P.3d 1161 (2011). An order is

unconstitutionally vague if it does not define criminal conduct with sufficient definiteness

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State v. Willing


for an ordinary person to understand what is forbidden. State v. Bahl, 164 Wn.2d 739,

752-753, 193 P.3d 678 (2008). This is essential to protect against arbitrary enforcement.

Id. However, an order is not unconstitutional merely because a person cannot predict

with complete certainty when conduct becomes proscribed. State v. Watson, 160 Wn.2d

1, 7, 154 P.3d 909 (2007). Instead, we look to whether a person of ordinary intelligence

can reasonably comprehend what they are or are not allowed to do. Id.

       The purpose of Washington’s anti-harassment laws is to prevent invasion of the

protected person’s privacy. RCW 9A.46.010. There is no significant Washington case

law discussing the “stay away” language. California’s courts have ruled that an order to

“stay away” from a location is such a common and generic term that it hardly needs a

definition from the court. People v. Holzmann, 18 Cal. App. 5th 1251, 1244-1245, 227

Cal. Rptr. 3d 409 (2018). An order to “stay away” from a designated location is

reasonably clear even without a specified distance and the question is solely whether the

defendant knew he should not be at the given location. Id. at 1246. Similarly, a

Massachusetts court determined that a “stay away” provision in a protection order is not

subject to arbitrary enforcement because it is necessarily limited to when a defendant

comes near enough to a prohibited place to violate the order’s objectives to prohibit

contact or harassment. Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 237-238,

113 N.E.3d 382 (2018).



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       We agree with California and Massachusetts that “stay away” is an obvious phrase

that a reasonable person can comprehend and obey. Mr. Willing was on notice not to go

to L.K.’s house. The trier-of-fact could evaluate the facts to determine if Mr. Willing

intentionally failed to “stay away.” His admission that he should not have gone to the

house showed that he comprehended what he could not do. The anti-harassment order is

not constitutionally vague.

       Sentencing

       Lastly, Mr. Willing argues, and the State concedes, that the offender score

calculation for count 4 is incorrect. We agree with the parties that the correct offender

score was 4 and that the standard range should have been 22-29 months. Resentencing is

appropriate. State v. Kilgore, 141 Wn. App. 817, 824-825, 172 P.3d 373 (2007).

       Conviction affirmed. Sentence reversed and the case is remanded for sentencing.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                              _________________________________
                                                      Korsmo, A.C.J.
WE CONCUR:



_________________________________             _________________________________
      Lawrence-Berrey, J.                             Siddoway, J.


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