                                                                                         FILED
                                                                                  COURT OF APPEALS
                                                                                     DIVISION II

                                                                                 2015 FEB - 3   Ali 9: 0 i
                                                                                 STATE OF WASHINGTON

                                                                                  BY.
                                                                                                T' r




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

    STATE OF WASHINGTON,                                                        No. 45258 -8 -II


                                    Respondent,


         v.




    ROBERT J. WALLS,                                                    UNPUBLISHED OPINION


                                    Appellant.


        JOHANSON, C. J. —        Robert J. Walls appeals his sentence for second degree identity theft.

He argues that the trial court erroneously interpreted RCW 9. 94A.030( 20) disjunctively to permit

the court to enhance his sentence for a felony domestic violence offense as defined in either RCW

10. 99. 020   or   RCW 26. 50. 010. State   v.   Kozey,   183 Wn.   App. 692,   334 P. 3d 1170 ( 2014),   controls




the result here and requires a disjunctive interpretation. Accordingly, we affirm his sentence.

                                                       FACTS


         Based      on   incidents in March      and   May   2013, the State charged Walls with witness


tampering ( count 1), 1 three counts of violating a domestic violence no- contact order ( counts 2, 5,




1
    RCW 9A.72. 120.
No. 45258 -8 -II



and 6), 2 second degree identity theft (count 3), 3 and fourth degree assault (count 4). 4 A jury found

Walls guilty of three no- contact order violations and second degree identity theft. In a domestic

violence special verdict, the jury also found that Walls and the victim were " members of the same

family   or   household." Clerk' s Papers at 111.


         At sentencing, Walls argued that because the State did not prove that his second degree

identity theft was a " domestic violence" offense as defined in both RCW 10. 99. 020 and RCW

26. 50. 010, his offender score should be zero. But the trial court agreed with the State, determined


that Walls' s offender score was three, and ordered a standard range sentence. Walls now appeals


his sentence.


                                                   DISCUSSION


         Walls argues that his offender score should have been zero because RCW 9. 94A.030( 20)


must be read conjunctively to permit an enhanced sentence when he is convicted only of a felony

domestic violence offense based on the definitions of "domestic violence" in both RCW 10. 99. 020


and RCW 26. 50. 010. We disagree and affirm Walls' s sentence.

         We     review   the trial   court' s calculation of a   defendant'   s offender score   de   novo.   State v.


Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187,              cert.   denied, 135 S. Ct. 287 ( 2014).        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




2 RCW 26. 50. 110.

3 RCW 9. 35. 020( 3).

4 RCW 9A.36. 041.

                                                          2
No. 45258 -8 -II



9. 94A. 525( 21).     Under RCW 9. 94A.030( 20), "`[              d] omestic violence' has the same meaning as

defined in RCW 10. 99. 020          and   26. 50. 010." ( Emphasis added.)


          In Kozey, we addressed this exact issue and held that the definition of "domestic violence"

in RCW 9.94A.030( 20) should be read disjunctively to permit a trial court to enhance an offender' s

sentence based on the definition of domestic violence in either RCW 10. 99. 020 or RCW 26. 50. 010.


183 Wn. App. at 695, 705. We rejected Kozey' s argument that his offender score was zero because

the State only pleaded and proved his violations under the RCW 10. 99. 020 definition of domestic

violence. Kozey, 183 Wn. App. at 695, 698, 702.

          Because    Kozey    requires     a   disjunctive interpretation         of "   domestic    violence"   in RCW


9. 94A.030( 20), the State only needed to prove that Walls' s second degree identity theft conviction

was a "   domestic    violence"     offense under either         RCW 10. 99. 020      or      RCW 26. 50. 010.   183 Wn.


App. at 702.. Walls was convicted of second degree identity theft and three nonfelony no- contact

order violations, and the State pleaded and proved his second degree identity theft conviction under

the RCW 10. 99. 020 definition of a " domestic violence" offense. Therefore, the trial court properly

calculated his offender score.


          In Kozey, we rejected each of the arguments that Walls makes here, and he directs us to no

new   authority     or argument     to   support   his    position.    183 Wn.   App.    at   695 -705.   Accordingly, we

hold that the trial   court   did   not err when     it   calculated   Walls'   s offender score.
No. 45258 -8 -II


        We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




 We concur:




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