                                                                                                       FILED
                                                                                               a OJ'R1 OF A P'EAg r
                                                                                                     DIVISION IT
                                                                                              20iLI SEP . 16
                                                                                                             AN 10: 00
    IN THE COURT OF APPEALS OF THE STATE OF WASHING O ._
                                                DIVISION II


 STATE OF WASHINGTON,                                                     No. 44594 -8 -II
                                                                     Cons. with No. 44610 -3 - II)
                                      Appellant,


        v.                                                            PUBLISHED OPINION


 ANTHONY KOZEY,


                                      Respondent.


       BJORGEN, A.C. J. —          The State appeals Anthony Kozey' s sentences for two felony

violations of domestic violence no- contact orders. The State argues that the trial court erred by

interpreting RCW 9. 94A.030( 20) as conjunctively incorporating the definitions of "domestic

violence" found in RCW 10. 99. 020 and RCW 26. 50. 010. Agreeing with the State, we reverse

and remand for resentencing consistently with a disjunctive interpretation of the definition of

 domestic violence" in RCW 9. 94A.030( 20).


                                                     FACTS


       In violation of a no- contact order, Kozey contacted his longtime girl friend, Chalene

Johnston,    on at   least two   occasions   in September 2011.   Kozey was convicted of gross

misdemeanor no- contact order violations for these offenses. His sentences included a post -


conviction no- contact order that again forbad him from contacting Johnston.

        In spite of this order; Johnston called Kozey in November 2011 and asked for help

transporting and pawning some power tools. A police officer investigating a different matter at

the pawn shop saw Kozey and Johnston together, discovered the no- contact order after running

the plates of the vehicle they used, and arrested Kozey for violating the order. Because Kozey

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already had two convictions for no- contact order violations, the State charged him with a felony

for the new violation under RCW 26. 50. 110( 5).


        Johnston again initiated contact with Kozey in February 2012 while he was out on bail

and awaiting trial for the November 2011 no- contact order violation. As a result, Kozey visited

Johnston and their children at her grandmother' s house. During the visit, one of Johnston' s

grandmother' s checks disappeared, and Kozey later cashed it. Police learned of Kozey' s

violation of the no- contact order when the grandmother reported the theft of the check, and the


State charged Kozey with another felony for the no- contact order violation.

        During pretrial proceedings,-Kozey argued that RCW 9. 94A.030(20) defines " domestic

violence" by conjunctively incorporating the definitions of "domestic violence" codified at RCW

10. 99. 020 and RCW 26. 50. 010, thereby requiring proof of both definitions. 1' 2 Because the

parties agreed that Kozey did not violate the no- contact order with the type of conduct necessary

to constitute domestic violence under RCW 26. 50. 010, Kozey maintained that the State had not

pleaded and could not prove         domestic   violence under   its definition in RCW 9. 94A.030( 20), thus




1 As relevant, RCW 10. 99. 020( 5) states that
          d] omestic        includes but is not limited to any of the following crimes
                         violence"


        when committed by one family or household member against another:

                 r) Violation of the provisions of a restraining order, no- contact order, or
        protection order restraining or enjoining the person.

2 RCW 26. 50. 010( 1) states that
          doomestic      violence"    means: (   a) Physical harm, bodily injury, assault, or the
        infliction of fear of imminent physical harm, bodily injury or assault, between
        family     or   household    members; (   b)   sexual assault of one family or household
        member by another; or (c) stalking as defined in RCW 9A.46. 110 of one family or
        household member by another family or household member.
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precluding any enhanced sentence. The State argued that RCW 9. 94A.030( 20) disjunctively

incorporated RCW 10. 99. 020 and RCW 26. 50. 010, such that conduct falling under either

definition constituted domestic violence for purposes of the enhanced domestic violence


penalties of   the   Sentencing Reform   Act ( SRA), chapter 9. 94A RCW.


          The trial court adopted Kozey' s reading of RCW 9. 94A.030( 20) and entered findings of

fact and conclusions of law to that effect. These conclusions prevented the State from seeking

enhanced penalties under RCW 9. 94A. 525( 21).


          After a bench trial on stipulated facts, the trial court found Kozey guilty of both the

November 2011 and the February 2012 no- contact order violations. Based on its interpretation

of   the definition   of "domestic violence"   in RCW 9. 94A.030( 20), the trial court calculated his


offender score as zero for the November 2011 felony no- contact order violation and as one for

the February 2012 felony no- contact order violation. The trial court imposed a standard 12-

month term of incarceration for the November 2011 violation and a standard 14 -month term of


incarceration for the February 2012 violation, ordering that Kozey serve the terms concurrently.

          The State appeals, asking us to reverse Kozey' s sentence and to remand the matter for

resentencing consistent with a disjunctive interpretation of the definition of "domestic violence"

in RCW 9. 94A.030( 20).


                                                 ANALYSIS


          The parties contest the same issue they contested before the trial court: whether the word

 and" in RCW 9. 94A.030( 20) conjunctively or disjunctively joins the definitions of "domestic




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violence" found in RCW 10. 99. 020 and RCW 26. 50. 010 for purposes of enhancing sentences for

crimes involving domestic violence.

          We   review a statute' s       meaning de          novo.   Dep' t   of Ecology   v.   Campbell & Gwinn, LLC,


146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002).            Our " fundamental objective" when interpreting a statute is to

 ascertain and      carry   out   the [ l] egislature'   s   intent."    Campbell & Gwinn, 146 Wn.2d at 9.


Washington' s courts have long recognized that, despite the common, conjunctive usage of "and,"

service of the legislature' s intent may require reading the word disjunctively. State v. Keller, 98

Wn.2d 725, 728 -31, 657 P. 2d 1384 ( 1983);                   see State v. Tiffany, 44 Wash. 602, 603 -05, 87 P. 932

 1906) (   discussing     the   interchangeability       of "and" and " or ").      To determine if the legislature


intended " and" to read disjunctively, we must apply general rules of statutory interpretation. See

Tiffany, 44 Wash. at 603 -04 ( quoting G.A. Endlich, A COMMENTARY ON THE INTERPRETATION OF

STATUTES § 2 ( 1888)).


          Under those rules, we first attempt to discern the plain meaning of the legislature' s use of

 and" from the text of the provision at issue and any related provisions which disclose legislative

intent    about   the   provision   in   question.   See Campbell &            Gwinn, 146 Wn.2d at 11 - 12; Tiffany, 44

Wash. at 603 -04 ( requiring courts to examine the " context" of the legislature' s use of "and" or

 or ").   If, after this plain meaning analysis, the statute remains " susceptible to more than one

reasonable     meaning,"        it is ambiguous, and we resort to aids to construction, including legislative

history.    Campbell & Gwinn, 146 Wn.2d at 12.




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A.       The Statutory Scheme

         Under RCW 9. 94A. 525( 21),            the offender score used in sentencing is increased due to

certain prior convictions when " the present conviction is for a felony domestic violence offense

where    domestic   violence as   defined in RCW 9. 94A.030              was plead[ ed] and proven."      Among the

prior convictions triggering this enhancement is a felony violation of a no- contact order

conviction.     RCW 9. 94A. 525( 21)(     a).    Kozey was convicted of two felony violations of a no-

contact order: one in November 2011 and one in February 2012. Under RCW 9. 94A.589( 1)( a),

         whenever a person is to be sentenced for two or more current offenses, the sentence
         range for each current offense shall be determined by using all other current and
         prior convictions as if they were prior convictions for the purpose of the offender
         score.




Thus, Kozey' s felony convictions are among the prior convictions for which the offender score

may be    enhanced under     RCW 9. 94A.525( 21)(        a).       With that, the remaining issue is whether each

present felony conviction is one " where domestic violence as defined in RCW 9. 94A.030 was

plead[ ed] and proven."      RCW 9. 94A.525( 21).


         RCW 9. 94A. 030( 20)      states   simply that ""[        d] omestic violence' has the same meaning as

defined in RCW 10. 99. 020        and   26. 50. 010."   RCW 10. 99. 020( 5), in turn,      states   that "`[ d] omestic



violence' includes but is not limited to any of the following crimes when committed by one

family   or   household   member against another."         The nonexclusive list includes violent crimes,


such as assault, kidnapping, and rape; property crimes, such as criminal trespass and malicious

mischief; and other miscellaneous crimes,             including the "[     v] iolation of the provisions of a


restraining order, no- contact order, or protection order restraining or enjoining the person."

RCW 10. 99. 020( r).



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        RCW 26. 50. 010( 1), the        second statute referenced         in RCW 9. 94A. 030( 20), states that


             d] omestic   violence"     a) Physical harm, bodily injury, assault, or the
                                       means: (

        infliction of fear of imminent physical harm, bodily injury or assault, between
        family or household members; ( b) sexual assault of one family or household
        member by another; or ( c) stalking as defined in RCW 9A.46. 110 of one family or
        household member by another family or household member.

RCW 26. 50. 010 thus defines an offense as a domestic violence offense when it is an assault,


sexual assault or stalking committed by one family or household member against another family

or household member.


        The defendant' s conduct in November 2011 and February 2012 falls under the definition

of "domestic violence" of RCW 10. 99. 020, but not that of RCW 26. 50.010. Thus, the validity of

the challenged sentence enhancement hangs on whether the definitions in these statutes are read


conjunctively or disjunctively.

B.      The Plain Meaning of "and" in RCW 9. 94A.030( 20)

        The    plain   meaning     analysis   begins   with   the text   of   RCW 9. 94A.030( 20).   As Kozey

notes, the legislature used the term " and" in the provision, and we presume " and" functions


conjunctively.     Tiffany, 44 Wash. at 603 -04. On the other hand, our courts have recognized that

 and" must sometimes be given disjunctive force to preserve legislative intent. See Keller, 98


Wn.2d at 728 -31; Tiffany, 44 Wash. at 603 -05; Bullseye Distrib., LLC v. Wash. State Gambling

Comm'   n,   127 Wn.      App.   231, 239 -40, 110 P. 3d 1162 ( 2005).           The plain meaning analysis also

requires us to go beyond the text of RCW 9. 94A.030( 20) and to examine the text of related


statutes.    Campbell &     Gwinn, LLC, 146 Wn.2d at 11 - 12. RCW 9. 94A.030( 20) incorporates




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RCW 10. 99. 020 and RCW 26. 50. 010, making them related statutes. See Jametsky v.Olsen, 179

Wn.2d 756, 766, 317 P. 3d 1003 ( 2014).

        We begin by noting the way in which RCW 9. 94A.030( 20) refers to these related

statutes. RCW 9. 94A.030( 20) does not state that conduct must meet the requirements of both

RCW 10. 99. 020 and RCW 26. 50. 010 to count as domestic violence. Rather, it states domestic

violence "   has the   same   meaning   as   defined in RCW 10. 99. 020   and   26. 50. 010."   RCW


9. 94A.030( 20).


        RCW 10. 99. 020 sets out a nonexclusive list of specific crimes the legislature has deemed


to be domestic violence when committed by one family or household member against another.

RCW 26. 50.010 eschews a specific list of crimes and instead sets out the types of acts the


legislature has determined generally constitute domestic violence when perpetrated by one

family member against another. With these differing conceptual approaches, there is no " same

meaning" shared by both RCW 10. 99. 020 and RCW 26. 50. 010. Instead, RCW 9. 94A.030( 20)

most logically reads as using RCW 10. 99. 020 to set out per se crimes of domestic violence and

RCW 26. 50. 010 to define when a crime otherwise omitted from the nonexclusive list is

nonetheless also deemed to involve domestic violence. For example, RCW 10. 99. 020 omits

crimes such as third degree rape and child molestation, which would fall under the definition of


 domestic violence" in RCW 26. 50. 010. Reading RCW 9. 94A.030( 20) to require conduct

simultaneously to meet both RCW 10. 99. 020 and RCW 26. 50. 010 in order to constitute domestic

violence for sentence enhancement purposes would forfeit this logic.




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         Although involving different types of statutes, our conclusion is consistent with the

reasoning in Mount Spokane Skiing Corp. v. Spokane County, 86 Wn. App. 165, 171, 936 P.2d

1148 ( 1997).     In that appeal those challenging a public authority pointed out that RCW

35. 21. 730( 4) authorized a public authority to

           1)   administer and execute   federal    grants or programs; (     2) receive and administer
         private funds, goods or services for any lawful           public purpose; (    3) and perform any
         lawful public purpose or function.


Mount Spokane        Skiing Corp.,   86 Wn.   App.   at   171.   Because these elements were connected with


the   word " and,"   the challengers argued that a public authority must perform all three functions to

be valid. Division Three of our court disagreed. It held that based on common sense and

legislative intent, the   plain   meaning   of   the terms   was   that, despite the   presence of "and,"   the



public authority had to carry out only one of the listed functions. Mount Spokane Skiing Corp.,

86 Wn. App. at 174.

          Turning now to RCW 10. 99. 020 and RCW 26. 50.010 themselves, their presence virtually

compels adoption of       the disjunctive reading of RCW           9. 94A.030( 20), since the conjunctive


reading would effectively rob one of them of any effect. As discussed above, RCW 10. 99.020

defines " domestic violence" through a nonexclusive list of crimes; RCW 26. 50.010 defines


 domestic violence" through a list of qualifying behaviors. If the conjunctive reading of RCW

9. 94A.030( 20) were correct, then the list of crimes found in RCW 10. 99. 020 would have


meaning only where the offender commits an act encompassed by RCW 26. 50. 010. The

reference to RCW 10. 99. 020 would be superfluous.




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        In contrast, as noted above, a disjunctive reading gives meaning to both of the cross -

references   in RCW 9. 94A. 030( 20): RCW 10. 99. 020 defines the nonexclusive list of per se


crimes of domestic violence and RCW 26. 50. 010 tells the court how to determine if a crime not


on the list constitutes domestic violence. The examination of related statutes therefore requires a


disjunctive reading of RCW 9. 94A.030( 20). 3

        Further, these same considerations show that reading RCW 9. 94A.030( 20) conjunctively

quickly descends into self -
                           contradiction. The conjunctive interpretation of "and" in RCW

9. 94A.030( 20) would mean that the requirements of both referenced statutes must be met before

a crime can be deemed domestic violence. As just shown, requiring both statutes to be met

reduces the definition of domestic violence to that of RCW 26. 50. 010 only. Thus, the

conjunctive interpretation defeats itself by making RCW 10. 99. 020 superfluous. When our court

interprets a statute, we attempt to avoid interpretations that render statutory language

 meaningless or superfluous."    Cockle   v.   Dep' t of Labor   & Indus., 142 Wn.2d 801, 809, 16 P. 3d


583 ( 2001).   A disjunctive reading, therefore, is the only way to give meaning to all the language

in RCW 9. 94A.030( 20).




3 At trial Kozey suggested that a conjunctive reading gave meaning to RCW 10. 99. 020 by
ensuring that only domestic violence crimes were punished under the SRA. However, the
definition of "domestic violence" in RCW 9. 94A.030( 20) informs the penalty provisions in
RCW 9. 94A. 525( 21), which punish an offender more severely for a current domestic violence
conviction based on past domestic violence convictions. Due process forbids the State from
convicting an offender for something that is not a crime. Johnson v. United States, 805 F. 2d
1284, 1288 ( 7th Cir. 1986).    RCW 10. 99. 020, therefore, does not serve the purpose Kozey
ascribes to it; the state and federal constitutional due process clauses already function to ensure
that the State can seek to enhance a domestic violence offender' s punishment only for criminal
acts.



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         Finally, a conjunctive reading of RCW 9. 94A.030( 20) would defeat the legislature' s

intent in enacting the statute. The statement of intent accompanying the 2010 domestic violence

amendments reads:



                   The legislature intends to improve the lives of persons who suffer from the
         adverse    effects   of   domestic     violence   and   to   require   reasonable,   coordinated


         measures to prevent domestic violence from occurring. The legislature intends to
         give law enforcement and the courts better tools to identify violent perpetrators of
         domestic violence and hold them accountable. The legislature intends to: Increase
         the safety afforded to individuals who seek protection of public and private
         agencies involved in domestic violence prevention; improve the ability of agencies
         to address the needs of victims and their children and the delivery of services;
         upgrade the quality of treatment programs; and enhance the ability of the justice
         system to respond quickly and fairly to domestic violence. In order to improve the
         lives of persons who have, or may suffer, the effects of domestic violence the
         legislature intends to achieve more uniformity in the decision -
                                                                        making processes at
         public and private agencies that address domestic violence by reducing
         inconsistencies and duplications allowing domestic violence victims to achieve
         safety and stability in their lives.

LAWS OF 2010,      ch.   274, § 101.     Kozey correctly notes that this statement of intent speaks, in part,

to enabling law enforcement and the courts to respond to violent perpetrators of domestic

violence. He claims that this shows the legislature intended to capture only the type of violent

behavior defined as " domestic violence" in RCW 26. 50.010. The statement of legislative intent,


though, also generally speaks to " prevent[ ing] domestic violence from occurring" and

  i]ncreas[ ing] the safety afforded to individuals who seek protection" from law enforcement or

the   courts.   LAWS OF 2010,      ch.   274, § 101.   One way the 2010 amendment accomplishes these

goals is to deter contact between a victim and an offender by stiffening the penalties associated

with violations of a protection or no- contact order. Reading RCW 9. 94A.030( 20) disjunctively




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preserves this legislative purpose by capturing the wider range of behaviors that the legislature

has already deemed to constitute domestic violence in RCW 10. 99.020 and RCW 26. 50. 010.

        In ordinary English, it may seem incongruous that the plain meaning of "and" could be

taken as creating a disjunctive series of items in a list. Our job in interpreting a statute, though,

is not the mapping of popular usage, but the determination of legislative intent. As just

discussed, the plain meaning of the two related statutes linked by " and" in RCW 9. 94A.030( 20)

leaves little doubt that in this specific context, the legislature intended domestic violence to

include the conduct described in either RCW 10. 99. 020 or RCW 26. 50. 010. Because the term is

not ambiguous in this context, further construction is not needed.

C.      Ambiguity and Extrinsic Evidence of Legislative Intent

        Alternatively, even if RCW 9. 94A.030( 20) were deemed ambiguous, Kozey' s challenge

would still    fail. Under Campbell &           Gwinn, 146 Wn:2d at 12, we would resolve the ambiguity by

resorting to aids to construction, including legislative history. This examination shows even

more forcefully that the legislature used " and" disjunctively in RCW 9. 94A.030( 20).

        1.    Legislative History

        We may use legislative history as evidence of the legislature' s intent where the plain

meaning      of a statute   is   ambiguous.     Cockle, 142 Wn.2d     at   808.   Here, the legislative history

suggests a disjunctive reading of RCW 9. 94A.030( 20)' s use of "and."

        In 2010 the legislature enacted an extensive array of new measures designed to provide

enhanced punishment              for domestic   violence offenders.   See LAws      OF   2010,   ch.   274, § 101, 401-


07. Among these        new provisions were          RCW 9. 94A.030( 20)      and   RCW 9. 94A. 525( 21),       measures




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at the heart of the issue raised by this appeal. The bill proposing the 2010 legislation, ESHB

2777, originated as an attorney general proposal to the legislature. See State v. Sweat, 174 Wn.

App.   126, 131         n. 5,   297 P. 3d 73 ( 2013), aff'd, 180 Wn.2d 156 ( 2014). The proposal asked the


legislature to      amend "[       RCW] 9. 94A. 030 ...         to   add `   domestic   violence,'   defined as a criminal


offense committed between defendant and a victim having a relationship as defined in RCW

10. 99. 020   or    26. 50. 010."        WASHINGTON STATE ATTORNEY GENERAL —ROB MCKENNA, AG


REQUEST LEGISLATION —2009 SESSION: SUPPORTING LAW ENFORCEMENT: DOMESTIC VIOLENCE


SANCTIONS,         at   1 ( 2009) ( AG PROPOSAL) (           emphasis added). 4 The proposal also suggested

amending RCW 9. 94A.525 to increase the scoring for prior domestic violence convictions..

         The sentencing amendments the legislature enacted in 2010 tracked the amendments

proposed by the attorney general in function, but the amendments used " and" in the place of "or"

when    adding      what        became RCW 9. 94A.030( 20). Compare LAws                    OF   2010, §§ 401, 403 with AG


PROPOSAL       at   1 ( proposing         amendments        to RCW 9. 94A. 030 and RCW            9. 94A. 525). The intended


effect of   this    change,       if any, is     plain   from the surrounding     circumstances.       The legislation


implements both the attorney general' s proposal and the vigorous statement of intent in LAWS OF

2010,   ch.   274, §       101, cited above. A conjunctive reading of RCW 9. 94A.030( 20) narrows the

scope of its protections and starkly contradicts the statement of legislative intent to " prevent

domestic      violence"          and   to "[   i] ncrease the safety afforded to individuals who seek protection."




4 The AG request is located at:
http: / atg.wa.gov /uploadedFiles /Home /Office :Initiatives /Legislative Agenda/ 2009/
        /
D V_S anctions %20 (20- sided) .pdf.

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LAWS   OF      2010,     ch.   274, § 101.     The disjunctive reading of RCW 9. 94A.030( 20) is necessary to

preserve that intent.'


          2. Principles of Statutory Construction

          Our court may also use principles of statutory construction to determine legislative intent

when a    statutory       provision remains ambiguous after a plain               meaning   analysis.   Cockle, 142


Wn.2d     at   808. Here, the relevant canons of construction point without question to a disjunctive


reading of RCW 9. 94A.030( 20).

          When our court interprets a statute, we attempt to avoid rendering statutory language

 meaningless or superfluous."                  Cockle, 142 Wn.2d at 809. As shown in the plain meaning

analysis above, reading RCW 9. 94A.030( 20)' s list conjunctively would make its reference to

RCW 10.99. 020 superfluous. A disjunctive reading, therefore, is the only way to give meaning

to all the language in RCW 9. 94A.030( 20).


          Kozey contends that chapter 9. 94A RCW is a penal statute and must be strictly construed,

requiring      us   to   reject   the State'   s   interpretation   of   RCW 9. 94A.030( 20).   Strict construction


cannot defeat the intent of the legislature. State v. Rinkes, 49 Wn.2d 664, 667, 306 P. 2d 205


 1957).     Here, even if the plain meaning of the statute is ambiguous, the legislature' s intent is

not, after considering its statement of intent, the history of the amendments that added RCW




  We recognize that, under the canons of construction, the change from " or" to " and" could also
be taken as a sign of a change in legislative intent. However, the purpose of the 2010 legislation,
and its consistency with the attorney general' s proposal, clearly support the much more direct
message of legislative intent: that the disjunctive reading of RCW 9. 94A.030( 20) should be
preserved.




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9. 94A. 030( 20), and the need to give effect to all the portions of RCW 9. 94A.030( 20).


Construing RCW 9. 94A.030( 20) as Kozey advocates would defeat this intent, and we decline his

invitation.


          Kozey next invokes the rule of lenity and contends that, because RCW 9. 94A.030( 20)' s

meaning is, at best, ambiguous, the rule requires that we adopt his reading of RCW

9. 94A.030( 20).   The rule of lenity applies to the SRA and it requires that, where a statutory

provision remains ambiguous after we exhaust all means of attempting to ascertain the

legislature' s intent, we interpret the statute in the manner favorable to the defendant. State v.


Roberts, 117 Wn.2d 576, 586, 817 P. 2d 855 ( 1991).     Even if RCW 9.94A.030( 20) is assumed


ambiguous after the plain meaning inquiry, our examination of legislative history and application

of the principles of statutory construction clarify how that ambiguity is resolved, leaving no

room for application of the rule of lenity.

          We reverse Kozey' s sentence and remand for resentencing consistently with a disjunctive

interpretation of the definition of "domestic violence" in RCW 9. 94A.030( 20).




                                                              N,   A. C. J.
                                                                              A
 We concur:




 HUNT, J.




LSE, J.




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