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                                                                                                                              139

                                                                                                                      1    GM,'
    IN THE COURT OF APPEALS OF THE STATE OF W
                                                                                                      4   DMXr
                                                DIVISION II

STATE OF WASHINGTON,                                                              No. 43449 -1 - II


                                      Respondent,


         V.



ROBERT WAYNE RICE,                                                       PART PUBLISHED OPINION




         WORSWICK, C. J. —          Robert Wayne Rice appeals his convictions and sentence for felony

harassment —death threat and for violation of a civil antiharassment protection order. Rice


argues   that ( 1)   insufficient   evidence supports   his   conviction   for   felony   harassment— death threat,


 2) the trial court improperly instructed the jury on the elements of violation of a civil

antiharassment protection order, and ( 3) the trial court ordered an impermissibly long period of

probation. The State concedes that insufficient evidence supports Rice' s conviction for felony

harassment. In the published portion of this opinion, we reverse the trial court' s imposition of 48


months of probation and remand for resentencing. In the unpublished portion of this opinion, we

accept   the State'   s concession and reverse    Rice'   s conviction     for   felony   harassment —death threat,


but we affirm Rice' s conviction for violation of a civil antiharassment protection order.


                                                        FACTS


         While Robert Wayne Rice served time at the Clark County Jail he met Jody Beach, a

custody officer at the jail. Rice subsequently made unwelcome advances toward Beach, such as

sending her flowers, writing her         notes, and   asking her   out   to breakfast. In     response   to Rice'     s
No. 43449 -1 - II




unwelcome advances toward Beach, a Clark County Sheriff' s sergeant instructed sheriff' s

deputies Jason Hafer and Scott Bain to tell Rice that Beach did not want Rice to contact her.


A.       Rice' s Threats To Kill Bain


          Hafer and Bain met Rice when he was at the courthouse on unrelated business. Hafer


walked with Rice into an interview room in the courthouse, and there told Rice that Beach did


not want Rice.to contact her. The conversation between Hafer and Rice became heated, at which

point Bain entered the conference room and informed Rice that-Beach did not want Rice to


contact her. Rice responded by repeatedly threatening to kill Bain. Bain responded by stepping

back and unsnapping the holster on his stun gun. Rice continued to repeat his threats to kill

Bain,   at which   time Bain      arrested    Rice for   felony harassment —death threat (felony harassment).

         Bain later testified as to how he felt when Rice threatened to kill him:


          Rice] was causing me fear of an assault.

         Somebody who' s that angry and upset with me, telling me they' re going to kill
         me, causes me concern.




2A Verbatim Report of Proceedings ( VRP) at 298 -99.

          Rice]    was   in   a   different   position   that   day.   He was not quiet, content, sitting
         peacefully.     He       was   extremely angry, livid.        A —a   wild   look to him.   His —his
         eyes —    he was extremely aggressive.

2AVRPat311.


B.       Beach' s Civil Antiharassment Protection Order


         At a hearing attended by both Beach and Rice, a court granted Beach a civil

antiharassment protection order ( antiharassment order) against Rice under chapter 10. 14 RCW.




                                                                2
No. 43449 -1 - II




During the time that this antiharassment order was effective, Rice wrote a letter to Beach and

sent it to the jail.


C.       Trial and Sentencing

         The State charged Rice with felony harassment for threatening to kill Bain. The State

also charged Rice with misdemeanor stalking for his advances towards Beach and with violation

of an antiharassment order under RCW 10. 14. 120 and RCW 10. 14. 170 for writing a letter to

Beach and sending it to the jail.

         The trial court provided the following instruction to the jury on the charge of violation of

an antiharassment order:



                  To convict the defendant of the crime of violation of a court order, each of
         the following elements of the crime must be proved beyond a reasonable doubt:

                    1) That between January 20, 2011 and January 23, 2012, there existed a
         protection 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 restraint
         provision of the order prohibiting acts or restraint provision of the order
         prohibiting contact with a protected party; and

                    4) That the defendant' s act occurred in the State of Washington.


                  If you find from the evidence that each of these elements has been proved
         beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

                  On the    other   hand, if,   after   weighing   all   the   evidence,   you have a
         reasonable doubt as to any one of these elements, then it will be your duty to
         return a verdict of not guilty.


Clerk' s Papers at 26. This jury instruction is based on an instruction from the Washington

Practice Jury Instructions, designed for violations of orders under RCW 26. 5 0. 11 0( l)(a), rather


                                                         3
No. 43449 -1 - II




than   violations of an antiharassment order under       RCW 10. 14. 120,   and   RCW 10. 14. 170. 11


WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 36. 51, at 635

 3d   ed.   2011) ( WPIC). Rice did not object to this instruction at trial.


            The jury convicted Rice of felony harassment, misdemeanor stalking, and misdemeanor

violation of an antiharassment order under RCW 10. 1.4. 120 and 10. 14. 170. The trial court


sentenced Rice to 90 days of time served on the felony harassment charge, to run concurrently

with the sentence on the two misdemeanor charges. The trial court also sentenced Rice to 182


days for each of the two misdemeanor charges, to run consecutively.

            The trial court suspended 184 days of this sentence, and imposed 48 months of probation.


Rice did not object to the 48 months of probation at sentencing. Rice appeals ( 1) his sentence to

48 months of probation, (2) his conviction for felony harassment, and ( 3) his conviction for

violation of an antiharassment order.



                                                   ANALYSIS


                                              SENTENCING: PROBATION


            Rice argues that the trial court erred in sentencing Rice to 48 months of probation-in

violation of     RCW 9. 95. 210( 1)(   a).   We agree.


A.          Rules Governing Our Interpretation

            A trial court lacks inherent authority to suspend a sentence. State v. Gibson, 16 Wn. App.

119, 127, 553 P. 2d 131 ( 1976) (       citing State ex rel. Lundin v. Super. Ct., King County, 102 Wash.

600, 174 P. 473 ( 1918)).      Thus, when the trial court does suspend a sentence, it must exercise its


authority in the manner provided by the legislature. Gibson, 16 Wn. App. at 127. A defendant




                                                         M
No. 43449 -1 - II




may challenge a sentence imposed in excess of statutory authority for the first time on appeal

because " a defendant cannot agree to punishment in excess of that which the legislature has


established."   In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873 -74, 50 P. 3d 618 ( 2002);

State v. Anderson, 58 Wn. App. 107, 110, 791 P. 2d 547 ( 1990).

        Statutory interpretation is a question of law that we review de novo. State v. Franklin,

172 Wn.2d 831, 835, 263 P. 3d 585 ( 2011).          When interpreting the meaning and purpose of a

statute, our objective is to determine the legislature' s intent. State v. Jones, 172 Wn.2d 236, 242,


257 P. 3d 616 ( 2011).   Effect is given to the statute' s plain meaning when it can be determined

from the statute' s text. Jones, 172 Wn.2d at 242.


        If the statute is still susceptible to more than one interpretation after we conduct a plain


meaning review, then the statute is ambiguous and we rely on statutory construction, legislative

history, and relevant case law to determine legislative intent. Jones, 172 Wn.2d at 242. We

construe statutes in a manner that avoids strained or absurd consequences. State v. Merritt, 91
                                                                                             .


Wn. App. 969, 973, 961 P.2d 958 ( 1998).

        The rule of lenity applies to situations where more than one interpretation can be drawn

from the wording of a statute. State v. Snedden, 149 Wn.2d 914, 922, 73 P. 3d 995 ( 2003).

 Under the rule of lenity, the court must adopt the interpretation most favorable to the criminal

defendant."     State v. McGee, 122 Wn.2d 783, 787, 864 P. 2d 912( 1993).


B.      RCW 9.95. 210( 1)( a) and State v. Parent


        RCW 9. 95. 210( 1)( a) grants the trial court authority to suspend the sentence of a criminal


defendant. RCW 9. 95. 210( 1)(   a) states   in   relevant part:
No. 43449 -1 - II




             T] he superior court may suspend the imposition or the execution of the sentence
            and may direct that the suspension may continue upon such conditions and for
            such time as ' it shall designate, not exceeding the maximum term of sentence or
            two years, whichever is longer.


Emphasis       added.).    Division One of this court interpreted the meaning of the phrase " the

maximum term of sentence" in State v. Parent, 164 Wn. App. 210; 213, 267 P. 3d 358 ( 2011)

 quoting RCW 9. 95. 210( 1)).

            In Parent,   Kerry   Parent    pleaded   guilty to two       counts of misdemeanor assault.           164 Wn.


App.   at   211.   The trial court sentenced Parent to 12 months in prison for each assault count, to


run   consecutively,      totaling 24     months   in   prison.   Parent, 164 Wn.      App.   at   211.    The trial court


suspended 16 months of this prison term, and imposed 24 months probation for each count, to

run   consecutively,      totaling 48     months of probation.          Parent, 164 Wn.   App.      at   211.   Parent


appealed, arguing that " the maximum term of sentence" referred to the one " sentence" at the end

of   the   case — regardless of     the   number of counts —          thus limiting the trial court to sentencing

Parent to 24 months of probation in the entire case. Parent, 164 Wn. App. at 212 -14. The State

argued that " the maximum term of sentence" referred to one additional " sentence" for each count


in a case, allowing the trial court to sentence Parent to an additional 24 months of probation for

each of Parent' s two assault counts. Parent, 164 Wn. App. at 212.

            Division One of this court held that the text of RCW 9. 95. 210( 1)( a) could equally support

either side' s     interpretation   of "the maximum         term      of sentence."   Parent, 164 Wn. App. at 213.

Thus Division One applied the rule of lenity, and held that RCW 9. 95. 210( 1)( a) limits the trial

court to sentencing the defendant to 24 months of probation or the total combined prison

sentence in a given case regardless of the number of counts. Parent, 164 Wn..App. at 213 -14.



                                                                  6
No. 43449 -1 - II




C.      Application in Rice' s Case


        Here, the parties' arguments mirror the arguments in Parent. Rice argues that we should


follow Parent, and hold that RCW 9. 95. 210( 1)( a)' s phrase " the maximum term of sentence"

refers to the one overall sentence within a single case, regardless of the number of counts that the


defendant is convicted of in that case, limiting the probationary period to 24 months. The State

responds that we should not follow Parent because the phrase " the maximum term of sentence"


refers to the trial court' s " sentence" for a single count, and each additional count in the case

allows for an additional " sentence" within that case.


        We follow Division One     by holding   that RCW 9. 95. 210( 1)( a) is ambiguous, that both



parties provide equally plausible interpretations, and thus the doctrine of lenity supports Rice' s

interpretation.


        RCW 9. 95. 210( 1)( a)' s text does not make clear what the legislature intended. The


legislature could have wanted to prevent a trial court from burdening a defendant with too much

probation for a single offense, by tying the length of probation to each single offense committed.

This would support the State' s interpretation. But equally possible, the legislature could have

wanted to prevent a trial court from burdening a defendant with a probation that runs too far into

the defendant' s future, by tying the length of probation to the date of sentencing. This would

support Rice' s interpretation.


        RCW 9, 95. 210( 1)( a) does not contain an explicit reference to multiple counts, nor does it

contain explicit words   referencing   aggregation of counts such as "   total," "   aggregate,"   or




                                                    7
No. 43449 -1 - II




    combined."     But it is exactly the lack of these explicit references that makes the phrase " the
                                                                                                                I
maximum      term       of sentence"         in RCW 9. 95. 210( 1)(     a) ambiguous rather     than   clear.




          The State          attempts   to   resolve   the ambiguity     by   citing RCW 9. 95. 210( 2), RCW, 9. 95. 010,


and RCW 9. 95. 100. But these statues do not resolve the ambiguity of RCW 9. 95. 210( 1)( a).

          RCW 9. 95. 210( 2), uses the word " offense" in the singular tense with a clear intent to


reference a single count. RCW 9. 95. 210( 2) states in relevant part:


          In the order granting probation and as a condition thereof, the superior court may
          in its discretion imprison the defendant in the county jail for a period not
          exceeding one year and may fine the defendant any sum not exceeding the
          statutory limit for the offense committed.

RCW 9. 95. 210( 2) does discuss " offense" in reference to individual offenses, as it relates to the


statutory limits on monetary penalties. But RCW 9. 95. 210( 2) does not use the words " sentence"

or " maximum" in any context. In fact, it uses the phrase " statutory limit" when it could have

instead    used   the    word " maximum."              The lack of similarity between the language of the two

provisions limits RCW 9. 95. 210( 2)' s ability to resolve the ambiguity in RCW 9. 95. 210( 1)( a)' s

use of the phrase " the maximum term of sentence."




1
     The State cites Mortell v. State, and argues that because " sentence" is singular in RCW
9. 95. 210( 1)(   a),   it   must   have     referenced a single count, rather       than   a single case.      118 Wn. App.
846, 850, 78 P. 3d 197 ( 2003).                 But in Mortell, the Court held that.the phrase " a gross
misdemeanor" referenced a single crime. Mortell, 118 Wn. App. at 850. This is because it
referenced " a" " misdemeanor," which inarguably references a single criminal offense. See


Mortell, 118 Wn. App. at 850. Here, the fundamental ambiguity is that the singular word is not
    misdemeanor,"        but,    rather,     is " sentence."   "   Sentence" could refer to one sentence per count, or
it   could refer   to   one sentence per case.            Either way, the      word " sentence"   would      be in the   singular.
No. 43449 -1 - II




          While RCW 9. 95. 0 10       and   RCW 9. 95. 100   use   the   phrase " maximum     term,"   both of these


statutes preceded the Sentencing Reform Act of 1981, 2 and neither has been applicable since

1984. Thus these statutes are part of an outdated legal regime for sentencing. Furthermore,

while these two statutory provisions concern prison sentences and release, they do not address

the suspension of sentences. See RCW 9. 95. 010 and RCW 9. 95. 100. Thus it is not clear that the

legislature intended to use the definition of "maximum term" found in these outdated statues


when it codified RCW 9. 95. 210( 1)( a).


          Because RCW 9. 95. 210( 1)( a)' s phrase " the maximum term of sentence" is ambiguous,


and because both parties' interpretations plausibly describe its meaning, the doctrine of lenity

supports Rice' s interpretation of the statute. Thus here, we hold that the trial court may order

probation only for the defendant' s combined total prison sentence or 24 months, whichever is
          3
longer.


          Here, Rice was properly convicted of two misdemeanor convictions: misdemeanor

stalking and violation of an. antiharassment order. -"[ T] he            maximum term of sentence" for these

two   crimes     is   not more   than 24 months. See RCW      9. 95. 210( 1)(   a).   Thus, we hold that the trial




2 Ch. 9. 94A.

3 The State argues that this holding will lead to absurd results, because the trial court could
sentence a defendant charged with the same counts to a longer period of probation than another
defendant simply because the first defendant' s claims were not consolidated into a single case.
But it is not absurd to limit a court to a certain maximum across an entire case, because of the
high chances that a single case will resolve all criminal causes of action related to a single set of
related facts. This is particularly true in light of doctrines such as mandatory joinder and double
jeopardy, which limit the State' s ability to try claims against the same defendant on the same
facts across multiple cases. See CrR 4. 3; State v. Turner, 169 Wn.2d 448, 459, 238 P. 3d 461
 2010);       State v. Elmore, 154 Wn. App. 885, 899 -900, 228 P. 3d 760 ( 2010).


                                                         9
No. 43449 -1 - II




court could sentence Rice to a maximum of only 24 months of probation under RCW

9. 95. 210( 1)(   a),   and thus erred by sentencing Rice to 48 months of probation. We reverse the

trial court' s sentence of Rice to 48 months of probation, and remand for resentencing consistent

with this opinion. We address the remaining issues in the unpublished portion of this opinion.

         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.


                             FELONY HARASSMENT: SUFFICIENCY OF THE EVIDENCE


          Rice next argues that insufficient evidence existed to convict him of felony harassment

because the State failed to provide any evidence that the threatened party ( Bain) was placed in

fear that Rice would actually carry out his threats to kill. The State concedes that there was

insufficient evidence to convict Rice of felony harassment for the same reason. The State

recommends reversal of Rice' s felony harassment conviction and dismissal of the charge. We

agree.



          Evidence is sufficient if, after viewing all the evidence in the light most favorable to the

State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v.

Hermann, 138 Wn.            App.   596, 602, 158 P. 3d 96 ( 2007). We assume the truth of the State' s


evidence and all inferences that can reasonably be drawn from it. Hermann, 138 Wn. App. at

602. But the State continues to hold its burden of proving each element of the charged crime

beyond a reasonable doubt. Hermann, 138 Wn. App. at 602.




                                                         10
No. 43449 -1 - II




         RCW 9A.46. 020( 1) states that a person is guilty of harassment if they threaten to cause

someone    bodily injury        without     lawful authority, but only if "[
                                                                           t]he        person by words or conduct

places   the   person   threatened in       reasonable   fear that the threat   will   be   carried out."   RCW


9A.46. 020( 2)( b)( ii) states that the crime is a felony if the threat in question is a threat to kill.

         Our Supreme Court has held that to sustain a conviction for felony harassment, the State

must prove beyond a reasonable doubt that the victim had a reasonable fear that the threatening

party   would    actually carry      out   his threat to kill him   or   her. State   v.   C. G., 150 Wn.2d 604, 610-


11, 80 P. 3d 594 ( 2003).         A victim' s fear that the defendant will commit an assault or cause


bodily injury to      the   victim   is   not sufficient.   See C.G., 150 Wn.2d at 610 -11.


         Here, the victim of the threat ( Bain) testified that he feared that Rice would assault him,


but did not testify that he feared that Rice would kill him. Nothing in Bain' s testimony, the only

testimony that could establish that Rice' s threat placed him in fear of death, supports that Rice' s

threats caused him to fear anything more than an assault. Because the defendant' s threat must

place the victim in reasonable fear that the defendant will kill him or her in order to sustain a

conviction for felony harassment, and no evidence of such fear was presented at trial, the State

properly concedes that insufficient evidence existed to convict Rice of felony harassment. C. G.,

150 Wn.2d       at   610 -11.   Thus we reverse Rice' s conviction for felony harassment and dismiss the

charge with prejudice.




                                                               11
No. 43449 -1 - II




                        JURY INSTRUCTIONS: VIOLATION OF AN ANTIHARASSMENT ORDER


          Rice next argues that we should reverse his conviction for violation of an antiharassment


order under RCW 10. 14. 120 and RCW 10. 14. 170, for manifest constitutional error because the

                                                                                                                     4
trial   court   did   not    properly instruct the   jury   on   the   elements of   the   offense.   We disagree.


          We review alleged instructional errors de novo. State v. Cross, 156 Wn.2d 580, 615, 132

P. 3d 80 ( 2006). "          Instructions satisfy the requirement of a fair trial when, taken as a whole, they

properly inform the jury of the applicable law, are not misleading, and permit the defendant to

argue    his theory      of   the   case."   State v. Tili, 139 Wn.2d 107, 126, 985 P. 2d 365 ( 1999).


          Rice failed to object to the jury instructions he now seeks to challenge. Generally, an

appellant cannot challenge jury instructions for the first time on appeal unless the erroneous

instruction is        a " manifest error      affecting   a constitutional right."    RAP 2. 5(   a);   State v. Embry, 171

Wn.     App.    714, 756, 287 P. 3d 648 ( 2012),           review      denied, 177 Wn.2d 1005 ( 2013).        Omitting an

element from an elements instruction is a manifest constitutional error because that instruction is


the " yardstick" by which the jury measures guilt and innocence. State v. Mills, 154 Wn.2d 1, 6,




4 Rice inaccurately frames his jury instruction argument as an argument that the State deprived
Rice of adequate notice by making an untimely change to the crime it charged Rice with (from
charging Rice under RCW 10. 14. 120 and RCW 10. 14. 170, to charging him under RCW
26. 50. 110( 1)(      a)).   State   v.   Vangerpen, 125 Wn.2d 782, 787, 888 P. 2d 1177( 1995).               But the State

charged Rice under RCW 10. 14. 120 and RCW 10. 14. 170 in the charging documents and
convicted him of the same. The actual issue that Rice is asking this court to address is whether
the jury instructions properly instructed the jury on the elements of violation of an
antiharassment order under RCW 10. 14. 120 and RCW 10. 14. 170.




                                                                  12
No. 43449 -1 - II




109 P. 3d 415 ( 2005). We therefore must review Rice' s assignment of error despite his failure to


object   to the   jury   instructions   at   trial.'    Mills, 154 Wn.2d at 6.


         RCW 10. 14. 120 states in part:


         Any      willful   disobedience       by      a respondent ...   of   any ...   civil antiharassment

         protection order issued under this chapter subjects the respondent to criminal
         penalties under this chapter.


RCW 10. 14. 170( 4) makes this offense a gross misdemeanor. Levels of culpability are defined

by   RCW 9A.08. 010,        which states, "      A requirement that an offense be committed willfully is

satisfied if a person acts knowingly with respect to the material elements of the offense, unless a

purpose to impose further requirements plainly appears."

          Here, the trial court' s instructions to the jury required the jury to find beyond a

reasonable doubt that Rice knew of the protection order and that he knowingly violated it. The

only culpability element to the offense of violating an antiharassment order under RCW

10. 14. 120 and RCW 10. 14. 170, is that the defendant willfully disobeyed the protection order.

Regarding culpability, nothing in RCW 1-0. 14. 120 or RCW 10. 14. 170 makes " a purpose to

impose further      requirements    plainly         appear[]."   RCW 9A.08. 010( 4). Thus the trial court' s


instructions sufficiently informed the jury that it had to find willfulness beyond a reasonable

doubt to convict Rice of violation of an antiharassmeit order under RCW 10. 14. 120 or RCW




  Rice is correct that the jury instruction was copied from WPIC 36.51, which was meant for
violations of RCW 26. 50. 110( 1)( a), rather than RCW 10. 14. 120 and RCW 10. 14. 170. WPIC
36. 51   suggests caution when          using this template for        charges under chapter   10. 14 RCW.   WPIC
36. 51 at 635. But the question for this court is whether the instruction that was used at trial
properly addressed all of the elements of RCW 10. 14. 120 and RCW 10. 14. 170, not.the source
from where the instruction was derived.




                                                                  13
No. 43449 -1 - II




10. 14. 170, when it instructed the jury that it had to find that Rice knowingly violated the order.

For this reason, Rice' s conviction for violation of an antiharassment order under RCW 10. 14. 120

and 10. 14. 170, did not constitute manifest constitutional error.


        We reverse the trial court' s imposition of 48 months of probation and remand for


resentencing. We    also reverse   Rice'   s conviction   for   felony harassment —death threat   and


dismiss the charge with prejudice. We affirm Rice' s conviction for violation of a civil

antiharassment protection order.




                                                                            Worswick, C. J.
We concur:




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