   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON c)
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                       DIVISION ONE                        CD
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                                                                              cc         > rj
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STATE OF WASHINGTON,                     )       No. 77761-1-I                           --11
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                                         )                                    4.„D
                     Respondent,         )                                               => C
                                         )                                     ..-1...

       v.                                )
                                         )       PUBLISHED OPINION             —         CD     —
                                                                               t.,0
ARON DEAN SHELLEY,                       )
                                         )       FILED: April 9, 2018
                     Appellant.          )
                                         )

       VERELLEN, C.J. — Aron Shelley was convicted of one count of assault against

his girlfriend, Cheri Burgess, one count of assault of a child against A.S., Burgess's

son, and one count of felony harassment for threatening to kill A.S. The jury found

each count was a crime of domestic violence. Shelley appeals the domestic violence

special verdicts as to assault of a child and felony harassment. Because the State

failed to establish that Shelley and A.S. are family or household members, these

special verdicts are invalid.

       We affirm the convictions, but find the special verdicts on counts 3 and 4

invalid as a matter of law and remand for resentencing.

                                        FACTS

       From late 2013 until April 2015, Shelley, Burgess, and A.S. lived with Shelley's

aunt and uncle.
No. 77761-1/2


       On the evening of April 29, 2015, Shelley became angry and wanted Burgess

to leave the house. After attempting to force Burgess out of the house, Shelley

placed a knife against Burgess's throat and stated he was going to kill her because

she was not leaving. Shelley's uncle, Tom Sovey, intervened and convinced Shelley

to give him the knife.

       While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to

the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S.

made a choking noise, "like he couldn't breathe." And when Burgess tried to grab

A.S., Shelley said, "If you don't leave or get away, I'm just gonna squeeze him, keep

squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my

boy."2 After Sovey came outside, Burgess walked away and called the police.

       The State charged Shelley with, among other things, two counts of second

degree assault as to Burgess, one count of second degree assault of a child as to

A.S., and one count of felony harassment for threatening to kill A.S. The State

alleged each crime was one of domestic violence.

       The jury convicted Shelley of one count of assault as to Burgess. The jury

found this was a crime of domestic violence because Shelley and Burgess were

"members of the same family or household."3 The jury also convicted Shelley of one

count of assault as to A.S. and one count of felony harassment.




       1 Report of Proceedings(RP)(Oct. 24, 2017) at 86.
       2 RP (Oct. 24, 2017) at 87.

       3 Clerk's   Papers(CP)at 49.


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       At sentencing, the court calculated Shelley's offender score at 9 for each count

and sentenced Shelley to 132 months of total confinement.

       Shelley appeals.

                                        ANALYSIS

                           Domestic Violence Special Verdict

       Shelley contends his offender score was miscalculated, and he asks this court

to remand for resentencing under the correct offender score.4

       The panel reviews a trial court's calculation of an offender score de novo.5

"The offender score is the sum of points accrued as a result of prior convictions."6 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.030.7

       Under RCW 9.94A.030(20), Idiomestic violence' has the same meaning as

defined in RCW 10.99.020 and 26.50.010." RCW 10.99.020(5) provides a

nonexclusive list of crimes and states, "[d]omestic violence includes but is not limited

to any of the following crimes when committed by one family or household member

against another."5 And RCW 26.50.010(3) defines "domestic violence" as "[p]hysical




       4 We grant Shelley's     motion to file a supplemental brief raising an additional
assignment of error.
       5 State   v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014).
       6   Id.
       7   RCW 9.94A.525(21)(a).
       8(Emphasis     added.)


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harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily

injury or assault, between family or household members."9

       Under RCW 10.99.020(3) and RCW 26.50.010(6), "family or household

members" includes

       spouses, former spouses, persons who have a child in common
       regardless of whether they have been married or have lived together at
       any time, adult persons related by blood or marriage, adult persons who
       are presently residing together or who have resided together in the
       past, persons sixteen years of age or older who are presently residing
       together or who have resided together in the past and who have or
       have had a dating relationship, persons sixteen years of age or older
       with whom a person sixteen years of age or older has or has had a
       dating relationship, and persons who have a biological or legal parent-
       child relationship, including stepparents and stepchildren and
       grandparents and grandchildren.(101

       And the court properly instructed the jury about the definition of "family or

household members" in jury instruction 33.

       The State had the burden of establishing Shelley and A.S. had a biological or

legal parent-child relationship. It is undisputed that Shelley is not A.S.'s biological

father because Shelley and Burgess did not meet until she was six months

pregnant.

       As to a legal parent-child relationship, the State argues that the jury could

have found such a relationship between A.S. and Shelley under the presumed

parent or de facto parentage doctrines. But the State fails to cite any authority to

support the argument that these doctrines may be adjudicated in a criminal



       9(Emphasis   added.)
       10 RCW 26.50.010(6) adds domestic partners and former domestic partners to
the definition.


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proceeding. Rather, these doctrines allow a court in a civil action to make a judicial

declaration of parentage.

       The presumption of parentage is contained in RCW 26.26.116 of the Uniform

Parentage Act. RCW 26.26.116(2) provides "[a] person is presumed to be the parent

of a child if, for the first two years of the child's life, the person resided in the same

household with the child and openly held out the child as his or her own." But this

"presumption" does not operate independent of the other requirements of the Uniform

Parentage Act. RCW 26.26.500 provides that "[a] civil proceeding may be

maintained to adjudicate the parentage of a child."11 And under RCW 26.26.605,

"[t]he court, without a jury, shall adjudicate the parentage of a child." Similarly, the de

facto parent doctrine allows a court in a civil proceeding to adjudicate parentage.12 It

would be incongruous with the statutory scheme and existing case law to allow a

parentage determination in a criminal proceeding.

       The State did not present the trial court with any evidence of such a judicial

determination. On this record, the State's presumptive parent and de facto parent

theories fail.13

       Because A.S. and Shelley are not family or household members, the

domestic violence special verdicts on count 3, second-degree assault of a child, and


       11 (Emphasis added.)

                      re Parentacte of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005); In
       12 See, e.q., In
re Custody of Shields, 157 Wn.2d 126, 136 P.3d 117 (2006); In re Custody of B.M.H.,
179 Wn.2d 224, 315 P.3d 470(2013); In re Custody of A.F.J., 179 Wn.2d 179, 314
P.3d 373(2013).
      13 Any suggestion that the jury in this criminal matter may have applied the
presumptive parent or de facto parent theories also fails because the State did not
argue or request any instructions on either theory in the trial court.


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count 4, felony harassment, are invalid as a matter of law. These invalid special

verdicts directly affect the court's calculation of Shelley's offender score for counts 3

and 4 and indirectly affect the calculation of his offender score for count 1.

       We therefore remand for resentencing based upon an offender score

consistent with this opinion.

                            Statement of Additional Grounds

       In the statement of additional grounds, Shelley contends the court failed to

address his mental stability at trial.

       On July 29, 2015, the court ordered a pretrial mental evaluation to determine

Shelley's competency to stand trial. In her report, Melissa Dannelet, a licensed

psychologist at Western State Hospital, opined Shelley "has the capacity to

understand the nature of proceedings against him and to assist in his defense."14 On

August 31, 2015, the court entered an agreed order of competency.

       On June 22, 2016, the court ordered a second pretrial mental evaluation to

determine Shelley's mental state. In her report, Dannelet opined Shelley "had the

capacity to form the requisite mental state to commit the alleged offenses."15

       At trial, Shelley asserted a defense of diminished capacity. The defense

offered David Dixon, a forensic clinical psychologist, who testified that Shelley "was

not able to form the intent to commit the crimes he's charged with."16 The State




       14   CP at 28.
       15   CP at 44.
       16   RP (Oct. 26, 2016) at 254.


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offered Dannelet, who testified Shelley "did have the capacity to form intent [at] the

time of his actions."17

         Shelley's mental stability was adequately addressed by the two mental

evaluations and the expert testimony presented at trial.

         Shelley also claims Burgess's statement changed between the night of the

incident and trial. But defense counsel cross-examined Burgess on this issue during

trial.

         We conclude the statement of additional grounds does not support any relief

on appeal.

         We affirm the convictions, but find the special verdicts on counts 3 and 4

invalid as a matter of law and remand for resentencing based upon an offender score

consistent with this opinion.




WE CONCUR:




         17   RP (Oct. 26, 2016) at 328.


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