                                                                                      FILED
                                                                             COURT OF APPEALS
                                                                                   DIVISION 11
                                                                             OIU AUG 1 I    AM 9: 07
                                                                            STATE OF WAS#IINOTON
                                                                            BY
                                                                                 OIC"           HINON
     IN THE COURT OF APPEALS OF THE STATE


                                             DIVISION II


STATE OF WASHINGTON,                                                             No. 46140 -4 -II


                                   Respondent,


         V.

                                                                            PUBLISHED OPINION
KEVIN R. CASE,


                                   M



         MAXA, J. —    Kevin Case appeals his conviction for felony violation of a no -contact

order ( NCO).   Under former. RCW 26. 50. 110( 5) (        2013), 1 violation of an NCO is a felony if the

defendant has at least two previous convictions for violating a court order issued under one of

several specific RCW chapters. Case argues that there was insufficient evidence to support his

conviction because the State presented no evidence that his previous convictions involved

violation of court orders issued under one of those RCW chapters.

         Whether a defendant' s' previous NCO convictions involved the violation of court orders

issued under one of the specific RCW chapters listed in former RCW 26. 50. 110( 5) is not.an

element of the crime of felony violation of an NCO. Instead, whether the previous convictions

involved violation of such orders is a threshold question of law for the trial court to determine.

Therefore, the State was not required to submit evidence to the jury that Case' s previous


1
    RCW 26. 50. 110   was amended      in 2015. See LAWS       of   2015,   ch. 248, §§ ( 1)(   a), (   2). However,
these amendments      have   no effect on   the issues   in this   case.
46140 -4 -II



convictions were for violations of orders issued under one of the RCW chapters listed in

former RCW 26. 50. 110( 5) in order to produce sufficient evidence to establish all elements


necessary to convict Case. However, the State still was required to submit sufficient evidence

to allow the trial court to determine as a matter of law whether Case' s prior convictions

involved violation of orders issued under one of those RCW chapters.

        Here, the State presented no evidence to the trial court that Case' s prior convictions


were for violating court orders issued under one of the specific RCW chapters listed in former
RCW 26. 50. 110( 5).      As a result, there was insufficient evidence to support a conviction for


felony violation of an NCO. Accordingly, we reverse and dismiss Case' s conviction with
prejudice. 2

                                                     FACTS


        In December 2013, a person called the police after observing Case yelling at a woman

crouched in a doorway near a bus terminal. The investigating officer determined that an NCO

was in place that prohibited Case from contacting the woman. The State charged Case with

felony violation of an NCO under former RCW 26. 50. 110( 1) and ( 5)
         At trial, the   parties   entered the   following   stipulation: "   The defendant has at least two


prior convictions for violating the provisions of a. protection order, restraining order, or no -

contact order   issued    under    Washington State Law." Clerk' s Papers ( CP) at 36. However, the




2 Because we reverse and dismiss Case' s conviction, we do not address Case' s claims that the
trial court violated his public trial right and right to be present at critical trial proceedings, that
he received ineffective assistance of counsel based on his defense counsel' s failure to object to
Case' s restraint in a leg brace during trial and a police officer' s testimony that allegedly
 commented on Case' s guilt, and that the trial court erred at sentencing.

                                                         2
46140- 4- I1



State provided no evidence regarding whether Case' s prior convictions involved violation of

court orders issued under one of the specific RCW chapters listed in former RCW

26. 50. 110( 5).


         After trial, the jury found Case guilty as charged. Case appeals.

                                                   ANALYSIS


         Under former RCW 26. 50. 110( 5),          violation of an NCO is a felony if the defendant has

at least two previous convictions for violating a court order issued under one of several specific

RCW chapters listed in the statute. However, former RCW 26. 50. 110( 5) does not apply to

convictions for the violation of orders issued under RCW chapters not listed in the statute.3

         The stipulation entered at trial stated only that Case at least twice had been convicted of

violating a " protection order, restraining order, or no -contact order without reference to

whether the convictions had been issued under the RCW chapters specified in former RCW

26. 50. 110( 5).   CP at 36. Case argues that there was insufficient evidence to support his

conviction for felony violation of an NCO because the State did not produce any evidence that

his previous convictions had been for violating a court order issued under one of the specified

RCW chapters. We agree.


A.        SUFFICIENT EVIDENCE TO CONVICT


          The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the




 3 Trial courts can issue protection and restraining orders under RCW chapters not listed in
 RCW 26. 50. 110( 5).    See,    e. g.,   RCW 10. 14. 080 ( antiharassment   protection order);   RCW

 26. 44. 150( 2) ( restraining   order against person accused of    abusing    a child).
46140 -4 -II




fact at issue beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182

2014).    In evaluating a sufficiency of the evidence claim, we assume the truth of the State' s

evidence and all reasonable inferences drawn from that evidence. Id. at 106. We defer to the

trier of fact' s resolution of conflicting testimony and evaluation of the persuasiveness of the

evidence. Id.


         The State charged Case with felony violation of an NCO under former RCW

26. 50. 110( 5),   which states:



         A violation of a court order issued under this chapter, chapter 7. 92, 7. 90, 9A.46,
         9. 94A, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or of a valid foreign protection
         order as defined in RCW 26. 52.020, is a class C felony if the offender has at least
         two previous convictions for violating the provisions of an order issued under this
         chapter, chapter 7.90, 9A. 46, 9. 94A, 10.99, 26.09, 26.10, 26.26, or 74. 34 RCW,
         or a valid foreign protection order as defined in RCW 26. 52: 020.

 Emphasis      added.)    The first issue here is whether an essential element of the crime of felony

violation of an NCO is the statutory authority under which the predicate convictions were

entered. We hold that the statutory authority of the predicate convictions is not an element of

the crime that must.be presented to the jury.

         Division One of this court addressed this issue in State v. Carmen, 118 Wn. App. 655,

77 P. 3d 368 ( 2003).       The court held that whether the defendant' s convictions actually were

based on violations of statutes listed in former RCW 26. 50. 110( 5) was not a question of fact

for the jury, but    a question of    law for the trial       court.   Id.   at   663. Accordingly, the court rejected


the defendant' s argument that proof of the statutory authority of the predicate convictions was

 an element of     the   offense.   Id.   at   660- 63.   In State v. Arthur, we expressly disagreed with the

 court in Carmen and held that the statutory authority for felony -qualifying convictions was an



                                                               M
46140 -4 -II



essential element of          the   offense.    126 Wn.    App.       243, 244, 108 P. 3d 169 ( 2005),   overruled by

State v. Miller, 156 Wn.2d 23, 123 P. 3d 827 ( 2005).


             Our Supreme Court          addressed      Carmen     and    Arthur in Miller, 156 Wn.2d         at   30- 31.   In


that case, the issue was slightly different than here. The court addressed whether the validity

of the underlying court orders was an element of the crime of violating such orders. Id. at 24.

The court held that the existence of a domestic violence no -contact order is an element of the


crime of violating such an order, but that the validity of such an order is not an element. Id.

Instead, the validity of underlying orders is a question of law for the trial court to decide as part

of   its "   gate - keeping   function." Id.


             In its analysis, the court discussed Carmen with approval. Miller, 156 Wn.2d at 30.

The court noted that in Carmen, Division One " determined that evaluation of the underlying .

no -contact order was                      a question of        law for the judge,   not of   fact for the   jury."    Id. at
                                properly


30. After citing to Arthur as well as to Carmen, the court further stated:

              Carmen rested in part on the comparative expertise of a judge to make reasoned
             judgments about the legal authority by which predicate no -contact orders were
              issued. Carmen also noted, properly, that "[ t]he very relevancy of the prior
              convictions depended upon whether they qualified as predicate convictions under
              the statute. If they had not so qualified, the jury never should have been permitted
              to   consider   them."   Carmen, 118 Wn. App. at 664.

Miller, 156 Wn.2d at 30. The court reemphasized its holding that the " validity of the no -

contact order         is   not an element of     the   crime," and stated      that "[ t] o the extent the cited cases are



inconsistent, they           are overruled."'     Id. at 31.


              In State v. Gray, Division One subsequently interpreted Miller as " explicitly

app.rov[ ing] Carmen'
                                                                the   prior convictions qualified as predicate
                                s   holding    that   whether
46140 -4 -II




convictions under the statute was a threshold determination of relevance, or applicability,

properly left to the   court."   134 Wn.   App.     547., 555, 138 P. 3d 1123 ( 2006). The court stated


that Miller' s reasoning regarding the validity of predicate convictions applied equally to issues

of law about previously -violated NCOs. Id. The court summarized the dispute between

Carmen and Arthur as follows:


        In sum, prior convictions for violating NCOs are only relevant to prove felony
        violation of an NCO under RCW 26. 50. 110( 5) if the previously -violated NGOs
        were   issued   under    the   listed   statutes.   Carmen and Miller establish that the
        statutory authority for those NCOs is not an essential element of the crime to be
        decided by the jury but rather a threshold determination the court makes as part
        of its " gate -keeping function" before admitting the prior convictions into,

        evidence for the jury' s consideration. Miller resolved the CarmenArthur dispute
        in Carmen' s favor, and we agree with the reasoning in both cases. We therefore
        decline to apply Arthur here.

Gray, 134 Wn. App. at 556 ( footnote omitted).

        We agree with Gray that our holding in Arthur is inconsistent with our Supreme

Court' s analysis in Miller. Therefore, we decline to follow Arthur and hold that the

authority under which the court orders the defendant was convicted of violating was

issued is not an element of the crime of felony violation of an NCO.

        Under this holding, the State was required to prove at trial only the existence of

two prior convictions for violating a court order. Here, the State presented a stipulation

that Case twice previously had violated a protection order, restraining order, or NCO

issued under Washington law. Therefore, we hold that the State produced sufficient

evidence   to the jury to   support    Case'   s conviction   for   felony   violation of an   NCO.
46140 -4 -II




B.       TRIAL COURT' s GATE -KEEPING FUNCTION


         Our holding that the State produced sufficient evidence to the jury to establish

all elements necessary to convict Case of felony violation of an NCO does not end our

inquiry. Case argues that even if whether his previous convictions involved orders

issued under one of the RCW chapters listed in former RCW 26. 50. 110( 5) is a question

of law for the trial court, the State still was required to submit evidence to the trial court

that those convictions involved such orders. We agree.

         Under Miller, the trial court determines as a question of law whether the


predicate convictions supporting the charge of felony violation of an NCO involved

orders   issued   under one of the   RCW    chapters   listed in former RCW 26. 50. 110( 5).       156


Wn..2d   at   24, 31.   This determination involves the trial court' s exercise of its " gate -


keeping   function." Id. To enable the trial court to make this determination, the State


must submit evidence to the trial court proving that the defendant' s prior convictions

were in fact for violating court orders issued under one of the specific RCW chapters

listed in former RCW 26. 50. 110( 5).       Miller, 156 Wn.2d     at   31.   Only once the State

produces such evidence can the trial court allow the State to submit evidence to the jury

of a defendant' s prior convictions for violating court orders. If no prior convictions are

admissible, the defendant' s charge for felony NCO violation must be dismissed. Id.
          Here, the State submitted no evidence to the trial court that Case' s prior


convictions were for violating orders issued under one of the specific RCW chapters

listed in former RCW 26. 50. 110( 5).        Instead, the State relied on the parties' stipulation


that Case had at least two prior convictions for violating the provisions of a protection


                                                        7
46140 -4 -II



order, restraining order, or NCO without stating the statutory authority of such orders.

This stipulation was insufficient to support a conviction for felony violation of an NCO

under former RCW 26. 50. 110( 5).


        Although the State proved to the jury all the elements of the charge of felony

violation of an NCO, it failed to present evidence to satisfy the threshold determination

that Case' s prior convictions were for violating court orders issued under one of the

specific    RCW   chapters   listed in former RCW 26. 50. 110( 5).   Accordingly, we hold that

there was insufficient evidence to support a conviction for felony violation of an NCO

and dismissal of the charge is the appropriate remedy.

           We reverse and dismiss Case' s conviction with prejudice.




                                                         MAXA, J.


 We concur:




  W   RSWICK, P. J.




   AK" J.
