State Of Washington v. Kevin Hutton, 73945-0

Background

Kevin Hutton was tried for assaulting his ex‑girlfriend (Shamicia Jones), assaulting a police officer during arrest, and multiple violations of no‑contact orders; some counts carried domestic violence allegations.
Key evidence: victim and roommate testimony, 911 call, police reports, ER physician testimony about Jones’s injuries, recorded phone calls (including admissions/remorse), in‑car video of Hutton’s violent behavior, and Hutton’s verbal admission to kicking the officer.
The parties stipulated that multiple no‑contact orders existed and that Hutton knew of them; recorded calls to Jones would violate an order if made by Hutton.
Jury convicted Hutton of second‑degree assault (Jones), third‑degree assault (officer), multiple misdemeanor violations of no‑contact orders, and one felony violation of a court order elevated based on the assault.
On appeal Hutton raised claims under RCW 26.50.110(4)/double jeopardy, denial of a self‑defense instruction, various evidentiary rulings (including ER 404(b) concerns), ineffective assistance, cumulative error, unlawful financial obligations, and clerical error in the judgment.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hutton)	Held
Whether felony violation of a no‑contact order elevated by second‑degree assault violates RCW 26.50.110(4) / double jeopardy	The felony elevation is improper when predicated on second‑degree assault per controlling law (State conceded error)	Second‑degree assault was used to elevate a misdemeanor to a felony; this violates RCW 26.50.110(4) and implicates double jeopardy	Court accepted State concession: felony conviction reversed and remanded for entry of the lesser‑included misdemeanor violation (vacatur of felony)
Whether trial court erred by denying self‑defense instruction for assault counts	Not applicable	Hutton produced some evidence (intoxication and victim’s angry words) supporting self‑defense instruction	Denial upheld: words and intoxication alone did not supply credible evidence of reasonable fear of imminent great bodily harm; no abuse of discretion
Admissibility of testimony that children witnessed assault and testimony implying prior domestic violence (ER 401/403/404(b))	Testimony relevant to context and corroborated by other evidence; any nonresponsive or vague references were curable	Such testimony was irrelevant, unduly prejudicial, and violated pretrial limine/ER 404(b)	No abuse of discretion; objections were either not timely or the testimony was nonresponsive/vague; any error was harmless given overwhelming corroborating evidence
Whether trial counsel was ineffective for failing to preserve evidentiary objections	Not applicable	Counsel’s failure to object/preserve constituted deficient performance causing prejudice	Rejected: challenged testimony was not central and no reasonable probability of a different outcome; Strickland not satisfied
Whether cumulative errors warrant a new trial	Not applicable	Multiple small errors cumulatively denied a fair trial	Rejected: errors were few/minor and had little or no effect on outcome
Whether mandatory financial assessments (VPA, DNA fee) and clerical errors were improper	State relied on precedent upholding mandatory fees and that clerical errors should be corrected	Challenged constitutionality of mandatory fees and pointed out an incorrect aggravator in judgment	Financial challenges rejected (court followed recent WA appellate precedent); clerical error acknowledged and remand ordered to remove withdrawn aggravator

Key Cases Cited

State v. Ward, 148 Wn.2d 803, 64 P.3d 640 (Wash. 2003) (RCW 26.50.110(4) limits use of second‑degree assault to elevate no‑contact violation to felony)
State v. Azpitarte, 140 Wn.2d 138, 995 P.2d 31 (Wash. 2000) (same principle limiting predicate assault for felony elevation)
In re Pers. Restraint of Heidari, 174 Wn.2d 288, 274 P.3d 366 (Wash. 2012) (remand for entry of lesser offense appropriate if jury was instructed on and found its elements)
Werner v. State, 170 Wn.2d 333, 241 P.3d 410 (Wash. 2010) (standard for when self‑defense instruction is required)
State v. Riley, 137 Wn.2d 904, 976 P.2d 624 (Wash. 1999) (mere words alone do not create reasonable apprehension for self‑defense)
State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (Wash. 1983) (trial court may deny self‑defense instruction when no credible evidence supports it)
State v. Gresham, 173 Wn.2d 405, 269 P.3d 207 (Wash. 2012) (ER 404(b) errors are not reversible unless reasonably probable they affected verdict)
State v. Ashley, 186 Wn.2d 32, 375 P.3d 673 (Wash. 2016) (standard of review for admission/exclusion of evidence)
State v. Madison, 53 Wn. App. 754, 770 P.2d 662 (Wash. Ct. App. 1989) (failure to object will not ordinarily establish ineffective assistance absent egregious circumstances)
State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (Wash. 2015) (distinguishing discretionary costs from mandatory statutory assessments)