333 P.3d 451
Wash. Ct. App.2014Background
- McDonald was convicted of tampering with a witness (felony) and six no-contact order violations arising from a domestic-violence incident with Vanas.
- The jury was instructed on uncharged alternative means of tampering with a witness; the State conceded the instruction was not harmless.
- Sentencing computed a 14-point offender score, adding current DV misdemeanors to the prior-conviction score.
- Defense did not object to the offender-score calculation at sentencing.
- McDonald challenges (1) the instructional error on tampering and (2) the inclusion of six DV no-contact convictions in the offender score.
- The court ultimately reverses the tampering conviction for a new trial but upholds the offender-score treatment of the DV convictions for purposes of future retrial if applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructional error on uncharged alternatives was harmless. | McDonald (State) argues error not harmless since not all elements defined by charged offense. | McDonald asserts withholding one alternative instruction violates Chino and is reversible. | Not harmless; reversed and remanded for new trial. |
| Whether six DV no-contact convictions can be included in the offender score for tampering with a witness. | State contends DV definitions allow current DV convictions to count toward score. | McDonald argues definitions require dual (AND) application of DV meaning from RCW 10.99.020 and 26.50.010. | Yes; DV convictions properly count toward offender score; affirmed in part and remanded for retrial if applicable. |
Key Cases Cited
- Chino v. State, 117 Wn. App. 531 (Wash. Ct. App. 2003) (unharmsful instruction on uncharged alternatives requires clear, defining instructions)
- State v. Sweany, 174 Wn.2d 909 (Wash. 2012) (interpretation of statutory intent and plain language controls)
- State v. Evans, 177 Wn.2d 186 (Wash. 2013) (plain-language approach to statutory construction)
- State v. Contreras, 124 Wn.2d 741 (Wash. 1994) (avoid absurd results in statutory interpretation)
- Mount Spokane Skiing Corp. v. Spokane County, 86 Wn. App. 165 (Wash. Ct. App. 1997) (disjunctive/or versus conjunctive/and may be interpreted as substitutes)
- CLEAN v. City of Spokane, 133 Wn.2d 455 (Wash. 1997) (interpretation of statutory conjunctions in context)
- Bullseye Distrib., LLC v. State Gambling Comm’n, 127 Wn. App. 231 (Wash. Ct. App. 2005) (disjunctive/conjunctive word meaning can be flexibly applied)