FILED
October 1,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31780-3-III
Appellant, ) (Consolidated with
) No. 31781-1-III)
v. )
)
JEREMIAH JAMES HODGINS, ) PUBLISHED OPINION
)
Respondent. )
SIDDOWAY, C.1. - The State appeals the trial court's refusal to count prior
misdemeanor convictions for repetitive domestic violence offenses towards Jeremiah
Hodgins' offender score in sentencing him for felony domestic violence offense
convictions in 2013. The challenge requires us to construe amendments to RCW
9.94A.525 and 9.94A.030 made in 2010.
We conclude, as have the other two divisions of our court, that a felony domestic
violence offender's offender score is properly increased under RCW 9 .94A.525(21)
where the present conviction constitutes "domestic violence" as defmed by either RCW
10.99.020 or RCW 26.50.010. See State v. Kozey, 183 Wn. App. 692, 334 P.3d 1170
(2014), review denied, 182 Wn.2d 1007, (2015); State v. McDonald, 183 Wn. App. 272,
333 P.3d 451 (2014). We reverse the sentences imposed in these consolidated cases and
remand for resentencing consistent with this opinion.
No. 31780-3-III
(Consolidated with 31781-1-III)
State v. Hodgins
FACTS AND PROCEDURAL BACKGROUND
In two separate criminal cases, consolidated on appeal, the State charged Jeremiah
Hodgins with seven counts of felony domestic violence violation of a protection order.
The first case involved a single count and was based on Mr. Hodgins' presence in the
home of the protected person on the morning of February 20,2013. The second case,
involving the remaining six counts, was based on telephone calls that Mr. Hodgins made
to the protected person from the Yakima County Jail after he was arrested for the first
violation.
Mr. Hodgins agreed to plead guilty to one count of felony violation of a protection
order in each case. But on the date set for entering his plea, a dispute came to light over
the proper calculation of his offender score in light of2010 amendments to the
Sentencing Reform Act of 1981, chapter 9.94A RCW, under which prior misdemeanor
convictions sometimes count toward an offender score where a conviction is for a felony
domestic violence offense. Mr. Hodgins' then-prior criminal history included three
misdemeanor convictions: two domestic violence no contact order violations and a fourth
degree domestic violence assault. The State calculated Mr. Hodgins' offender score in
each case as "4" based on his three prior misdemeanor convictions and his other current
offense. The defense argued that the offender score enhancement did not apply and that
Mr. Hodgins' offender score should be a "1," based solely on his other current felony
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No. 31780-3-III
(Consolidated with 31781-1-III)
State v. Hodgins
offense. The issue of whether the prior misdemeanor convictions should be counted
toward his offender score was scheduled for hearing.
Before 2010, RCW 9.94A.525 did not include any special provisions for
calculating the offender score where conviction was for a felony domestic violence
offense. Under the general offender score calculation provisions of the statute,
misdemeanor convictions were not counted.
In 2010, the statute was amended to include a new subsection (21), which provides
in relevant part as follows:
If the present conviction is for a felony domestic violence offense where
domestic violence as defined in RCW 9.94A.030 was plead and proven ...
count points as follows:
(c) Count one point for each adult prior conviction for a repetitive
domestic violence offense as defined in RCW 9.94A.030, where domestic
violence as defined in RCW 9.94A.030, was plead and proven after August
1,2011.
LAWS OF 2010, ch. 274, § 403, at 2208; RCW 9.94A.525. A new definition of "repetitive
domestic violence offense" was added to RCW 9.94A.030 that included non-felony
domestic violence assaults under RCW 9A.36.041 and non-felony domestic violence
violations of no contact or protective orders under chapters 10.99,26.09,26.10,26.26, or
26.50 RCW. LAWS OF 2010, ch. 274, § 40 1(39)(a)(i)-(iii), at 2199; former RCW
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No. 31780-3-III
(Consolidated with 31781-1-III)
State v. Hodgins
9.94A.030(40)(a)(i)-(iii) (2010).' Collectively, the changes meant that certain
convictions for misdemeanor domestic violence offenses would count toward the
offender score, the key being whether, for the present offense, "domestic violence as
defined in RCW 9.94A.030 was plead and proven." RCW 9.94A.525(21).
A new definition of "domestic violence" was added to RCW 9.94A.030, defining
the term as "ha[ving] the same meaning as defined in RCW 10.99.020 and 26.50.010."
LAWS OF 2010, ch. 274, § 401 at 2194; RCW 9.94A.030(20). As pointed out by Mr.
Hodgins, the 2010 legislation was the first time a Washington statute had defined
"domestic violence" as having "the same meaning as defined in RCW 10.99.020 and
26.50.010." Br. of Resp't at 7,9. Those two provisions take different approaches to
defining domestic violence. 2
RCW 10.99.020 is a provision of Title 10, dealing with criminal procedure, and
includes a nonexclusive list of 23 crimes that constitute domestic violence "when
committed by one family or household member against another." RCW 10.99.020(5).
Among the crimes listed are assaults, rape, kidnapping, several property crimes, stalking,
interference with the reporting of domestic violence, and-relevant here-violation of
I Recodified as RCW 9.94A.030(41).
2 Mr. Hodgins' brief identifies 16 statutes that rely solely on the definition of
"domestic violence" in RCW 10.99.020 and 13 that rely solely on the definition of
"domestic violence" in RCW 26.50.010. Br. of Resp't at 18-19 & ns. 5 & 6.
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No. 31780-3-111
(Consolidated with 31781-1-111)
State v. Hodgins
the provisions of certain restraining orders, no contact orders, or protection orders. RCW
10.99.020( 5)(a)-(w).
RCW 26.50.010 is a provision of Title 26 (Domestic Relations), chapter 26.50
(Domestic Violence Prevention) and defines "domestic violence" in general terms, as
meanmg
(a) Physical harm, bodily injury, assault, or the infliction of fear of
imminent physical harm, bodily injury or assault, between family or
household members; (b) sexual assault of one family or household member
by another; or (c) stalking as defined in RCW 9A.46.110 of one family or
household member by another family or household member.
Given the different approaches of the two definitions, each is both more inclusive
than the other and less inclusive than the other, in differing respects. The parties' dispute
at sentencing was over whether the definition of "domestic violence" in RCW
9.94A.030(20) should be read to include only those acts that fall within both definitions
(the defense view), or all acts falling within either definition (the State's view).
After hearing argument, the trial court ruled from the bench that "there must be
some allegation pled [sic] and proved of violence of some sort, not just a violation of
protective order," explaining that it viewed the legislature as seeking to punish domestic
violence, "and simply calling someone up on the phone isn't that type of activity that
would warrant an extra point for sentencing purposes." Report of Proceedings (RP) at
36-37. In a letter sent to counsel the following day, the trial court elaborated:
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No. 31780-3-II1
(Consolidated with 31781-1-111)
State v. Hodgins
This court interprets the word "and" in RCW 9.94A.030(20) as
meaning "and." Therefore, if a defendant's conduct does not amount to
domestic violence under both RCW 10.99.020 and 26.50.010, then it is not
"domestic violence" pursuant to RCW 9.94A.030(20). Because a violation
of a restraining order does not constitute domestic violence under RCW
26.50.010, this court concludes that a violation of a restraining order does
not constitute "domestic violence" for purposes ofRCW 9.94A.030(20).
Because the present convictions are for violations of restraining
orders, not for "domestic violence" as defined by RCW 9.94A.030, RCW
9.94A.525(21) does not authorize adding points to Mr. Hodgins' offender
score for his prior misdemeanor convictions. As a result, Mr. Hodgins'
offender score is 1.
Clerk's Papers (CP) at 15-16.
The State appeals the court's offender score ruling and the judgment and sentences
entered in both cases.
ANALYSIS
RCW 9.94A.525(21), enacted in 2010, is conditional: an offender score is
increased for the types of prior convictions enumerated in subsections (a) through (c) if
(and only if) the present conviction is a felony for which "domestic violence as defined in
RCW 9.94A.030 was plead[ed] and proven." The parties agree that the State did not
plead and prove that Mr. Hodgins's present convictions were "domestic violence" within
the meaning of both RCW 10.99.020 and RCW 26.50.010. The issue of statutory
construction as argued by the parties is whether the legislature intended RCW
9.94A.030(20),s new definition of "domestic violence" to include all acts falling within
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No. 31780-3-II1
(Consolidated with 31781-1-III)
State v. Hodgins
either of the preexisting statutory definitions, or only the subset of acts that fell within
both.
The meaning of a statute is a question of law, reviewed de novo. Dep't ofEcology
v. Campbell & Gwinn, LLC, 146 Wn.2d 1,9,43 P.3d 4 (2002). Our fundamental
objective in interpreting a statute is to ascertain and carry out the legislature's intent.
Arborwood Idaho, LLC v. City ofKennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004).
If the statute's meaning is plain on its face, the court must give effect to that plain
meaning as an expression oflegislative intent. Campbell & Gwinn, 146 Wn.2d at 9-10.
The plain meaning of a statute is gleaned from'" all that the Legislature has said in the
... related statutes which disclose legislative intent about the provision in question.'"
State v. Costich, 152 Wn.2d 463,470, 98 P.3d 795 (2004) (alteration in original) (quoting
Campbell & Gwinn, 146 Wn.2d at 11 ». Only if a statute remains ambiguous after a plain
meaning analysis may this court resort to additional canons of statutory construction or
legislative history. Campbell & Gwinn, 146 Wn.2d at 12.
Mr. Hodgins contends-and the trial court agreed-that because RCW
9.94A.030(20) uses the word "and," both statutory definitions referenced must be met for
RCW 9.94A.525(21) to apply. It is generally presumed that use of the word "and" in a
statute indicates the legislature's intent that two provisions be applied conjunctively,
while use of the word "or" indicates an intent that the provisions be applied disjunctively.
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No. 31780-3-111
(Consolidated with 31781-1-111)
State v. Hodgins
State v. Tiffany, 44 Wash. 602, 603-04, 87 P. 932 (1906); State v. Irizarry, 111 Wn.2d
591,602, 763 P.2d 432 (1988) (Callow, J., concurring and dissenting). Yet ~~[a]uthorities
agree that and has a distributive (or several) sense as well as a joint sense." BRYAN A.
GARNER, GARNER'S DICTIONARY OF LEGAL USAGE 639 (3d ed. 2011). Accordingly, it is
well settled that "the conjunctive ~and' and the disjunctive 'or' may be substituted for
each other if it is clear from the plain language of the statute that it is appropriate to do
so." Bullseye Distrib., LLC v. Gambling Comm 'n, 127 Wn. App. 231, 239, 110 P.3d
1162 (2005); Mount Spokane Skiing Corp. v. Spokane County, 86 Wn. App. 165, 174,
936 P.2d 1148 (1997); Guijosa v. Wal-Mart Stores, Inc., 101 Wn. App. 777, 790, 6 P.3d
583 (2000), aff'd by Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907 (2001); see also
lA Norman J. Singer, Sutherland Statutory Construction § 21.14 (5th ed. Supp. 1996)
("The literal meaning of these terms ["and" and "or"] should be followed unless it
renders the statute inoperable or the meaning becomes questionable."). Thus, the word
"and" is "frequently interpreted by courts to mean ~or'" where doing so is necessary to
avoid absurd results. State v. Keller, 98 Wn.2d 725, 729, 657 P.2d 1384 (1983).
In Keller, for example, the court interpreted "and" to mean "or" in a statute setting
forth the conditions under which a person could obtain a conditional release from a state
mental institution. Id. at 728-29. Similarly, this court held in Mount Spokane that a
public corporation was not required to undertake all of the functions listed in a statute in
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No. 31780-3-III
(Consolidated with 31781-1-III)
State v. Hodgins
order to be valid, despite the legislature's use of the word "and." 86 Wn. App. at 174.
The court explained that
[i]t is clear from a plain reading of the statute that the powers listed in
paragraph (4) are the possible functions a public corporation may
undertake. Nowhere does it appear from the statutory language that the
corporation must undertake each and every function in order to be valid and
legal. Nor does such an interpretation comport with common sense. Based
upon the plain language and intent of the statute, a public corporation may
undertake one or more of the functions listed in paragraph (4).
Id. at 174.
Interestingly, the State and Mr. Hodgins both invoke the canon of construction that
the drafters of legislation are presumed to have used no superfluous words, requiring us
to accord meaning, if possible, to every word in a statute. Br. of Appellant at 8-9; Br. of
Resp't at 7-8, 14-15. Each argues that the other party's construction renders reference to
one or the other statute superfluous. Id. But under neither party's construction is the
reference to one statute superfluous. Under the State's construction, reference to both
statutes is necessary because the legislative intent was to create a definition that captured
acts of domestic violence under either statute. Under Mr. Hodgins's construction, both
statutes are necessary because the legislative intent was to create a narrow definition by
requiring that an act qualifY as domestic violence under both. 3
3IfRCW 10.99.020 (being a non-exclusive list of crimes) were viewed as broad
enough to capture all domestic violence captured by RCW 26.50.010-i.e, ifRCW
26.50.010 is its subset-then both sides are right. Reference to RCW 10.99.020 would
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No. 31780-3-111
(Consolidated with 31781-1-111)
State v. Hodgins
We need not reach canons of construction, however, because we find that the
legislature'S use of the language "has the same meaning as" is a plain indication that the
legislature intended a definition of "domestic violence" that was a union of the two
existing statutory definitions, not their intersection. RCW 9.94A.030(20) (emphasis
added). While it would be workable for the legislature to have treated only the
intersection of the two statutory definitions as "domestic violence" for purposes ofRCW
9.94A.525(21), that intersection cannot be said to "have the same meaning as defined in
[] RCW 10.99.020 and 26.50.0 1O"-or either of them, for that matter. Br. ofResp't at 7.
It is only the union of the two statutory definitions that can be said to "have the same
meaning as defined in [ ] RCW 10.99.020 and 26.50.010." ld.
We note that Division Two's decision in Kozey, 183 Wn. App. 692, offers
additional legislative history in support of our construction of the 2010 amendments. We
find it unnecessary to review that history.
Mr. Hodgins makes the alternative argument on appeal that the second of his
present convictions for the phone calls placed to the protected person does not meet the
definition of domestic violence under either RCW 10.99.020 or RCW 26.50.010, so that
be superfluous if the intent was to limit "domestic violence" to the intersection of the
statutes, and RCW 26.50.010 would be superfluous if the intent was to define "domestic
violence" as their union. We assume that under the rule of ejusdem generis RCW
10.99.020 would not be construed so broadly.
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No. 3 I 780-3-III
(Consolidated with 31781-1-III)
State v. Hodgins
even if we construe the statute as advocated by the State, his prior misdemeanors should
not count toward his offender score. While he did not seek cross-review, a prevailing
party need not cross appeal a trial court ruling if it seeks no further affirmative relief. He
may argue any ground to support a court's order that is supported by the record. State v.
Kindsvogel, 149 Wn.2d 477, 481,69 PJd 870 (2003).
The telephone call violation does not qualifY as "domestic violence" under RCW
26.50.010(1). Mr. Hodgins was incarcerated at the time he made the call, and the State
did not allege nor present any evidence that his calls inflicted physical harm, injury, or
that they constituted assault, sexual assault, or stalking.
Mr. Hodgins argues that the telephone calls made from jail also fail to meet RCW
10.99.020' s definition of domestic violence as including "[v]iolation [by one household
member against the other] of the provisions of a ... no-contact order, or protection order
restraining ... the person from going onto the grounds of or entering a residence,
workplace, school, or day care, or prohibiting the person from knowingly coming within,
or knowingly remaining within, a specified distance of a location." RCW
1O.99.020(5)(r). He argues that because he was in jail using a telephone when he violated
the protection order, he could not and did not enter a residence, workplace, school, or day
care or knowingly come or remain within a specified distance of a location.
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No.3l780-3-II1
(Consolidated with 3l78l-l-III)
State v. Hodgins
His argument ignores the language of the statute. RCW 1O.99.020(5)(r) requires
that the restraining order violated contain provisions restraining or enjoining the person
from "going onto the grounds of or entering a residence" or "knowingly coming within,
or knowingly remaining within, a specified distance of a location," but it does not require
that the person violated the order by engaging in that conduct. The terms of the order that
Mr. Hodgins violated are not in the record on appeal but both the charging document and
Mr. Hodgins' statement on plea of guilty indicate that he committed a felony violation,
knowingly violating a no contact order while the order was in effect "by placing a phone
call to the protected party" and having at least two previous convictions for violating such
orders. CP at 23.
Mr. Hodgins' present convictions both fell within the definition of "domestic
violence" under RCW 10.99.020. "Domestic violence" within the meaning ofRCW
9.94A.030(20) was thereby pleaded and proved. His offender score should have been
calculated to include a point for any prior repetitive domestic violence offenses.
We remand for resentencing consistent with this opinion.
WE CONCUR:
Brown, 1.
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