State v. Taylor

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This opinion was
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^ Susan L. Carlson
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Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Petitioner, No. 96325-8

En Banc

BRENDAN REIDY TAYLOR,
Filed JUL 1 8 2019
Respondent.

OWENS,J. — Brendan Reidy Taylor was charged with felony violation of a

no-contact order. Before trial, Taylor offered to stipulate that a domestic violence no-

contact order was in place and that he knew of the order. The trial court rejected

Taylor's offered stipulation and admitted the no-contact order into evidence at trial.

The trial court reasoned that the United States Supreme Court's decision in Old Chief

V. United States,which requires a trial court to accept a defendant's offered

stipulation to the fact of a prior felony conviction in a felon-in-possession prosecution,

did not apply to the admission of a domestic violence no-contact order. The jury

519 U.S. 172, llVS.Ct. 644, 136 L. Ed. 2d 574(1997).
State V. Taylor, No. 96325-8

convicted Taylor as charged, and the Court of Appeals reversed, holding that Old
C/z/e/applied to the admission of the no-contact order and required that the trial court
exclude the no-contact order from evidence.

This case presents an issue of first impression: Does the rationale of Old Chief
apply to a defendant's offer to stipulate to a domestic violence no-contact order in a
felony violation of a no-contact order prosecution, requiring the trial court to accept
the offered stipulation and exclude the order under ER 403? We decline to extend
Old Chiefto felony violation of a no-contact order prosecutions. The probative value
of a domestic violence no-contact order far outweighs any danger of unfair prejudice,

a no-contact order provides the specific restrictions imposed on a defendant, is closely
related to a felony violation of a no-contact order charge, and is evidence of multiple
elements of that offense. Accordingly, we hold that the trial court did not abuse its

discretion in admitting Taylor's no-contact order into evidence, and we reverse and

remand to the Court of Appeals.

FACTS

Taylor and his girlfriend, Anna,^ began living together in January 2016. Later

that year, Taylor was convicted of a domestic violence offense involving Anna.

Following Taylor's conviction, the Kittitas County Superior Court entered a domestic

violence no-contact order prohibiting Taylor from contacting Anna, finding that

^ We refer to Anna by only her first name to avoid subjecting her to unwanted publicity. We intend no
disrespect.

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State V. Taylor, No. 96325-8

Taylor "represent[ed] a credible threat to [her] physical safety. PI. s Ex. 35, at 2.
The order also forbid Taylor from coming within 1,000 feet of Anna's residence and
prohibited Taylor from assaulting or causing any bodily injury to Anna.
Despite the no-contact order, Taylor and Anna resumed living together. On
December 25, less than one week after the superior court entered the no-contact order,
a neighbor saw that Taylor and Aima were having a verbal altercation in the driveway
of their residence. Anna yelled out to the neighbor, stating that Taylor had hit her and
asking the neighbor to call 911. Law enforcement responded to Taylor and Anna's
residence soon after. When they arrived, law enforcement observed that Anna had

bruising on her forehead and arms, a cut on her hand, and a swollen, black eye. Anna
reported that Taylor had struck her in the head and face repeatedly.

The State charged Taylor with felony violation of a no-contact order predicated

on his assault of Anna. Prior to trial, Taylor offered to stipulate that there was a no-

contact order in place and that he knew of the no-contact order. Taylor also argued

that due to his offer to stipulate, the no-contact order should be excluded from

evidence at trial. The State refused to join in Taylor's offered stipulation. The trial

court rejected Taylor's offer, ruling:

[T]he general rule is the defendant cannot force the state to accept a
stipulation. The exception to the general rule is the Old Chief situation,
when there's a conviction, which is the thing that needs to be proven by
the state. Under that limited circumstance the defendant may force the
state to not be able to utilize the underlying ~ conviction via a stipulation.
That's not this situation.
State V. Taylor, No. 96325-8

Verbatim Report of Proceedings(VRP)at 48. The trial court admitted the no-contact
order into evidence at trial. Taylor did not object to the content or form of the no-
contact order and did not move to strike any portion ofthe order. The jury ultimately
found Taylor guilty offelony violation of a no-contact order.
Taylor appealed his conviction. Division Three ofthe Court of Appeals
reversed and remanded for a new trial, holding that the trial court abused its discretion
under ER 403 by rejecting Taylor's offered stipulation and admitting the no-contact
order into evidence. State v. Taylor, 4 Wn. App. 2d 381, 388-89, 421 P.3d 983
(2018). The Court of Appeals determined that the rationale of Old C/zze/applies to the
admission of no-contact orders because a no-contact order is relevant to prove only a
defendant's legal status. Id. at 388. The court further reasoned that "the risk of unfair
prejudice from admitting the no-contact order substantially outweighed its probative
value" because "there was no additional probative value to the no-contact order
beyond Taylor's offered stipulation." Id. at 389.
The State petitioned this court for review, and we granted its petition. State v.
Taylor, 192 Wn.2d 1030 (2019). Taylor moved to reverse the deoxyribonucleic acid
(DNA)collection and criminal filing legal financial obligations imposed against him
pursuant to this court's decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714
(2018). We denied Taylor's motion without prejudice "to raising the issue at a
resentencing hearing in the superior court." Order, State v. Taylor, No. 96325-8, at 1
(Wash. Feb. 20, 2019).
State V. Taylor, No. 96325-8

ISSUE

Did the trial court abuse its discretion under ER 403 by rejecting Taylor s offeied
stipulation and admitting a domestic violence no-contact order into evidence in a felony
violation of a no-contact order prosecution?
ANALYSIS

The State argues that the trial court did not abuse its discretion under ER 403
by rejecting Taylor's offered stipulation and admitting the no-contact order because a
domestic violence no-contact order is admitted to prove more than a defendant s legal
status and because the probative value ofthe no-contact order substantially outweighs
any danger of unfair prejudice. We agree. We hold that Old ChiefdoQS not apply to
the admission of domestic violence no-contact orders in felony violation of a no-
contact order prosecutions. We also hold that the State is not required to accept a
defendant's offer to stipulate to the existence of a domestic violence no-contact order
and that a trial court does not abuse its discretion under ER 403 by admitting the no-

contact order into evidence.

ER 403 provides: "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion ofthe issues, or misleading the jury, or by considerations of undue delay,

waste oftime, or needless presentation of cumulative evidence." A danger of unfair
prejudice exists when evidence is more likely to stimulate an emotional response than
a rational decision. State v. Beadle, 173 Wn.2d 97, 120, 265 P.3d 863 (2011). We
State V. Taylor, No. 96325-8

review a trial court's ruling under ER 403 for abuse of discretion. State v. Scherf 192
Wn.2d 350, 387,429 P.3d 776 (2018). A trial court abuses its discretion when its
decision is manifestly um'easonable or is based on untenable grounds or leasons. Id.
"A 'stipulation' is an express waiver that concedes, for purposes of trial, the
truth of some alleged fact, with the effect that one party need offer no evidence to
prove it and the other is not allowed to disprove it." State v. Case, 187 Wn.2d 85, 90,
384 P.3d 1140(2016). As a general rule, the State is not required to accept a
defendant's offered stipulation regarding an element ofthe crime charged. See State
V. Brett, 126 Wn.2d 136, 159, 892 P.2d 29(1995). In addition,

"[T]he State is not automatically precluded from presenting its evidence
on an issue merely because the defendant offers a stipulation. .. . If the
State does not agree to the stipulation, the issue remains open and the State
can proceed to prove its case in the manner that it sees fit."

State V. Pirtle, 127 Wn.2d 628,652, 904 P.2d 245 (1995)(alterations in original)

(quoting State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889(1988)). However,ER

403 requires that the State accept a defendant's offered stipulation when unfair

prejudice substantially outweighs the relevance ofthe proffered evidence. Id.-, State v.

Johnson, 90 Wn. App. 54, 63, 950 P.2d 981 (1998). In such circumstances, the trial

court also must accept the defendant's stipulation and exclude the proffered evidence

under ER 403. Johnson, 90 Wn. App. at 63.

The United States Supreme Court recognized this exception in Old Chief. 519

U.S. at 191-92. In Old Chief, the defendant was charged with violating a federal
State V. Taylor, No. 96325-8

statute that prohibited possession of a firearm by anyone with a prior felony
conviction. Id. at 174. Prior to trial, the defendant offered to stipulate that he had
been convicted of a qualifying felony. Id. at 175. The defendant argued that the
offer to stipulate to the fact ofthe prior conviction rendered evidence ofthe name and
nature ofthe offense inadmissible under Rule 403 of the Federal Rules of Evidence,
the danger being that unfair prejudice from that evidence would substantially
outweigh its probative value." Id. The prosecution refused to join in the stipulation,
seeking to admit the order ofjudgment for the defendant's prior conviction into
evidence. Id. at 177. The trial court admitted the order ofjudgment, and the jui*y

returned a guilty verdict. Id.

The Supreme Court reversed the defendant's conviction, holding that a trial
court abuses its discretion under Federal Rule of Evidence 403 when it rejects a

defendant's offer to stipulate to the fact of a prior felony conviction to prove his or her

felon status in a felon-in-possession prosecution. Id. at 174. Significantly, the Court

was careful to limit its holding to "cases involving proof offelon status." Id. at 183

n.7. The Court reasoned that the trial court's decision to reject the defendant's offer

to stipulate and admit the order ofjudgment amounted to an abuse of discretion

because the danger of unfair prejudice substantially outweighed the order of

judgment's probative value. /J. at 191.

The Court noted that the prosecution is generally entitled to prove its case by

evidence of its own choice in order to present its case with full evidentiary force. Id.

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State V. Taylor, No. 96325-8

at 186-87. However,the Court determined that this general rule has virtually no
application when the point at issue is a defendant's legal status, dependent on some
judgment rendered wholly independently ofthe concrete events of later criminal
behavior charged against him." Id. at 190. The Court reasoned that the prosecution
was required to prove only that the defendant's prior conviction fell within a broad
category of qualifying felonies. Id. at 190-91. As a result, there was no appreciable
difference in the evidentiaiy value of a stipulation to a qualifying felony and
admission ofthe official record of that felony. Id. at 191. Moreover, the Court
highlighted that "proof ofthe defendant's [felon] status goes to an element entirely
outside the natural sequence of what the defendant is charged with thinking and doing
to commit the current offense." Id.

Washington courts have adopted the exception recognized in Old Chiefand
applied it to our state's identical evidence rule, ER 403. See Johnson,90 Wn. App. at
63; State v. Garcia, 111 Wn. App. 769, 777-78, 313 P.3d 422(2013). However,
Washington courts have not yet expanded the Old Chiefrationale beyond the
admission of prior convictions in felon-in-possession prosecutions. See State v.
Ortega, 134 Wn. App. 617, 624-25, 142 P.3d 175 (2006)(expressing doubt as to
whether Old C/z/e/extends to the admission of prior violation of a protection order
convictions). This case presents an issue of first impression: Does the rationale of Old
C/zze/apply such that a trial court must accept an offer to stipulate to a prior no-
State V. Taylor, No. 96325-8

contact order in a felony violation of a no-contact order prosecution and exclude the
order under ER 403?

Because this is an issue of first impression, it is helpful to explore how other

courts have resolved whether Old Chiefextends beyond the admission of prior

convictions to prove only felon status. See In re Det. ofPouncy, 168 Wn.2d 382, 392
n.9, 229 P.3d 678(2010)("Where our evidence rules mirror their federal counterparts,
we may look to federal case law interpreting the federal rules as persuasive authority
in interpreting our own rules."). Both federal courts and other state courts have
widely, but not universally, declined to apply the Old Chiefrationale to other offenses
or elements. See, e.g., United States v. Williams, 238 F.3d 871, 875-76 (7th Cir.
2001)(declining to extend Old Chiefto a defendant's offer to stipulate to the elements
of knowledge and intent in a drug possession prosecution); Commonwealth v.

Jemison, 626 Pa. 489, 501-02, 98 A.3d 1254(2014)(finding Old Chief

distinguishable because the Pennsylvania felon-in-possession statute requires the

commission of a specifically enumerated prior offense). These jurisdictions have

reasoned that Old Chiefis expressly limited to only the admission of prior convictions

as proof offelon status. See, e.g.. United States v. Odeh, 815 F.3d 968, 982(6th Cir.

2016)("Because this case does not involve a prosecution under the felon-in-

possession statute, the Old Chiefexception does not apply."); People v. Brooks, 3 Cal.

5th 1, 38, 396 P.3d 480, 219 Cal. Rptr. 3d 331 ("Defense counsel's proposed

stipulation ... did not concern defendant's status as a convicted felon. Old Chiefs
State V. Taylor, No. 96325-8

exception to the general rule is not applicable here.") cert, denied, 138 S. Ct. 516

(2017). Courts have also noted that many ofthe issues addressed in Old Chiefdo not

apply to other offenses: past crimes generally provide a narrative of events and prove

multiple elements ofthe current charged offense. United States v. Luck, 852 F.3d

615,624-25 (6th Cir. 2017).

We join these other jurisdictions and hold that the limited Old Chiefrationale

does not apply to the admission of domestic violence norcontact orders in felony

violation of a no-contact order prosecutions. The admission of prior felony

convictions in felon-in-possession prosecutions, as in Old Chief, is distinguishable

from the admission of domestic violence no-contact orders.

Many of the concerns the Supreme Court highlighted in Old Chiefare absent in

felony violation of a no-contact order prosecutions. First, the Old ChiefComi

determined that the danger of unfair prejudice substantially outweighs the probative

value of a prior felony conviction in part because a prior conviction involves actions

independent of a felon-in-possession offense and is offered to prove that a defendant

committed a general qualifying felony. But in a felony violation of a no-contact order

case, the defendant is charged with violating the very no-contact order sought to be

admitted. What's more, the State must show that the defendant violated a specific

provision ofthat particular no-contact order. Accordingly, a no-contact order is

closely related to a felony violation of a no-contact order charge, and the probative

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State V. Taylor, No. 96325-8

value of introducing that no-contact order into evidence is greater than the probative
value of showing a general felony conviction in Old Chief.
Additionally, while the Old ChiefCourt decided that the general rule that the
prosecution can present evidence of its own choosing does not apply when the point
at issue is a defendant's legal status," 519 U.S. at 190, a no-contact order establishes
more than mere status. A domestic violence no-contact order provides the date the
order was entered, the order's expiration date, the protected party, the specific
restrictions on contact between the defendant and the protected party, that consent

cannot be used as a defense, and that the defendant knows of the order s existence and

its contents. The introduction of a no-contact order provides evidence of multiple

elements of a felony violation of a no-contact order charge and allows the State to

present the jury with a full narrative of the events leading to the charged offense.
Even the Old ChiefConn recognized that "the prosecutor's choice will generally

survive a Rule 403 analysis when a defendant seeks to force the substitution of an

admission for evidence creating a coherent narrative of his thoughts and actions in

perpetrating the offense for which he is being tried." Id. at 192.

Moreover, the Supreme Court concluded in Old Chiefthat a defendant's

offered stipulation to a qualifying felony conviction is equivalent to the prosecution's

order ofjudgment for that felony. But the same cannot be said here. To prove

Taylor's felony violation of a no-contact order charge, the State was required to prove

that there was a no-contact order in place that applied to Taylor, as well as that he

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State V. Taylor, No. 96325-8

loiew of the order, violated a provision of the order, and committed an assault. See
RCW 26.50.110(1),(4). Taylor offered to stipulate that a no-contact order was in
place and that he knew of the order, but his offered stipulation was insufficient in
comparison to the no-contact order itself. By introducing the no-contact order, the
State was able to show that a valid no-contact order was in place and the specific

restrictions ofthe order Taylor violated. Excluding the no-contact order from

evidence would allow Taylor to circumvent the full evidentiary force of the State's

case. See Old Chief, 519 U.S. at 186-87 (stating that a "defendant may not stipulate or
admit his way out of the full evidentiary force ofthe case as the Government chooses

to present it."). Because the admission of prior felony convictions in felon-in-
possession prosecutions is distinguishable from the admission of domestic violence
no-contact orders, we decline to apply Old Chiefhere.

Taylor contends that inclusion of the term "Post Conviction" on the admitted

domestic violence no-contact order was inherently prejudicial because the term

indicated that he had been convicted of a domestic violence offense. PL's Ex. 35, at

1. "A party may assign evidentiary error on appeal only on a specific ground made at

trial." State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). Taylor did not

make a specific objection to the content or form ofthe domestic violence no-contact

order or move to strike any portion ofthe order when it was admitted at trial.

Moreover, Taylor did not argue that the checked "Post Conviction" box on the no-

contact order prejudiced him. Accordingly, Taylor failed to preserve this issue for our

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State V. Taylor, No. 96325-8

review. Despite this, we note that a trial court may redact any portion of a no-contact

order that poses a risk of unfair prejudice. Cf. State v. Roberts, 142 Wn.2d 471, 492-

94, 14 P.3d 713 (2000). Indeed, the State conceded at oral argument that "[a]judge

could exercise his or her discretion to redact what kind of order it is ... . [The type of

order] may trigger an emotional response." Wash. Supreme Court oral argument.

State V. Taylor, No. 96325-8(May 28, 2019), at 7 min., 36 sec., video recording by

TVW, Washington State's Public Affairs Network, http://www.tvw.org.

Taylor's domestic violence no-contact order was admissible under ER 403

because the probative value ofthe no-contact order far outweighed any danger of

unfair prejudice. The no-contact order had significant probative value as to Taylor's

felony violation of a no-contact order charge. The no-contact order provided the

specific restrictions imposed on Taylor, was closely related to the charged offense,

and offered evidence of multiple elements of the offense. In addition, there was

nothing particularly inflammatory or unfairly prejudicial about the no-contact order.

The no-contact order did not describe the nature of Taylor's prior domestic violence

offense and was not more likely to stimulate an emotional, rather than a rational,

decision from the jury. As a result, admission of the domestic violence no-contact

order did not create a risk of unfair prejudice to Taylor. Consequently, the State was

not required to accept Taylor's offered stipulation, and the trial court's decision to

admit the no-contact order into evidence under BR 403 was based on tenable grounds.

Thus, the trial court did not abuse its discretion.

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State V. Taylor, No. 96325-8

CONCLUSION

We hold that Old Chiefdoes not apply to the admission of domestic violence

no-contact orders in felony violation of a no-contact order prosecutions. Stated

another way, we hold that the State is not required to accept a defendant's offer to

stipulate to the existence of a domestic violence no-contact order and a trial court does
not abuse its discretion under ER 403 by declining to accept a defendant's offered

stipulation and admitting a domestic violence no-contact order into evidence.

Accordingly, the trial court's decision to admit Taylor's domestic violence no-contact

order was based on tenable grounds and reasons, and the trial court did not abuse its

discretion. We reverse and remand to the Court of Appeals for further proceedings in

that court.

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State V. Taylor, No. 96325-8

WE CONCUR:

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