State v. Case

This opinion was filed for record
at B. oJ 0-/"'- on{)_~)(, YJ lp
,. DAT. .
---(1.··~
·~· dhe-d.CL.. /
~Ji1G.:!.
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 92293-4
Petitioner, )
)
v. ) En Bane
)
KEVIN RAY CASE, )
) Filed
----------
Respondent. )
__________________ )
GONZALEZ, J. -Kevin Case was convicted of felony violation of a

domestic violence no-contact order. While normally a gross misdemeanor,

violating a no-contact order becomes a felony when an offender has at least

two prior convictions for violating a no-contact order or similar order issued

under qualifying provisions listed in RCW 26.50.110(5).

In order to limit jury bias, defendants facing a felony charge of

violating a domestic violence no-contact order will typically admit to the

prior convictions so that the prosecution does not need to introduce the

details of those convictions to prove their existence to the jury. Indeed, it

would be reversible en-or for a trial judge to decline to accept such a
State v. Case, No. 92293-4

stipulation. Like many defendants, Case stipulated that he had been

convicted of violating no-contact orders before. However, his stipulation

did not explicitly state that the previously violated orders had been issued

under qualifying provisions listed in the statute. For the first time on appeal,

Case argued the State failed to prove its case because his stipulation was

inadequate. We find that whether the prior convictions were issued under

qualifying provisions listed in RCW 26.50.11 0(5) is a threshold legal matter

to be decided by the judge and that Case's stipulation, in context, was

sufficient. Accordingly, we reverse the Court of Appeals and reinstate his

conviction.

FACTS

Case is no stranger to either the victim here or the consequences of

violating a no-contact order. On December 18, 2013, a bystander saw Case

standing over and yelling at a woman crouched in a doorway who was

"visibly shaking [and had] the look of just death in her face." Verbatim

Report of Proceedings (VRP) (Mar. 17-18, 2014) at 10. The bystander, a

former police officer, was concerned for the woman's safety. He called 911

and followed Case and Case's victim until police arrived. Responding

officers learned the victim had a no-contact order against Case that ordered

Case to stay away from her. Case was arrested.

2
State v. Case, No. 92293-4

The State charged Case with one count of felony violation of a

domestic violence no-contact order under RCW 26.50.11 0( 5). The charging

document alleged the December 2013 incident was the third or subsequent

violation of a similar order and stated that the prior orders were "issued

under Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, 74.34 RCW, or a

valid foreign protection order as defined in RCW 26.52.020." 1 Clerk's

Papers at 3. At the time of charging, Case already had 13 prior convictions

for violating a no-contact order.

The parties did not formalize the stipulation before trial. Prior to voir

dire, the court confirmed their plan to stipulate and explained, without

objection from either party, that the stipulation would relieve the State of the

1
The information stated in relevant part:

COUNT I- FELONY VIOLATIONS 01<' POST CONVICTION NO
CONTACT ORDER/DOMESTIC VIOLENCE- THIRD OR
SUBSEQUENT VIOLATION OF ANY SIMILAR ORDER, RCW
26.50.110(5), RCW 10.99.020 AND RCW 10.99.050- CLASS C FELONY:
In that the defendant, KEVIN RAY CASE, in the State of Washington, on or
about December 18,2013, with !mowledge that the Olympia Municipal Court had
previously issued a no contact order, pursuant to Chapter 10.99 in Olympia
Municipal Court on July 15, 2013, Cause No. 3Z0193715, did violate the order
while the order was in effect by knowing! y violating the restraint provisions
therein pertaining to [the victim], a family or household member, pursuant to
RCW 10.99.020; and furthermore, the defendant has at least two prior convictions
for violating the provisions of a protection order, restraining order, or no-contact
order issued Lmder Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, or 74.34
RCW, or a valid foreign protection order as defined in RCW 26.52.020.

Clerk's Papers at 3.

3
State v. Case, No. 92293-4

"necessity of having to go into detail about those convictions." VRP (Mar.

17-18, 2014) at 6. Most relevantly, the following discussion occurred:

THE COURT: All right. I understand there's going to be a
stipulation as to the fact that Mr. Case has two or more prior
convictions for violation of orders of protection or no contact.

MR. TAYLOR: That's correct, Your Honor.

THE COURT: Okay. That relieves the State from the necessity
of having to go into detail about those convictions. And so I would
expect that that stipulation would be read to the jury and also I'll have
it marked as an exhibit so that it goes to the jury during their
deliberation process.

MS. WEVODAU: Thank you, Your Honor. That was going to
be the State's request, and I do also have the limiting instruction to
accompany the stipulation.

Id. Near the end oftrial, the judge read to the jury Case's stipulation that

[t]he parties have agreed that certain facts are true. You must
accept as true the following facts: 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.

I d. at 66; see also Ex. 5 (Stipulation)_2 Neither party objected to the

stipulation or to the to-convict instruction. The to-convict instruction

mirrored the stipulation and said:

2
Case and his attorney signed the stipulation on March 17,2014, which said in relevant
part, "The defendant and the defendant's attorney hereby stipulate the above is a correct
statement of the stipulated facts to be presented to the jury." Ex. 5.

4
State v. Case, No. 92293-4

To convict the defendant ofthe crime of violation of a no-contact
order as charged, each of the following elements of the crime must be
proved beyond a reasonable doubt:

1) that on or about December 18, 2013, there existed a no contact
order applicable to the defendant,

2) that the defendant !mew of the existence of this order,

3) that on or about said date, the defendant lmowingly violated this
order,

4) that the defendant has twice been previously convicted for violating
the provisions of a court order, and

5) that the defendant's acts occurred in the State of Washington.

Id. at 75. This instruction mirrored the pattern jury instruction. 11

W ASH!NGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 36.51.02, at 640 (3d ed. 2008). Neither party objected to the

instruction.

On appeal, Case argued for the first time that the State presented

insufficient evidence because it failed to show the prior convictions he

stipulated to were based on violations of qualifYing orders. State v. Case,

189 Wn. App. 422,423,358 P.3d 432 (2015). Agreeing with Case, the

Court of Appeals reversed his conviction and dismissed with prejudice,

holding the State failed to satisfy the threshold requirement that Case's prior

convictions were for violating qualifying court orders. !d. at 424.

5
State v. Case, No. 92293-4

The State sought discretionary review, arguing that Case's stipulation

was sufficient and that the question of whether the prior convictions were

qualifying convictions is not an element of the crime that goes to the jury.

Case argued that his narrow stipulation did not relieve the State of its burden

to prove the adequacy ofthe stipulation because the stipulation's language

encompassed more types of violations than those specifically required for

conviction. We granted discretionary review.

ANALYSIS

The elements of a crime are those facts that the State must prove to

sustain a conviction. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005)

(quoting BLACK'S LAW DICTIONARY 559 (8th ed. 2004) and citing State v.

Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953)). Here, the parties

agree that the stipulation established the existence of at least two prior

convictions and that the validity of the underlying orders is a question of

law. The parties disagree whether the stipulation alone was adequate to

prove Case had at least two qualifying prior convictions. Ultimately, this

case turns on questions oflaw, which we review de novo. !d. at 27 (citing

Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)).

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

6
State v. Case, No. 92293-4

no evidence to prove it and the other is not allowed to disprove it. State v.

Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (quoting Key Design,

Inc. v. Moser, 138 Wn.2d 875, 893-94, 983 P.2d 653 (1999)). While the

State must prove every element of the crime beyond a reasonable doubt, for

strategic reasons, defendants charged with felony violation of a domestic

violence no-contact order regularly stipulate to prior convictions that are

elements of the charged crime in order to constrain the prejudicial effect on a

jury. See generally State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002)

(noting the generally "prejudicial effect of prior convictions") "When the

parties stipulate to the facts that establish an element of the charged crime,

the jury need not find the existence of that element, and the stipulation

therefore constitutes a waiver of the 'right to a jury trial on that element."'

State v. Humphries, 181 Wn.2d 708,714-15,336 P.3d 1121 (2014) (quoting

United States v. Mason, 85 F.3d 471, 4 72 (1Oth Cir. 1996)). The defendant

also waives "the right to require the State prove that element beyond a

reasonable doubt." Id. at 715 (citing Sullivan v. Louisiana, 508 U.S. 275,

278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)). Moreover, it would likely

be reversible error to admit evidence about the prior convictions beyond the

stipulation unless that evidence pertained to another element of the crime

and unless the trial judge properly found that the probative value of such

7
State v. Case, No. 92293-4

evidence outweighed its significant prejudicial effect. See ER 404(b ); State

v. Gunderson, 181 Wn.2d 916, 925, 927, 337 P.3d 1090 (2014) (finding that

erroneous admission of prior acts of domestic violence was reversible error).

Case argues that his stipulation does not mirror the statutory language

for qualifying provisions in RCW 26.50.11 0(5) and that this should be

dispositive. If we had only the stipulation before us, he might be correct.

But we have more than the stipulation before us. In the context of the

charging document and sidebar, we are satisfied that Case stipulated he had

been convicted of violating qualifying no-contact orders. 3 Absent a timely

and specific objection or exception from Case's attorney, the stipulation

appeared to establish that Case agreed he had two prior qualifYing

convictions under RCW 26.50. ll 0(5) as alleged in the charging information

and was therefore sufficient. 4

Moreover, whether the prior convictions met the qualifying statutory

requirements is a threshold legal determination to be made by the trial judge,

not a question for the jury. Whether the prior convictions qualify under

3
We note that Case does not dispute he has been convicted of violating qualifYing no-
contact orders in the past.
4
We respectfully disagree with the dissent that there are any hidden holdings in this
opinion undoing the state's burden of proof or changing the elements of felony violation
of a no-contact order. Nor does this opinion overrule Oster, 14 7 Wn.2d 141, or State v.
Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). The question here is merely whether the
stipulation-offered to constrain the prejudice that would inevitably follow disclosing the
specifics of prior convictions-was sufficient to sustain the State's burden to prove every
essential element of the crime beyond a reasonable doubt.

8
State v. Case, No. 92293-4

RCW 26.50.110(5) is a substantially similar question to whether a prior no-

contact order was valid-a question oflaw to be decided by a judge, not a

jury. State v. Miller, 156 Wn.2d 23, 24, 123 P.3d 827 (2005). lfthe prior

convictions do not qualify, they are almost certainly inadmissible on this

point under ER 404(b ). Case has failed to show that his stipulation was

based on non qualifying, and thus inadmissible, prior convictions. Even if it

was error for the trial judge not to explicitly confirm with Case that he was

stipulating to qualifying prior convictions, any error was harmless and Case

is not entitled to relief on appeal.

CONCLUSION

We conclude that Case stipulated to the sufficiency of his prior

qualifying convictions. We reverse the Court of Appeals, reinstate Case's

conviction, and remand to the trial court for any further proceedings

consistent with this opinion.

9
State v. Case, No. 92293-4

WE CONCUR:

Otq?(h-~,f!

~fbi'

10
State. v. Case (Kevin Ray)

No. 92293-4

MADSEN, C.J. (concurring)-! agree with the majority that the Court of Appeals

decision must be reversed and defendant's conviction reinstated. I also agree with the

majority that the determination of whether defendant's prior convictions were based on

qualifying orders as set forth in RCW 26.50.110(5), thereby ultimately increasing his

punishment, is a legal question for the trial court, and that in the circmnstances of this

case, the defendant's stipulation is sufficient to resolve that inquiry. I write separately to

express my view that the method employed by the Court of Appeals and the majority

here-splitting the prior convictions inquiry into a legal question for the trial court and a

factual question for the jury-is unnecessary and unwarranted. This is so because the

provision at issue concerns prior convictions, which are an exception to the general rule

that any fact increasing a penalty must be decided by the jury.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 14 7 L. Ed. 2d 435

(2000), the Supreme Court expressly excluded a defendant's prior criminal history as a

matter for jury deliberation. "Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." !d. at 490 (emphasis added).
No. 92293-4
(Madsen, C.J., concurring)

Four years later, in Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L.

Ed. 2d 403 (2004 ), the Supreme Court explicitly preserved its prior holding in Apprendi

that a sentencing enhancement based on a defendant's prior conviction does not have to

be presented to a jury. See also United States v. Quintana-Quintana, 383 F.3d 1052,

1053 (9th Cir. 2004) (noting the continuing viability of the Apprendi rule and its

exception for prior convictions); United States v. Harris, 447 F.3d 1300, 1303 (lOth Cir.

2006) (same); Alleyne v. United States, _U.S._, 133 S. Ct. 2151,2160 n.l, 186 L.

Ed. 2d 314 (2013) (acknowledging the prior convictions exception expressed in Apprendi

and Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d

350 (1998)). Under this precedent, the issue of prior convictions need not be submitted
. I
to a Jury.

I now turn to the plain language of the statute. RCW 26.50.110 is titled "Violation

of order-Penalties," and provides in relevant part at subsections (1)(a), (4), and (5) as

follows:

(1)(a) Whenever an order is granted under this chapter, chapter 7.92, 7.90,
9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, any temporary
order for protection granted under chapter 7.40 RCW pursuant to chapter
74.34 RCW, or there is a valid foreign protection order as defined in RCW
26.52.020, and the respondent or person to be restrained knows of the

1
The rationale for excepting prior convictions from the jury requirement is explained in
Apprendi as follows:
[T]here is a vast difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had the right to a jury
trial and the right to require the prosecutor to prove guilt beyond a reasonable
doubt, and allowing the judge to find the required fact under a lesser standard of
proof.
530 U.S. at 496.

2
No. 92293-4
(Madsen, C.J., concurring)

order, a violation of any of the following provisions of the order is a gross
misdemeanor, except as provided in subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting acts or threats of violence
against, or stalking of, a protected party, or restraint provisions prohibiting
contact with a protected party;
(ii) A provision excluding the person from a residence, workplace,
school, or day care;
(iii) A provision prohibiting a person from knowingly coming
within, or lmowingly remaining within, a specified distance of a location;
(iv) A provision prohibiting interfering with the protected party's
efforts to remove a pet owned, possessed, leased, kept, or held by the
petitioner, respondent, or a minor child residing with either the petitioner or
the respondent; or
(v) A provision of a foreign protection order specifically indicating
that a violation will be a crime.

(4) Any assault that is a violation of an 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, and that does not amount to assault in the first or second degree
under RCW 9A.36.0 11 or 9A.36.021 is a class C felony, and any conduct in
violation of such an order that is reckless and creates a substantial risk of
death or serious physical injury to another person is a class C felony.
(5) 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 ifthe 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. The previous convictions
may involve the same victim or other victims specifically protected by the
orders the offender violated.

RCW 26.50.110 (emphasis added).

As can be seen, violations that are designated as gross misdemeanors are set forth

in subsection (l)(a). Subsection (4) elevates punishment to felony status when additional

conduct is present in the form of "assault ... that does not amount to assault in the first or

second degree," and for "reckless" conduct that "creates a substantial risk of death or

3
No. 92293-4
(Madsen, C.J ., concurring)

serious physical injury to another person." RCW 26.50.11 0(4). The presence of such

additional conduct that would increase a sentence is clearly the type of inquiry that must

go to the jury under Apprendi. See Alleyne, 133 S. Ct. 2151 (finding as to whether
' brandished, as opposed to merely carried, a firearm in connection with
defendant had

crime of violence that would elevate mandatory minimum term for firearms offense from

five to seven years was element of separate, aggravated offense that had to be found by

jury). By contrast, subsection (5) does not add any conduct or other element; it simply

designates a third or subsequent violation (as described in subsection (l)(a)) as a felony,

thereby elevating the punishment for the present violation based on the existence of prior

convictions that are unrelated to the current violation. Thus, in my view, because RCW

26.50.110(5) does not add additional conduct but relies only on prior convictions to

increase punishment, it operates like a recidivist statute. "[R]ecidivism 'does not relate to

the commission of the offense' itself." Apprendi, 530 U.S. at 496 (quoting Almendarez-

Torres, 523 U.S. at 230).

In light of the similarity with recidivist statutes, in my view appropriate guidance

may be gleaned from our case law interpreting and applying the Persistent Offender

Accountability Act (POAA) of the Sentencing Reform Act of 1981, RCW 9.94A.570.

See State v. Witherspoon, 180 Wn.2d 875, 881, 329 P.3d 888 (2014). We recently

addressed the interplay between the POAA and Apprendi in Witherspoon. Under the

POAA, adult offenders convicted in Washington of'"three most serious offenses"' are

sentenced to life in prison without the possibility of release. I d. at 888 (internal quotation

4
No. 92293-4
(Madsen, C.J., concurring)

marks omitted) (quoting State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495 (1996)). The

State must prove previous convictions by a preponderance of the evidence and "the

defendant is not entitled to a jury determination on this issue." !d. at 894. In

Witherspoon, we observed that "the POAA does not violate state or federal due process

by not requiring that the existence of prior strike offenses be decided by a jury." Jd. at

892. We noted in this context, '"[i]n applying Apprendi, we have held that the existence

of a prior conviction need not be presented to a jury and proved beyond a reasonable

doubt."' !d. at 893 (quoting In re Pers. Restraint ofLavery, 154 Wn.2d 249, 256, 111

P.3d 837 (2005)); see also id. at 892 ("We have repeatedly held that the right to jury

determinations does not extend to the fact of prior convictions for sentencing purposes.").

Under Witherspoon, because a jury determination of prior convictions is not required, "a

judge may find the fact of a prior conviction by a preponderance of the evidence" for

purposes of the POAA. Id. In my view, the same should be true for the analogous

situation here~a sentencing judge alone should make any determinations regarding prior

convictions.

With these observations, I concur?

2
The dissent relies on In re Winship, 397 U.S. 358, 90 S. Ct. I 068, 25 L. Ed. 2d 368 (1970), and
United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), for the
proposition that any fact that increases punishment must be submitted to a jury and found beyond
a reasonable doubt. Dissent at 1-2. But Apprendi addressed both of these cases, see Apprendi,
530 U.S. at 471, 477, and nevertheless concluded as discussed herein that prior convictions are
an exception to the general rule that any fact that increases the penalty for a crime must be
decided by a jury. As discussed inApprendi, Winship and Gaudin do not compel the result
advocated by the dissent.

5
No. 92293-4
(Madsen, C.J., concurring)

6
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

No. 92293-4

GORDON McCLOUD, J. (dissenting)-Kevin Case was convicted of felony

violation of a no-contact order in violation of RCW 26.50.11 0(5). That subsection

(5) enhances the crime from a misdemeanor to a felony "if the offender has at least

two previous convictions for violating the provisions of an order issued under

[specifically listed statutes]." (Emphasis added.) Fifteen years ago, when dealing

with an identically structured statute, we held that this prerequisite to conviction

constitutes an element of the crime. State v. Oster, 147 Wn.2d 141, 147-48, 52 P.2d

26 (2002). Without overruling or even acknowledging its conflict with that holding,

the majority seems to conclude either that this prerequisite to conviction is not an

element or that the State need not prove this element of this crime to a jury beyond

a reasonable doubt.

Either holding would conflict with controlling prior precedent. The first one

conflicts in principle with Oster and its progeny, as discussed in Section 2 below.

The second one conflicts directly with not just In re Winship, 1 the seminal Supreme

Court decision holding that all elements must be proved to the jury beyond a

1 397 U.S. 358, 364, 90 S. Ct. 1068, 26 L. Ed. 2d 368 (1970).
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

reasonable doubt, but also with United State v. Gaudin, 2 which held that Winship's

general rule applies even where, as here, the element contains both legal and factual

parts. This is discussed in Section 3 below. This court should follow Winship's and

Gaudin's constitutional holdings. I therefore respectfully dissent.

ANALYSIS

1. Introduction

The parties here stipulated that Case had two prior convictions for violations

of a protective order "under Washington State Law." Verbatim Report of

Proceedings (VRP) (Mar. 17-18, 2013) at 66; Ex. 5. But the stipulation did not

specify the statutes under which these protective orders were issued. And the

statutory prerequisite to conviction under RCW 26.50.11 0(5) is not prior convictions

for violating protective orders issued under any "Washington State Law." Instead,

RCW 26.50.11 0(5)'s statutory prerequisite to conviction is that "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.)

2 515 U.S. 506,514, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995).
2
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

Importantly, the first phrase-a prior conviction "under Washington State

Law"-is not synonymous with the statutory phrase "the offender has at least two

previous convictions for violating the provisions on an order issued under

[specifically listed statutes]." RCW 26.50.110(5). The difference is that the

statutory phrase limits the qualifying enhancing prior convictions to the ones

specifically listed. And there are other, unlisted, statutes under which protective

orders might have been issued. E.g., RCW 10.14.080 (temporary antiharassment

protection order); RCW 26.44.150(1) (temporary restraining order against person

accused of abusing a child).

The stipulation was therefore not narrow enough to establish that the prior

convictions were qualifYing convictions.

2. The Majority's Holding That the Prior-QualifYing-Convictions Prerequisite
To Conviction Is Not an Element Conflicts with Recent Decisions of This
Court

We granted review in this case to decide whether the existence of those two

qualifying prior convictions constitutes an element of the crime charged here, i.e.,

felony violation of a no-contact order in violation ofRCW 26.50.11 0(5), which must

be proved to a jury beyond a reasonable doubt. The majority answers that question

by saying, "Whether the prior convictions qualify under RCW 26.50.110(5) is ... a

3
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

question oflaw to be decided by a judge, not a jury." Majority at 9. 3 But all elements

must be proved to a jury beyond a reasonable doubt. Winship, 397 U.S. at 364; State

v. Rich, 184 Wn.2d 897, 903, 365 P .3d 746 (2016). So either the majority is treating

the existence of two prior qualifying convictions as something other than an element,

or the majority is making a brand new exception to the rule that all elements must

be proved to the jury.

Either holding violates controlling precedent. If the majority is holding that

the prior-qualifying-conviction prerequisite is not really an element, then the

majority's holding conflicts with controlling decisions of this court. 4 Almost 15

3
The majority begins with several assertions about Case's prior bad acts. E.g.,
majority at 2 ("Case is no stranger to ... the consequences of violating a no-contact
order."), 3 ("At the time of charging, Case already had 13 prior convictions for violating a
no-contact order."). These assertions are not relevant to the legal question that we must
decide, that is-whether the rule that the State must prove all the elements of the crime to
a jury, beyond a reasonable doubt, no matter how bad of an actor the defendant is-applies
to the element at issue in this case.
4
The concurrence is certainly correct that following Apprendi v. New Jersey, 530
U.S. 566, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a prior criminal conviction does not
have to be treated as an element of the crime under the Fourteenth Amendment to the
United States Constitution. Concurrence at 5. That is a holding about the limits of the
federal constitution's protections. But our court's own prior precedent held that the prior
convictions prerequisite contained in RCW 26.50.110(5) was an element of the crime
based on state statutory interpretation. Oster, 147 Wn.2d at 147-48; State v. Roswell,
165 Wn.2d 186, 192, 196 P.3d 705 (2008). Apprendi does not affect or diminish our
state Supreme Court cases interpreting state statutory law to provide greater protections of
individual rights than the United States Constitution.

4
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

years ago, in Oster, we held that the prior conviction requirement in a similarly

structured statute constituted an element of the crime. 147 Wn.2d at 147-48. To be

sure, the main question in Oster was whether the prior convictions had to be listed

in the to-convict instruction or whether placement in some other instruction sufficed.

Id. at 143. But before the court could reach that question, it had to decide whether

the prior convictions were indeed elements. On that preliminary point, our court

held, "As set forth in the statute, the prior convictions function as an element of the

felony violation of a no contact order." Id. at 146.

We followed Oster's holding in State v. Roswell, 165 Wn.2d 186, 196 P.3d

705 (2008). In Roswell, the statute at issue-former RCW 9.68A.090 (2004)-

elevated the crime of communicating with a minor for immoral purposes from a

misdemeanor to a felony. The issue for our court was whether a defendant was

entitled to bifurcate the trial between judge and jury to keep the prior convictions

evidence away from the jury. Id. at 190. But before the court could reach that

question, it decided whether the prior convictions were actually elements or were,

instead, simply aggravating sentencing factors. Id. at 193-94. The court held that

the prior convictions prerequisite to a current conviction of this felony constituted

an element. We explicitly stated, "Despite the similarities between an aggravating

factor and a prior conviction element, under RCW 9.68A.090(2), a prior sexual

5
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

offense conviction [was] an essential element that must be proved beyond a

reasonable doubt." !d. at 192. 5

If the majority's decision-that "the prior convictions qualify under RCW

26.50.11 0(5) is ... a question of law to be decided by a judge, not a jury"-means

that the prior-qualifying-convictions prerequisite is not an element, then that holding

conflicts with our decisions in Oster and Roswell. Majority at 9. And the majority

gives no explanation for this conflict and silent overruling of that prior precedent.

3. The Majority's Holding That the State Need Not Prove the Prior-Qualifying-
Convictions Element to the Jury beyond a Reasonable Doubt Because It Is
Mainly Legal, Rather Than Factual, Conflicts with Controlling Supreme
Court Precedent

If the majority instead means to say that the prior-qualifying-convictions

prerequisite remains an element, but that it is an element that implicates "a question

oflaw" and that such a legal question-element or not-is "to be decided by a judge,

not a jury," then this holding conflicts with a different line of cases.

5 In State v. Miller, also decided in 2005, we addressed a related question: whether
the State had to prove, as an element of the offense, that the no-contact order violated was
valid. 156 Wn.2d 23, 25-26, 123 P.3d 827 (2005). The parties agreed that the no-contact
order must be valid in order to support a conviction. !d. at 25. They disagreed, however,
about whether the validity of the order was a question of law for the judge or a question of
fact for the jury. !d. We held that the '"existence'" of a no-contact order was an element
for the jury but the '"validity'" of that order was a question of law for the court. !d. at 24.
We did not address whether the existence of an actual no-contact order of the sort listed in
the statute-one issued under certain statutory provisions and not others-was an element
or not.
6
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, .T., dissenting)

Specifically, it conflicts with the United States Supreme Court's decision in

Gaudin. 515 U.S. at 511-15. In Gaudin, the Supreme Court held that all elements,

whether they are characterized as legal or factual, must be proven to the jury beyond

a reasonable doubt. Jd. (rejecting the government's position that since the element

of"materiality" in a perjury prosecution is "a 'legal' question," that element can be

proved to a judge rather than a jury).

The parties' focus on our decision in Miller in support of a different rule is

therefore misplaced. Gaudin's holding on this point offederal constitutional law is

controlling; any contrary, and less protective, implications in Miller are not. And

Gaudin clearly stated, as the dispositive holding of that case, that "all elements" of

an offense, whether characterized by the government as legal or factual, are for the

jury. Jd. at519. 6

6
Neither Miller nor State v. Carmen, 118 Wn. App. 655, 668, 77 P.3d 368 (2003),
also cited by the parties, discussed Gaudin's 1995, constitutional, holding. Nor did the
parties to this case. But Gaudin still compels the conclusion that if the existence of a prior
qualifying conviction is an element of felony violation of a no-contact order under RCW
26.50.110(5), then the entire element-including whether the convictions arose from a
qualifying statute-is for the jury to decide.
7
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

4. The Majority's Holding That the Stipulation Sufficed To Prove This Factor,
Even If It Were an Element, Conflicts with the Rule That What the Parties
Stipulate to Is Determined by the Four Corners of the Stipulation

The majority spends little time on these important points. Instead, it engages

in a lengthier discussion of how Case really stipulated to the prior-qualifying-

convictions thing, anyway.

It is certainly true that a defendant can stipulate to facts that prove an element

of the crime, and that such a stipulation constitutes a waiver of the right to require

the state to prove that element. State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414

(2006) ("'A stipulation is [a]n express waiver ... conceding for the purposes of the

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."' (alterations in

original) (internal quotation marks omitted) (quoting Key Design, Inc. v. Moser, 138

Wn.2d 875, 893-94, 983 P.2d 653 (1999))). And it is also true that in this case the

trial judge, referring to the stipulation, said, "That relieves the State from the

necessity of having to go into detail about those convictions." Verbatim Report of

Proceedings (Mar. 17-18, 2013) at 6.

The majority asserts that this stipulation "appeared to establish that Case

agreed he had two prior qualifYing convictions under RCW 26.50.110(5) as alleged

in the charging information." Majority at 8 (first emphasis added).

8
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

That's not how it appears to me. The reason is that what the parties stipulate

to is generally determined by the four corners of the stipulation itself. See Braxton

v. United States, 500 U.S. 344, 350, 111 S. Ct. 1854, 114 L. Ed. 2d 385 (1991)

(holding that courts review stipulations "just as we would review a determination of

meaning and effect of a contract, or consent decree, or proffer for summary

judgment"); Stell v. State, 496 S.W.2d 623, 626 (Tex. Crim. App. 1973) (construing

stipulations narrowly). And there is nothing about the specifically listed qualifying

crimes prerequisite within the four corners of the stipulation.

5. The Majority's Holding That the Stipulation Sufficed To Prove This Factor,
Even If It Were an Element, Conflicts with the Rule That, in a Criminal Case,
the Government Must Accept the Risk ofAny Deficiency in a Stipulation

Further, if the government accepts a stipulation to a particular fact but the

stipulation is inadequate, then the government must accept that risk. Tompkins v.

State, 278 Ga. 857, 857, 607 S.E.2d 891 (2005) (refusing to imply from defendant's

stipulation to a bench trial that the stipulation also included a stipulation regarding

venue); United States v. Hollis, 506 F.3d 415, 419-20 (5th Cir. 2007) (refusing to

imply from defendant's stipulation to prior convictions that these prior convictions

were valid or constitutionally obtained so as to preclude the defendant from

challenging the validity of those convictions at sentencing under the federal Armed

Career Criminal Act of 1984 (18 U.S.C. § 924(e)); Gooding v. Stotts, 856 F. Supp.

9
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

1504, 1508 (D. Kan. 1994) ("If the proof is lacking, regardless of whether a case is

tried to the court on stipulated facts or to a jury, on either stipulated facts or in a trial

filled with in-court testimony, the result is the same-the defendant is found not

guilty."); State v. Behr, No. A07-2166, 2009 WL 233844, at *2 (Minn. Ct. App. Feb.

3, 2009) (unpublished) (holding there was insufficient evidence to convict defendant

based on a prior crimes stipulation because the stipulation did not indicate whether

the convictions occurred within the requisite time period); McClure v. State, No. 12-

05-00209-CR, 2006 WL 1791628, at *2-3 (Tex. Ct. App. June 30, 2006)

(unpublished) (explaining that a specific stipulation regarding only one part of a

prior conviction element does not necessarily include a stipulation as to the

remaining parts).

In fact, most of the authority cited immediately above addressing this issue

arose in the same context presented here: stipulations entered in cases where a prior

conviction was a factor that increased the severity of a crime. E.g., Hollis, 506 F.3d

at 419-20; State v. Jabbar, No. A14-0076, 2015 WL 303632, at *3 (Minn. Ct. App.

Apr. 14, 2015) (unpublished); Behr, 2009 WL 233844, at *2; McClure, 2006 WL

1791628, at *2-3.

Under this authority, Case's stipulation was insufficient to establish that he

had two qualifying prior convictions.

10
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

The State has made the backup argument that Case invited this error by

signing the stipulation and should not be able to benefit from his own inadequate

stipulation. But it was not just his stipulation-the State was the party that offered

it (VRP (Mar. 17-18, 2013) at 66; Ex. 5), the defense did not object, and both parties

signed it. The invited error doctrine does not apply because the stipulation was

introduced by the State as part of its evidence, and thus Case cannot be blamed for

"setting up" the error. State v. Wakefield, 130 Wn.2d 464, 475, 975 P.2d 183 (1996)

(explaining that the invited error doctrine prohibits a party from setting up an error

and then complaining of it on appeal).

CONCLUSION

For these reasons, I would affirm the decision of the Court of Appeals that the

evidence was insufficient to convict.

11
State v. Case (Kevin Ray), No. 92293-4
(Gordon McCloud, J., dissenting)

12