Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56082-8-II
Respondent,
v.
DANIEL HOWARD TYNER, UNPUBLISHED OPINION
Appellant.
VELJACIC, J.—Daniel H. Tyner appeals his conviction for felony violation of a court
order—domestic violence and attempts to appeal his conviction for obstructing a law enforcement
officer. He contends his prior convictions that were used to support his current felony violation of
a court order conviction violate double jeopardy and therefore do not qualify as predicate offenses
to support his current conviction. He further contends sufficient evidence does not support his
obstruction conviction. Because Tyner did not timely appeal the obstruction conviction, we do
not reach his sufficiency of the evidence argument. We affirm Tyner’s felony violation of a court
order conviction.
FACTS
Police responded to a 911 call regarding a possible assault. When police arrived, Tyner
was on top of his former girlfriend, P.G.1, and had both of his hands gripping the collar of her shirt.
1 We use initials to protect the identity of the domestic violence victims in this case. 56082-8-II
When Tyner saw the police, he got up and started walking away. When one of the officers told
Tyner to come back, he refused. The officer grabbed Tyner and a struggle ensued; police
ultimately arrested Tyner.
The State charged Tyner with felony violation of a court order—domestic violence based
on assault (count one), felony violation of a court order—domestic violence based on prior
violations of a no contact order (count two), assault in the fourth degree (count three), assault in
the third degree (count four), and obstructing a law enforcement officer (count five). To establish
prior violations to support count two, the State offered evidence of two 2016 convictions for
violation of a no contact order.
The State’s evidence showed that in 2016, a municipal court issued a no contact order
stating that Tyner was to have no contact with his then girlfriend, D.W. Tyner violated that order
and in September 2016 pled guilty to felony violation of a court order and misdemeanor violation
of a court order.2 Both the felony and misdemeanor judgment and sentences state that the date of
the crime was “5/27/2016 through 05/30/2016.” Clerk’s Papers (CP) at 81, 87.
The State also offered the probable cause statement and charging documents to establish
the prior convictions. The probable cause statement states that in 2016 police were dispatched to
D.W.’s home. D.W. told the police that she allowed Tyner to come back to her house on May 24,
2016. She explained that Tyner was initially nice, but then began smoking methamphetamine and
became highly aggressive. He pushed her around the house, threatened her with various weapons,
and repeatedly raped her. D.W. stated that the last rape occurred in her house on the morning of
May 29, 2016.
2 Tyner indicated on his guilty plea statement for the felony violation of a court order offense that he was entering an “Alford Plea.” Clerk’s Papers (CP) at 106. Tyner agreed that the trial court could use the probable cause statement to establish a factual basis for this offense.
2 56082-8-II
Police obtained a statement from a mutual friend of D.W. and Tyner’s, who was staying in
D.W.’s garage. The friend stated that he was woken up by loud arguing between Tyner and D.W.,
followed by Tyner bursting into the garage and stating, “I have to get out of here, the cops are
getting called.” CP at 92. The friend then drove Tyner to the Kenmore area. The probable cause
statement indicates that police found Tyner “later in the morning on 05/30/2016 and [took him]
into custody because he had come back to [D.W’s] residence, thus violating the No Contact again.”
CP at 92.
In 2016, the State charged Tyner with rape in the first degree, felony violation of a court
order—domestic violence, assault in the second degree—domestic violence, and misdemeanor
violation of a court order—domestic violence. The information stated that both charges for
violation of a court order occurred “between May 27, 2016 and May 30, 2016.” CP at 120.
Relevant to this appeal, Tyner pled guilty to felony violation of a court order and misdemeanor
violation of a court order. In his guilty plea statement for felony violation of a court order, Tyner
stated, “Between May 24, 2016, and May 30, 2016, in King County, Washington, I knew of and
willfully violated the terms of a valid domestic violence no contact order by going to the residence
of [D.W.], my girlfriend, and intentionally touching her offensively and without her permission.”
CP at 106. And in his plea statement on the misdemeanor violation of a court order charge, Tyner
stated, “Between 5/27/16 and 5/30/16, in King County, Washington, I knowingly and willfully
violated the distance provision of a valid [domestic violence] no contact order by going to the
residence of [D.W.], my girlfriend.” CP at 116.
During the trial on his current charges, Tyner filed a motion challenging the
constitutionality of the 2016 convictions. He argued that the predicate offenses used to support
the felony violation of a court order—domestic violence charge violated double jeopardy. The
3 56082-8-II
trial court rejected Tyner’s argument, concluding that the prior convictions did not violate double
jeopardy because they were separate violations: one was for offensively touching D.W. in violation
of a court order and the other for going to her residence.
A jury found Tyner guilty of all counts in the current matter. Tyner filed a motion for a
new trial, which the trial court granted solely on the assault in the third degree conviction. Tyner
then elected to plead guilty to the lesser charge of resisting arrest. The court concluded that count
one (felony violation of a court order—domestic violence based on assault) merged into count two
(felony violation of a court order—domestic violence based on prior violations of a no contact
order) and vacated count one.
On July 23, 2021, the trial court entered a felony judgment and sentence for the felony
violation of a court order conviction. The court entered a separate misdemeanor judgment and
sentence for the assault in the fourth degree and obstructing a law enforcement officer conviction.
And the court entered another misdemeanor judgment and sentence for the resisting arrest
conviction.
Tyner solely appealed the felony judgment and sentence for the felony violation of a court
ANALYSIS
I. FELONY VIOLATION OF COURT ORDER CONVICTION
Tyner contends the State failed to prove beyond a reasonable doubt that he had two valid and
constitutional prior convictions for violating a court order to elevate his current violation of a court
order—domestic violence offense from a misdemeanor to a felony. We disagree.
4 56082-8-II
A. Legal Principles
Former RCW 26.50.110(5) (2020) provides, in relevant part that “violation of a court order
issued . . . is a class C felony if the offender has at least two previous convictions for violating the
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Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56082-8-II
Respondent,
v.
DANIEL HOWARD TYNER, UNPUBLISHED OPINION
Appellant.
VELJACIC, J.—Daniel H. Tyner appeals his conviction for felony violation of a court
order—domestic violence and attempts to appeal his conviction for obstructing a law enforcement
officer. He contends his prior convictions that were used to support his current felony violation of
a court order conviction violate double jeopardy and therefore do not qualify as predicate offenses
to support his current conviction. He further contends sufficient evidence does not support his
obstruction conviction. Because Tyner did not timely appeal the obstruction conviction, we do
not reach his sufficiency of the evidence argument. We affirm Tyner’s felony violation of a court
order conviction.
FACTS
Police responded to a 911 call regarding a possible assault. When police arrived, Tyner
was on top of his former girlfriend, P.G.1, and had both of his hands gripping the collar of her shirt.
1 We use initials to protect the identity of the domestic violence victims in this case. 56082-8-II
When Tyner saw the police, he got up and started walking away. When one of the officers told
Tyner to come back, he refused. The officer grabbed Tyner and a struggle ensued; police
ultimately arrested Tyner.
The State charged Tyner with felony violation of a court order—domestic violence based
on assault (count one), felony violation of a court order—domestic violence based on prior
violations of a no contact order (count two), assault in the fourth degree (count three), assault in
the third degree (count four), and obstructing a law enforcement officer (count five). To establish
prior violations to support count two, the State offered evidence of two 2016 convictions for
violation of a no contact order.
The State’s evidence showed that in 2016, a municipal court issued a no contact order
stating that Tyner was to have no contact with his then girlfriend, D.W. Tyner violated that order
and in September 2016 pled guilty to felony violation of a court order and misdemeanor violation
of a court order.2 Both the felony and misdemeanor judgment and sentences state that the date of
the crime was “5/27/2016 through 05/30/2016.” Clerk’s Papers (CP) at 81, 87.
The State also offered the probable cause statement and charging documents to establish
the prior convictions. The probable cause statement states that in 2016 police were dispatched to
D.W.’s home. D.W. told the police that she allowed Tyner to come back to her house on May 24,
2016. She explained that Tyner was initially nice, but then began smoking methamphetamine and
became highly aggressive. He pushed her around the house, threatened her with various weapons,
and repeatedly raped her. D.W. stated that the last rape occurred in her house on the morning of
May 29, 2016.
2 Tyner indicated on his guilty plea statement for the felony violation of a court order offense that he was entering an “Alford Plea.” Clerk’s Papers (CP) at 106. Tyner agreed that the trial court could use the probable cause statement to establish a factual basis for this offense.
2 56082-8-II
Police obtained a statement from a mutual friend of D.W. and Tyner’s, who was staying in
D.W.’s garage. The friend stated that he was woken up by loud arguing between Tyner and D.W.,
followed by Tyner bursting into the garage and stating, “I have to get out of here, the cops are
getting called.” CP at 92. The friend then drove Tyner to the Kenmore area. The probable cause
statement indicates that police found Tyner “later in the morning on 05/30/2016 and [took him]
into custody because he had come back to [D.W’s] residence, thus violating the No Contact again.”
CP at 92.
In 2016, the State charged Tyner with rape in the first degree, felony violation of a court
order—domestic violence, assault in the second degree—domestic violence, and misdemeanor
violation of a court order—domestic violence. The information stated that both charges for
violation of a court order occurred “between May 27, 2016 and May 30, 2016.” CP at 120.
Relevant to this appeal, Tyner pled guilty to felony violation of a court order and misdemeanor
violation of a court order. In his guilty plea statement for felony violation of a court order, Tyner
stated, “Between May 24, 2016, and May 30, 2016, in King County, Washington, I knew of and
willfully violated the terms of a valid domestic violence no contact order by going to the residence
of [D.W.], my girlfriend, and intentionally touching her offensively and without her permission.”
CP at 106. And in his plea statement on the misdemeanor violation of a court order charge, Tyner
stated, “Between 5/27/16 and 5/30/16, in King County, Washington, I knowingly and willfully
violated the distance provision of a valid [domestic violence] no contact order by going to the
residence of [D.W.], my girlfriend.” CP at 116.
During the trial on his current charges, Tyner filed a motion challenging the
constitutionality of the 2016 convictions. He argued that the predicate offenses used to support
the felony violation of a court order—domestic violence charge violated double jeopardy. The
3 56082-8-II
trial court rejected Tyner’s argument, concluding that the prior convictions did not violate double
jeopardy because they were separate violations: one was for offensively touching D.W. in violation
of a court order and the other for going to her residence.
A jury found Tyner guilty of all counts in the current matter. Tyner filed a motion for a
new trial, which the trial court granted solely on the assault in the third degree conviction. Tyner
then elected to plead guilty to the lesser charge of resisting arrest. The court concluded that count
one (felony violation of a court order—domestic violence based on assault) merged into count two
(felony violation of a court order—domestic violence based on prior violations of a no contact
order) and vacated count one.
On July 23, 2021, the trial court entered a felony judgment and sentence for the felony
violation of a court order conviction. The court entered a separate misdemeanor judgment and
sentence for the assault in the fourth degree and obstructing a law enforcement officer conviction.
And the court entered another misdemeanor judgment and sentence for the resisting arrest
conviction.
Tyner solely appealed the felony judgment and sentence for the felony violation of a court
ANALYSIS
I. FELONY VIOLATION OF COURT ORDER CONVICTION
Tyner contends the State failed to prove beyond a reasonable doubt that he had two valid and
constitutional prior convictions for violating a court order to elevate his current violation of a court
order—domestic violence offense from a misdemeanor to a felony. We disagree.
4 56082-8-II
A. Legal Principles
Former RCW 26.50.110(5) (2020) provides, in relevant part that “violation of a court order
issued . . . is a class C felony if the offender has at least two previous convictions for violating the
provisions of an order.” Predicate convictions pose as an element for felony violations of a court
order under RCW 26.50.110(5). State v. Robinson, 8 Wn. App. 2d 629, 635, 439 P.3d 710 (2019).
When predicate convictions are an essential element of a crime, the State must prove the previous
convictions beyond a reasonable doubt. Id.
A defendant may raise a defense to a prosecution based on an earlier conviction by alleging
the constitutional invalidity of a predicate conviction. State v. Summers, 120 Wn.2d 801, 812, 846
P.2d 490 (1993). On doing so, the State must then prove beyond a reasonable doubt that the
predicate conviction is constitutionally sound. Id. The trial court determines the validity of a prior
conviction for the purpose of former RCW 26.50.110(5). Robinson, 8 Wn. App. 2d at 635. We
review the validity of a predicate offense de novo. Id.
B. Double Jeopardy
Tyner contends his predicate offenses violate double jeopardy; therefore, they cannot count
as two predicate offenses to satisfy former RCW 26.50.110(5). The trial court rejected Tyner’s
argument, concluding that the convictions did not violate double jeopardy because they were
separate violations: one was for offensively touching D.W. in violation of a court order and the
other for going to her residence. We agree with the trial court.
The double jeopardy clause of the United States Constitution provides that no individual
shall “be twice put in jeopardy of life or limb” for the same offense, and the Washington
Constitution provides that no individual “be twice put in jeopardy for the same offense.” U.S.
CONST. amend. V; CONST. art. I, § 9.
5 56082-8-II
When a person is charged with multiple counts of the same offense, “each count must be
based on a separate and distinct criminal act.” State v. Mutch, 171 Wn.2d 646, 662, 254 P.3d 803
(2011). It must be manifestly apparent from the record, testimony, and argument that the two
charges are based on separate acts. Id. at 664.
Here, Tyner’s 2016 convictions for felony violation of a court order and misdemeanor
violation of a court order are based on two separate acts. In 2016, the State charged Tyner with,
inter alia, felony violation of a court order—domestic violence and misdemeanor violation of a
court order—domestic violence. While the information stated that both charges occurred between
May 27, 2016 and May 30, 2016, the State provided additional details of the two offenses. Tyner
stated in his plea statement that the felony violation was based on him “going to the residence of
[D.W.], my girlfriend, and intentionally touching her offensively and without her permission.” CP
at 106. And in his plea statement on the misdemeanor violation of a court order charge, Tyner
stated, “I knowingly and willfully violated the distance provision of a valid [domestic violence]
no contact order by going to the residence of [D.W.], my girlfriend.” CP at 116.
Additionally, the State offered the probable cause statement for the two offenses.
The probable cause statement clearly shows Tyner came to D.W.’s residence, assaulted
her, left, and then returned to her residence. Because there were two separate criminal acts of
violating a court order, the initial assault and then Tyner’s return to D.W.’s home, Tyner’s two
2016 convictions do not violate double jeopardy. The predicate offenses are constitutionally valid
to support his current felony violation of a court order offense. Thus, the State met its burden in
proving the previous convictions beyond a reasonable doubt. Robinson, 8 Wn. App. 2d at 635.
6 56082-8-II
II. OBSTRUCTION CONVICTION
Tyner next contends that sufficient evidence does not support his obstruction conviction.
But Tyner did not properly appeal this conviction.
Under RAP 5.1(a), “[a] party seeking review of a trial court decision reviewable as a matter
of right must file a notice of appeal.” (Emphasis added.) The notice must be filed within 30 days
of the entry of the judgment the party wants reviewed. RAP 5.2(a).
On July 23, 2021, the trial court entered separate judgment and sentences for Tyner’s
convictions. Tyner’s notice of appeal states that he is appealing “the” (singular) July 23 judgment
and sentence attached to the notice of appeal. The judgment and sentence attached to the notice
of appeal related to his felony violation of a court order conviction. Tyner did not file a notice of
appeal of the judgment and sentence relating to the obstruction conviction. For this reason, review
of the obstruction conviction is not properly before this court. Accordingly, we decline to reach
Tyner’s sufficiency of the evidence argument.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur;
Lee, J.
Glasgow, C.J.