State Of Washington v. Frank Wofford

• Court: Court of Appeals of Washington
• Decided: November 16, 2020
• Docket: 80539-8
• Status: Unpublished

Opinion

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 80539-8-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) FRANK WILLIAM WOFFORD, III, ) ) Appellant. ) )

ANDRUS, A.C.J. — Frank William Wofford, III appeals his conviction for

felony violation of a no-contact order. He argues the State did not provide sufficient

evidence to prove beyond a reasonable doubt that he had two prior convictions for

no-contact order violations. He further argues the State’s offender score, adopted

by the trial court, was not supported by the preponderance of the evidence. We

conclude there was sufficient evidence of Wofford’s prior convictions, but agree

Wofford’s offender score is not adequately supported by the record. We remand

for a recalculation of his offender score and for resentencing.

FACTS

In December 2016, Island County Superior Court entered a post-conviction

no-contact order (NCO) against Frank William Wofford, III (Wofford), restraining

him from contacting or being within 500 feet of his parents, Linda Wofford and

Citations and pin cites are based on the Westlaw online version of the cited material. No. 80539-8-I/2

Frank Wofford Jr. 1 The order allowed Wofford to have telephonic contact and

limited physical contact with Linda at her discretion, as long as that contact did not

take place at Linda and Frank’s residence in Coupeville, Washington.

On April 7, 2019, Frank contacted the Island County Sheriff’s Office to report

the presence of his son on his property in violation of the no-contact order.

Sergeant Shawn Warwick responded to Frank’s call. Sergeant Warwick confirmed

en route that a valid protection order existed prohibiting Wofford from having

contact with his parents. When he arrived, he spoke to Frank who explained that

Wofford was inside his shed. Sergeant Warwick walked to the shed, opened the

door and found Wofford inside. He then arrested Wofford. Sergeant Warwick

confirmed, at trial, the existence and terms of the December 2016 no-contact order

on which he based his arrest.

The State charged Wofford with felony violation of a no-contact order based

on the existence of two prior convictions for similar no-contact order violations. At

trial, to establish Wofford had twice been previously convicted of violating

provisions of a court order, the State offered two judgment and sentences, one

from Island County Superior Court from March 2014, in which Wofford was found

guilty of violating a court order in violation of RCW 26.50.110(1) (the 2014

Judgment) and one from Island County District Court dated June 2015, in which

he was similarly found guilty of violating a no-contact order in violation of RCW

26.50.110 and RCW 9A.230.040 (the 2015 Judgment).

1 Because Wofford and his parents share the same last name, and father and son share the same first name, we refer to the appellant as Wofford, his father as Frank, and his mother as Linda. We mean no disrespect in doing so.

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The 2014 Judgment identified Wofford by his full name, Frank William

Wofford, III. It bore his signature and identified his address as “General Delivery,

Cpvl., WA 98239.” The 2015 Judgment identified the case number as 66546, and

the defendant as “Frank Wofford,” but contained no additional identifying

information. To prove that the individual identified in the 2015 Judgment was

Wofford, the State offered, and the trial court admitted over Wofford’s objection,

the corresponding district court citation, with the case number 66546, which

identified Wofford by his full name, driver’s license number, date of birth, address,

and physical characteristics.

The trial court instructed the jury that, in order to convict Wofford of the

charged crime of violating a court order, the State had to prove that there was a

no-contact order in existence on April 7, 2019 applicable to Wofford, that Wofford

knew of the existence of this order, that on April 7, 2019, Wofford knowingly

violated the order, that Wofford had twice been convicted of violating provisions of

a court order, and the act occurred in Island County, Washington. The jury found

Wofford guilty of this crime. By special verdict, it also found that Wofford and Frank

were members of the same family.

At sentencing, the State asserted Wofford had an offender score of seven

based on six prior convictions and his commission of the crime while on community

custody. Based on this offender score, the State identified his sentencing range

to be 51 to 60 months and recommended a sentence of 52 months of incarceration,

followed by eight months of community custody. Wofford did not comment on the

offender score but acknowledged the sentencing range was 51 to 60 months.

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The trial court adopted the State’s offender score and sentencing

recommendation. The court orally indicated its intent to waive any financial

obligations other than the mandatory $500 victim assessment. Wofford’s judgment

and sentence, however, included a requirement that, during the eight months of

community custody, Wofford had to “pay supervision fees as determined by

[Department of Corrections].”

On appeal, Wofford challenges (1) the sufficiency of the State’s evidence

that he was twice previously convicted of violations of a court order, (2) the trial

court’s admission of the criminal citation corresponding to the 2015 Judgment, (3)

the sufficiency of the evidence supporting his offender score, and (4) the inclusion

of DOC supervision fees in the final judgment and sentence.

ANALYSIS

1. Sufficiency of the evidence of Wofford’s prior convictions for violation of a court order

To prove that Wofford committed felony violation of a no-contact order

under RCW 26.50.110(5), the State must prove that Wofford committed two prior

violations beyond a reasonable doubt. State v. Carmen, 118 Wn. App. 655, 667,

77 P.3d 368 (2003). Wofford argues the evidence the State offered, the 2014 and

2015 Judgments, are insufficient to meet the State’s evidentiary burden. We

disagree.

The test for determining sufficiency of the evidence is whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the

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evidence must be drawn in favor of the State and interpreted most strongly against

the defendant. Id. A claim of insufficiency admits the truth of the State's evidence

and all inferences that reasonably can be drawn therefrom. Id. Credibility issues

are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d

60, 71, 794 P.2d 850 (1990).

Wofford contends the State failed to prove that he was the Frank Wofford

identified in the 2014 Judgment. 2 “It is axiomatic in criminal trials that the

prosecution bears the burden of establishing beyond a reasonable doubt the

identity of the accused as the person who committed the offense.” State v. Hill, 83

Wn.2d 558, 560, 520 P.2d 618 (1974). “Identity involves a question of fact for the

jury and any relevant fact, either direct or circumstantial, which would convince or

tend to convince a person of ordinary judgment, in carrying on his everyday affairs,

of the identity of a person should be received and evaluated.” Id.

Wofford relies on State v. Huber, 129 Wn. App. 499, 119 P.3d 388 (2005),

to argue that the State failed to prove that he was the person named in the 2014

judgment. In that case, the State charged Huber with bail jumping. The State

introduced certified copies of the defendant’s charging document, a written court

order requiring his appearance at a hearing, clerk's minutes indicating that he had

failed to appear, and a bench warrant commanding the defendant’s arrest, but it

did not call any witness or otherwise present any other evidence to demonstrate

that the defendant was the same individual named in those documents. Id. at 500-

01. Division Two of this court stated:

2 Although Wofford challenges the admissibility of the citation leading to the 2015 Judgment, he does not contend the State failed to prove he was the defendant named in that judgment.

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[W]hen criminal liability depends on the accused's being the person to whom a document pertains . . . the State must do more than authenticate and admit the document; it also must show beyond a reasonable doubt that the person named therein is the same person on trial. Because in many instances men bear identical names, the State cannot do this by showing identity of names alone. Rather, it must show, by evidence independent of the record, that the person named therein is the defendant in the present action.

Id. at 502 (quotations omitted). The court reversed Huber’s conviction because

there was no independent evidence establishing that the person on trial for bail

jumping was the same person named in the charging document, court order,

clerk’s minutes and bench warrant. Id. at 504.

We conclude Huber is distinguishable because the jury here had more

evidence than merely matching names. As Huber noted, the State may prove

identity through several different means, such as booking photographs,

fingerprints, eyewitness identifications, a certified copy of a driver’s license, or

other “distinctive personal information.” Id. at 503. The jury had distinctive

personal information here. First, the 2014 Judgment identified the defendant as

“Frank William Wofford, III.” Wofford’s father confirmed his son’s full name is Frank

William Wofford III. Second, the 2014 Judgment proved that a man with Wofford’s

exact same name resided in Coupeville, in Island County and was convicted of

committing a crime in that county. Wofford’s father confirmed he and his wife lived

in Coupeville. Lastly, the 2014 Judgment contained Wofford’s signature, which is

strikingly similar to Wofford’s signature on the 2016 no-contact order. A

reasonable jury could compare that signature to the signature on the no-contact

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order and conclude that the individual named in both documents was the same. 3

Unlike Huber, we have a very unique name, an identity of county of residence, and

similar signatures. We conclude the State provided sufficient independent

evidence to prove Wofford was the Frank William Wofford, III named in the 2014

Judgment.

2. Admission of the 2015 citation

Wofford next contends the trial court erred in admitting the citation that led

to the 2015 Judgment. Wofford first argues the citation was inadmissible under

ER 402 because it had no probative value and was thus irrelevant under ER 401.

ER 401 defines relevant evidence as evidence “having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Relevant

evidence is admissible under ER 402. A trial court’s decision to admit relevant

evidence will not be reversed absent manifest abuse of discretion. State v.

Hughes, 106 Wn.2d 176, 201, 721 P.2d 902 (1986).

Wofford cites Hadley v. Maxwell, 144 Wn.2d 306, 27 P.3d 600 (2001), for

the proposition that a citation is a charging document analogous to an information

or complaint, containing mere allegations that are not probative of any fact. This

argument is not persuasive. Hadley was a personal injury lawsuit in which an

injured motorist argued that an allegedly negligent defendant who paid a traffic fine

was collaterally estopped from claiming she had not committed the traffic

3 Because the no-contact order contained additional descriptors, such as Wofford’s birthdate and the birthdates of his parents, Frank and Linda, Wofford does not contend that the State failed to prove he was the party identified as the restrained person in that order.

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infraction. Id. at 308. The Supreme Court held it was inappropriate to apply

collateral estoppel because nothing more than a nominal fine was at stake and

there was little incentive to vigorously litigate the issue. Id. In a footnote, the court

noted that “Washington has long held a traffic citation is not admissible in a

subsequent civil case to prove the party committed the driving lapse.” Id. at 314

n.3.

While Wofford’s 2015 citation would not be relevant to prove guilt, the State

did not offer it for that purpose. It offered the document to establish that the Frank

Wofford named in the 2015 Judgment was not Wofford’s father, but was in fact,

the son:

So the reason why I include the citation there is because—so the defendant’s name is Frank Wofford and one of the protected party’s names is Frank Wofford. The defendant is Frank Wofford, III, and the Judgment and Sentence from the City of Oak Harbor just says Frank Wofford. It doesn’t say “III.”

The State has to prove the identity of—the validity of the prior protection order violations, and that’s why . . . I didn’t include the incident report for that. It’s basically just a citation which lists his name and his identify [sic].

The trial court admitted the citation on this basis. The citation was relevant to

establish the identity of the convicted defendant listed in the 2015 judgment and

the trial court did not abuse its discretion in so concluding.

Wofford next maintains that, even if relevant, the citation is inadmissible

hearsay. But this argument is equally unpersuasive. RCW 5.44.040 provides that

certified copies of public records are admissible. The statute is a recognized

exception to the hearsay rule. State v. Monson, 53 Wn. App. 854, 857, 771 P.2d

359 (1989). The only limitation on the admissibility of certified copies of public

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documents is they must contain facts only and not conclusions involving the

exercise of judgment or discretion. Id. at 856.

As the trial court noted, the State offered a certified copy of the 2015 citation

and required the State to redact any information in the citation that was not “of a

routine nature” and anything “in the nature of opinion[].” Its evidentiary ruling was

consistent with RCW 5.44.040 and case law interpreting that statute. The trial

court did not abuse its discretion in admitting the redacted 2015 citation.

3. Sufficiency of the evidence of Wofford’s offender score

Wofford next argues that the State did not meet its burden of proving his

offender score. We agree.

At sentencing, the State bears the burden to prove the existence of prior

convictions by a preponderance of the evidence. State v. Hunley, 175 Wn.2d 901,

909-10, 287 P.3d 584 (2012). The best evidence of a prior conviction is a certified

copy of the judgment, but the State may introduce other comparable documents

of record or transcripts of prior proceedings to establish a defendant’s criminal

history. Id. at 910.

The State contended Wofford’s offender score was seven because he had

six prior felony convictions or gross misdemeanor convictions in which domestic

violence was pleaded and proved, and Wofford was on community custody at the

time of the April 2019 offense. 4 To prove the prior convictions, the State offered a

4 Under RCW 9.94A.525(21), because the conviction is a felony domestic violence offense where domestic violence was pleaded and proved, the court counts one point for each prior felony conviction and one point for each prior domestic violence conviction for a “repetitive domestic violence offense defined in RCW 9.94A.030 where domestic violence as defined in RCW 9.94A.030, was pleaded and proven.” RCW 9.94A.525(19) provides that an additional point is added if the present conviction is for an offense committed while the defendant was under community custody.

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“Certification of Criminal History and Current Offense Sentencing Data,” and the

declaration of Jennifer Wallace, an employee at the Island County Prosecutor’s

Office, who testified under oath that she had researched the Washington State

Patrol Criminal History database and the Judicial Information System database to

verify Wofford’s prior convictions.

The certification contained a list of convictions, identified by crime, the date

of each crime and sentence, the sentencing court and each case’s cause number.

Included in this list was (1) the March 2014 conviction in Island County Superior

Court for the violation of a protection order, domestic violence; (2) a September

2014 conviction for assault in the fourth degree, domestic violence; (3) the June

2015 conviction for violation of a protection order from the Oak Harbor Municipal

Court; (4) a October 2016 conviction for unlawful possession of a firearm in the

second degree; (5) a second October 2016 conviction for unlawful possession of

a firearm in the second degree; and (6) a November 2018 conviction for a crime

identified as “community custody violator.” The first and third of these convictions

are the only ones supported by certified copies of judgments or any other

documents of record.

We conclude the prosecutor’s certification is insufficient to support the

offender score. First, the March 2014 conviction, a misdemeanor, may be properly

counted as a “repetitive domestic violence offense” under RCW 9.94A.525(21) and

RCW 9.94A.030(42), but there is insufficient information in the prosecutor’s

certification from which to draw this conclusion. Second, the November 2018

conviction merely states “community custody violator.” While we could assume

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this reference means Wofford was convicted under RCW 72.09.310, for failing to

maintain contact with the Department of Corrections while on community custody, 5

there is nothing in the certification to support this assumption. Third, there is

nothing in the certification to establish that Wofford was on community custody at

the time of the 2019 offense.

Wofford relies on Hunley to support his contention that a summary of a

defendant’s criminal history is insufficient evidence to prove prior convictions.

While the State correctly points out that Hunley is distinguishable because that

case involved nothing more than a prosecutor’s unsworn summary of a

defendant’s criminal history and here it provided a sworn certification, we still

conclude the State’s sworn statement is insufficient for this court to evaluate the

appropriateness of including the six listed convictions in Wofford’s offender score.

The State also argues that it need not prove Wofford’s criminal history and

community custody status because he acknowledged the existence of the prior

convictions in his sentencing memo. The record does not support this argument.

Although the State need not produce evidence of a defendant’s criminal history

when the defendant acknowledges their prior convictions, RCW 9.94A.530(2);

Hunley, 175 Wn.2d at 909, the State’s evidentiary burden is only relieved if a

defendant affirmatively acknowledges the criminal history. Id. at 917. The

5 RCW 72.09.310, entitled “Community custody violator,” provides:

An inmate in community custody who willfully discontinues making himself or herself available to the department for supervision by making his or her whereabouts unknown or by filing to maintain contact with the department as directed by the community corrections officer shall be deemed an escapee and fugitive from justice, and upon conviction shall be guilty of a class C felony under chapter 9A.20 RCW.

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defendant does not affirmatively acknowledge their criminal history just by

agreeing with the prosecutor’s ultimate sentencing recommendation. State v.

Mendoza, 165 Wn.2d 913, 928, 205 P.3d 113 (2009). And a defendant’s

acceptance of a sentencing range is similarly insufficient to constitute an

affirmative acknowledgement of their criminal history. State v. Allen, 150 Wn. App.

300, 315-16, 207 P.3d 483 (2009). Wofford accepted the State’s sentencing range

of 51 to 60 months. He did not affirmatively acknowledge the accuracy of the

State’s certification of his criminal history.

Because the State failed to provide sufficient evidence to prove Wofford’s

prior convictions and his community custody status at the time of the 2019 offense,

we reverse his sentence and remand for resentencing.

4. Supervision fees

Wofford’s judgment and sentence includes a provision that requires him to

“pay supervision fees as determined by DOC.” The State concedes that the trial

court’s inclusion of supervision fees in the judgment and sentence was made in

error. As in State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020), it

appears from the record that the trial court intended to waive all discretionary fees.

We therefore accept the State’s concession and remand to strike the requirement

that Wofford pay supervision fees while in community custody.

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We affirm Wofford’s conviction, reverse his sentence, and remand to the

trial court for resentencing consistent with this opinion.

WE CONCUR:

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