IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87397-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
WILLIAM DANIEL MILLER,
Appellant.
BIRK, J. — A jury found William Miller guilty of felony violation of a court order and misdemeanor violation of a court order. Before trial, Miller had unsuccessfully moved to argue a necessity defense and to bifurcate trial on the previous convictions element of the felony violation charge. At sentencing, Miller unsuccessfully requested a parenting sentencing alternative (PSA). On appeal, Miller argues the court denied him his constitutional right to assert a defense, misapplied the law on bifurcating jury trials where a previous conviction is an essential element, and made a procedural legal error in not considering him eligible for a PSA. We affirm.
I
Miller and Brandie Cubias have known each other for about 20 years and have four children together. They have lived at their current apartment since 2017. During that time, Dorothy McClure, moved in beneath them with her husband and
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routinely hit the ceiling of her unit and yelled at Miller, Cubias, and their children for making noise.
Cubias had two no-contact orders restraining Miller. The first restrained Miller from contacting Cubias for two years from September 8, 2021, and the second restrained him from contacting her for five years from June 17, 2023. McClure obtained a stalking violence no-contact order on June 17, 2022, restraining Miller from contacting her for five years.
On March 17, 2023, McClure’s husband called 911, to report domestic violence in the unit above them. Officers were dispatched to Miller’s and Cubias’s apartment. As the officers walked toward the front door Miller opened it. Miller then closed the door. Officers communicated with who they thought was Miller through the door, then Cubias opened it. The officer saw Miller standing on the apartment’s balcony, and arrested him.
By amended information, the State charged Miller with domestic violence felony violation of a court order, misdemeanor violation of a court order, and tampering with a witness. In his pretrial brief, Miller disclosed that he anticipated arguing a necessity defense and moved for a bifurcated trial on the aggravating circumstances and prior violation of a no-contact order convictions element. His pretrial brief framed the theory of necessity as choosing to violate the no-contact orders in order to protect and support his family and help Cubias manage her anxiety. In arguing for a bifurcated trial on the previous convictions element, Miller argued that a unitary trial would significantly prejudice him because the previous
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convictions are presumptively inadmissible under ER 404(b) and that, because the State can independently prove his prior convictions through copies of his judgment and sentence, there is no evidentiary overlap.
During motions in limine, Miller argued all the elements of a necessity defense were met because Cubias and he called 911 and apartment management staff, attempted to get an anti-harassment order against McClure, and attempted to remove the no-contact order restraining Miller from contacting Cubias. Miller argued that whether the harm of violating a no-contact order was greater than the harm caused by McClure was a question for the jury. The State argued that there was no indication Cubias was in danger of physical harm or that McClure had contacted Cubias or Miller that night. The State also argued Miller did not call 911 that night to report a threat of harm.
The court concluded Miller could not assert a necessity defense, and he moved for reconsideration, arguing he did not bring about the threatened harm to Cubias. He argued he had no involvement with the events that made Cubias have anxiety. He also reiterated the harms involved were McClure’s behavior to Cubias and her children as well as Cubias’s anxiety. The State argued that Miller’s past conduct resulted in the no-contact order and thus the harm of his not being able to be with Cubias was harm that Miller created. The court denied Miller’s motion for reconsideration.
Miller also argued the previous convictions element should be determined by special verdict in the second part of a bifurcated trial. The court concluded it
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would be amenable to bifurcating instructions or using a proposed limiting instruction.
After the jury found Miller guilty of felony violation of a no-contact order and misdemeanor violation of a no-contact order, the court imposed a 51 month sentence for the felony violation of a court order and imposed a 364 day sentence for the misdemeanor violation of a court order, both to run concurrently. Miller requested a PSA, attaching a report wherein his son stated having Miller absent from his life had interfered with the family’s dynamic. The State submitted a Department of Corrections PSA risk assessment report, which described the active no-contact orders restraining him. It also listed all his children as well as whether he knew their birthdays and ages. The court declined to order a PSA, concluding other active no-contact orders restraining Miller from contacting Cubias made a PSA not an appropriate sentencing alternative for him.
Miller appeals.
II
Before addressing Miller’s claim that he was entitled to a necessity defense, we address the State’s argument Miller waived his claim by failing to propose a necessity instruction and by raising no objection to the court’s proposed instructions. We disagree with the State’s argument.
CrR 6.15(c) requires a party to object to the court’s refusal to give a jury instruction: “The party objecting shall state the reasons for the objection, specifying the number, paragraph, and particular part of the instruction to be given or
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refused.” The purpose of an objection to refusal to give a jury instruction is to provide the trial court an opportunity to correct any error. State v. Colwash, 88 Wn.2d 468, 470, 564 P.2d 781 (1977). Although Miller did not object to the court’s lack of inclusion of a necessity defense instruction, Miller asked to present a necessity defense in his trial brief and moved for reconsideration on the court’s ruling when the court denied his request. Miller’s repeated motions and argument during the May 13 and 14, 2024 hearings apprised the court of his request for a necessity instruction.
Miller argues the court erred in barring him from presenting a defense of necessity and the denial violated his right to present a defense. We conclude the trial court did not err.
“We review de novo whether a defendant has been denied his constitutional right to present a defense.” State v. Spokane County Dist. Ct., 198 Wn.2d 1, 12, 491 P.3d 119 (2021). “ ‘A defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence.’ ” Id. (quoting State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010)). To determine whether a defendant has been denied that right, the court must determine whether the defendant proffered sufficient evidence to merit presentation of the necessity defense to the jury. Id. “In doing so, we interpret the evidence most strongly in favor of the defendant and must not weigh the evidence, which is an exclusive function of the jury.” Id.
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To put on a necessity defense, the defendant must show by a preponderance of the evidence that “ ‘(1) [the defendant] reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable alternative existed.’ ” Id. (alteration in original) (quoting State v. Ward, 8 Wn. App. 2d 365, 372, 438 P.3d 588 (2019)). “Necessity is available when ‘the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law . . . [but not where] a legal alternative is available to the accused.’ ” Ward, 8 Wn. App. 2d at 372 (alteration in original) (internal quotation marks omitted) (quoting State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994)).
Miller argues that violating a no-contact order is best described as a crime against the court, and that he did not commit a violent crime against Cubias. In passing the protection order statute, ch. 7.105 RCW, the legislature found that “all of these civil protection orders are essential tools that can increase safety for victims of domestic violence, sexual assault, stalking, abuse of vulnerable adults, unlawful harassment, and threats of gun violence.” RCW 7.105.900(4). In State v. Yelovich, 191 Wn.2d 774, 780, 426 P.3d 723 (2018), the Supreme Court declined to create an exception to the plain language of the no-contact order at issue for the defense of property because such a “bright line rule ensures that victims are not left wondering whether conduct prohibited by the no-contact order
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might later be deemed lawful” and because it “furthers the legislature’s goal to provide ‘victim[s] of domestic violence the maximum protection from abuse.’ ” Id. at 780 (alteration in original) (quoting RCW 10.99.010).
Here, Miller had an active no-contact order restraining him from being within 1,000 feet of Cubias, and the legislature has found that civil protection orders “are essential tools that can increase safety for victims” of domestic violence, among other forms of violence. RCW 7.105.900(4). Concluding Miller did not cause harm because Cubias asked him to be in the home or that the harm was lesser than the harm from him not being there would contravene the legislature’s intent behind protection orders protecting victims of domestic violence. See RCW 7.105.900(3)(a) (recognizing harms caused by domestic violence to be avoided by protection orders). And, even if Cubias had consented to allowing Miller in her apartment that night as he argues, permitting modification of the no-contact order without court approval would undermine the efficacy of no-contact orders and erode protection for victims of domestic violence. See State v. Dejarlais, 136 Wn.2d 939, 944-45, 969 P.2d 90 (1998).
Miller argues that no reasonable, legal alternatives existed to violating the no-contact order because attempting to obtain an anti-harassment order against McClure and contacting the apartment’s management in the past produced no change in McClure’s behavior. Taking all of Miller’s proffered evidence and evidence admitted at trial in a light most favorable to him, the evidence does not support that no reasonable, legal alternatives existed to violating the no-contact
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order. Cubias testified that while Miller generally helped her anxiety, Miller was at her apartment that night helping her sort tools out of their closet, which creates an inference he was not violating the contact order to ease Cubias’s anxiety caused by McClure’s behavior that night. Cubias’s anxiety was chronic, and Miller did not proffer evidence that he had tried therapy, moving, or other long-term treatment options for her anxiety. Miller does not present evidence of efforts to ameliorate the harm as being unsuccessful in order to support a fact question for the jury. See Spokane County Dist. Ct., 198 Wn.2d at 15 (“If the defendant offers evidence that they have actually tried the alternative, had no time to try it, or have a history of futile attempts with the alternative, they have created a question of fact for the jury regarding whether there are reasonable legal alternatives.”). Taken in the light most favorable to Miller, the evidence was not sufficient to meet the element that no reasonable, legal alternative was available. The superior court did not err in refusing a necessity instruction.
III
Miller argues the court erred by misinterpreting the law on bifurcation of jury trials and denied him his right to a fair trial by not bifurcating the trial as to his prior convictions for the same offense. We disagree.
A court’s decision to bifurcate is generally reviewed for an abuse of discretion. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). “A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.” State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966
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(2006). “Bifurcation is inappropriate if a unitary trial would not significantly prejudice the defendant or if there is substantial overlap between evidence relevant to the proposed separate proceedings.” Id.
When enacting a criminal statute, the legislature may define the elements of a crime, and each element must be proved beyond a reasonable doubt. Roswell, 165 Wn.2d at 192. A prior conviction element is an essential element that must be proved beyond a reasonable doubt. Id. “Admission of prior convictions, while prejudicial, does not necessarily deprive a defendant of a fair trial.” Id. at 195. “ ‘The purpose of requiring all of the elements to be contained in the to convict instruction is to protect the due process rights of criminal defendants.’ ” Id. at 197 (internal quotation marks omitted) (quoting State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002)).
The State charged Miller with domestic violence felony violation of a court order, which requires the State to prove beyond a reasonable doubt that Miller had at least two previous convictions for violating the provisions of a no-contact order. RCW 7.105.450(5). Miller argues the trial court erred because it ruled that prior convictions were always more relevant than prejudicial and because it concluded jury instruction bifurcation was always the solution for dealing with prejudice from prior convictions. Miller argues the court erred in failing to consider that his prior convictions were for the same type of crime he was being charged with when it denied his motion to bifurcate.
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Contrary to Miller’s argument, it is within the court’s discretion to provide bifurcated jury instructions and not a bifurcated trial when an element of the charged offense is previous violations of a no-contact order. In Oster, the Supreme Court concluded the trial court was permitted to bifurcate jury instructions where an essential element of the charged offense was whether the defendant had previously violated no-contact orders. 147 Wn.2d at 147. There, the defendant was charged with three crimes: felony violation of a domestic violence no-contact order, assault in the third degree, and telephone harassment. Id. at 143-44. The court instructed the jury on four of the elements of the felony violation charge and then instructed the jury, that if they found the defendant guilty, to determine whether the defendant was previously convicted of two separate crimes of violation of a no-contact order against the victim. Id. at 144-45. The Supreme Court concluded that while a jury has a right to receive a complete statement of the law in order to convict, bifurcating the instructions in this manner constrained the prejudicial effects of prior convictions on the jury while maintaining the State’s burden to prove each element.1 Id. at 147.
Here, on the same facts as Oster, the trial court offered to bifurcate jury instructions, requiring the jury first to decide if the State proved beyond a
1 In Roswell, the court noted “there is a particular danger that a jury may
believe that the defendant has some propensity to commit that type of crime” if an element of the crime is a prior conviction of the very same type of crime. 165 Wn.2d at 198. Nonetheless, the Roswell court approved Oster’s approach, recognizing jury instruction bifurcation on the prior convictions element is an “example of a procedure that mitigates the prejudice of prior criminal history while maintaining the integrity of jury instructions that clearly define the State’s burden.” Id.
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reasonable doubt Miller violated the no-contact order, and then to decide if the State proved beyond a reasonable doubt Miller had at least two previous convictions of violation of a no-contact order. The court acknowledged the evidence of Miller’s prior violations was relevant to the charged offense and acknowledged the prejudicial impact of the evidence, ultimately concluding bifurcated instructions or a limiting instruction would limit the prejudicial effect. The trial court did not abuse its discretion in denying Miller a bifurcated trial.
IV
Miller argues the court improperly relied on his previous no-contact orders in not ordering a PSA. We disagree.
Sentencing courts have “considerable discretion” when determining whether an alternative sentence is appropriate. State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780 (2014). Although a judge’s decision whether to grant a PSA is generally not reviewable, an offender may always challenge the procedure by which a sentence was imposed. See State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005) (discussing reviewability of a drug offender sentencing alternative). “While no defendant is entitled to an exceptional sentence below the standard range, every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered.” Id. at 342. “[W]here a defendant has requested a sentencing alternative authorized by statute, the categorical refusal to consider the sentence, or the refusal to consider
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it for a class of offenders, is effectively a failure to exercise discretion and is subject to reversal.” Id.
Here, the court meaningfully considered Miller’s request for a PSA. The court noted it had reviewed all the evidence from trial, Miller’s active protection orders, as well as the parties’ sentencing recommendations, risk reports, and Cubias’s input. It considered legislative intent, statutory and other factors, and Miller’s specific circumstances, concluding the PSA was not appropriate for him. The court did not abuse its discretion in denying Miller a PSA.
Affirmed.
WE CONCUR: