State v. Ortega

134 Wash. App. 617
Court of Appeals of Washington·Decided August 21, 2006·No. No. 55666-5-I·Published·Cited by 20 cases

Opinion

Becker, J.

¶1 Reynaldo Ortega appeals his three convictions for felony violation of a protection order. Such violations are felonies when the defendant has two prior convictions for violating protection orders. Ortega contends that his convictions cannot be felonies because the jury was told not to consider his prior convictions for any purpose other than to evaluate his credibility. The limiting instruction did not, however, prevent the jury from concluding that the prior convictions existed. We affirm the felony convictions.

FACTS

¶2 Mia Costello, age 18, began dating Ortega in the summer of 2004. Costello brokeup with Ortega after two months. Soon after the breakup, Ortega was arrested for assaulting Costello. He pleaded guilty to the assault charge. Costello obtained a protection order. One week after getting the order, she received three collect calls from Ortega, who was in jail. The State charged Ortega with three counts of felony violation of a protection order.

¶3 Before trial, the State agreed that Ortega’s guilty plea in the 2004 assault case was not admissible under ER 404(b). But when Ortega testified at trial, the court ruled that he opened the door to the prior assault conviction when he insisted that he had been falsely arrested. By agreement of the parties, the court gave the jury a limiting instruction. The instruction directed them to consider evidence that Ortega had previously been convicted of a crime only for its bearing on the weight or credibility of Ortega’s testimony and not as evidence of his guilt.

[621] ¶4 The three protection order violations for which Ortega was being tried were felonies only if Ortega had two prior convictions for violating protection orders. The parties agreed that the prior convictions were elements that had to be proved to the jury. The State introduced proof in the form of a stipulation informing the jury that Ortega had been convicted in 1997 on two counts of protection order violations.

¶5 The jury convicted Ortega on all three charges and returned a special verdict finding that he had been twice convicted in the past for violating protection orders. The court sentenced Ortega to 43 months on the three felony convictions. He appeals.

EVIDENCE OF PRIOR CONVICTIONS

¶6 On the one hand, the jury was presented with a stipulation that Ortega had two prior convictions. The court instructed the jury that if they found the defendant guilty of the three current violations, they should answer the following question on a special verdict form: “Has the defendant twice been previously convicted for Violation of the provisions of a No Contact Protection Order?” The jury answered, ‘Yes.”

¶7 On the other hand, to mitigate the effect of the midtrial decision to admit the 2004 assault conviction, the court gave the jury the following limiting instruction:

Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant’s guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose.

¶8 Ortega contends that the limiting instruction, though intended only to limit the jury’s use of the 2004 assault conviction, also affected the jury’s consideration of the two 1997 convictions. He argues that the jury could not have considered the 1997 convictions to find him guilty on the current charges because the limiting instruction told them [622] to consider the 1997 convictions only to evaluate his credibility. He therefore contends that the jury lacked evidence upon which to conclude he had those two prior convictions.

¶9 Jury instructions, when not objected to, become the law of the case. A defendant may assign error to elements added under the law of the case doctrine, and that assignment “may include a challenge to the sufficiency of evidence of the added element.” State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). In Hickman, the trial court’s to-convict instruction included venue as an element. Because the State did not object, venue became an element that the State had to prove “even though it really is not an element." Hickman, 135 Wn.2d at 99. Because the State did not prove venue, the court reversed the conviction for insufficiency of the evidence and dismissed with prejudice. Ortega contends the limiting instruction similarly became the law of this case as to the 1997 convictions even though there really was no reason to prevent the jury from considering them.

¶10 Even if the limiting instruction became the law of this case as to the 1997 convictions, it did not deprive the jury of sufficient evidence upon which to find that Ortega had been twice convicted in the past. The limiting instruction required the jury to consider “evidence of a prior conviction” for no purpose other than evaluating the weight and credibility of Ortega’s testimony. To use the prior convictions for the purpose of evaluating Ortega’s testimony, the jury would first have to find that those prior convictions existed. The jury could properly consider the stipulation as evidence of the existence of the two prior convictions. This is the finding they made when they filled out the special verdict form. Having found that the 1997 convictions did exist, the jury would then follow the limiting instruction and not consider the 1997 convictions as evidence of Ortega’s guilt on the three charges for which he was on trial.

¶11 In a case such as this where a prior conviction is an element of the current charge and a different prior convic[623] tion is also admitted as bearing on credibility or for some other purpose, it would be preferable for the court to tailor the limiting instruction so that there can be no mistake which prior conviction it refers to. However, in this case the limiting instruction as given was not logically inconsistent with the jury’s task of finding the prior conviction element of the charged crime. We reject Ortega’s challenge to the sufficiency of the evidence.

OFFER TO STIPULATE

¶12 Before the trial began, the court asked the parties to consider stipulating to the prior convictions that would serve as elements of the felony charges. Ortega offered to stipulate that if the jury convicted him for committing the three violations against Costello (making three telephone calls from jail), these convictions would be felonies. The trial court told Ortega the stipulation would have to say that he had twice been convicted of violating protection orders. At the close of the State’s case-in-chief, the court read an agreed stipulation to that effect to the jury. Ortega contends the court abused its discretion by insisting on an instruction that was more prejudicial than necessary.

¶13 The State contends that Ortega waived the issue because he agreed to the stipulation. But it is clear from the record that the trial court would not have accepted a stipulation like the one Ortega proposed. We find the issue adequately preserved.

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State v. Ortega, 134 Wash. App. 617 (Wash. Ct. App. 2006).

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