FILED COURT OF APPEALS DIVISION II 2015 

### FEB - 3 

### Ali 9: 0 i STATE OF WASHINGTON BY. T' r

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. ROBERT J. WALLS, DIVISION II
Respondent,

Appellant. No. 45258 - 8 -II

UNPUBLISHED OPINION
JOHANSON, C.J. — 

### Robert J. Walls appeals his sentence for second degree identity theft. He argues that the trial court erroneously interpreted RCW 9.94A.030(20) disjunctively to permit 

### the courtto enhance his sentence for a felony domestic violence offense as defined in either RCW 10. 99. 020 or RCW 26. 50. 010. State v. Kozey, 183 Wn.App. 692, 334 P. 3d 1170 (2014), controls 

### the result here and requires a disjunctive interpretation. Accordingly, we affirm his sentence. FACTS Based on incidents in March and May 2013, the State charged Walls with witness 

### tampering (count 1), 1 three counts ofviolating a domestic violence no-contact order (counts 2, 5,

1 RCW 9A.72. 120.No. 45258 -8 -II



### and 6),2 second degree identitytheft (count 3), 3 and fourth degree assault (count4).4 Ajury found Walls guilty ofthree no-contact order violations and second degree identity theft. In a domestic violence special verdict, thejury also found that Walls and the victim were " members ofthe same family or household." Clerk' s Papers at 111. 

### At sentencing, Walls argued that because the State did not prove that his second degree identity theft was a " domestic violence" offense as defined in both RCW 10. 99.020 and RCW 26. 50. 010, his offender score should be zero. But the trial court agreed with the State, determined that Walls' s offender score was three, and ordered a standard range sentence. Walls now appeals his sentence. DISCUSSION Walls argues that his offender score should have been zero because RCW 9. 94A.030(20) 

### must be read conjunctively to permit an enhanced sentence when he is convicted only of a felony domestic violence offense based on the definitions of "domestic violence" in both RCW 10. 99.020 and RCW 26. 50. 010. We disagree and affirm Walls' s sentence.

We review the trial court' s calculation of a defendant' s offender score de novo. State v. Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187, cert. denied, 135 S. Ct. 287 ( 2014). A defendant' s 

### offender score may be increased if he has committed a felony " domestic violence offense" that

was pleaded and proven using the definition of "domestic violence" in RCW 9. 94A.030. RCW

2 RCW 26.50. 110. 3 RCW 9.35. 020(3). 4 RCW 9A.36.041. 2No. 45258 - 8 -II 9. 94A. 525( 21). Under RCW 9. 94A.030( 20), "`[ d] omestic violence' has the same meaning as defined in RCW 10. 99. 020 and 26. 50. 010." ( Emphasis added.) In Kozey, we addressed this exact issue and held that the definition of "domestic violence" in RCW 9.94A.030(20) should be read disjunctivelyto permit atrial courtto enhance an offender' s sentence based on the definition ofdomestic violence in either RCW 10. 99. 020 or RCW 26. 50. 010. 

### 183 Wn.App. at 695, 705. We rejected Kozey' s argumentthat his offender score was zero because the State only pleaded and proved his violations underthe RCW 10.99.020 definition of domestic violence. Kozey, 183 Wn. App. at 695, 698, 702.

Because Kozey requires a disjunctive interpretation of " domestic violence" in RCW 

### 9. 94A.030(20), the State only needed to prove that Walls' s second degree identity theft conviction

was a " domestic violence" offense under either RCW 10. 99. 020 or RCW 26. 50.010. 183 Wn. 

### App. at 702.. Walls was convicted of second degree identity theft and three nonfelony no-contact orderviolations, andthe State pleaded and proved his second degree identitytheft conviction under the RCW 10.99.020 definition ofa " domestic violence" offense. Therefore, the trial court properly calculated his offender score. 

### In Kozey, we rejected each ofthe arguments that Walls makes here, and he directs us to no

new authority or argument to support his position. 183 Wn. 

### App. at 695 -705. Accordingly, we hold that the trial court did not err when it calculated Walls' s offender score.No. 45258 -8 -II 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.

We concur:

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