FILED 


APRIL 16,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division HI 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 32054-5-111 

) 

Respondent, ) 

) 

v. ) OPINION PUBLISHED 

) IN PART 

STEVEN FLOYD OLSEN, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. RCW 26.50.110(4) increases the penalty for an assault 

violation of a no-contact order from a misdemeanor to a felony when the assault does not 

amount to first or second degree assault or when the conduct is reckless and creates a 

substantial risk of death or physical injury to another person. A jury convicted Steven 

Olsen of second degree assault and felony violation of a court order after he nearly cut 

his girlfriend with a large hunting knife and then beat her over the head, back, and side 

with a baseball bat. On appeal, he contends that his conviction for felony violation of a 

court order must be reversed because under the plain language ofRCW 26.50.110(4), a 

conviction ofsecond degree assault precludes a conviction for felony violation of a court 

order. We disagree. Mr. Olsen focuses only on one oftwo options of committing felony 
No. 32054-5-111 

State v. Olsen 

violation of a court order. We hold that a second option contained in 

RCW 26.50.110(4) pennits a jury to convict a defendant for felony violation ofa court 

order, despite having also convicted the defendant of second degree assault, when the 

fonner is predicated upon reckless conduct that creates a substantial risk of death or 

serious bodily injury to another. We therefore affinn. 

FACTS 

Mr. Olsen and Terri Wortham began arguing in the early morning hours of 

August 11,2013. The argument turned physical when Mr. Olsen, much larger and 

stronger than Ms. Wortham, pounced on her and pinned her to her bed. Mr. Olsen held a 

large hunting knife in his hand. But because of how he held the knife, and perhaps due 

also to his equivocal efforts, he only scratched her neck with the dull side of the blade. 

Ms. Wortham grabbed an aluminum baseball bat that was next to her bed and hit Mr. 

Olsen in the face. This caused Mr. Olsen to become extremely angry. As Ms. Wortham 

struggled to her feet, Mr. Olsen wrestled the bat from her. He then swung the bat and hit 

Ms. Wortham on the back of her head. Ms. Wortham tried to escape and began running 

down the hallway. Mr. Olsen followed her with the bat and struck her three times on the 

back and side. The struggle continued, and Mr. Olsen pushed Ms. Wortham back to her 

bedroom, also dragging her by her hair. In the bedroom, Mr. Olsen again struck her with 

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No. 320S4-S-Ill 

State v. Olsen 

the bat on the top ofher head. Sometime during these strikes, Ms. Wortham briefly lost 

consciousness. She awoke in her bedroom with Mr. Olsen standing over her. Eventually, 

Ms. Wortham escaped and obtained medical care. Her injuries required 3 staples on the 

back of her head, 2 staples on the top ofher head, and 12 stitches in her lip. At the time 

of the attack, Mr. Olsen and Ms. Wortham were living together, despite a no-contact 

order in effect between the two. 

The State charged Mr. Olsen with one count of second degree assault (domestic 

violence) and one count of felony violation of a court order. The State also charged an 

aggravating circumstance for domestic violence with one or more ofthe following 

present: (1) a pattern of ongoing abuse ofthe victim, (2) the abuse occurred within sight 

or sound ofthe victim's or defendant's minor children, or (3) manifest, deliberate cruelty 

or intimidation ofthe victim by the defendant. 

Prior to trial, the court held a preliminary hearing on whether evidence of Mr. 

Olsen's prior bad acts of abuse should be excluded. After taking the testimony ofMs. 

Wortham, the trial court ruled that the evidence ofprior conduct was relevant to the 

charged aggravator, but would also interfere with Mr. Olsen's right to a fair trial. For that 

reason, the court bifurcated the aggravating factor from the trial. The court said it would 

allow testimony regarding prior bad acts at a supplemental hearing on a finding of guilt. 

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No. 320S4-S-III 

State v. Olsen 

At trial, Ms. Wortham testified to the events that occurred on August 11. The 

State questioned Ms. Wortham about the no-contact order against Mr. Olsen that was in 

effect on August II. Ms. Wortham testified that she was aware of the no-contact order 

because there was an "incident that happened," and they were not supposed to be talking 

to each other. Report of Proceedings (RP) (Oct. 9,2013) at 97. She also said that despite 

the no-contact order, they were living together to try to work things out. Ms. Wortham 

described her relationship with Mr. Olsen as off and on for a period of three years. 

On cross-examination, defense counsel questioned Ms. Wortham about the 

couple's periods of living together and apart. Defense counsel asked Ms. Wortham where 

Mr. Olsen was living at the time ofthe couple's second break up. Ms. Wortham did not 

give a clear answer as to the location, but said that the breakup occurred in December 

2012 on Mr. Olsen's birthday. Defense counsel then asked what happened on Mr. 

Olsen's birthday in 2012, and Ms. Wortham stated, "I had him-I kicked him out of the 

house, out ofwhere I was living at. And he came back, and there was a fight there in the 

front yard. He kicked me in the stomach thattime." RP (Oct. 10,2013) at 19. 

Defense counsel did not ask any follow-up questions about the front yard fight, but 

continued to ask about the relationship. When counsel asked Ms. Wortham about the 

number oftimes the couple split, she answered, "Probably four or five. I don't know. 

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No. 320S4-S-1II 

State v. Olsen 

There's too many[.] We'd get together and then we'd fight and break up." RP (Oct. 10, 

2013) at 20. 

On redirect, the State asked Ms. Wortham about her testimony regarding the 

multiple breakups. Ms. Wortham said that the reason for the breakups was fighting, 

arguing, and name calling. When asked by the State to be more specific about "fighting," 

Ms. Wortham stated that the fights would start out with words and then they would push 

each other. Mr. Olsen objected to this testimony, stating that questioning was beyond the 

scope of cross-examination and a violation of the order in limine. The trial court 

overruled the objection. Ms. Wortham continued to describe the fighting, saying that 

onge Mr. Olsen slapped her and once she kicked at him. She described the fighting as 

always physical and mental. 

Then, the State specifically asked about the front yard fight that Ms. Wortham 

mentioned during defense questioning. Ms. Wortham provided details about the reason 

for the fight, Mr. Olsen's specific violent acts, and the witnesses present. She said, "I 

wanted him to leave. And he needed some papers or something. And I went to hand him 

this-this envelope that I had his papers in, and he ended up grabbing my hair. And the 

lady-the girl next door, Heidi, came over. And I was trying to hide behind her because 

she was bigger, but he ended up getting me and pushing me down, and her too. And he 

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No. 32054-5-111 

State v. Olsen 

grabbed me by my hair." RP (Oct. 10,2013) at 55. Ms. Wortham testified that this 

assault occurred in late June or early August. 

Before closing arguments, Mr. Olsen moved to dismiss count 2, felony violation of 

a court order. Mr. Olsen, focusing on the first option for committing felony violation of a 

court order, argued that RCW 26.50.110(4) prohibited second degree assault as being 

used as the predicate for felony violation of a court order. Mr. Olsen contended that the 

State presented sufficient evidence of second degree assault, so he could not be convicted 

of the felony violation. The court denied the motion on the grounds that the second 

option for committing felony violation of a court order was engaging in reckless conduct 

that created a substantial risk of death or serious physical injury to another. 

Consistent with this ruling, the jury instructions allowed convictions for both 

felony offenses. The jury was given two sets of elements for felony violation of a court 

order count. The jury was instructed that the second set of elements applied if it found 

Mr. Olsen guilty of second degree assault. This second set of elements contained the 

reckless conduct option, requiring the State to prove beyond a reasonable doubt "[t]hat 

the [court order] violation consisted of conduct which was reckless and which created a 

substantial risk of death or serious physical injury to another." Clerk's Papers at 45. This 

6 

No. 32054-5-III 

State v. Olsen 

instruction did not allow the jury to consider second degree assault to support the 

conviction. 

The jury found Mr. Olsen guilty of assault in the second degree and felony 

violation of a no-contact order. Implicitly, the jury found that Mr. Olsen's violation of 

the no-contact order was reckless and created a substantial risk of death or serious 

physical injury to another. I Later, the trial court dismissed the domestic violence 

aggravator, in part finding that the evidence was not enough to create a pattern of abuse. 

I The reckless conduct that supported the jury's conviction could have been Mr. 

Olsen repeatedly hitting his girlfriend on her head, back, and side with the bat. Neither 

party proposed a unanimity instruction that would assist us in knowing for certain which 

act supported which conviction nor has Mr. Olsen raised this issue on appeal. 

In State v. Petrich, 101 Wn.2d 566, 683 P .2d 173 (1984), our Supreme Court held 

that a trial court must give a unanimity instruction to ensure that a jury reaches a 

unanimous verdict on one particular incident. This rule applies where the acts are 

multiple distinct acts. Jd. at 571. The rule does not apply where the evidence indicates a 

continuing course of conduct, e.g., acts occurring near the same time and place between 

the same aggressor and victim and that are intended to secure the same objective. See 

State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). In such a situation, there is 

only one chargeable offense. 

Here, Mr. Olsen does not argue that there is only one chargeable offense. Indeed, 

if Mr. Olsen's objective changed during the attack, more than one chargeable offense did 

occur. Here, the much larger and stronger Mr. Olsen barely scratched his girlfriend with 

the dull side of a hunting knife. But after his girlfriend hit him in the face with the 

aluminum bat, he became very angry, wrestled the bat away, and repeatedly hit her with it 

on her head, back, and side thus risking serious injury to her. Whereas the initial 

objective may have been only to scare his girlfriend, this objective changed to physically 

hurting her. 

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No. 32054-5-III 

State v. Olsen 

Pursuant to RCW 9.94A.589(1)(a), the court imposed concurrent sentences on the 

two current offenses. The State conceded that because the convictions stemmed from the 

same criminal conduct, neither current offense could be used for calculating the offender 

score for the other current offense. The court imposed concurrent sentences within the 

standard range for each offense-13 months for second degree assault and 9 months for 

felony violation of a court order. Mr. Olsen appeals. 

ANALYSIS 

Mr. Olsen contends that his conviction for felony violation of a court order must 

be reversed because under the plain language of RCW 26.50.11 0(4), a conviction of 

second degree assault precludes a conviction for felony violation of a court order. The 

State disagrees and argues that RCW 26.50.110(4) provides two separate ways of 

committing the offense: either by an assault that does not amount to first or second degree 

assault (the "assault option"), or by conduct that is reckless and creates a substantial risk 

of death or serious bodily injury to another person (the "reckless conduct option"). The 

State argues that the jury found Mr. Olsen guilty under the reckless conduct option, as 

illustrated by the jury instructions. This is the first instance where Washington courts 

have addressed whether a person can be convicted ofsecond degree assault and felony 

violation of a court order based on the reckless conduct option. To answer the question 

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No. 32054-5-111 

State v. Olsen 

presented, we look to the language of the statute. Plain language that is not ambiguous 

does not require construction. State v. Azpitarte, 140 Wn.2d l38, 142,995 P.2d 31 

(2000) (deriving the meaning of the assault option portion ofRCW 26.50.11O(4)(a) from 

the language itself because the language is unambiguous). 

Under RCW 26.50.110(1)(a), a knowing violation of a protection or no-contact 

order is a gross misdemeanor except as provided in subsections (4) and (5). Applicable 

here is RCW 26.50.110(4): 

Any assault that is a violation of an order issued under this chapter ... and that 

does not amount to assault in the first or second degree under RCW 9A.36.0 11 or 

9A.36.021 is a class C felony, and any conduct in violation of such an order that is 

reckless and creates a substantial risk of death or serious physical injury to another 

person is a class C felony. 

(Emphasis added.) 

We agree with the State that the plain language ofRCW 26.50.110(4) provides 

two circumstances that elevate a violation of a no-contact order to a class C felony. The 

offense can be elevated to a class C felony by (1) any assault in violation of a no-contact 

order that does not amount to first or second degree assault, and (2) any conduct in 

violation of a protection order that is reckless and creates a substantial risk of death or 

serious physical injury to another person. 

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No. 32054-5-III 

State v, Olsen 

The Washington Supreme Court has twice held that if a defendant is charged and 

convicted of first or second degree assault, that conviction'" cannot serve as the predicate 

to make the violation a felony.'" State v. Ward, 148 Wn.2d 803, 812,64 PJd 640 (2003) 

(quoting Azpitarte, 140 Wn.2d at 141). In Azpitarte, the court set aside the felony verdict 

because the instructions permitted the jury to use the second degree assault as a predicate 

for a felony violation of court order verdict. Azpitarte, 140 Wn.2d at 142. Here, 

however, the second degree assault conviction did not serve as the predicate to make the 

court order violation a felony. Rather, the jury was properly instructed and found that the 

State proved beyond a reasonable doubt that Mr. Olsen's violation of the no-contact order 

was reckless and created a substantial risk of death or serious bodily harm to another. 

In State v, Leming, l33 Wn. App. 875, 891, l38 P.3d 1095 (2006), a jury convicted 

Mr. Leming of(1) felony violation ofa court order based on his assault ofthe victim by 

pushing her and hitting her with folded papers, which did not amount to first or second 

degree assault, and (2) second degree assault based on his subsequent conduct of 

threatening to '" snap [her] like a twig.'" In analyzing whether double jeopardy was 

violated by punishing conduct twice, the Leming court applied the three-step legislative 

intent analysis of In re Personal Restraint ofBurchfield, 111 Wn. App. 892, 895,46 P.3d 

840 (2002). Leming, 133 Wn. App. at 882; but see Azpitarte, 140 Wn.2d at 142 (assault 

10 

No. 32054-5-II1 

State v. Olsen 

option language ofRCW 26.50.110(4) is unambiguous, and lower court's analysis of 

legislative intent was unnecessary). The Leming court determined that parts two and 

three of the test---different elements/not same evidence, and legislative intent to punish 

two crimes separately-supported punishing both offenses separately. Based upon this 

three-part test, the court concluded that the separate charges and punishments for both 

assault in violation of a no-contact order and second degree assault did not violate double 

jeopardy protections, even if one conviction was based, in part, on the other. Leming, 133 

Wn. App. at 887. 

The Leming court also held that the crimes did not merge as charged because 

felony violation ofthe court order was not dependent on proving the crime of second 

degree assault. See id. at 890-91. The court reasoned that the State did not need to prove 

that Mr. Leming committed second degree assault to prove assault in violation of a court 

order. Id. at 891. "On the contrary, by statutory definition, in order to convict Leming of 

an assault in violation of a court order, the State had to prove an assault that did not 

amount to first or second degree assault." Id. 

Although Leming addressed the assault option ofRCW 26.50.110(4) and not the 

reckless conduct option, Leming establishes that a conviction for second degree assault 

does not automatically preclude a conviction for felony violation of a court order. 

11 

No. 32054-5-II1 

State v. Olsen 

Provided that the felony violation of a court order is not predicated on the second degree 

assault, a person can be convicted of both offenses. 

Here, Mr. Olsen's conviction for second degree assault does not preclude his 

conviction for felony violation of a court order. His conviction for felony violation of a 

court order was not predicated on his conviction for second degree assault. Rather, the 

State relied upon the reckless conduct option to elevate the violation ofthe no-contact 

order to a felony, and it was on this basis that the jury rendered its verdict. 

We affirm the jury's verdict. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Mr. Olsen contends that the trial court abused its discretion by admitting highly 

prejudicial evidence of his prior assaultive behavior, despite his objections. He maintains 

that admitting the evidence violated the court's own pretrial ruling and its duty to conduct 

a hearing under ER 403 and ER 404(b). The State counters that Mr. Olsen opened the 

door to this testimony by questioning the witness about the nature of her relationship with 

Mr. Olsen. 

12 

No. 32054-5-II1 

State v. Olsen 

A trial court's rulings on evidentiary issues and motions in limine are reviewed for 

an abuse of discretion. State v. Powell, 126 Wn.2d 244,258,893 P.2d 615 (1995). A 

trial court abuses its discretion by issuing a decision that is manifestly unreasonable or 

based upon untenable grounds or reasons. Id. 

Under ER 404(b), evidence of other crimes, wrongs, or acts by the defendant are 

not admissible to show that it is likely the defendant committed the alleged crime, acted in 

conformity with the prior bad acts when committing the crime, or had a propensity to 

commit the crime. The trial court has a duty to define the purpose of ER 404(b) evidence 

and perform a balancing test on the record prior to allowing it into evidence. State v. 

Wade, 138 Wn.2d 460,463, 979 P.2d 850 (1999). 

"Opening the door" is a doctrine that applies to whether otherwise inadmissible 

evidence may become admissible due to the other party's questioning. State v. Jones, 144 

Wn. App. 284, 298, 183 P.3d 307 (2008). The effects of opening the door can be 

triggered in two ways'" (1) a party who introduces evidence of questionable admissibility 

may open the door to rebuttal with evidence that would otherwise be inadmissible, and 

(2) a party who is the first to raise a particular subject at trial may open the door to 

evidence offered to explain, clarity, or contradict the party's evidence. '" Id. (quoting 

5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14 

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No. 32054-5-II1 

State v. Olsen 

at 66-67 (5th ed. 2007)). A mere passing reference in response to a question does not 

"open the door" to additional questions about prior bad acts on the part of the defendant. 

See State v. Stockton, 91 Wn. App. 35,40,955 P.2d 805 (1998). 

We agree with Mr. Olsen that the trial court abused its discretion by admitting 

evidence of his prior bad acts. The trial court's motion in limine specifically excluded 

this type ofpast assault testimony from the trial. That order was supported by the trial 

court's own well-reasoned determination. The evidence ofprior physical altercations 

between Mr. Olsen and Ms. Wortham was evidence of prior bad acts that should have 

been excluded. 

Mr. Olsen did not open the door to this testimony through the questioning of Ms. 

Wortham. Defense counsel asked about the on-and-offnature of the relationship, but did 

not ask about any physical altercations in the relationship. Nor did defense counsel invite 

Ms. Wortham's testimony regarding a fight in the front yard. Defense counsel simply 

asked what happened on Mr. Olsen's birthday in December. Ms. Wortham testified that 

she kicked Mr. Olsen out on that day and then offered information about a physical fight 

that later occurred in the front yard.2 Defense counsel did not probe into this passing 

2 We cannot conclude that Ms. Wortham's reference to the front yard assault was 

to be expected as a result of defense's question regarding the events in December. 

According to Ms. Wortham's later testimony, the front yard assault happened in late June 

14 

No. 32054-5-III 

State v. Olsen 

reference. Thus, defense questioning did not open the door to the State's examination 

into the front yard fight between Mr. Olsen and Ms. Wortham. Because Mr. Olsen 

objected to this testimony, the trial court abused its discretion in admitting the evidence. 

While the trial court abused its discretion, the error did not materially affect the 

outcome of the trial. '" An evidentiary error which is not of constitutional magnitude, 

such as erroneous admission ofER 404(b) evidence, requires reversal only if the error, 

within reasonable probability, materially affected the outcome.'" State v. 

Everybodytalksabout, 145 Wn.2d 456,468-69,39 PJd 294 (2002) (quoting (State v. 

Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997». Here, the discussion of previous 

physical fights between Mr. Olsen and Ms. Wortham probably did not affect the jury's 

decision that Mr. Olsen committed felony violation of a court order. Overwhelming 

evidence established that Mr. Olsen's conduct created a substantial risk of death or 

serious bodily injury to Ms. Wortham on August 11,2013. Testimony and pictures 

presented at trial established that Mr. Olsen repeatedly hit Ms. Wortham with a baseball 

bat and caused her to have multiple stitches and staples in her head. Also, a witness 

testified that Ms. Wortham was covered in blood. Considering the strength of this 

or early August. 

15 

No. 32054·5·III 

State v. Olsen 

evidence, the erroneous admission of Mr. Olsen's prior bad acts probably did not affect 

the outcome of the jury's verdict for felony violation of a court order. 

Affirm. 

Lawrence-Berrey, J. 

WE CONCUR: 


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