, . ---(1.··~ DAT<!. . ·~· 

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This opinion was filed for record 

at B. oJ 0-/"'- on{)_~)(, YJ lp 

dhe-d.CL.. / 

SUSAN L. CARLSON 

SUPREME COURT CLERK 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Petitioner, 

v. 

KEVIN RAY CASE, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) __________________ ) 

No. 92293-4 

En Bane 

Filed ----------

GONZALEZ, J. -Kevin Case was convicted of felony violation of a 

domestic violence no-contact order. While normally a gross misdemeanor, 

violating a no-contact order becomes a felony when an offender has at least 

two prior convictions for violating a no-contact order or similar order issued 

under qualifying provisions listed in RCW 26.50.110(5). 

In order to limit jury bias, defendants facing a felony charge of 

violating a domestic violence no-contact order will typically admit to the 

prior convictions so that the prosecution does not need to introduce the 

details of those convictions to prove their existence to the jury. Indeed, it 

would be reversible en-or for a trial judge to decline to accept such a 
State v. Case, No. 92293-4 

stipulation. Like many defendants, Case stipulated that he had been 

convicted of violating no-contact orders before. However, his stipulation 

did not explicitly state that the previously violated orders had been issued 

under qualifying provisions listed in the statute. For the first time on appeal, 

Case argued the State failed to prove its case because his stipulation was 

inadequate. We find that whether the prior convictions were issued under 

qualifying provisions listed in RCW 26.50.11 0(5) is a threshold legal matter 

to be decided by the judge and that Case's stipulation, in context, was 

sufficient. Accordingly, we reverse the Court of Appeals and reinstate his 

conviction. 

FACTS 

Case is no stranger to either the victim here or the consequences of 

violating a no-contact order. On December 18, 2013, a bystander saw Case 

standing over and yelling at a woman crouched in a doorway who was 

"visibly shaking [and had] the look of just death in her face." Verbatim 

Report of Proceedings (VRP) (Mar. 17-18, 2014) at 10. The bystander, a 

former police officer, was concerned for the woman's safety. He called 911 

and followed Case and Case's victim until police arrived. Responding 

officers learned the victim had a no-contact order against Case that ordered 

Case to stay away from her. Case was arrested. 

2 
State v. Case, No. 92293-4 

The State charged Case with one count of felony violation of a 

domestic violence no-contact order under RCW 26.50.11 0( 5). The charging 

document alleged the December 2013 incident was the third or subsequent 

violation of a similar order and stated that the prior orders were "issued 

under Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, 74.34 RCW, or a 

valid foreign protection order as defined in RCW 26.52.020."1 Clerk's 

Papers at 3. At the time of charging, Case already had 13 prior convictions 

for violating a no-contact order. 

The parties did not formalize the stipulation before trial. Prior to voir 

dire, the court confirmed their plan to stipulate and explained, without 

objection from either party, that the stipulation would relieve the State of the 

1 The information stated in relevant part: 

COUNT I- FELONY VIOLATIONS 01<' POST CONVICTION NO 

CONTACT ORDER/DOMESTIC VIOLENCE- THIRD OR 

SUBSEQUENT VIOLATION OF ANY SIMILAR ORDER, RCW 

26.50.110(5), RCW 10.99.020 AND RCW 10.99.050- CLASS C FELONY: 

In that the defendant, KEVIN RAY CASE, in the State of Washington, on or 

about December 18,2013, with !mow ledge that the Olympia Municipal Court had 

previously issued a no contact order, pursuant to Chapter 10.99 in Olympia 

Municipal Court on July 15, 2013, Cause No. 3Z0193715, did violate the order 

while the order was in effect by knowing! y violating the restraint provisions 

therein pertaining to [the victim], a family or household member, pursuant to 

RCW 10.99.020; and furthermore, the defendant has at least two prior convictions 

for violating the provisions of a protection order, restraining order, or no-contact 

order issued Lmder Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, or 74.34 

RCW, or a valid foreign protection order as defined in RCW 26.52.020. 

Clerk's Papers at 3. 

3 
State v. Case, No. 92293-4 

"necessity of having to go into detail about those convictions." VRP (Mar. 

17-18, 2014) at 6. Most relevantly, the following discussion occurred: 

THE COURT: All right. I understand there's going to be a 

stipulation as to the fact that Mr. Case has two or more prior 

convictions for violation of orders of protection or no contact. 

MR. TAYLOR: That's correct, Your Honor. 

THE COURT: Okay. That relieves the State from the necessity 

of having to go into detail about those convictions. And so I would 

expect that that stipulation would be read to the jury and also I'll have 

it marked as an exhibit so that it goes to the jury during their 

deliberation process. 

MS. WEVODAU: Thank you, Your Honor. That was going to 

be the State's request, and I do also have the limiting instruction to 

accompany the stipulation. 

Id. Near the end oftrial, the judge read to the jury Case's stipulation that 

[t]he parties have agreed that certain facts are true. You must 

accept as true the following facts: The defendant has at least two prior 

convictions for violating the provisions of a protection order, 

restraining order, or no-contact order issued under Washington State 

law. 

I d. at 66; see also Ex. 5 (Stipulation)_2 Neither party objected to the 

stipulation or to the to-convict instruction. The to-convict instruction 

mirrored the stipulation and said: 

2 Case and his attorney signed the stipulation on March 17,2014, which said in relevant 

part, "The defendant and the defendant's attorney hereby stipulate the above is a correct 

statement of the stipulated facts to be presented to the jury." Ex. 5. 

4 
State v. Case, No. 92293-4 

To convict the defendant ofthe crime of violation of a no-contact 

order as charged, each of the following elements of the crime must be 

proved beyond a reasonable doubt: 

1) that on or about December 18, 2013, there existed a no contact 

order applicable to the defendant, 

2) that the defendant !mew of the existence of this order, 

3) that on or about said date, the defendant lmowingly violated this 

order, 

4) that the defendant has twice been previously convicted for violating 

the provisions of a court order, and 

5) that the defendant's acts occurred in the State of Washington. 

Id. at 75. This instruction mirrored the pattern jury instruction. 11 

W ASH!NGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: 

CRIMINAL 36.51.02, at 640 (3d ed. 2008). Neither party objected to the 

instruction. 

On appeal, Case argued for the first time that the State presented 

insufficient evidence because it failed to show the prior convictions he 

stipulated to were based on violations of qualifYing orders. State v. Case, 

189 Wn. App. 422,423,358 P.3d 432 (2015). Agreeing with Case, the 

Court of Appeals reversed his conviction and dismissed with prejudice, 

holding the State failed to satisfy the threshold requirement that Case's prior 

convictions were for violating qualifying court orders. !d. at 424. 

5 
State v. Case, No. 92293-4 

The State sought discretionary review, arguing that Case's stipulation 

was sufficient and that the question of whether the prior convictions were 

qualifying convictions is not an element of the crime that goes to the jury. 

Case argued that his narrow stipulation did not relieve the State of its burden 

to prove the adequacy ofthe stipulation because the stipulation's language 

encompassed more types of violations than those specifically required for 

conviction. We granted discretionary review. 

ANALYSIS 

The elements of a crime are those facts that the State must prove to 

sustain a conviction. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005) 

(quoting BLACK'S LAW DICTIONARY 559 (8th ed. 2004) and citing State v. 

Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953)). Here, the parties 

agree that the stipulation established the existence of at least two prior 

convictions and that the validity of the underlying orders is a question of 

law. The parties disagree whether the stipulation alone was adequate to 

prove Case had at least two qualifying prior convictions. Ultimately, this 

case turns on questions oflaw, which we review de novo. !d. at 27 (citing 

Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)). 

A "stipulation" is an express waiver that concedes, for purposes of 

trial, the truth of some alleged fact, with the effect that one party need offer 

6 
State v. Case, No. 92293-4 

no evidence to prove it and the other is not allowed to disprove it. State v. 

Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (quoting Key Design, 

Inc. v. Moser, 138 Wn.2d 875, 893-94, 983 P.2d 653 (1999)). While the 

State must prove every element of the crime beyond a reasonable doubt, for 

strategic reasons, defendants charged with felony violation of a domestic 

violence no-contact order regularly stipulate to prior convictions that are 

elements of the charged crime in order to constrain the prejudicial effect on a 

jury. See generally State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002) 

(noting the generally "prejudicial effect of prior convictions") "When the 

parties stipulate to the facts that establish an element of the charged crime, 

the jury need not find the existence of that element, and the stipulation 

therefore constitutes a waiver of the 'right to a jury trial on that element."' 

State v. Humphries, 181 Wn.2d 708,714-15,336 P.3d 1121 (2014) (quoting 

United States v. Mason, 85 F.3d 471, 4 72 (1Oth Cir. 1996)). The defendant 

also waives "the right to require the State prove that element beyond a 

reasonable doubt." Id. at 715 (citing Sullivan v. Louisiana, 508 U.S. 275, 

278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)). Moreover, it would likely 

be reversible error to admit evidence about the prior convictions beyond the 

stipulation unless that evidence pertained to another element of the crime 

and unless the trial judge properly found that the probative value of such 

7 
State v. Case, No. 92293-4 

evidence outweighed its significant prejudicial effect. See ER 404(b ); State 

v. Gunderson, 181 Wn.2d 916, 925, 927, 337 P.3d 1090 (2014) (finding that 

erroneous admission of prior acts of domestic violence was reversible error). 

Case argues that his stipulation does not mirror the statutory language 

for qualifying provisions in RCW 26.50.11 0(5) and that this should be 

dispositive. If we had only the stipulation before us, he might be correct. 

But we have more than the stipulation before us. In the context of the 

charging document and sidebar, we are satisfied that Case stipulated he had 

been convicted of violating qualifying no-contact orders.3 Absent a timely 

and specific objection or exception from Case's attorney, the stipulation 

appeared to establish that Case agreed he had two prior qualifYing 

convictions under RCW 26.50. ll 0(5) as alleged in the charging information 

and was therefore sufficient.4 

Moreover, whether the prior convictions met the qualifying statutory 

requirements is a threshold legal determination to be made by the trial judge, 

not a question for the jury. Whether the prior convictions qualify under 

3 We note that Case does not dispute he has been convicted of violating qualifYing nocontact orders in the past. 

4 We respectfully disagree with the dissent that there are any hidden holdings in this 

opinion undoing the state's burden of proof or changing the elements of felony violation 

of a no-contact order. Nor does this opinion overrule Oster, 14 7 Wn.2d 141, or State v. 

Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). The question here is merely whether the 

stipulation-offered to constrain the prejudice that would inevitably follow disclosing the 

specifics of prior convictions-was sufficient to sustain the State's burden to prove every 

essential element of the crime beyond a reasonable doubt. 

8 
State v. Case, No. 92293-4 

RCW 26.50.110(5) is a substantially similar question to whether a prior nocontact order was valid-a question oflaw to be decided by a judge, not a 

jury. State v. Miller, 156 Wn.2d 23, 24, 123 P.3d 827 (2005). lfthe prior 

convictions do not qualify, they are almost certainly inadmissible on this 

point under ER 404(b ). Case has failed to show that his stipulation was 

based on non qualifying, and thus inadmissible, prior convictions. Even if it 

was error for the trial judge not to explicitly confirm with Case that he was 

stipulating to qualifying prior convictions, any error was harmless and Case 

is not entitled to relief on appeal. 

CONCLUSION 

We conclude that Case stipulated to the sufficiency of his prior 

qualifying convictions. We reverse the Court of Appeals, reinstate Case's 

conviction, and remand to the trial court for any further proceedings 

consistent with this opinion. 

9 
State v. Case, No. 92293-4 

WE CONCUR: 

10 

Otq?(h-~,f! 

~fbi' 
State. v. Case (Kevin Ray) 

No. 92293-4 

MADSEN, C.J. (concurring)-! agree with the majority that the Court of Appeals 

decision must be reversed and defendant's conviction reinstated. I also agree with the 

majority that the determination of whether defendant's prior convictions were based on 

qualifying orders as set forth in RCW 26.50.110(5), thereby ultimately increasing his 

punishment, is a legal question for the trial court, and that in the circmnstances of this 

case, the defendant's stipulation is sufficient to resolve that inquiry. I write separately to 

express my view that the method employed by the Court of Appeals and the majority 

here-splitting the prior convictions inquiry into a legal question for the trial court and a 

factual question for the jury-is unnecessary and unwarranted. This is so because the 

provision at issue concerns prior convictions, which are an exception to the general rule 

that any fact increasing a penalty must be decided by the jury. 

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 14 7 L. Ed. 2d 435 

(2000), the Supreme Court expressly excluded a defendant's prior criminal history as a 

matter for jury deliberation. "Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt." !d. at 490 (emphasis added). 
No. 92293-4 

(Madsen, C.J., concurring) 

Four years later, in Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. 

Ed. 2d 403 (2004 ), the Supreme Court explicitly preserved its prior holding in Apprendi 

that a sentencing enhancement based on a defendant's prior conviction does not have to 

be presented to a jury. See also United States v. Quintana-Quintana, 383 F.3d 1052, 

1053 (9th Cir. 2004) (noting the continuing viability of the Apprendi rule and its 

exception for prior convictions); United States v. Harris, 447 F.3d 1300, 1303 (lOth Cir. 

2006) (same); Alleyne v. United States, _U.S._, 133 S. Ct. 2151,2160 n.l, 186 L. 

Ed. 2d 314 (2013) (acknowledging the prior convictions exception expressed in Apprendi 

and Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 

350 (1998)). Under this precedent, the issue of prior convictions need not be submitted 

. I 

to a Jury. 

I now turn to the plain language of the statute. RCW 26.50.110 is titled "Violation 

of order-Penalties," and provides in relevant part at subsections (1)(a), (4), and (5) as 

follows: 

(1)(a) Whenever an order is granted under this chapter, chapter 7.92, 7.90, 

9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, any temporary 

order for protection granted under chapter 7.40 RCW pursuant to chapter 

74.34 RCW, or there is a valid foreign protection order as defined in RCW 

26.52.020, and the respondent or person to be restrained knows of the 

1 The rationale for excepting prior convictions from the jury requirement is explained in 

Apprendi as follows: 

[T]here is a vast difference between accepting the validity of a prior judgment of 

conviction entered in a proceeding in which the defendant had the right to a jury 

trial and the right to require the prosecutor to prove guilt beyond a reasonable 

doubt, and allowing the judge to find the required fact under a lesser standard of 

proof. 

530 U.S. at 496. 

2 
No. 92293-4 

(Madsen, C.J., concurring) 

order, a violation of any of the following provisions of the order is a gross 

misdemeanor, except as provided in subsections (4) and (5) of this section: 

(i) The restraint provisions prohibiting acts or threats of violence 

against, or stalking of, a protected party, or restraint provisions prohibiting 

contact with a protected party; 

(ii) A provision excluding the person from a residence, workplace, 

school, or day care; 

(iii) A provision prohibiting a person from knowingly coming 

within, or lmowingly remaining within, a specified distance of a location; 

(iv) A provision prohibiting interfering with the protected party's 

efforts to remove a pet owned, possessed, leased, kept, or held by the 

petitioner, respondent, or a minor child residing with either the petitioner or 

the respondent; or 

(v) A provision of a foreign protection order specifically indicating 

that a violation will be a crime. 

( 4) Any assault that is a violation of an order issued under this 

chapter, chapter 7.92, 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 

74.34 RCW, or of a valid foreign protection order as defined in RCW 

26.52.020, 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. 

(5) A violation of a court order issued under this chapter, chapter 

7 .92, 7 .90, 9A.46, 9.94A, 1 0.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a 

valid foreign protection order as defined in RCW 26.52.020, is a class C 

felony ifthe offender has at least two previous convictions for violating the 

provisions of an order issued under this chapter, chapter 7.90, 9A.46, 

9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign 

protection order as defined in RCW 26.52.020. The previous convictions 

may involve the same victim or other victims specifically protected by the 

orders the offender violated. 

RCW 26.50.110 (emphasis added). 

As can be seen, violations that are designated as gross misdemeanors are set forth 

in subsection (l)(a). Subsection (4) elevates punishment to felony status when additional 

conduct is present in the form of "assault ... that does not amount to assault in the first or 

second degree," and for "reckless" conduct that "creates a substantial risk of death or 

3 
No. 92293-4 

(Madsen, C .J ., concurring) 

serious physical injury to another person." RCW 26.50.11 0( 4). The presence of such 

additional conduct that would increase a sentence is clearly the type of inquiry that must 

go to the jury under Apprendi. See Alleyne, 133 S. Ct. 2151 (finding as to whether 

' defendant had brandished, as opposed to merely carried, a firearm in connection with 

crime of violence that would elevate mandatory minimum term for firearms offense from 

five to seven years was element of separate, aggravated offense that had to be found by 

jury). By contrast, subsection (5) does not add any conduct or other element; it simply 

designates a third or subsequent violation (as described in subsection (l)(a)) as a felony, 

thereby elevating the punishment for the present violation based on the existence of prior 

convictions that are unrelated to the current violation. Thus, in my view, because RCW 

26.50.110(5) does not add additional conduct but relies only on prior convictions to 

increase punishment, it operates like a recidivist statute. "[R]ecidivism 'does not relate to 

the commission of the offense' itself." Apprendi, 530 U.S. at 496 (quoting AlmendarezTorres, 523 U.S. at 230). 

In light of the similarity with recidivist statutes, in my view appropriate guidance 

may be gleaned from our case law interpreting and applying the Persistent Offender 

Accountability Act (POAA) of the Sentencing Reform Act of 1981, RCW 9.94A.570. 

See State v. Witherspoon, 180 Wn.2d 875, 881, 329 P.3d 888 (2014). We recently 

addressed the interplay between the POAA and Apprendi in Witherspoon. Under the 

POAA, adult offenders convicted in Washington of'"three most serious offenses"' are 

sentenced to life in prison without the possibility of release. I d. at 888 (internal quotation 

4 
No. 92293-4 

(Madsen, C.J., concurring) 

marks omitted) (quoting State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495 (1996)). The 

State must prove previous convictions by a preponderance of the evidence and "the 

defendant is not entitled to a jury determination on this issue." !d. at 894. In 

Witherspoon, we observed that "the POAA does not violate state or federal due process 

by not requiring that the existence of prior strike offenses be decided by a jury." Jd. at 

892. We noted in this context, '"[i]n applying Apprendi, we have held that the existence 

of a prior conviction need not be presented to a jury and proved beyond a reasonable 

doubt."' !d. at 893 (quoting In re Pers. Restraint of Lavery, 154 Wn.2d 249, 256, 111 

P.3d 837 (2005)); see also id. at 892 ("We have repeatedly held that the right to jury 

determinations does not extend to the fact of prior convictions for sentencing purposes."). 

Under Witherspoon, because a jury determination of prior convictions is not required, "a 

judge may find the fact of a prior conviction by a preponderance of the evidence" for 

purposes of the POAA. Id. In my view, the same should be true for the analogous 

situation here~a sentencing judge alone should make any determinations regarding prior 

convictions. 

With these observations, I concur? 

2 The dissent relies on In re Winship, 397 U.S. 358, 90 S. Ct. I 068, 25 L. Ed. 2d 368 (1970), and 

United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), for the 

proposition that any fact that increases punishment must be submitted to a jury and found beyond 

a reasonable doubt. Dissent at 1-2. But Apprendi addressed both of these cases, see Apprendi, 

530 U.S. at 471, 477, and nevertheless concluded as discussed herein that prior convictions are 

an exception to the general rule that any fact that increases the penalty for a crime must be 

decided by a jury. As discussed inApprendi, Winship and Gaudin do not compel the result 

advocated by the dissent. 

5 
No. 92293-4 

(Madsen, C.J., concurring) 

6 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

No. 92293-4 

GORDON McCLOUD, J. (dissenting)-Kevin Case was convicted of felony 

violation of a no-contact order in violation of RCW 26.50.11 0(5). That subsection 

(5) enhances the crime from a misdemeanor to a felony "if the offender has at least 

two previous convictions for violating the provisions of an order issued under 

[specifically listed statutes]." (Emphasis added.) Fifteen years ago, when dealing 

with an identically structured statute, we held that this prerequisite to conviction 

constitutes an element of the crime. State v. Oster, 147 Wn.2d 141, 147-48, 52 P.2d 

26 (2002). Without overruling or even acknowledging its conflict with that holding, 

the majority seems to conclude either that this prerequisite to conviction is not an 

element or that the State need not prove this element of this crime to a jury beyond 

a reasonable doubt. 

Either holding would conflict with controlling prior precedent. The first one 

conflicts in principle with Oster and its progeny, as discussed in Section 2 below. 

The second one conflicts directly with not just In re Winship, 1 the seminal Supreme 

Court decision holding that all elements must be proved to the jury beyond a 

1 397 U.S. 358, 364, 90 S. Ct. 1068, 26 L. Ed. 2d 368 (1970). 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

reasonable doubt, but also with United State v. Gaudin,2 which held that Winship's 

general rule applies even where, as here, the element contains both legal and factual 

parts. This is discussed in Section 3 below. This court should follow Winship's and 

Gaudin's constitutional holdings. I therefore respectfully dissent. 

ANALYSIS 

1. Introduction 

The parties here stipulated that Case had two prior convictions for violations 

of a protective order "under Washington State Law." Verbatim Report of 

Proceedings (VRP) (Mar. 17-18, 2013) at 66; Ex. 5. But the stipulation did not 

specify the statutes under which these protective orders were issued. And the 

statutory prerequisite to conviction under RCW 26.50.11 0(5) is not prior convictions 

for violating protective orders issued under any "Washington State Law." Instead, 

RCW 26.50.11 0(5)'s statutory prerequisite to conviction is that "the offender has at 

least two previous convictions for violating the provisions of an order issued under 

this chapter, chapter 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, 

or a valid foreign protection order as defined in RCW 26.52.020." (Emphasis 

added.) 

2 515 U.S. 506,514, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). 

2 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

Importantly, the first phrase-a prior conviction "under Washington State 

Law"-is not synonymous with the statutory phrase "the offender has at least two 

previous convictions for violating the provisions on an order issued under 

[specifically listed statutes]." RCW 26.50.110(5). The difference is that the 

statutory phrase limits the qualifying enhancing prior convictions to the ones 

specifically listed. And there are other, unlisted, statutes under which protective 

orders might have been issued. E.g., RCW 10.14.080 (temporary antiharassment 

protection order); RCW 26.44.150(1) (temporary restraining order against person 

accused of abusing a child). 

The stipulation was therefore not narrow enough to establish that the prior 

convictions were qualifYing convictions. 

2. The Majority's Holding That the Prior-QualifYing-Convictions Prerequisite 

To Conviction Is Not an Element Conflicts with Recent Decisions of This 

Court 

We granted review in this case to decide whether the existence of those two 

qualifying prior convictions constitutes an element of the crime charged here, i.e., 

felony violation of a no-contact order in violation ofRCW 26.50.11 0(5), which must 

be proved to a jury beyond a reasonable doubt. The majority answers that question 

by saying, "Whether the prior convictions qualify under RCW 26.50.110(5) is ... a 

3 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

question oflaw to be decided by a judge, not a jury." Majority at 9.3 But all elements 

must be proved to a jury beyond a reasonable doubt. Winship, 397 U.S. at 364; State 

v. Rich, 184 Wn.2d 897, 903, 365 P .3d 746 (2016). So either the majority is treating 

the existence of two prior qualifying convictions as something other than an element, 

or the majority is making a brand new exception to the rule that all elements must 

be proved to the jury. 

Either holding violates controlling precedent. If the majority is holding that 

the prior-qualifying-conviction prerequisite is not really an element, then the 

majority's holding conflicts with controlling decisions of this court.4 Almost 15 

3 The majority begins with several assertions about Case's prior bad acts. E.g., 

majority at 2 ("Case is no stranger to ... the consequences of violating a no-contact 

order."), 3 ("At the time of charging, Case already had 13 prior convictions for violating a 

no-contact order."). These assertions are not relevant to the legal question that we must 

decide, that is-whether the rule that the State must prove all the elements of the crime to 

a jury, beyond a reasonable doubt, no matter how bad of an actor the defendant is-applies 

to the element at issue in this case. 

4 The concurrence is certainly correct that following Apprendi v. New Jersey, 530 

U.S. 566, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a prior criminal conviction does not 

have to be treated as an element of the crime under the Fourteenth Amendment to the 

United States Constitution. Concurrence at 5. That is a holding about the limits of the 

federal constitution's protections. But our court's own prior precedent held that the prior 

convictions prerequisite contained in RCW 26.50.110(5) was an element of the crime 

based on state statutory interpretation. Oster, 147 Wn.2d at 147-48; State v. Roswell, 

165 Wn.2d 186, 192, 196 P.3d 705 (2008). Apprendi does not affect or diminish our 

state Supreme Court cases interpreting state statutory law to provide greater protections of 

individual rights than the United States Constitution. 

4 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

years ago, in Oster, we held that the prior conviction requirement in a similarly 

structured statute constituted an element of the crime. 147 Wn.2d at 147-48. To be 

sure, the main question in Oster was whether the prior convictions had to be listed 

in the to-convict instruction or whether placement in some other instruction sufficed. 

Id. at 143. But before the court could reach that question, it had to decide whether 

the prior convictions were indeed elements. On that preliminary point, our court 

held, "As set forth in the statute, the prior convictions function as an element of the 

felony violation of a no contact order." Id. at 146. 

We followed Oster's holding in State v. Roswell, 165 Wn.2d 186, 196 P.3d 

705 (2008). In Roswell, the statute at issue-former RCW 9.68A.090 (2004)-

elevated the crime of communicating with a minor for immoral purposes from a 

misdemeanor to a felony. The issue for our court was whether a defendant was 

entitled to bifurcate the trial between judge and jury to keep the prior convictions 

evidence away from the jury. Id. at 190. But before the court could reach that 

question, it decided whether the prior convictions were actually elements or were, 

instead, simply aggravating sentencing factors. Id. at 193-94. The court held that 

the prior convictions prerequisite to a current conviction of this felony constituted 

an element. We explicitly stated, "Despite the similarities between an aggravating 

factor and a prior conviction element, under RCW 9.68A.090(2), a prior sexual 

5 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

offense conviction [was] an essential element that must be proved beyond a 

reasonable doubt." !d. at 192.5 

If the majority's decision-that "the prior convictions qualify under RCW 

26.50.11 0(5) is ... a question of law to be decided by a judge, not a jury"-means 

that the prior-qualifying-convictions prerequisite is not an element, then that holding 

conflicts with our decisions in Oster and Roswell. Majority at 9. And the majority 

gives no explanation for this conflict and silent overruling of that prior precedent. 

3. The Majority's Holding That the State Need Not Prove the Prior-QualifyingConvictions Element to the Jury beyond a Reasonable Doubt Because It Is 

Mainly Legal, Rather Than Factual, Conflicts with Controlling Supreme 

Court Precedent 

If the majority instead means to say that the prior-qualifying-convictions 

prerequisite remains an element, but that it is an element that implicates "a question 

oflaw" and that such a legal question-element or not-is "to be decided by a judge, 

not a jury," then this holding conflicts with a different line of cases. 

5 In State v. Miller, also decided in 2005, we addressed a related question: whether 

the State had to prove, as an element of the offense, that the no-contact order violated was 

valid. 156 Wn.2d 23, 25-26, 123 P.3d 827 (2005). The parties agreed that the no-contact 

order must be valid in order to support a conviction. !d. at 25. They disagreed, however, 

about whether the validity of the order was a question of law for the judge or a question of 

fact for the jury. !d. We held that the '"existence'" of a no-contact order was an element 

for the jury but the '"validity'" of that order was a question of law for the court. !d. at 24. 

We did not address whether the existence of an actual no-contact order of the sort listed in 

the statute-one issued under certain statutory provisions and not others-was an element 

or not. 

6 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, .T., dissenting) 

Specifically, it conflicts with the United States Supreme Court's decision in 

Gaudin. 515 U.S. at 511-15. In Gaudin, the Supreme Court held that all elements, 

whether they are characterized as legal or factual, must be proven to the jury beyond 

a reasonable doubt. Jd. (rejecting the government's position that since the element 

of"materiality" in a perjury prosecution is "a 'legal' question," that element can be 

proved to a judge rather than a jury). 

The parties' focus on our decision in Miller in support of a different rule is 

therefore misplaced. Gaudin's holding on this point offederal constitutional law is 

controlling; any contrary, and less protective, implications in Miller are not. And 

Gaudin clearly stated, as the dispositive holding of that case, that "all elements" of 

an offense, whether characterized by the government as legal or factual, are for the 

jury. Jd. at519. 6 

6 Neither Miller nor State v. Carmen, 118 Wn. App. 655, 668, 77 P.3d 368 (2003), 

also cited by the parties, discussed Gaudin's 1995, constitutional, holding. Nor did the 

parties to this case. But Gaudin still compels the conclusion that if the existence of a prior 

qualifying conviction is an element of felony violation of a no-contact order under RCW 

26.50.110(5), then the entire element-including whether the convictions arose from a 

qualifying statute-is for the jury to decide. 

7 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

4. The Majority's Holding That the Stipulation Sufficed To Prove This Factor, 

Even If It Were an Element, Conflicts with the Rule That What the Parties 

Stipulate to Is Determined by the Four Corners of the Stipulation 

The majority spends little time on these important points. Instead, it engages 

in a lengthier discussion of how Case really stipulated to the prior-qualifyingconvictions thing, anyway. 

It is certainly true that a defendant can stipulate to facts that prove an element 

of the crime, and that such a stipulation constitutes a waiver of the right to require 

the state to prove that element. State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 

(2006) ("'A stipulation is [a]n express waiver ... conceding for the purposes of the 

trial the truth of some alleged fact, with the effect that one party need offer no 

evidence to prove it and the other is not allowed to disprove it."' (alterations in 

original) (internal quotation marks omitted) (quoting Key Design, Inc. v. Moser, 138 

Wn.2d 875, 893-94, 983 P.2d 653 (1999))). And it is also true that in this case the 

trial judge, referring to the stipulation, said, "That relieves the State from the 

necessity of having to go into detail about those convictions." Verbatim Report of 

Proceedings (Mar. 17-18, 2013) at 6. 

The majority asserts that this stipulation "appeared to establish that Case 

agreed he had two prior qualifYing convictions under RCW 26.50.110(5) as alleged 

in the charging information." Majority at 8 (first emphasis added). 

8 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

That's not how it appears to me. The reason is that what the parties stipulate 

to is generally determined by the four corners of the stipulation itself. See Braxton 

v. United States, 500 U.S. 344, 350, 111 S. Ct. 1854, 114 L. Ed. 2d 385 (1991) 

(holding that courts review stipulations "just as we would review a determination of 

meaning and effect of a contract, or consent decree, or proffer for summary 

judgment"); Stell v. State, 496 S.W.2d 623, 626 (Tex. Crim. App. 1973) (construing 

stipulations narrowly). And there is nothing about the specifically listed qualifying 

crimes prerequisite within the four corners of the stipulation. 

5. The Majority's Holding That the Stipulation Sufficed To Prove This Factor, 

Even If It Were an Element, Conflicts with the Rule That, in a Criminal Case, 

the Government Must Accept the Risk of Any Deficiency in a Stipulation 

Further, if the government accepts a stipulation to a particular fact but the 

stipulation is inadequate, then the government must accept that risk. Tompkins v. 

State, 278 Ga. 857, 857, 607 S.E.2d 891 (2005) (refusing to imply from defendant's 

stipulation to a bench trial that the stipulation also included a stipulation regarding 

venue); United States v. Hollis, 506 F.3d 415, 419-20 (5th Cir. 2007) (refusing to 

imply from defendant's stipulation to prior convictions that these prior convictions 

were valid or constitutionally obtained so as to preclude the defendant from 

challenging the validity of those convictions at sentencing under the federal Armed 

Career Criminal Act of 1984 (18 U.S.C. § 924(e)); Gooding v. Stotts, 856 F. Supp. 

9 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

1504, 1508 (D. Kan. 1994) ("If the proof is lacking, regardless of whether a case is 

tried to the court on stipulated facts or to a jury, on either stipulated facts or in a trial 

filled with in-court testimony, the result is the same-the defendant is found not 

guilty."); State v. Behr, No. A07-2166, 2009 WL 233844, at *2 (Minn. Ct. App. Feb. 

3, 2009) (unpublished) (holding there was insufficient evidence to convict defendant 

based on a prior crimes stipulation because the stipulation did not indicate whether 

the convictions occurred within the requisite time period); McClure v. State, No. 12-

05-00209-CR, 2006 WL 1791628, at *2-3 (Tex. Ct. App. June 30, 2006) 

(unpublished) (explaining that a specific stipulation regarding only one part of a 

prior conviction element does not necessarily include a stipulation as to the 

remaining parts). 

In fact, most of the authority cited immediately above addressing this issue 

arose in the same context presented here: stipulations entered in cases where a prior 

conviction was a factor that increased the severity of a crime. E.g., Hollis, 506 F.3d 

at 419-20; State v. Jabbar, No. A14-0076, 2015 WL 303632, at *3 (Minn. Ct. App. 

Apr. 14, 2015) (unpublished); Behr, 2009 WL 233844, at *2; McClure, 2006 WL 

1791628, at *2-3. 

Under this authority, Case's stipulation was insufficient to establish that he 

had two qualifying prior convictions. 

10 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

The State has made the backup argument that Case invited this error by 

signing the stipulation and should not be able to benefit from his own inadequate 

stipulation. But it was not just his stipulation-the State was the party that offered 

it (VRP (Mar. 17-18, 2013) at 66; Ex. 5), the defense did not object, and both parties 

signed it. The invited error doctrine does not apply because the stipulation was 

introduced by the State as part of its evidence, and thus Case cannot be blamed for 

"setting up" the error. State v. Wakefield, 130 Wn.2d 464, 475, 975 P.2d 183 (1996) 

(explaining that the invited error doctrine prohibits a party from setting up an error 

and then complaining of it on appeal). 

CONCLUSION 

For these reasons, I would affirm the decision of the Court of Appeals that the 

evidence was insufficient to convict. 

11 
State v. Case (Kevin Ray), No. 92293-4 

(Gordon McCloud, J., dissenting) 

12