Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65858-1-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            )
MATTHEW VOGT,                               )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: February 27, 2012

       Spearman, J.  --  A no-contact order that does not contain the warnings required 

by RCW 10.99.040(4)(b) is not a valid order.  Because the order admitted at Matthew 

Vogt's trial for felony conviction of a no-contact order did not contain the mandatory 

warnings, the State failed to prove one of the essential elements of the crime, namely, 

that Vogt violated a valid order applicable to him.  As such, the evidence is insufficient 

to sustain Vogt's conviction, and we reverse.  

                                            FACTS

       The State charged Matthew Vogt with five counts of felony violation of a no-

contact order.  At trial, the State introduced a "full and true" certified copy of the no-

contact order Vogt was alleged to have violated.  The order indicated that the statutorily 

mandated warnings of the consequences of violating the order were "on the back" of 

the document. Those warnings, however, do not appear anywhere on the order.   

No. 65858-1-I/2

Defense counsel did not object to admission of the order.  After resting, the State 

agreed to dismiss one count.  The jury acquitted Vogt of three counts, and convicted 

him of one.  Vogt appeals.1  

                                        DISCUSSION

       In his RAP 10.10 statement of additional grounds for review, Vogt argues, 

among other things, that the no-contact order admitted at trial was not a valid order

applicable to him, in that it did not contain the warnings required by RCW 

10.99.040(4)(b).  "A charge of violation of a no-contact order must be based on an 

'applicable' order."  State v. Turner, 156 Wn. App. 707, 712, 235 P.3d 806 (2010) 

(quoting State v. Miller, 156 Wn.2d 23, 31-32, 123 P.3d 827 (2005)).  "'An order is not 

applicable to the charged crime if it is not issued by a competent court, is not statutorily 

sufficient, is vague or inadequate on its face, or otherwise will not support a conviction 

of violating the order.'"  Turner, 156 Wn. App. at 712-13 (quoting Miller, 156 Wn.2d at 

31).  "No-contact orders that are not applicable to the crime are not admissible."  

Turner, 156 Wn. App. at 713.

       Regarding statutory sufficiency, the legislature set forth mandatory requirements 

for no-contact orders of the type at issue in this case:

       The written order releasing the person charged or arrested shall contain 
       the court's directives and shall bear the legend: "Violation of this order is 
       a criminal offense under chapter 26.50 RCW and will subject a violator 
       to arrest; any assault, drive-by shooting, or reckless endangerment that 
       is a violation of this order is a felony. You can be arrested even if any 
       person protected by the order invites or allows you to violate the order's 
       prohibitions. You have the sole responsibility to avoid or refrain from 
       violating the order's provisions. Only the court can change the order."

       1 Vogt raised four assignments of error in his opening brief, but we later granted his motion to 
withdraw three of them.  

                                               2 

No. 65858-1-I/3

RCW 10.99.040(4)(b) (emphasis added); Turner, 156 Wn. App. at 713-14. A no-

contact order "must meet this requirement to be valid[.]"  Turner, 156 Wn. App. at 715.   

       The State acknowledges the no-contact order admitted at trial did not contain 

the mandatory warnings.  It argues in response to the statement of additional grounds, 

however, that Vogt waived this argument by failing to object at trial.  We disagree.  Vogt 

is challenging the sufficiency of the evidence of one of the essential elements of the 

crime, i.e., the existence of a valid order applicable to him.  See Clerk's Papers (CP) at

44 (to-convict instruction: "there existed a no-contact order applicable to the 

defendant"). A challenge to the sufficiency of the evidence alleges a manifest error 

affecting a constitutional right, and can be raised for the first time on appeal.  RAP 

2.5(a)(3); Seattle v. Slack, 113 Wn.2d 850, 859, 784 P.2d 494 (1989).  

       Here, because the order did not contain the mandatory warnings, it was not 

valid, and did not apply to Vogt.  As such, the State failed to produce any evidence that 

Vogt violated a valid order applicable to him, and the evidence is insufficient to support 

his conviction for felony violation of a no-contact order.2

         Reversed and remanded for dismissal.

WE CONCUR:

       2 In light of our decision, we need not address Vogt's additional arguments raised on appeal.

                                               3