State v. Nguyen

450 P.3d 630

STATE of Washington, Respondent,

v.Thanh Pham NGUYEN, Appellant.

No. 77604-5-I

Court of Appeals of Washington, Division 1.

FILED: October 21, 2019

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellants.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondents.

PUBLISHED OPINION

Mann, A.C.J.

¶1 Thanh Nguyen appeals his conviction for two counts of felony violation of a court order and felony stalking. Nguyen contends that his stalking conviction abridges his freedom of speech, that the trial court erred by denying his motion to sever the offenses, not accepting his request to stipulate to predicate convictions, allowing testimony about a residential burglary conviction, and not redacting the warning provisions on the no-contact orders. Nguyen also challenges the imposition of a $100 deoxyribonucleic acid (DNA) collection fee.

¶2 We remand to strike the $100 DNA fee and affirm on all other grounds.

I.

¶3 Shortly after Lisa Stinson and Nguyen began dating in 2013, Nguyen began abusing Stinson. Stinson became pregnant and their child K.N. was born in October 2015. After several incidents of domestic violence, the court issued no-contact orders in 2016.

¶4 In November 2016, Nguyen was convicted of residential burglary related to kicking in the front door of Stinson’s house and the court issued new no-contact orders protecting Stinson and K.N.

¶5 On December 17, 2016, Nguyen threatened to come to Stinson’s house saying "I need a fucking answer dude," "your playing with me," "im coming over," and "right now!! on the way." Shortly after receiving these text messages, Stinson heard a knock at the door, followed by another text message saying "come out." Stinson called 911 to report Nguyen. K.N. was in the house when Stinson heard the knock on the door.

¶6 Between December 17 to 25, 2016, Nguyen continued to send text messages to Stinson. On December 24th, Nguyen sent 24 text messages to Stinson containing the following message:

i know u don’t give a fuck about me ... and i dont give a fuck about u ... but were a partner in rasing our daughter cause u think u could do it on your own and u probably can but you cant give her what I can give her a man in her life thats gonna keep her solid keep her from choosing men like me thats gonna Do what ive done to u cause your her example and u keep bringing your past into your life and i cant accept my daughter to follow in your footsteps regarding men

one day all this shit is gonna register and your gonna hate yourself for it cause you allowed it to happen ... im done trying to reason with u cause i know u dont give a fuck about nobody but yourself and that is why you might heal but youll never prosper and find somebody thats gonna love you life is too short to get even life is short to try to prove something to somebody that u want nothing to do with cause at the end of the day you gotta answer to your kids when they start asking about their daddys what will u say???? thst they hurt u?? so u took it upon yourself to exclude us from their lives???? ill prey for u cause atleast outta the two of us i see right through your bullshit and i wish i could have more 9f an impact on you! your a great mom but your a horrible person atleast u doing your best and u providing and i know they’ll be better off!! but mentally how will the be???????????

im gonna sign my parental rights over to u!!! im court!! shit if u get the papers together ill sign my rights asap!!! i will have no right to even ask about her like u want?? so lets get it in writing You can have her u wanna move on you want to start over u wanna be free!?? get me those papers and ill sign them cause that’s the only way ill leave u alone

THATS MY DAUGHTER AND U CANT CHANGE THAT EVEN IF U WANTED TO she’ll be 15 months and ive only known her for 3 so she might as well not even see mr cause she would be soooo hurt if she knew what u was doing to her daddy and I rather her not know me than to know that i didnt fight for her cause im not anymore im so tired of u using her for revenge you turned out to be the person you said youoo never be and ive been consisted this entire time!!! so who really kept it 100?? who really was about their word??? who really was the ride or die????

¶7 On December 25th, Nguyen sent 10 text messages to Stinson containing the following message:

Merry xmas ... Please find it in yourself to keep me out of jail ... allow me to provide u financially through sending u money i cant repay you for your door and window in jail i cant pay u child support in jail ... I want to help u ... Today i woke up with a better understanding of why your like this ... ive pushed u away for the last time ... ive had plenty of chances. I will allow u to heal. I will allow u to move on. I will not interfere i just wanted to make sure u understood who i am and where i stand with our child ... i will not call cps i will not hurt you ... just do me a solid and dont cook me!!!!

I want u to live your life ... i want to live mines and be able to not worry about my family and kids losing me to jail ... whatever u can do or say to the Cyndie Griffith please do it ... You havr my highest honor as my childs mother ... I dont need closure i don’t need a reason i understand that the time has come ... The new year is amongst us!!!! Im ready to fix myself through The courts ... Im not a bad person ... I just have a dirty mouth ... I was wrong in every sense but I dont deserve to go to jail ... Let karma do your dirty work let me be free to see u move on and be happy cause that will be the ultimate heartbreak for me!!! im sure u want me to hurt ... but anyways ... Life is too short ...

You are responsible for your two kids now!!!! Make sure you’re there for them make sure you love them make sure they!! remember how strong you are!!!!!

Stinson called 911 on December 25th.

¶8 On December 28th, Nguyen sent another 28 text messages to Stinson including a photo of a torn anniversary card:

Its crazy how one simple card can bring all the feelings that i wanted to get rid of I STILL DREAM ABOUT US YOUR NOT EASILY REPLACEABLE ... WE CROSSED PATHS TO STRENGTHEN EACH OTHER TO HELP EACH OTHER GROW ... NOW THE TIME HAS COME I MEAN HAS BEEN CAME ... TO WHERE WE TAKE WHAT WE TAUGHT EACH OTHER AND FIND SOMEBODY TO USE IT ON ... IN THAT LIGHT YOU WERE THE BEST THING THAT EVER HAPPEN TO ME ... I DONT REGRET A SINGLE MOMENT ... ALL WE HAVE OUR THE MEMORIES ... CAUSE I KNOW YOU STILL REMEMBER THE GOOD RATHER THAN THE BAD AND IF U REMEMBER THE BAD REMIND YOURSELF OF WHAT IT TAUGHT YOU!!! I KEEP HARASSING U WITH OUR BULLSHIT BUT FOR 3 YEARS I’VE BEEN DOING EXACTLY THIS... REMINDING YOU WHY WERE SO PERFECT ... YOU DID NOTHING WRONG EVER YOU JUST GAVE YOUR HEART AWAY TO SOMEBODY THAT WASN’T READY TO RECEIVE IT...

I DONT WANT U ... Hurting any more ... Me and michele had a baby young and we stuck together ... understand theyre was no real love at the foundation ... we never got a chance to get to know each other ... she did not know my favorite color and ive known her since we were in elementary ... its not the time that matters it’s the quality of the time ... our time was filled with my lies ... my childish games ... i try to play a player ... and lost ... I THOUGHT HOLDING ON WOULD SHOW U MORE THAN anything ... I may not ever feel like this about u ever again ... but i will always have love for u!!! ITS NOT THE SAME LOVE FOR MICHELE IT’S THE LOVE OF THE ONE THAT I LET SLIPPED AWAY... YOU WERE ALWAYS BETTER THAN MICHELE IN MY EYES ... I JUST WISH U COULDVE SEEN THAT! IF U DONT WANT ME IN [K.N’s] LIFE ... I WONT SHOW UP TO COURT ... I DON’T WANT U TO EVER SEE MY FACE OR DEAL WITH ME AGAIN ... HAPPY 2017 ... LETS LEAVE US IN THE PAST ... I WILL... I KNOW U HAVE Last txt ive gotten ever single thing out!

Stinson did not answer these text messages and again called 911. Responding officers found Stinson visibly upset.

¶9 Nguyen continued calling and sending text messages, sending 21 messages on December 29th and 34 messages on December 30th. On December 29th, Nguyen sent the following text messages:

WHAT DO I GOTTA DO TO GET U TO SPEAK TO ME For 5 minutes I forseen this Wishing i could change gods plan for us. I know i cant buy forgiveness Im only buying moments that o lost with [K.N.] Moments ill never get back Moments that ill regret not fighting for When your in a losing battle You surrender your pride and ego Cause love was my foundation ... and i could never let u starve

You should’ve never had a baby by me cause now you’re a forever ... I cant let u go over temporary feelings III starve before i allow u to ... If this is a test ... Ived failed ... 5 minutes of your time For 18 years of freedome freedom

Disregard everything if I do this one more time please feel free to call the cops I know this is some bullshit I wont ever allow myself to bug u again if u want me to claim her ill give u whatever I get for her 100 percent. I worked quite a bit this year ... just saying

¶10 On December 30th, Nguyen asked to bring his other daughter over to visit K.N. for an hour.

I see your back in your bubble Shake that shit off I need u to be solid for [K.N.] I can’t imagine losing my mom. She’s everywhere. She’s in your hear she’s in your mind shes the bird shes the sky shes next to you right now keeping you sane watching over her grand kids. As long as you keep her on your soul she’ll always be there. Dont lose faith. Dont lose hope. Dont fear change. I need u to be there for [K.N.]

Let me come see my child Let me and reyna come see our family bro Stop the petty stuff Reyna ain’t seen her since summer U dont have a good enough reason to deny [K.N.] of her sister and

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