State of Washington v. Angie Benavides Cole

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ANGIE BENAVIDES COLE,
Appellant.
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No. 38188-9-III
UNPUBLISHED OPINION
PENNELL, J. — Angie Cole appeals her convictions for stalking and the sentence
imposed as a result of her convictions for stalking, violation of a protection order, and
malicious mischief. We affirm the convictions but remand for modification of the
sentence.
FACTS
Angie Cole and Darryl Carlton were romantically involved for several years.
The relationship soured and Ms. Cole started accusing Mr. Carlton of participating in
pornography, sex trafficking, and inappropriate communication with adolescent girls.
Her accusations extended to Angela Mascarelli, Mr. Carlton’s former wife and the mother
FILED
JANUARY 17, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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2
of his children. In June 2015, soon after Mr. Carlton and Ms. Cole separated, Mr. Carlton
petitioned for a protection order.
Mr. Carlton testified that a subsequent protection order failed to deter Ms. Cole
from harassing Mr. Carlton and his children. Among other things, Ms. Cole continued
making false accusations of pornographic conduct. Mr. Carlton obtained additional
protection orders against Ms. Cole on July 28, 2017, and August 10, 2018. The 2018
order read, in part:
A. do not cause, attempt, or threaten to cause bodily injury to, assault,
sexually assault, harass, stalk, or keep under surveillance the protected
person.
B. do not contact the protected person directly, indirectly, in person or
through others, by phone, mail, or electronic means, except for mailing
or service of process of court documents through a third party, or
contact by the defendant’s lawyers.
C. do not knowingly enter, remain, or come within 1,000 feet . . . of the
protected person’s residence, school, workplace, . . . .
Ex. 37B at 1.
In March 2020, Mr. Carlton and Ms. Mascarelli decided Ms. Mascarelli should
move into Mr. Carlton’s home in order to facilitate visitation with their children in light
of COVID-19 health concerns. On the morning of March 10, Ms. Mascarelli noticed
someone had defaced her vehicle. Her car was parked next to Mr. Carlton’s vehicle,
approximately twenty feet from his home’s back door. On the driver side of the vehicle

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was the word “‘Whore.’” Report of Proceedings (RP) (Apr. 6, 2021) at 272.
Ms. Mascarelli did not report this incident to police.
Ms. Mascarelli again found her car was vandalized on March 25, 2020. This time
the writing stated she and her “‘ex’” “‘are both’” “‘puss[ies].’” Id. at 275; Ex. 25.
Ms. Mascarelli interpreted the message as referring to herself and Mr. Carlton, her ex-
husband. According to Mr. Carlton, the entire message was five paragraphs long and
stated, in part, something along the lines of, “‘If you’re looking for a good time you
should have just called me,’” and “‘[Y]ou two deserve each other.’” Id. at 232. At this
point, Ms. Mascarelli contacted the police. Ms. Mascarelli was advised to obtain a
motion-activated camera in case the perpetrator returned.
A third act of vandalism occurred on March 29, 2020, this time on Ms.
Mascarelli’s car hood and rear bumper. The vandalism on the hood featured a message
stating “‘Making triple-X movies. Want to join. Contact me on Craigslist—for sex.’”
Id. at 278. Ms. Mascarelli could not decipher the writing on the rear bumper of her
vehicle, although she thought it might have said, “‘Find me.’” Id. She reported this
incident to the police.
Unfortunately, the motion-activated camera Ms. Mascarelli had installed failed
to capture an image of the perpetrator. However, Ms. Mascarelli believed Ms. Cole was

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4
responsible. Her reasoning was that she had no other enemies, nor was it common
knowledge where she was now living.
Ms. Mascarelli reported the third incident to police and then Mr. Carlton installed
additional cameras.
Around 3:30 a.m. on March 31, 2020, Mr. Carlton received an alert on his cell
phone that his cameras had captured motion. Mr. Carlton subsequently observed video
footage of Ms. Cole walking around his car and looking into Ms. Mascarelli’s vehicle.
This incident was again reported to the police.
Due to COVID-19 restrictions, the police never went out to Mr. Carlton’s
residence to investigate the vandalism allegations. As a result, they never measured
the distance between Ms. Mascarelli’s car and Mr. Carlton’s house. Nevertheless, the
March 31 video showed Ms. Cole walking within 1,000 feet of Mr. Carlton’s residence.
The State charged Ms. Cole with three criminal counts: violation of a protection
order on March 31, 2020; malicious mischief in the second degree (over $750) between
the dates of March 10, 2020, and March 29, 2020; and felony stalking between the dates
of March 24, 2020 and March 31, 2020. Ms. Cole exercised her right to a jury trial.
During opening statements, the prosecutor explained the State’s charges as follows:
The [S]tate has accused [Ms. Cole] of violating the restraining order, of
coming within 1,000 feet of [Mr. Carlton’s] home where he and both his

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5
children reside, all protected parties under the order. The [S]tate has
accused Ms. Cole of spray-painting Angela Mascarelli’s car on those three
occasions causing damage of more than $750. And the [S]tate has accused
Ms. Cole of repeatedly harassing and stalking—Mr. Carlton in those days in
March when she keeps coming back over to the house, spray-painting the
car, and then coming back over on the 31 st
.
Id. at 194-95.
The State presented testimony consistent with the aforementioned summary and
the jury convicted Ms. Cole as charged. At sentencing, the trial court merged Ms. Cole’s
convictions for violating a protection order and stalking. Nonetheless, the court listed
both convictions on the judgment and sentence. Despite finding Ms. Cole indigent and
not making findings regarding the impact of any mental health condition on Ms. Cole’s
conduct, the court imposed community custody fees and a condition requiring mental
health treatment. The court also issued a domestic violence no-contact order protecting
Mr. Carlton and his children until April 19, 2099, a date decades beyond the statutory
maximums for Ms. Cole’s crimes.
ANALYSIS
Sufficiency of the evidence for the stalking conviction
Ms. Cole argues the State presented insufficient evidence to justify her stalking
conviction. Her primary claim is that the State failed to prove repeated acts of harassment,
as necessary for a felony stalking conviction. Alternatively, she argues the State failed to

No. 38188-9-III
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6
prove that the acts of vandalism attributed to her were directed at Mr. Carlton, the
protected party.
When faced with a challenge to the sufficiency of the State’s evidence, our review
is de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). We ask “whether,
after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). “[A]ll reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant.” Id.
1. Whether the State proved repeated acts of harassment
Ms. Cole contends the State failed to prove facts necessary to elevate her offense
from misdemeanor to felony harassment—i.e., proof of repeated violations of a protection
order.1 Ms. Cole appears to acknowledge that protection orders can be violated in a
variety of ways. But she claims that under the court’s instructions to the jury, only one
type of violation qualified to justify a felony stalking conviction—a protection order
violation committed by coming or remaining within 1,000 feet of Mr. Carlton’s
1 The crime of stalking requires proof of repeated acts of harassment.
RCW 9A.46.110(1)(a). Generally, stalking is considered a gross misdemeanor.
RCW 9A.46.110(5)(a). But the crime is elevated to a class B felony when it is
committed in violation of a protection order. RCW 9A.46.110(5)(b).

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residence.2 Because the trial evidence showed only one act of vandalism within the 1,000
foot zone during the March 24 to 31 charging period (i.e., the March 31 incident that was
caught on camera), Ms. Cole claims the evidence before the jury was insufficient to prove
repeated violations.3
The instructions at issue in Ms. Cole’s case provide as follows:
INSTRUCTION 7
A person commits the crime of violation of a court order when he or
she knows of the existence of a no-contact order, and knowingly violates a
provision of the order prohibiting the person from knowingly coming within
or remaining within a specified distance of a location.
Clerk’s Papers (CP) at 43 (emphasis added).
INSTRUCTION 8
To convict the defendant of the crime of violation of a court order, each of
the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on March 31, 2020 there existed a no-contact order
applicable to the defendant;
(2) That the defendant knew of the existence of the order;
2 Under the law of the case doctrine, a court’s jury instructions may narrow the
type of proof required for a charged offense. See State v. Hickman, 135 Wn.2d 97, 102,
954 P.2d 900 (1998).
3 The State did not include the March 10 incident in the date range for the stalking
charge despite testimony that it took place within 20 feet of Mr. Carlton’s home. This
may have been because in this incident, the slur scrawled on the vehicle appears to have
been directed only at Ms. Mascarelli, who was not a protected party under the terms of the
protection order.

No. 38188-9-III
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8
(3) That on or about said date, the defendant knowingly violated a
provision of the order prohibiting the defendant from knowingly
coming within or remaining within a specified distance of a location,
and
(4) That the defendant’s acts occurred in the State of Washington.
Id. at 44 (emphasis added).
INSTRUCTION 9
A person commits the crime of stalking when, without lawful
authority, he or she intentionally and repeatedly harasses a second person,
placing that person in reasonable fear that the first person intends to injure
him or a third person or the second person’s property or a third person’s
property, either with the intent to frighten, intimidate, or harass, or under
circumstances where the first person knows or reasonably should know that
the second person is afraid, intimidated, or harassed, and the first person
violated a protective order protecting the second person.
Id. at 45 (emphasis added).
INSTRUCTION 10
To convict the defendant of the crime of stalking, each of the following
seven elements must be proved beyond a reasonable doubt:
(1) That on or between March 24 – March 31, 2020, the defendant
intentionally and repeatedly harassed Darryl Carlton,
(2) That Darryl Carlton was placed in fear that the defendant
intended to injure him or another person or the property of Darryl
Carlton or another person,
(3) That the feeling of fear was one that a reasonable person in the
same situation would experience under all the circumstances.
(4) That the defendant
(a) intended to frighten, intimidate, or harass Darryl Carlton,
or

No. 38188-9-III
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9
(b) knew or reasonably should have known that Darryl
Carlton was afraid, intimidated, or harassed even if the
defendant did not intend to place him in fear or to intimidate
or harass him,
(5) That the defendant acted without lawful authority,
(6) That the defendant’s acts were in violation of a protective order
protecting Darryl Carlton, and
(7) That any of the defendant’s acts occurred in the State of
Washington.
Id. at 46 (emphasis added); see also former RCW 9A.46.110 (2013).
Ms. Cole contends that because the stalking instructions (9 and 10) require proof
of repeated violations of a protective order, they necessarily require proof of the type of
violation of court order defined in instruction 7. Because instruction 7 limits a violation of
a court order to violation of a distance provision, Ms. Cole claims the stalking instructions
also require proof of violations of distance provisions.
Ms. Cole’s analysis fails to distinguish the elements of the crime of violation of a
court order from the elements relevant to the crime of stalking.
We agree with Ms. Cole that instructions 7 and 8, which addressed the “crime of
violation of a court order,” CP at 43-44, limited the jury’s assessment to a distance-based
violation. Thus, to convict Ms. Cole of the crime of violation of a no-contact order, the
State was required to prove she came within 1,000 feet of Mr. Carlton’s residence. There
is no dispute that this was proven as to the March 31, 2020, violation.

No. 38188-9-III
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But the “crime of stalking,” as referenced in instructions 9 and 10, id. at 45-47,
is different from the crime of violation of a court order. To prove the crime of stalking,
the court’s instructions required only a generic violation of a protection order. The
instructions did not require violation of a distance related prohibition or that the violation
constitute the “crime of violation of a court order” as discussed in instruction 7. Thus,
whether Ms. Cole violated the terms of the protection order was governed solely by the
terms of the order.
The August 10, 2018, protection order set forth a variety of prohibitions on
Ms. Cole’s conduct, only one of which was related to distance. As argued by the
prosecutor in rebuttal,4 disobeying any of the terms of the order would qualify as a
violation of the order, not just disobeying the distance prohibition. Thus, Ms. Cole could
have violated the protection order by engaging in harassing or stalking conduct against
Mr. Carlton, regardless of where that conduct took place.
The trial evidence was sufficient to show multiple violations of the August 10,
2018, protection order, as required by the court’s stalking instructions. This aspect of
Ms. Cole’s sufficiency challenge therefore fails, as do her arguments that the prosecutor
committed misconduct by arguing that the court’s instructions did not restrict the type of
4 Ms. Cole made a similar argument to the jury.

No. 38188-9-III
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protection order violations relevant to the stalking charge.5
2. Whether the State proved Mr. Carlton was the victim of the acts of
vandalism
Ms. Cole also contends the State failed to prove stalking because the evidence
showed the vandalism was directed at Ms. Mascarelli, not Mr. Cole as the protected party.
We disagree. The messages left on Ms. Mascarelli’s car on March 25 and 29 have
meaning only if they are interpreted as directed to both Mr. Carlton and Ms. Mascarelli.
Ms. Cole’s references to sex and pornography echoed her long-standing harassment of
Mr. Carlton. By vandalizing Ms. Mascarelli’s car with insulting messages directed at both
Ms. Mascarelli and Mr. Carlton, Ms. Cole engaged in repeated acts of harassment. This
was sufficient to satisfy the terms of the court’s instructions.
Claims pertaining to sentencing
Ms. Cole identifies three sentencing errors: (1) inclusion of both the conviction for
stalking and for violation of a no-contact order in the judgment and sentence, despite the
trial court’s finding that the crimes merged, (2) inclusion of mental health treatment as a
community custody condition, despite lack of evidence of a proven mental health
5 Ms. Cole does not argue on appeal that the jury instructions were confusing.
Nor did she object to the instructions at trial. Had Ms. Cole attempted to raise an
argument on appeal regarding confusing instructions, she would likely run into error
preservation problems. See State v. O’Hara, 167 Wn.2d 91, 100-01, 217 P.3d 756 (2009).

No. 38188-9-III
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condition or crime-relatedness, and (3) imposition of supervision fees. The State concedes
error. We accept the State’s concessions and remand for removal of the following from
the judgment and sentence: (1) reference to a conviction for violation of a protection
order, (2) a community custody condition requiring mental health treatment, and
(3) community supervision fees.
Domestic violence no-contact order
At sentencing, the court may impose a no-contact order in conjunction with
a felony judgment and sentence, so long as the length of the order does not exceed
the maximum sentence established for the underlying offense. RCW 10.99.050. The
statutory maximum for Ms. Cole’s stalking offense is 10 years. RCW 10.99.050(2)(d);
RCW 9A.20.021(1)(b). Yet the court imposed a 78-year no-contact order. The State
concedes error and we accept this concession. On remand, the court shall correct the
domestic violence restraining order so that it comports with the applicable statutory
maximum term.
CONCLUSION
Ms. Cole’s convictions are affirmed. We remand for the trial court to: (1) strike the
violation of a protection order conviction from the judgment and sentence, (2) strike the
mental health treatment community custody conviction from the judgment and sentence,

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(3) strike the community custody supervision fee provision from the judgment and
sentence, and (4) amend the domestic violence no-contact order so that its effective
period does not exceed the 10-year statutory maximum.
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.
_________________________________
Pennell, J.
WE CONCUR:
______________________________
Siddoway, C.J.
______________________________
Fearing, J.