State of Washington v. Walter Scott Amsden

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
WALTER SCOTT AMSDEN,
Appellant.
)
)
)
)
)
)
)
)
)
No. 40309-2-III
UNPUBLISHED OPINION
MURPHY , J. — Walter Amsden was convicted of felony violation of a domestic
violence no-contact order. At trial, Amsden stipulated to two prior convictions for
violation of a protection order, and did not contest his violation of the order that resulted
in the current charged offense. Amsden instead relied on a defense of necessity.
On appeal, Amsden claims: (1) he was denied due process when the trial court
refused to bifurcate a jury instruction on whether the State had proved two prior
protection order violations, (2) he was prejudiced when the trial court refused to redact
the term “domestic violence” from the State’s no-contact order exhibit and otherwise
prohibit its use of the term during trial, and (3) insufficient evidence was presented to
prove his criminal history for purposes of calculating the offender score.
We disagree with the first two assignments of error but, as the State concedes,
remand is necessary for resentencing to address the offender score issue.
FILED
AUGUST 5, 2025
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 40309-2-III
State v. Amsden
2
We affirm Amsden’s conviction but reverse his sentence and remand for
resentencing.
FACTS
Amsden was charged with violation of a domestic violence no-contact order after
he was found sleeping in the protected party’s vehicle, which was within the restricted
area identified in the no-contact order. The State alleged Amsden had two prior
convictions for violating a protection order and charged Amsden with a felony.
Prior to trial, the parties entered into an Old Chief 1 stipulation relative to
Amsden’s prior convictions.
Also prior to trial, Amsden moved to bifurcate the evidence and jury instructions
pertaining to his prior convictions utilizing the procedure as provided in State v. Oster,
147 Wn.2d 141, 52 P.3d 23 (2002). The trial court denied Mr. Amsden’s bifurcation
motion:
THE COURT: Actually, the to convict instruction includes that he
has to have two priors to meet the felony, and that Oster case said it was
fine. The Judge decided to do it, but that it is part of the elements. So that[]
the Court does not have to bifurcate it. The Old Chief stipulation takes
away some of that prejudice, but there are many kinds of charges such as
failing to register as a sex offender, felony possession of a firearm that
include elements.
1 Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574
(1997).

No. 40309-2-III
State v. Amsden
3
So the Supreme Court has held that you don’t have to separate it.
In fact, the jury should hear the actual elements of the crime. So I’m going
to deny it for bifurcation at this point.
Rep. of Proc. (RP) (Mar. 11, 2024) at 10-11.
Prior to the commencement of trial, the State announced its intent to introduce
into evidence, as an exhibit, the domestic violence no-contact order Amsden was charged
with violating. Amsden proposed the same no-contact order as an exhibit but with all
references to domestic violence redacted, including the entirety of paragraph 6 of the
order, which read: “Based upon the record, both written and oral, the Court finds that
the defendant has been charged with, arrested for, or convicted of an offense of domestic
violence under Chapter 10.99 RCW. Ex. P-1 at 2 (boldface omitted). Amsden also moved
in limine to exclude during trial “any reference to any acts of domestic violence”
between Amsden and the protected party, redact “any reference to ‘domestic violence’
from all exhibits”, and “[p]rohibit the use of the term ‘domestic violence’ during trial.”
CP at 27-28.
The State opposed Amsden’s motions in limine, and expressed concern that the
redaction of the entirety of paragraph 6 of the no-contact order exhibit or prohibiting
reference to domestic violence during trial could confuse the jury. The State also
expressed that, while it did not plan to bring up the history of domestic violence or

No. 40309-2-III
State v. Amsden
4
have an expert testify about domestic violence or details of Amsden’s relationship with
the protected party other than they are intimate partners, it did have some questions for
the venire about whether any of its members had a history with domestic violence.
With regard to the motions to exclude, redact, and prohibit any reference to
domestic violence, the court observed:
THE COURT: . . . This [is] a DV [domestic violence] charge. I’m
planning on asking the jury as far as domestic violence because there’s a lot
of jurors usually that have experience with domestic violence that might not
be appropriate for this kind of a trial.
So I was planning on doing that because a no contact order, this isn’t
just your simple no contact order. It is a domestic violence no contact order.
So the jury they’re going to find out that they were intimate partners or
dated. That’s going to be part of it.
So what’s the purpose of not including domestic violence?
RP (Mar. 11, 2024) at 18. In response, Amsden argued that “just the term domestic
violence is highly prejudicial because it impassions people.” RP (Mar. 11, 2024) at 18.
The court ultimately ruled:
THE COURT: Well, one, the charge is domestic violence for a
violation of a no contact order. The Court usually as part of that when I
talk about a violation of a no contact order, talk about domestic violence,
I try to explain that domestic violence means that there’s a relationship
between the alleged victim and the defendant whether it be intimate
partners, household members, depending on that. That’s more of a tag
based on the relationship between the parties. Then I do ask the jurors if
they have had any experience with protection orders, domestic violence and
then go through them one by one, and you do get some very strong feelings.

No. 40309-2-III
State v. Amsden
5
So we just did a domestic violence trial, and I think we struck three
[prospective jurors] for cause that one lady’s currently in the domestic
violence court. So I really think it’s something that the Court needs to flush
out to get a fair trial.
[DEFENSE COUNSEL]: Understood.
THE COURT: So at this point, the Court’s going to deny the motion
to redact anything involving the term domestic violence. If you have a
better way you want me to explain it, but I will explain it’s a tag just to
show the relationship between the alleged victim and the defendant. As I
said, I just ask about that and if anybody’s been involved with that.
RP (Mar. 11, 2024) at 19-20.
During jury selection, the court explained to prospective jurors that the alleged
crime was a violation of a no-contact order, which was “categorized as a domestic
violence, and . . . domestic violence just means that the parties, the alleged victim, the
defendant, there’s a relationship between them either as intimate partners, brother/sister,
mother/father, those kind of [relationships]. So that’s what the domestic tag is.” RP
(Mar. 11, 2024) at 49. Multiple prospective jurors expressed experience or knowledge
of domestic violence as a result of questioning from the trial court, the prosecutor, and
defense counsel. Several jurors expressed doubts that they could remain impartial and
were excused for cause.
At the close of the State’s case-in-chief, the Old Chief stipulation was read to the
jury by the trial court:

No. 40309-2-III
State v. Amsden
6
The parties have agreed that certain facts are true. You must accept
as true the following facts: That the person before the Court who has been
identified in the charging document as the defendant, Walter Amsden, date
of birth 4/27 of '75, prior to November 18th, 2023, has at least two prior
convictions for violating the provisions of a court order in Superior Court
under case numbers 23-1-01835-32 and 16-1-02417-4. The stipulation is to
be considered evidence only of the prior convictions.
RP (Mar. 11, 2024) at 141; see also Clerk’s Papers (CP) at 65.
Amsden testified that he was sleeping in the van because all of his possessions
were in the van, he had nowhere else to sleep, and he was afraid of freezing to death.
Several of the court’s jury instructions are relevant to issues on appeal. First, the
jury was instructed on what the State’s burden was in order to prove Amsden was guilty
of felony violation of a no-contact order:
To convict the defendant of the crime of felony violation of a court
order, each of the following five elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about November 18, 2023, there existed a no-contact
order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a
provision of 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.
CP at 74.

No. 40309-2-III
State v. Amsden
7
The court also instructed the jury on the definition of “intimate partners” and
“dating relationship.” CP at 80. Finally, the jurors were instructed, if they found Amsden
guilty, on a how to use the special verdict form included in the instructions that addressed
whether or not Amsden and the protected person where “intimate partners.” CP at 81, 83.
The jury found Amsden guilty of violating the no-contact order and that Amsden
and the protected person were intimate partners.
The State’s sentencing brief included an overview of Amsden’s criminal history,
as well as appended copies of the judgments from some, but not all, of the alleged
previous convictions. Amsden objected and refused to sign off on the understanding of
his criminal history on the belief that some of his previous convictions had washed out.
RP (Mar. 21, 2024) at 178-81; CP at 128-29.
After holding a sentencing hearing, the court imposed a prison-based drug
offender sentencing alternative of 30 months’ incarceration and 30 months’ community
custody based on a calculated offender score of 9+.
Amsden now appeals.

No. 40309-2-III
State v. Amsden
8
ANALYSIS
Bifurcation
Amsden argues the trial court erred by denying his motion to bifurcate jury
instructions. We generally review bifurcation decisions for an abuse of discretion.
State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). A trial court abuses its
discretion if its decision is manifestly unreasonable or based upon untenable grounds or
for untenable reasons.” Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115
(2006). “A discretionary decision rests on ‘untenable grounds’ or is based on ‘untenable
reasons’ if the trial court relies on unsupported facts or applies the wrong legal standard;
the court’s decision is ‘manifestly unreasonable’ if ‘the court, despite applying the correct
legal standard to the supported facts, adopts a view “that no reasonable person would
take.”’” (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). It is an
abuse of discretion for a trial court to base its ruling on an erroneous view of the law. Id.
While a bifurcated trial is constitutionally permissible, and sometimes necessary,
it is not favored in Washington. Roswell, 165 Wn.2d at 197; State v. Kelley, 64 Wn. App.
755, 762, 828 P.2d 1106 (1992). When an element of the crime charged includes the
existence of a prior conviction, the court may, but is not required to, bifurcate the
instructions and the trial. Oster, 147 Wn.2d at 147-48. In Roswell, the Washington

No. 40309-2-III
State v. Amsden
9
Supreme Court held that the trial court’s decision to deny a motion to bifurcate was not
an abuse of discretion. 165 Wn.2d at 198. “If a prior conviction is an element of the crime
charged, evidence of its existence will never be irrelevant. One can always argue that
evidence that tends to prove any element of a crime will have some prejudicial impact on
the defendant.” Id.
Here, the trial court’s decision to deny bifurcation was based on tenable reasons.
Amsden’s prior convictions for violation of a protection order were an element of the
crime charged. As noted by the trial court, the Old Chief stipulation removed some of
the potential prejudice from disclosure of Amsden’s prior criminal convictions to the
jury, with the stipulation allowing Amsden to concede to the fact of prior convictions
and preventing the State from introducing details about those offenses. The purpose
of such a stipulation is to reduce the danger of unfair prejudice from the evidence of a
prior conviction. See State v. Taylor, 193 Wn.2d 691, 697-98, 444 P.3d 1194 (2019).
The Old Chief stipulation here served to mitigate disclosure of the prior convictions
against potential prejudice.
More specific to the facts of this case, Amsden’s trial strategy included stipulating
to his prior offenses and not denying that the violation of the current no-contact order
occurred, instead arguing that his actions were necessary to avoid or minimize a harm—

No. 40309-2-III
State v. Amsden
10
in this instance hypothermia or freezing to death. With Amsden’s agreement that he
violated the current no-contact order, the jury was tasked with deciding whether
Amsden’s necessity defense legally excused his actions. The trial court did not abuse
its discretion in declining Amsden’s motion to bifurcate.
Motion to exclude/redact “domestic violence”
Amsden assigns error to the trial court’s denial of his motions to (1) exclude any
reference to prior acts of domestic violence between Amsden and the protected party,
(2) redact any reference to “domestic violence” from all exhibits, and (3) prohibit use
of the term “domestic violence” during trial. A trial court’s decision on admissibility of
evidence will not be disturbed absent an abuse of discretion. State v. Powell, 126 Wn.2d
244, 258, 893 P.2d 615 (1995). A trial court abuses its discretion when it admits evidence
that is more prejudicial than probative. Salas v. Hi-Tech Erectors, 168 Wn.2d 664,
671-73, 230 P.3d 583 (2010).
The State is entitled to admit into evidence at trial the no-contact order that the
defendant is charged with violating. Taylor, 193 Wn.2d at 703. A trial court may redact
any portion of the no-contact order that poses a risk of unfair prejudice. Id. at 702.
Amsden argues evidence that he was previously convicted of a “domestic
violence” offense was minimally relevant and highly prejudicial, and the trial court erred

No. 40309-2-III
State v. Amsden
11
when it allowed the jury to learn about past domestic violence related crimes through the
exhibit admitted at trial without redaction and prohibition on use of the term “domestic
violence” during trial proceedings. We disagree for three reasons. First, Amsden waived
any objection by failing to follow up with objections during trial. Second, he fails to
show that the prejudicial effect of using the term outweighed its relevance. And finally,
Amsden fails to show prejudice.
In the pretrial hearing on this issue, after considering Amsden’s motions to
(1) exclude any reference to prior acts of domestic violence between Amsden and the
protected party, (2) redact any reference to “domestic violence” from all exhibits,
and (3) prohibit use of the term “domestic violence” during trial, the trial court ruled:
So at this point, the Court’s going to deny the motion to redact anything
involving the term domestic violence. If you have a better way you want
me to explain it, but I will explain it’s a tag just to show the relationship
between the alleged victim and the defendant.
RP (Mar. 11, 2024) at 20 (emphasis added).
“‘[W]hen a ruling on a motion in limine is tentative, any error in admitting or
excluding evidence is waived unless the trial court is given an opportunity to reconsider
its ruling’ when the evidence is submitted at trial.” Powell, 126 Wn.2d at 257 (alteration
in original) (quoting State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991)). The
trial court in its pretrial ruling invited defense counsel to offer a better way for the court

No. 40309-2-III
State v. Amsden
12
to explain the term “domestic violence” to the jury, but we can find nothing in the record
to indicate defense counsel took the court up on that offer or otherwise renewed its
objection to the State’s no-contact order exhibit when the trial court admitted it into
evidence.
Even if we were to find that the trial court committed error, Amsden fails to
demonstrate that the relevance of using the term “domestic violence” was outweighed
by its prejudicial effect. Amsden does not deny that the term was relevant. See ER 401.
ER 403 provides that, even if relevant, “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Evidence is unfairly prejudicial when it
is more likely to create an emotional response from a jury instead of a rational decision.
State v. Scherf, 192 Wn.2d 350, 388, 429 P.3d 776 (2018). The trial court has wide
discretion when balancing the probative value of evidence against the potential
prejudicial effect under ER 403. State v. Rivers, 129 Wn.2d 697, 710, 921 P.2d 495
(1996). When weighing the probative value of evidence against its prejudicial effect,
courts must be careful and methodical. State v. Gunderson, 181 Wn.2d 916, 925, 337
P.3d 1090 (2014). This is especially true for domestic violence cases, where the danger

No. 40309-2-III
State v. Amsden
13
of unfair prejudice is particularly high. See id. For nonconstitutional evidentiary error,
the defendant bears the burden to demonstrate prejudice. State v. Barry, 183 Wn.2d 297,
303-04, 352 P.3d 161 (2015).
Amsden argues evidence that he was previously convicted of a domestic violence
related offense was minimally relevant and highly prejudicial, and the court erred when
it allowed the jury to associate that phrase with him. The trial court accurately stated that
the relationship of intimate partners was part of the crime charged. That relationship was
an element of the State’s burden of proof. Jurors’ experience with no-contact orders and
domestic violence were discussed by the trial court, the prosecution, and the defense
during jury selection. In this case, Amsden stipulated to prior offenses, agreed to the
commission of the underlying offense, and was relying on the defense of necessity for
acquittal. Given this situation, there was no abuse of discretion in the trial court’s ruling.
Finally, any error in admitting evidence with the term “domestic violence” not
redacted or excluded was harmless. Amsden conceded that he violated the no-contact
order under the theory that he had no reasonable alternative available to him to avoid the
harm of hypothermia or freezing to death. Amsden has not shown that the evidence was
so inflammatory as to undermine his necessity defense. We do not find any error, but if
there was error, the error was harmless.

No. 40309-2-III
State v. Amsden
14
Amsden’s criminal history
Amsden challenges his sentence, arguing the offender score calculation was
incorrect because the State failed to prove the existence of all his prior convictions.
The State concedes that it did not prove the existence of all prior convictions. We accept
the State’s concession, reverse Amsden’s sentence, and remand for resentencing.
A sentencing court’s calculation of an offender score is reviewed de novo. State
v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). Remand for resentencing is required
if the offender score has been miscalculated unless it is clear from the record that the trial
court would impose the same sentence. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d
575 (1997).
Unless a defendant pleads guilty, he is not obligated to present evidence of
his criminal history. State v. Hunley, 175 Wn.2d 901, 910, 287 P.3d 584 (2012). At
sentencing, the State bears the burden to prove the existence of prior convictions by a
preponderance of the evidence. Id. at 909-10; In re Pers. Restraint of Adolph, 170 Wn.2d
556, 566, 243 P.3d 540 (2010). Absent an affirmative acknowledgement or stipulation
by the defendant of their criminal history, it is the State’s obligation “to assure that the
record before the sentencing court supports the criminal history determination.” State v.
Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009); State v. James, 138 Wn. App. 628,

No. 40309-2-III
State v. Amsden
15
643, 158 P.3d 102 (2007). A defendant’s silence or a reliance on presumptions about the
prior convictions does not meet the State’s burden. State v. Jones, 182 Wn.2d 1, 10, 338
P.3d 278 (2014).
The State argues it may provide proof of Amsden’s criminal history on remand
for resentencing, notwithstanding what occurred or what was presented at the earlier
sentencing hearing. Amsden claims that the introduction of additional evidence would
violate Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451
(2024), in which the United States Supreme Court held that a judge “may ‘do no more,
consistent with the Sixth Amendment [to the United States Constitution], than determine
what crime, with what elements, the defendant was convicted of.’” 602 U.S. at 838
(quoting Mathis v. United States, 579 U.S. 500, 511-12, 136 S. Ct. 2243, 195 L. Ed. 2d
604 (2016)). Both Erlinger and Mathis involved the federal government’s pursuit of a
sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
and are not applicable to the facts, charge, sentence, or remand and resentence at issue
in this case. We agree with the State on this issue. If the State fails to meet its burden to
prove a defendant’s criminal history during sentencing, “due process does not prohibit
the State from presenting additional evidence in order to meets its burden” on remand.
Jones, 182 Wn.2d at 10; see also RCW 9.94A.525(22). “On remand for resentencing

No. 40309-2-III
State v. Amsden
16
following appeal . . . , the parties shall have the opportunity to present and the court to
consider all relevant evidence regarding criminal history, including history not previously
presented.” RCW 9.94A.530(2).
Statement of additional grounds for review
Amsden raises two additional issues in a pro se statement of additional grounds
for review.
First, Amsden claims the prosecution offered perjured evidence and did not
present all of the discovery based on the protected person’s representations at the
sentencing hearing that she had given Amsden the van, that she had the key, that the
battery was dead, and that a different officer than the one presented at trial arrested
Amsden. Even if true, Amsden has not shown how this prejudiced him at trial or at
sentencing. If Amsden has evidence outside the current record that could support
this claim, his remedy is to raise a challenge in a personal restraint petition. State v.
McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Second, Amsden argues the presiding judge was changed right before trial without
his knowledge or approval. While he cites generally to the superior court criminal rules,
Amsden does not cite to any specific rule requiring his approval for a change in judicial
officer, nor does he claim any prejudice by the change. This argument likewise fails.

No. 40309-2-III
State v. Amsden
17
CONCLUSION
We affirm Mr. Amsden’s conviction, but reverse his sentence and remand for
resentencing.
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.
Murphy, J.
WE CONCUR:
Lawrence-Berrey, C.J.
Staab, J.