State Of Washington, Respondent V. Fagalulu Feau Filitaula, Appellant (Majority)
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FILED COURT OF APPEALS IN THE COURT OF APPEALS OF THE STATE OI i # 2015 FEB - DIVISION II 3 lINGTON MI 8: 55 STATE OF WASHINGTON No. 44963 BY STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION FAGALULU FEAU FILITAULA, Appellant. MELNICK, J. — Fagalulu Filitaula appeals his conviction and sentence for violating a no- contact order, contending that insufficient evidence existed to support his conviction that the toconvict instruction and charging document omitted some elements of the offense, and that the trial court erred by imposing a term of community custody. Because the evidence is sufficient to show that Filitaula willfully violated the no- contact order, we reject his sufficiency challenge. Because the " to convict" instruction and the information alleged that Filitaula knowingly violated the nocontact order, we reject his challenges to those documents as well. Finally, because the combined total of Filitaula' s exceptional sentence and the community custody imposed did not exceed the statutory maximum for his offense, we reject his sentencing challenge. We affirm. FACTS On July 12, 2012, Filitaula signed a domestic violence no- contact order that prohibited him from for having any contact with eight years and her few cousin, had two children Anna Hartman, to months. Boyd contact order and wanted the Faufau Boyd for to see a year two - period. Filitaula and Boyd had dated together. In December 2012, Boyd went to the residence of Filitaula. confront consequences of Filitaula had been living at the Hartman home for a Filitaula its about violation. being unfaithful. She knew about the no- 44963 -3 -II After an initial conversation with Filitaula, Boyd left and then returned for an additional discussion. and When Filitaula became angry, Boyd called her mother, who heard Filitaula yelling cursing in the background. Boyd' s mother called the police who arrested Filitaula at the Hartman residence. The State charged Filitaula with felony violation of a no- contact order and added a bail jumping charge after he failed to appear for a pretrial hearing.' Boyd, her mother, the Hartmans, and a deputy prosecutor testified to the above facts. Boyd added that she and Filitaula talked for about 45 minutes, that they both knew about the no- contact order, and that Filitaula made no attempt to leave the house or go into a different room. Filitaula stipulated to two prior no- contact order violation convictions. The jury found him guilty as charged. On appeal, Filitaula challenges only his conviction for violating the no- contact order. ANALYSIS I. SUFFICIENCY OF THE EVIDENCE Filitaula initially argues that the State failed to prove that he willfully violated the nocontact order. We disagree. The State must prove every element of a crime beyond a reasonable doubt for a conviction State v. to be upheld. "' State v. Sibert, 168 Wn.2d 306, 311, 230 P. 3d 142 ( 2010) ( quoting Byrd, 125 Wn.2d 707, 713, 887 P. 2d 396 ( 1995)). To determine whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182, 185 ( 2014). A claim of 1 The no- contact order violation was charged as a felony because of Filitaula' s two prior convictions for violating no- contact orders. RCW 26. 50. 110( 5). 2 44963 -3 -II insufficient evidence admits the truth of the State' s evidence and all reasonable inferences that can be drawn therefrom. State direct and 1980). the and evidence are v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). Circumstantial reliable. equally State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 2004). Under RCW 10. 99. 050, a defendant commits the offense of violating a no- contact order when he willfully has contact with another, knowing that a no- contact order exists and prohibits the contact. grounds, State State v. v. Clowes, 104 Wn. App. 935, 943 -44, 18 P. 3d 596 ( 2001), disapproved on other Nonog, 169 Wn.2d 220, 237 P. 3d 250 ( 2010). The offense has three essential elements: willful contact with another, the prohibition of such contact by a valid no- contact order, and the defendant' s knowledge of the no- contact order. State v. Washington, 135 Wn. App. 42, 49, 143 P. 3d 606 ( 2006) ( quoting Clowes, 104 Wn. App. Sisemore, 114 Wn. App. requires a purposeful act. State v. at 944). The element of willfulness 75, 78, 55 P. 3d 1178 ( 2002). Filitaula contends that the State did not prove that he acted willfully or purposefully because he simply remained at home when Boyd came over to confront him. The fact that the protected party initiated the forbidden contact is not a defense to violating a no- contact order. See RCW 10. 99. 040( 4)( b) and RCW 26. 50. 035( 1)( c) ( domestic violence protection orders must inform restrained person that he is subject to arrest even if protected party invites is not or permits contact); defense to charge of State v. Dejarlais, 136 Wn.2d 939, 942, 969 P. 2d 90 ( 1998) ( violating a domestic violence protection order). consent The evidence shows that Filitaula engaged in conversation with Boyd and did not attempt to terminate that conversation either by leaving or by asking her to leave. See Sisemore, 114 Wn. App. at 78 ( defendant did not 3 44963 -3 -II violate no- contact order with accidental or inadvertent contact if he immediately broke it off). Because his conversation with Boyd was a purposeful act, we find the evidence sufficient to prove that Filitaula willfully violated the no- contact order. II. ADEQUACY OF THE TO- CONVICT INSTRUCTION Filitaula argues here that instruction 8, the " to convict" instruction, omitted the essential element of willfulness. We disagree. A " to convict" instruction must contain all elements of the crime because it serves as a yardstick" by which the jury measures the evidence Smith, 131 Wn.2d 258, 263, 930 P. 2d 917 ( 1997). to determine guilt or innocence. State v. Instruction 8 informed the jury as follows: To convict the defendant of the 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 16, 2012 there existed a no contact order applicable to the defendant regarding a family or household member; 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 against a family or household member[;] 4) That the defendant has twice been previously convicted for violating the provisions of a court order; and 5) That the defendant' s act occurred in the State of Washington. Clerk' s Papers ( CP) at 14 -15. Filitaula did not object to this instruction in the trial court, but he raises an issue of manifest constitutional error that may be reviewed for the first time on appeal. RAP 2. 5( a)( 3); State v. Stein, 144 Wn.2d 236, 240 -41, 27 P. 3d 184 ( 2001). Instruction 8 refers to a knowing rather than a willful violation of a no- contact order. The requirement that an offense be committed willfully is generally satisfied if a person acts knowingly with respect to the material elements of offense. RCW 9A.08. 010( 4). Consequently, the substitution of "knowingly" for "willfully" in an instruction setting forth the elements of violating a no- contact order is not error. Clowes, 104 Wn. App. at 944; see also Sisemore, 114 Wn. App. at 4 44963 -3 -II 78 ( defendant acts willfully is he acts knowingly to the with respect contact element). But, such an instruction must inform the jury of the need to find both that the defendant knew of the nocontact order and that he intended the contact. Clowes, 104 Wn. App. at 944 -45. Instruction 8, which mirrors the pattern jury instruction, informed the jury that it had to find that Filitaula knew of the existence of the no- contact order and that he knowingly violated that 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS, CRIMINAL order. 36. 51. 02, at 79 ( 3d ed. 2014). The " to convict" instruction in this case adequately set forth the essential elements of the crime of violating . no- contact order. a ADEQUACY OF THE CHARGING DOCUMENT III. Filitaula argues next that the charging document was fatally flawed because it did not contain the willfulness element. Filitaula may raise Because an inadequate information raises due process concerns, this challenge for the 107 -08, 812 P. 2d 86 ( 1991). first time on appeal. State v. Kjorsvik, 117 Wn.2d 93, We disagree, however, with his claim of error. A charging document is constitutionally adequate only if all essential elements of a crime are included so as to inform the accused of the charges and to allow him to prepare a defense. State v. Vangerpen, 125 Wn.2d 782, charging document after the 787, 888 P. 2d 1177 ( 1995). When a defendant challenges a verdict, we construe it liberally in favor of validity. Kjorsvik, 117 Wn.2d at 105. Under that liberal analysis, we determine whether the necessary facts appear in any form, or by fair construction can be found, in the charging document; and, if so, whether the defendant shows that he was nonetheless actually prejudiced by the inartful language that caused a lack of notice. Kjorsvik, 117 Wn.2d at 105 -06. The charging document Grays Harbor County provided in pertinent part that Filitaula, " with District Court had previously issued 5 knowledge that the a no contact order... did violate the 44963 -3 -II order while the order was in effect by knowingly violating the restraint provision therein pertaining to Faufau I. Boyd[.]" willfully is satisfied CP if the 7. at As stated above, a requirement that an offense be committed person acted knowingly. RCW 9A. 08. 010( 4). Even if the substitution of knowingly for willfully can be characterized as inartful, we see no prejudice as a result. Filitaula does not show that his defense would have differed had the information charged him with willfully violating the no- contact order. IV. COMMUNITY CUSTODY Finally, Filitaula argues that the trial court violated RCW 9. 94A.701( 9) by imposing 12 . months of community custody. We disagree. RCW 9.94A.701( 9) provides that a community custody term " shall be reduced by the court whenever an offender' s standard range term of confinement in combination with the term of community custody exceeds of a no- contact order 26. 50. 110( 5); points, his a class appropriate C RCW 9A. 20. 021( 1)( standard range was During initiation is the statutory sentencing, 60 felony for the punishable by crime." up to 60 The crime of felony violation months' confinement. RCW Because Filitaula had an offender score of more than 9 c). months as well. RCW 9. 94A. 510, . 515. Filitaula argued that an because Boyd initiated the of crime maximum exceptional prohibited contact. sentence downward was See RCW 9. 94A.535( 1)( a) ( victim' s is mitigating factor). The trial court agreed and imposed an exceptional sentence downward of 48 months plus 12 months of community custody. Filitaula now argues that the trial court erred by imposing 12 months of community custody because his total sentence could have exceeded the statutory maximum. He contends that RCW 9. 94A.701( 9) does not focus on the confinement actually imposed but on the confinement that is possible. According to Filitaula, whenever a defendant' s standard range and term of community 6 44963 -3 - II custody could together exceed the statutory maximum, a reduction or elimination of community custody is required. The State responds that RCW 9. 94A.701( 9) is irrelevant to Filitaula' s sentence because the trial court imposed an exceptional rather than a standard range sentence. The Washington Supreme Court recently agreed and range sentences. In re held that RCW 9. 94A. 701( 9), by its terms, applies only to standard Pers. Restraint ofMcWilliams, No. 88883 -3, 2014 WL 7338498, * 2 ( Wash. Dec. 24, 2014). Accordingly, we affirm the conviction and sentence for felony violation of a no- contact order. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: IBC, Jjorgen, A.C. J. 7
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