                                                                       FILED 

                                                                  SEPTEMBER 3,2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 32214-9-111
                      Respondent,            )
                                             )
       v.                                    )
                                             )
DANIEL SOTO,                                 )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )

       KORSMO,   J.    Daniel Soto contests the sufficiency of the evidence identifying

him as the person who twice previously violated a no contact order. We affirm.

                                         FACTS

       Mr. Soto was charged in the Franklin County Superior Court with one count of

felony violation of a no contact order entered by the Pasco Municipal Court. It precluded

Mr. Soto from having physical contact with, or being in proximity to, Ms. Fabiola

Ayala. l




       1Originally, the order had prohibited Mr. Soto from having any contact with Ms.
Ayala. However, in response to a request to lift the order, the municipal court instead
modified the order to permit communication between the two by text, telephone, or
email. Ex. 4.
No. 32214-9-II1
State v. Soto


       The charge was filed after a Pasco Police Department officer stopped a car for

speeding in the late evening of April 5, 2013. The driver was Ms. Ayala; she had a male

passenger. Discovering that Ms. Ayala was a person protected by a no contact order, the

officer obtained the identification of her passenger, Mr. Soto. His name, physical

description, and birthdate matched that of the Daniel Soto who was subject to the no

contact order.

        Mr. Soto waived jury trial and his case proceeded to trial before the Honorable

Carrie Runge. The municipal court's probation officer and a clerk of that court identified

the no contact order and identified Mr. Soto as the man who was subject to the order.

Two judgment and sentence forms were entered without objection establishing that

Daniel Soto had previously violated a no contact order on nine occasions.

       Defense counsel argued that Mr. Soto thought the order had been modified to

allow his contact with Ms. Ayala and that the prior convictions did not establish that they

involved the same Daniel Soto subject to the Pasco court's order. The trial judge rejected

the arguments and concluded that Mr. Soto had once again violated the no contact order.

      Findings of fact were entered in support of the bench verdict and a standard range

sentence imposed. Mr. Soto then timely appealed to this court.




                                             2

No. 32214-9-III
State v. Soto


                                        ANALYSIS

       The sole issue presented in this appeal is one argued by trial counsel-did the

evidence support the determination that Mr. Soto had twice previously been convicted of

violating a no contact order? The evidence does support the bench verdict.

       Well settled standards govern appellate challenges to the sufficiency of the

evidence to support a conviction. We review such challenges to see ifthere was evidence

from which the trier of fact could find each element of the offense proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979); State v. Green, 94 Wn.2d 216,221-222,616 P.2d 628 (1980). The reviewing

court will consider the evidence in a light most favorable to the prosecution. Jackson,

443 U.S. at 319; Green, 94 Wn.2d at 221-222. Reviewing courts also must defer to the

trier of fact "on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,874-875,83 P.3d 970

(2004).

       The specific argument made here is one that is recurring in our criminal law.

Where a prior conviction is an element of a crime, the State must prove its existence

beyond a reasonable doubt; an identity of names alone is insufficient to meet this burden.

State v. Harkness, 1 Wn.2d 530, 543,96 P.2d 460 (1939); State v. Hunter, 29 Wn. App.

218,221,627 P.2d 1339 (1981); State v. Brezillac, 19 Wn. App. 11, 13,573 P.2d 1343

(1978). Thus, there must be some independent corroborative evidence that shows that the

                                              3

No. 32214-9-III
State v. Soto


person whose former conviction is proved is the defendant in the present action. Hunter,

29 Wn. App. at 221. Once the State has done this, it has established a prima facie case

and the burden shifts to the defendant to cast doubt upon the identity of the individual in

the documents. Id. at 222.2

       The leading Washington criminal case on identification is State v. Hill, 83 Wn.2d

558,520 P.2d 618 (1974). There the court stated:

               It is axiomatic in criminal trials that the prosecution bears the burden
       of establishing beyond a reasonable doubt the identity of the accused as the
       person who committed the offense. . .. Identity involves a question of fact
       for the jury and any relevant fact, either direct or circumstantial, which
       would convince or tend to convince a person of ordinary judgment, in
       carrying on his everyday affairs, of the identity of a person should be
       received and evaluated.

Id. at 560. The court concluded that testimony that "Jimmy Hill" and "the defendant"

was the responsible party was sufficient to prove identity even in the absence of in-court

identification. Id.

       Mr. Soto relies in part on the decision in State v. Huber, 129 Wn. App. 499,

119 P.3d 388 (2005). There the prosecution failed to establish that the Mr. Huber who

was present at the jury trial for bail jumping was the same Mr. Huber who had failed to

appear in court at an earlier hearing. Id. at 500-501. Noting that many people have the



       2 While not a basis for our decision, we do note that there was no conflicting
evidence suggesting that there were multiple people named Daniel Soto subject to no
contact orders in the greater Pasco area.

                                              4

No. 32214-9-II1
State v. Soto


same name, the court concluded that the evidentiary flaw in the case was the failure to

connect the paperwork from the first case with the defendant in the current bail jumping

case. Id. at 502-503.

       There was more than similarity in names here. The Daniel Soto listed in the

protection order has the same birthday-January 14, 1977-as the Daniel Soto in both

judgment and sentence forms. See Exs. 2, 3, 5. The signature "Daniel Soto" on each of

the three forms looks identical. These facts corroborate the identification of Daniel Soto

on the prior convictions with the Daniel Soto currently in the courtroom subject to the

Pasco Municipal Court no contact order.

      The evidence supported the bench verdict. The conviction is affirmed.

      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.




WE CONCUR: 





      Brown, J.




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