             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                     f-O



STATE OF WASHINGTON,                       ]      No. 70912-7-1                      XT




                          Respondent,      )      DIVISION ONE

                  V-
                                                  UNPUBLISHED OPINION
HUNG MINH HOANG,

                         Appellant.               FILED: November 17, 2014

          Schindler, J. —A jury convicted Hung Minh Hoang of four counts of felony

violation of a no-contact order in violation of RCW 26.50.110(1) and (5). Hoang seeks

reversal, arguing the court violated his right to due process by placing the burden of

proof on him in a contested competency hearing, the amended information is

constitutionally deficient because it incorrectly identifies the date the court issued the

no-contact order, and insufficient evidence supports finding he knew of the existence of

the November 10, 2003 no-contact order. In a recent case, State v. Colev, 180 Wn.2d

543, 551-57, 326 P.3d 702 (2014), the Washington Supreme Court held that in a

contested competency hearing following an evaluation under RCW 10.77.060, the

burden of proof is on the party contesting competency. And because the charging
documents sufficiently identify the November 10, 2003 no-contact order, substantial

evidence supports finding Hoang knew of the existence of the no-contact order. We

affirm.
No. 70912-7-1/2


                                           FACTS

         Hung Minh Hoang and B.Y.Q. met in Vietnam and got married when B.Y.Q. was

16-years-old. In 2000, B.Y.Q. moved to the United States and got a job at a

supermarket in Seattle. In 2002, Hoang came to the United States.

         Hoang was convicted in 2002 of assault in the fourth degree against B.Y.Q. The

court issued a no-contact order prohibiting Hoang from contacting B.Y.Q. In 2003,

Hoang pleaded guilty to assault in the second degree against B.Y.Q. and misdemeanor

violation of a no-contact order. At the sentencing hearing on November 10, 2003, the

court issued a 10-year no-contact order prohibiting Hoang from having any contact with

B.Y.Q.

         On April 9, 2004, Hoang pleaded guilty to a charge of felony violation of the no-

contact order issued on November 10, 2003. On May 7, the court imposed a standard

range sentence of 13 months and issued a 5-year no-contact order. After he was

released from jail, Hoang moved to San Francisco. B.Y.Q. filed a petition for dissolution

of the marriage. The decree of dissolution was entered in 2005.

         In November 2011, Hoang returned to Seattle. Hoang contacted B.Y.Q. and

asked her to help him renew his expired identification card and find a place to stay.

B.Y.Q. agreed to help him and paid his rent because she was scared of what he might

do if she refused.

         During the next seven months, Hoang often went to the supermarket where

B.Y.Q. worked to ask her for money. If B.Y.Q. refused, Hoang would threaten and

curse at her. B.Y.Q. testified that Hoang threatened to kill her if she called the police.

         During the last week of June 2012, Hoang went to the supermarket to ask B.Y.Q.

for money three different times. When B.Y.Q. called the police, Hoang "t[ook] off."
No. 70912-7-1/3


        The State charged Hoang with four counts of felony violation of a no-contact

order (FVNCO) in violation of RCW 26.50.110(1) and (5) for violating the no-contact

order issued on November 10, 2003. The certification for determination of probable

cause correctly identifies the no-contact order as issued in November 2003, but the

amended information incorrectly states the no-contact order was issued on November 3,

2006.


        On September 25, 2012, defense counsel filed a motion for a competency

evaluation of Hoang. The court ordered an evaluation to take place at the King County

jail. After Hoang refused to cooperate, the court entered an order requiring Western

State Hospital to conduct an inpatient evaluation.

        Hoang spent 50 days at Western State Hospital. The hospital staff used the

services of a Vietnamese interpreter to communicate with Hoang. Psychologist

Elizabeth Bain conducted a "Forensic Mental Health" evaluation of Hoang and prepared

a report. Dr. Bain stated that Hoang "does not appear to meet the statutory definition of

an incompetent person, since Mr. Hoang does not present with any signs of a mental

disease or defect." The hospital records also reflect that Hoang did not exhibit any

symptoms of mental illness such as delusions or hallucinations during his commitment.

Hoang was discharged from Western State Hospital on January 25, 2013.

        The defense retained neuropsychologist Tedd Judd to conduct a competency

evaluation of Hoang. On March 29, Dr. Judd met with Hoang for four hours at the King

County jail with the assistance ofa Vietnamese interpreter and a cultural consultant. Dr.
Judd prepared a "Preliminary Forensic Neuropsychological Report" with a "probable

diagnosis" of paranoid schizophrenia.
No. 70912-7-1/4


        The court conducted a hearing to determine whether Hoang was competent to

stand trial. Dr. Bain and Dr. Judd testified during the two-day hearing. The court found

there was "no evidence, or insufficient evidence to find that Mr. Hoang suffers from

schizophrenia." The court ruled Hoang was competent to stand trial.

        During the three-day jury trial, Seattle Police Detective Jason Stolt, B.Y.Q., and

B.Y.Q.'s supervisor testified. The court admitted into evidence a number of exhibits,

including the 10-year no-contact order issued on November 10, 2003; the 5-year no-

contact order issued on May 7, 2004; and the 2004 "Statement of Defendant on Plea of

Guilty." Hoang stipulated that he was convicted of assault in the fourth degree in 2002

and assault in the second degree and misdemeanor violation of a no-contact order in

2003.


        The defense theory at trial was that Hoang did not know the November 10, 2003

no-contact order was still in effect when he returned to Seattle in 2011. In closing, the

defense argued Hoang did not know of the "current existence" of the November 10,

2003 no-contact order because of the confusion created by overlapping no-contact

orders with different expiration dates.

        The jury found Hoang guilty as charged of four counts of FVNCO. The court

imposed a standard range sentence of 54 months and issued a 5-year no-contact order.

                                          ANALYSIS


Contested Competency Hearing

        Hoang contends the court violated his right to due process by placing the burden

of proof on him at the contested competency hearing. In State v. Colev. 180 Wn.2d

543, 326 P.3d 702 (2014), the Washington Supreme Court squarely addressed and

rejected the same argument. The court held that in a contested competency hearing
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No. 70912-7-1/5


following an evaluation ordered under RCW 10.77.060, the burden of proof is on the

party contesting competency. Colev. 180 Wn.2d at 547, 556. The court concluded

placing the burden of proving incompetence on the defendant does not violate due

process. Colev. 180 Wn.2d at 558-59.

Sufficiency of the Information

       For the first time on appeal, Hoang contends the amended information is

constitutionally deficient. There is no dispute the amended information erroneously

identifies the date of issuance of the no-contact order as November 3, 2006 instead of

November 10, 2003.

      The essential elements of the crime must be included in a charging document to

afford notice to an accused of the nature and cause of the accusation against him. U.S.

Const, amend. VI; Wash. Const, art. I, § 22; State v. Kiorsvik. 117 Wn.2d 93, 97, 812

P.2d86(1991).

      To convict Hoang of FVNCO, the State had the burden of proving beyond a

reasonable doubt that (1) Hoang willfully contacted B.Y.Q., (2) a valid no-contact order

prohibited such contact, (3) Hoang knew of the existence of the no-contact order, and

(4) Hoang had two previous convictions for violating a no-contact order. State v.

Washington. 135 Wn. App. 42, 49, 143 P.3d 606 (2006); RCW 26.50.110(1) and (5).

      When reviewing a challenge to the language in a charging document for the first

time on appeal, we engage in a two-part inquiry. Kiorsvik. 117 Wn.2d at 105-06. First,

we examine whether "the necessary facts appear in any form, or by fair construction can

they be found, in the charging document" and liberally construe the language in favor of

finding it sufficient. Kiorsvik, 117 Wn.2d at 105-06. To determine whether the

necessary facts appear in the charging document, we evaluate "whether all the words
                                            5
No. 70912-7-1/6


used would reasonably apprise an accused of the elements of the crime charged."

Kiorsvik. 117 Wn.2d at 109.

         Secondly, we consider whether the defendant can demonstrate actual prejudice.

Kiorsvik. 117 Wn.2d at 105-06. To determine whether the defendant was prejudiced by

"inartful or vague language" in the charging documents, we evaluate whether "other

circumstances of the charging process . . . reasonably inform[ed] the defendant in a

timely manner of the nature of the charges." Kjorsvik, 117 Wn.2d at 106.

         Hoang contends the amended information is constitutionally deficient because it

does not accurately state the date of issuance for the November 10, 2003 no-contact

order.


         The date of issuance is only one of several facts that may be used to identify a

no-contact order in a charging document. City of Seattle v. Termain, 124 Wn. App. 798,

805-06, 102 P.3d 183 (2004). In Termain. we concluded the charging document was

constitutionally deficient because it did not include any facts identifying the no-contact

order or the victim. Termain. 124 Wn. App. at 806. We held that a charging document

alleging violation of a no-contact order must include "reference to the identity of the

victim or to the underlying domestic violence order or facts of the crime." Termain. 124

Wn. App. at 805.1

         Here, the charging documents are constitutionally sufficient to apprise Hoang of

the charges against him. The amended information accurately identifies the victim and

the court that issued the no-contact order. Count I of the amended information states, in




          Emphasis added.
No. 70912-7-1/7


pertinent part:

              That the defendant HUNG MINH HOANG in King County,
       Washington, on or about June 29, 2012, did know of and willfully violate
       the terms of a court order issued on November 3, 2006 by the King County
       Superior Court pursuant to RCW chapter 10.99, for the protection of
       [B.Y.Q.], and at the time of the violation having at least two prior
       convictions for violating the provisions of an order.[2l

       In addition, the certification for determination of probable cause describes the

facts of the crime, the terms of the no-contact order, and accurately identifies the

November 10, 2003 no-contact order by the superior court cause number and expiration

date. The certification for determination of probable cause states, in pertinent part:

       There is an extensive history of violence between [Hoang and B.Y.Q.]
       involving the police to include a 2003 felony assault conviction for Hung
       and an Order Prohibiting Contact Conditions of Sentence was issued. The
       order clearly shows Hung as the defendant and [B.Y.Q.] as the protected
       person, and it orders Hung to maintain a minimum of 500 feet distance
       from [B.Y.Q.], her residence, and her workplace. . . .

       Court Orders:
       King County Superior Court
       No-Contact Order #03-1-02260-4KNT
       Issued: 11-03-2003
       Expires: 11-10-2013

       At 6-29-12 at 1024 [hours], Seattle Police Officer J. Wade #7535 was
       dispatched to 412 12 Ave S (Hau Hau Market) for a female saying her ex-
       husband was there at her place of employment yelling at her 10-15
       minutes ago. . . . Hung had left on foot. Officer Wade used his patrol
       vehicle in car MDT [(mobile data terminal)] to conduct [a] records check
       and found that there is a current No Contact Order in effect.[3]

Sufficiency of the Evidence

       In the alternative, Hoang contends the State did not prove every element of the

crime beyond a reasonable doubt. Specifically, Hoang asserts the State did not prove


       2 Counts II through IV repeat this language but state different dates of violation (March, April, and
May 2012).
       3 Emphasis in original.
No. 70912-7-1/8


he knew of the existence of the November 10, 2003 no-contact order. Hoang claims he

did not know the November 10, 2003 no-contact order remained in effect.

       The State must prove each essential element of the crime beyond a reasonable

doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State

v. Oster. 147 Wn.2d 141, 146, 52 P.3d 26 (2002). The State had the burden of proving

beyond a reasonable doubt that Hoang knew of the existence of the November 10, 2003

no-contact order. RCW 26.50.110(1 )(a); State v. Phillips. 94 Wn. App. 829, 833, 972

P.2d 932 (1999).

       In deciding whether sufficient evidence supports a conviction, we must view the

evidence in the light most favorable to the State to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A challenge to the

sufficiency of the evidence admits the truth of the State's evidence. Salinas. 119 Wn.2d

at 201. "[A]ll reasonable inferences from the evidence must be drawn in favor of the

State and interpreted most strongly against the defendant." Salinas. 119 Wn.2d at 201.

We 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, 874-75, 83

P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington. 541

U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

       The evidence at trial established that on April 9, 2004, Hoang pleaded guilty to

FVNCO for violating the November 10, 2003 no-contact order. The court admitted into

evidence as an exhibit the 2004 Statement of Defendant on Plea of Guilty. The

Statement of Defendant on Plea of Guilty states in Hoang's "own words" that "[i]n King

County, [Washington], on February 2, 2004, I knew of and willfully violated the terms of
                                              8
No. 70912-7-1/9


a court order issued by King County Superior Court pursuant to RCW 10.99 for the

protection of [B.Y.Q.] by intentionally assaulting her."

       Without objection, the court instructed the jury that it could consider the exhibit for

the limited purpose of determining knowledge. Jury instruction 9 states, in pertinent

part, "You may consider Exhibit 4 in determining whether the defendant had current

knowledge of the no contact order at the time of the currently charged offenses."

       Viewed in the light most favorable to the State, sufficient evidence supports the

finding that Hoang knew of the existence of the November 10, 2003 no-contact order.

       We affirm.




                                                            ,SL*\^d)SU—i
WE CONCUR:




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