      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 69614-9-1


                     Respondent,             ]         DIVISION ONE

              w
              V.                             ^




MYLES LAWRENCE HILLS,                        )         UNPUBLISHED                 <J2

                                                                                         f f) T'i "


                     Appellant.              ]
                                             I         FILED: Mav 19, 2014
                                                                                   CD




       Cox, J. — "[Supplemental instructions should not go beyond matters that

either had been, or could have been, argued to the jury" under a court's original

instructions.1 Here, the trial court gave a supplemental instruction in response to

a jury question during its deliberations. The instruction went beyond the scope of

matters that were argued or could have been argued during closing. Because

the trial court abused its discretion in giving the supplemental instruction, we

reverse and dismiss two of Hills's six convictions.

       We affirm Hills's other four convictions, but remand for the trial court to

strike the unauthorized term of community custody for these convictions.


       1 State v. Ransom, 56 Wn. App. 712, 714, 785 P.2d 469 (1990).
No. 69614-9-1/2


         The State charged Myles Lawrence Hills with four counts of tampering

with a witness - domestic violence (Counts I through IV), and two counts of

domestic violence misdemeanor violation of a court order (Counts V and VI).

The two counts of violation of a court order are primarily at issue in this appeal.

         At trial, the court admitted two domestic violence no-contact orders. One

order was entered by King County District Court in March 2012. The other was

entered by King County Superior Court in May 2012.

         Instruction No. 14, the to-convict instruction for Count V that the court

gave to the jury before its deliberations, stated that the State was required to

prove:


         (1) That on or about May 20 2012, there existed a no-contact order
         which had been issued by the King County District Court, South
         Division, on March 13 2012, and it was applicable to the defendant;

         (2) That the defendant knew of the existence of this order;

         (3) That on or about May 20 2012, the defendant knowingly violated
         a provision of this order which was a restraint provision prohibiting
         contact with a protected party; and

         (4) That the defendant's act occurred in the State of Washington.[2]

         Instruction No. 15, the to-convict instruction for Count VI, contained

parallel wording to that in Instruction No. 14, except that it contained information

relevant to the second no contact order.

         The court also gave a limiting instruction in light of concerns that the jurors

might view the two court orders and make a negative assumption about Hills, the

object of such orders. The limiting instruction, Instruction No. 16, stated:


         2 Clerk's Papers at 43 (emphasis added).
No. 69614-9-1/3


              Certain evidence has been admitted in this case for only a
      limited purpose. This evidence consists of two no contact orders
      which may be considered by you only for the purpose of
      determining whether there existed a no-contact order in Count
      V or Count VI. You may not consider it for any other purpose.
      Any discussion of the evidence during your deliberations must be
      consistent with this limitation.[3]

       During closing argument, the State argued that Hills knew of the no

contact orders, as evidenced by the signatures on the orders. The prosecutor

stated: "[Hills] signed the court order. He signed both of the court orders

prohibiting contact. You'll have those in evidence with you. You can look at

them. You can you see it."4

       We can find no evidence in this record that the signatures on the orders

were those of Hills. And the State has not called our attention to any such

evidence.

       In response, defense counsel argued:

       [Y]ou will also receive a limiting instruction, an instruction from the
       Judge, I think it's instruction number 16, that tells you, you can
       only consider the no contact order for the limited purpose of
       whether or not a no contact order existed. You cannot
       consider the no contact order for whether or not [Hills] had
       notice of it, whether or not he knew about it, whether or not he
       knowingly violated it.[5]

       During deliberations, the jury asked the courtthe following question: "May

[the two no contact orders admitted into evidence] be considered, in reference to



       3 Id. at 45 (emphasis added).

       4 Report of Proceedings (Sept. 12, 2012) at 189.

       5 hi at 196-97 (emphasis added).
No. 69614-9-1/4



instruction 16, for answering question two (2) in instructions 14 and 15 [whether

Hills knew of the existence of the orders]."6

      The court gave the parties an opportunity to argue about the proper

response. The State argued that the answer should be "yes" because the court

admitted the exhibits for their content and limited them to only Counts V and VI.7

Defense counsel argued that "the answer should be no, because the limiting

instruction is very clear, that they can consider the no contact orders only insofar

as whether the no contact orders existed."8 She argued that "[t]elling them

anything else would be a contradictory instruction to instruction 16."9

      The court then responded to the jury's question by giving the following

supplemental instruction: "Please read the instructions as a whole. Instruction 16

limits use of exhibits 1 and 2 to the elements of Counts V and VI."10

       The jury convicted Hills on all counts.

       Hills appeals.

                        SUPPLEMENTAL JURY INSTRUCTION

       Hills argues that the trial court "committed reversible error when it

changed the law of the case" on Counts V and VI during jury deliberations. The




       6 Clerk's Papers at 24.

       7 Report of Proceedings (Sept. 12, 2012) at 220-21.

       8 ]d at 221.

       9 id at 231.

       10 Clerk's Papers at 25 (emphasis added).
No. 69614-9-1/5


State properly concedes that the instruction was improper. We accept the

concession.


       "Pursuant to CrR 6.15, it is within the province of the trial court to instruct

the jury."11 Further, "Generally accepted is the proposition that a trial judge has

discretion whether to give further instructions to the jury after deliberations have

started."12 But "supplemental instructions should not go beyond matters that

either had been, or could have been, argued to the jury."13

       We review for abuse of discretion whether giving a supplemental

instruction is proper.14

       State v. Ransom15 and State v. Hobbs16 both provide examples of where

the court abused its discretion by issuing supplemental instructions. In those

cases, the court considered whether the supplemental instruction had the effect

of providing a new theory of the case or whether it impacted the defense's trial

strategy.




       11 State v. Calvin,     Wn. App.       , 316 P.3d 496, 505 (2013).

       12 Ransom, 56 Wn. App. at 714.

       13 Id

        14 See Calvin, 316 P.3d at 506 ("[0]ur inquiry is whether the trial court
abused its discretion when the jury sought further clarification and the trial court
identified and corrected a problem."); State v. Becklin, 163 Wn.2d 519, 529, 182
P.3d 944 (2008) ("Whether to give further instructions in response to a request
from a deliberating jury is within the discretion of the trial court.").

       15 56 Wn. App. 712, 785 P.2d 469 (1990).

       16 71 Wn. App. 419, 859 P.2d 73 (1993).
No. 69614-9-1/6


       In Ransom, Division Two concluded that the trial court erred when it gave

an accomplice liability instruction after deliberations began.17 It came to this

conclusion because accomplice liability "is a distinct theory of criminal culpability"

and "[t]he effect was to add a theory that the State had not elected and that

defense counsel had no chance to argue."18

       In Hobbs, the State and Hobbs both proposed to-convict instructions

which included as an element of the crime that the act occurred in King County,

Washington.19 Neither party objected to the instruction.20

       During deliberations, the State moved to amend the information and

modify the to-convict instruction to delete "King County" and insert "State of

Washington."21 Defense counsel objected and "stated that she became aware

during trial that there was an issue concerning where the assault had allegedly

occurred, and made a strategic choice not to pursue the inconsistency between

what the victim said at trial and what she had earlier said to the defense

investigator."22 The court granted the State's motion and modified the jury




       17 Ransom, 56 Wn. App. at 713-14.

       18 Id at 714.

       19 Hobbs. 71 Wn. App. at 420.

       20 Id at 421.

       21 id

       22 Id.
No. 69614-9-1/7



instruction, as requested.23 It also granted defense counsel's request to reargue,

but it denied counsel's motion for a mistrial.24

       On appeal, this court concluded that the trial court abused its discretion to

grant the motion to modify the jury instruction.25 This court stated, "Although the

defense was allowed to reargue, there was no opportunity, here, to rethink its

cross examination strategy, a strategy based on the State's earlier error."26

       Here, as in Ransom and Hobbs, the supplemental instruction, in effect,

provided the State with a new method to prove the knowledge element of the

crimes charged in Counts V and VI that did not exist under the court's original

instructions. Specifically, the supplemental instruction broadened the scope of

the limiting instruction, Instruction 16.

       The court's original limiting instruction explicitly stated that the no contact

orders "may be considered by you only for the purpose of determining

whether there existed a no-contact order in Count V or Count VI. You may

not consider it for any other purpose. "27 The existence of a no-contact order

is the first element of Counts V and VI.28




       23 id

       24 id

       25 id at 420, 422 n.2.

       26 id at 425.

       27 Clerk's Papers at 45 (emphasis added).

       28 See id. at 43-44.
No. 69614-9-1/8



       But the court's supplemental instruction stated that consideration of the

no-contact orders was limited "to the elements of Counts V and VI."29 This

broadened the use of these orders to prove other elements of those two counts,

including the second element—whether Hills had knowledge of the orders. This

expanded the scope of the prior limitation, providing a new way for the State to

prove the knowledge element that was not previously available under the original

limiting instruction.

       Additionally, as in Hobbs, defense counsel relied on the limiting instruction

in her closing argument to the jury. Defense counsel specifically addressed the

impact of the limiting instruction on the knowledge element. Importantly, she

argued: 'You cannot consider the no contact order for whether or not he

had notice of it, whether or not he knew about it. . . ."30

       Further, as defense counsel argued to the court, "Ifwe are going to

supplement the jury instructions after the fact and we haven't—each of us

haven't [sic] had an opportunity to give the jury our own interpretation of that, that

is prejudicial."31 Thus, counsel also brought to the attention of the court the

prejudicial impact of giving a supplemental instruction without allowing the parties

to reargue. The court did not provide an opportunity to reargue, as the trial court

in Hobbs did. Because there was no opportunity for counsel to reargue their




       29 k± at 25 (emphasis added).

       30 Report of Proceedings (Sept. 12, 2012) at 197.

       31 id at 224.

                                              8
No. 69614-9-1/9


respective cases after the court gave the supplemental instruction, we need not

speculate whether allowing the parties to reargue would have avoided prejudice.

       In sum, giving the supplemental instruction permitted the State to prove an

element of Counts V and VI stated in the to-convict instructions with evidence

that was not available for that purpose under the original jury instructions. This

was prejudicial. The State properly concedes error.

                         LAW OF THE CASE DOCTRINE

       Hills next argues that "[u]nder the original law of the case, the evidence

was insufficient to prove Violation of a Court Order." Specifically, he contends

that there was insufficient evidence to prove Hills knew about the orders.

Accordingly, he argues that the proper remedy is to dismiss Counts V and VI with

prejudice. In response, the State argues that the proper remedy is to reverse

and remand for a new trial on Counts V and VI. We agree with Hills.

       In State v. Hickman, the supreme court explained that "jury instructions

not objected to become the law of the case."32 There, the court applied the "law

of the case doctrine" to conclude that "[b]y acquiescing to jury instructions which

included venue as a necessary element to convict, even though it really is not an

element, the State assumed the burden of proving venue," and it failed to do

so.33 Accordingly, it reversed Hickman's conviction and dismissed the charges

with prejudice.34



       32 135 Wn.2d 97, 102, 954 P.2d 900 (1998).

       33 id at 99.

       34 Id.
No. 69614-9-1/10


       As for the remedy of dismissal, the court observed that in criminal cases,

the State "assumes the burden of proving otherwise unnecessary elements of the

offense when such added elements are included without objection in the 'to

convict' instruction."35 "On appeal, a defendant may assign error to elements

added under the law of the case doctrine."36 "Such assignment of error may

include a challenge to the sufficiency of evidence of the added element."37

       The Hickman court quoted Tonkovich v. Department of Labor & Industries

for the following proposition:

       It is the approved rule in this state that the parties are bound by the
       law laid down by the court in its instructions where, as here, the
       charge is approved by counsel for each party, no objections or
       exceptions thereto having been made at any stage. In such case,
       the sufficiency of the evidence to sustain the verdict is to be
       determined by the application of the instructions . . . .[38]

       Evidence is sufficient to support a conviction if, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.39 "Retrial




       35id at 102.

       36 id

       37 id

       38 id at 103 (quoting Tonkovich v. Dep't of Labor & Indus., 31 Wn.2d 220,
225, 195 P.2d 638 (1948)).

       39 State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).


                                              10
No. 69614-9-1/11


following reversal for insufficient evidence is 'unequivocally prohibited' and

dismissal is the remedy."40

       The Hickman court also discussed the application of the law of the case

doctrine in Hobbs, decided by this court.41 The Hickman court approved this

court's application of the law of the case doctrine in Hobbs, in which the State

assumed the burden of proving venue, although venue was not an element of the

charged crime.42 But the supreme disapproved of this court's remedy—

remanding for retrial after determining there was insufficient evidence to support

the added burden that the State assumed to prove venue. It cited to State v.

Hardesty, which stated that the double jeopardy clause protects against a second

prosecution for the same offense after reversal for lack of sufficient evidence.43

       In footnote 4 of the Hickman opinion, the supreme court stated:

              Interestingly, the court in Hobbs reversed for insufficient
       evidence and then remanded for retrial. Defendant did not seek
       review of the remand order, and it remains to be explained how a
       court can, consistent with Hardesty, reverse for insufficient
       evidence and not dismiss.[44]

       Here, as in Hickman, the question is whether there was sufficient evidence

to prove what was required under properly given instructions to which neither



       40 Hickman, 135 Wn.2d at 103 (quoting State v. Hardesty, 129 Wn.2d 303,
309, 915 P.2d 1080 (1996)).

       41 id at 103-04 (citing Hobbs, 71 Wn. App. at 423).

       42idat104.

       43 129 Wn.2d 303, 309, 915 P.2d 1080 (1996).

       44 Hickman. 136 Wn.2d at 104 n.4 (citation omitted).


                                             11
No. 69614-9-1/12


side objected: the law of the case. As we discussed previously, the original

limiting instruction stated that the no contact orders could be considered only for

the purpose of determining whether a no contact order existed and not for any

other purpose. When that instruction is applied to Counts V and VI, the evidence

in this record was insufficient to convict. Specifically, it was insufficient to prove

that Hills had knowledge of the two previously entered court orders.

       The State does not contest the insufficiency of the evidence to convict

under these original instructions. In fact, the State admits: "This was the only

evidence presented that showed the defendant had knowledge of the existence

of the order. It is also clear that the jury picked up on this fact, as evidenced by

its question to the court."

       We come to the only major point these parties dispute: the proper remedy

on remand. We conclude that Hickman dictates that the proper remedy in this

case is dismissal. We come to this conclusion for two reasons. First, the

supreme court imposed the remedy of dismissal with prejudice under the law of

the case doctrine because of insufficient evidence to prove the added element.

Second, the supreme court questioned why dismissal was not imposed in Hobbs.

       The State makes several arguments that the proper remedy is remand for

a new trial on Counts V and VI, not dismissal. We disagree.

       First, the State argues that Hills "fails to explain how the [law of the case]

doctrine applies here" and "there was no added element in the instructions to the

jury, thus, the State was not required to prove any additional elements." Neither

point is persuasive.



                                              12
No. 69614-9-1/13


       As for the first point, we explained earlier in this opinion why the law of the

case doctrine applies here. As for the second point, this court rejected a similar

argument in State v. Calvin.45 The Calvin court expressly stated, "Although the

State argues that the law of the case doctrine applies only when an element is

added to a to-convict instruction, the doctrine is not limited to that

application."46 We adhere to that statement of position. This is not a case of an

added element, but that makes no difference. The doctrine has been applied to

both civil and criminal cases in sufficiently analogous situations to this case to

support the application of the doctrine here.

       Second, the State argues that Hills misapplies the doctrines of law of the

case and sufficiency of evidence. Specifically, the State claims that Hills cites to

no case where a court applies sufficiency of evidence analysis to "'what could

have been' but for the court's giving of an erroneous instruction." The State's

view of Hickman and the authorities on which it relies is too restricted.

       There can be no dispute that the law of the case was established in this

case by the court's original instructions to which neither side objected. While the

court gave a supplemental instruction, we have already concluded that doing so

was an abuse of discretion. Thus, the question of remedy for this error is at

issue. In determining that remedy, we look to the properly given instructions to

determine whether the evidence in the record was sufficient to convict. There is

no question, in this case, that the evidence was insufficient. The point was made


       45 Calvin, 316 P.3d at 506.

       46 Id.


                                             13
No. 69614-9-1/14


by defense counsel during closing argument. The jury identified the problem

when it asked for clarification. And, only after that clarification was provided by

an improper supplemental instruction, the jury convicted Hills. On this record,

there is no reason to reach any conclusion other than dismissal as the proper

remedy under Hickman and Hardesty. The State's argument to the contrary is

not persuasive.

       Next, the State cites Ransom, where the remedy was a reversal with a

new trial granted.47 But that court of appeals case did not address the law of the

case doctrine.48 It merely stated, without analysis, that retrial was required.49

This case does nothing to convince us that we should ignore the clear command

of Hickman.


       Finally, the State relies on State v. Brown for the proposition that

"[i]nstructional error is subject to a harmless error review" and "[w]hen instruction

error is not found harmless, the remedy is reversal for a new trial."50 While this is

generally true, as previously stated, Hickman dictates dismissal in this case.51




       47 Brief of Respondent at 12 (citing Ransom, 56 Wn. App. at 714-15).

       48 Ransom. 56 Wn. App. at 712.

       49 id at 715.

       50 Brief of Respondent at 12 (citing State v. Brown. 147 Wn.2d 330, 344,
58 P.3d 889 (2002)).

       51 Hickman. 135 Wn.2d at 103.


                                             14
No. 69614-9-1/15


       For these reasons, we conclude that the proper remedy in this case is to

remand with instructions for the trial court to dismiss with prejudice Counts V and

VI.


                             COMMUNITY CUSTODY


       Hills argues that he should not have been placed on community custody

for his convictions under Counts I through IV, because witness tampering is not a

"crime against persons." The State also properly concedes this point. We

accept the State's concession.

       Under RCW 9.94A.701(3)(a), the court "shall, in addition to the other

terms of the sentence, sentence an offender to community custody for one year

when the court sentences the person to the custody of the department for. . .

[a]ny crime against persons under RCW 9.94A.411(2)." There is no such

provision for "crimes against property."52

       Here, Hills was convicted of four counts of tampering with a witness -

domestic violence. The court sentenced him to a term of community custody

under the belief that these convictions qualified as crimes against persons. But

according to RCW 9.94A.411(2), "Tampering with a Witness" falls within the

category of "crimes against property/other crimes." It does not fall within the

category of "crime against persons."53 Thus, the trial court's imposition of the

term of community custody was incorrect.




       52SeeRCW9.94A.701.

       53SeeRCW9.94A.411(2).

                                             15
No. 69614-9-1/16


        Both parties agree that the proper remedy is to strike the terms of

community custody from the felony judgment and sentence. We agree.54

        Because we conclude that there is no authority to impose community

custody under these circumstances, we need not reach the alternative argument

that Hills's sentence "would have exceeded the statutory maximum."

                STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

        In his Statement of Additional Grounds, Hills presents four claims. None

merit relief.

        First, Hills argues that his "whole case was based on . . . diminished

capacity" and that his attorney "did not attempt to receive at least 25 years of

mental health records that would have landed this case in mental health court. . .

." Because this argument is not supported by evidence in the record, we decline

to review this claim.55

        Hills also argues that he "only had 1- point while all this stuff began and

ended with 9- points at sentencing." It appears that Hills is challenging his

offender score, but he makes no specific argument alleging any error that we can

review. Accordingly, we do not address this point further.

        Hills next discusses his "other charge" of malicious mischief. He also

alleges that "they kept [him] in the King County jail for 2 weeks illegally after the



        54 See In re Sentence of Jones. 129 Wn. App. 626, 628, 120 P.3d 84
(2005).

       55 See RAP 10.10(c) (stating that an appellate court will not consider an
argument made in a statement of additional grounds for review if it does not
inform the court of the nature and occurrence of the alleged errors).


                                              16
No. 69614-9-1/17


original charges were dropped." But Hills does not make any further argument

about these alleged errors. Thus, we do not address them.

       We reverse the judgment and sentence for Counts V and VI and remand

to the trial court for dismissal with prejudice of these charges. We also direct the

trial court to strike the term of community custody for Counts I through IV, which

we otherwise affirm.

                                                          &J,
WE CONCUR:




                                             17
