                                                                                   FILED
                                                                                            PALS
                                                                           COURT O . ?
    IN THE COURT OF APPEALS OF THE ST7IVI1ITON

                                                                            STATE OF WASHINGTON
                                              DIVISION II
                                                                            BY
                                                                                       DE   TY



 STATE OF WASHINGTON,                                               No. 45678 -8 -II


                   Respondent,


            v.                                                      UNPUBLISHED OPINION


NICHOLE DIANE BARKER,


                   Appellant.




       MAXA, J. —            Nichole Barker appeals from her conviction for felony violation of a

domestic violence court order arguing that she received ineffective assistance of counsel and that

the State   failed to   present sufficient evidence   to establish that she   violated a no- contact order.'   We


disagree and affirm her conviction.


                                                      FACTS


        On May 28, 2013, July 6, 2013, and July 23, 2013, the Pierce County District Court issued

domestic violence no- contact orders prohibiting Barker from having any contact with her mother,

Shari Barker.      Nichole Barker knew       of   those   orders.     Shari2 is the caregiver for Barker' s two


children.




1 A commissioner of this court initially considered Barker' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.


2 In the interest of clarity, we refer to Barker' s relatives by their first names. No disrespect is
intended.
45678 -8 -II




         On August 16, 2013, Barker went to the home of her sister, Danielle Barker, to pick up

some belongings. When Danielle' s son let her in the house, Barker noticed that her own children

were there. Shari had brought them to Danielle' s to play with Danielle' s children. Barker went to

see her children and saw that Shari was with them in the backyard. Barker said she did not know

Shari was going to be at Danielle' s. Barker told Shari that she would leave but asked if she could

hug her children before she left. Shari agreed. Barker hugged her children and went back into the

house.


         After about 20 minutes, Barker and Danielle got into an argument, and Danielle asked

Barker to leave.      When Barker refused to leave, Danielle texted Shari and asked her to call 911.

Police arrived and arrested Barker for violation of the no- contact orders.


         Because she had two prior convictions for violating no- contact orders, to which she

stipulated, the State charged Barker with felony violation of the no- contact order as to Shari.

Barker, Shari,       and   Danielle testified   as   described    above.      During his closing argument, the

prosecutor argued as follows:


         Finally, in [ defense counsel' s] opening he told you that there was contact, but it
         was not willful or intentional. There is no requirement there, anywhere in the
         WPIC' s, anywhere in your jury instructions, that it be willful or intentional. Did
         she   knowingly     have   contact?   When she got to the house, did she go there with
         intent to   or with   knowledge to try to    contact    her   mom?    Probably not. But the
         moment she sees her in the backyard, from that point forward, she knows her
         mom is there and she knows she' s having contact and she would not leave.

Report   of    Proceedings ( RP) ( Oct. 23, 2013)        at   139.     Barker' s counsel did not object to this


argument.




         Barker' s counsel argued that Barker had not intentionally or deliberately violated the no-

contact orders as to Shari because Barker did not know Shari was going to be at Danielle' s house

and Barker went back into the house when she noticed that Shari was in the backyard.



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        In his rebuttal, the prosecutor argued as follows:

        First, I   want   to   clear    up, there'           this may sound like I' m
                                                     s no requirement --

         splitting hairs —there'         s no requirement intentionally or willfully —I' m
                                                                    that   she


        sorry -- intentionally or deliberately contacted her. The standard is did she
        knowingly contact Shari Barker?

RP ( Oct. 23, 2013) at 150. Barker' s counsel did not object to this argument.


        The jury convicted Barker as charged. She appeals.

                                                                ANALYSIS


A.       SUFFICIENCY OF THE EVIDENCE


         Barker argues that the State failed to present sufficient evidence that she knowingly

contacted Shari. We disagree.


         The test for determining sufficiency of the evidence is whether, after viewing the evidence

in the light most favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable     doubt.     State   v.   Homan, 181 Wn. 2d 102, 105, 330 P. 3d 182 ( 2014).                           In evaluating a

sufficiency of the evidence claim, we assume the truth of the State' s evidence and all reasonable

inferences drawn from that               evidence.       Id.   at   106.    We defer to the trier of fact' s resolution of


conflicting testimony and evaluation of the persuasiveness of the evidence. Id.

         Several statutes authorize no- contact orders; the no- contact order against Barker was issued

under chapter      10. 99 RCW . RCW 10. 99. 050( 2)(                      a) provides    that   a "[   w] illful violation of a court


order ...   is   punishable under            RCW 26. 50. 110."            Under RCW 9A.08. 010( d)( 4), "[           a] requirement




that an offense be committed wilfully [sic] is satisfied if a person acts knowingly with respect to

the   material    elements      of     the   offense."     Therefore, to convict Barker of violating a domestic

violence    protection      order       under    RCW 26. 50. 110( 1)(            a)(   i), the State had to prove beyond a




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45678 -841




reasonable doubt that she knew of the order and knowingly violated its provision prohibiting

contact with a protected party. State v. Sisemore, 114 Wn. App. 75, 77 -78, 55 P. 3d 1178 ( 2002).

          A person acts knowingly if "he or she is aware of a fact, facts, or circumstances or result

described    by    a statute   defining   an offense."    RCW 9A. 08. 010( 1)( b)( i). On the other hand, a person


does not knowingly violate a contact prohibition in a situation in which the defendant " accidentally

or   inadvertently    contacted [   the   protected   party] but        immediately broke      it   off."   Sisemore, 114 Wn.


App. at 78.

          Taken in the light most favorable to the State, the evidence showed that although Barker' s


initial   contact with     Shari    was    inadvertent,    she      did   not   immediately    break it      off.   Instead, the


evidence established that upon discovering Shari in Danielle' s back yard, Barker did not leave.

She stayed, hugged her children, and went into the house where she remained for 20 minutes.

While her initial contact with Shari may not have been a violation of the no- contact orders, a

rational trier of fact could find beyond a reasonable doubt that Barker' s remaining at Danielle' s

house     after   discovering    Shari'   s presence was a          knowing     violation of   the   no- contact orders.    The


State presented sufficient evidence to support Barker' s conviction.


B.         INEFFECTIVE ASSISTANCE OF COUNSEL


           Barker argues that she received ineffective assistance of counsel when her trial counsel did


not object to the prosecutor' s statement of the law during closing arguments. We disagree.

           To prevail on his ineffective assistance of counsel claim, Barker must show that ( 1) her


attorney' s performance was deficient, and ( 2) that deficiency was prejudicial. Stale v. Grier, 171

Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).                An attorney' s performance is deficient if it falls below

an objective standard of reasonableness.                 Id.   at   33.   Such deficient performance is prejudicial if


there is a reasonable probability that the result of the proceedings would have been different in its


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45678 -8 -II




absence.      Id.     at   34.        Reasonable probability in this context means a probability sufficient to

undermine confidence in the outcome. Id.


        Barker contends that in arguing that the State did not have the burden of proving that she

had intentional            or   deliberate     contact    with   Shari, the       prosecutor      misstated     the    law.      But the


prosecutor     did     not misstate        the law.      As noted above, to convict Barker of violating a domestic

violence   protection order under                RCW 26. 50. 110( 1)(      a)(   i),   the State had to prove only that Barker

knowingly      contacted         Shari.    Sisemore, 114 Wn. App. at 78; see also 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 36. 51. 01 -. 02, at 639 -40 ( 3d ed. 2008).

Neither RCW 26. 50. 110                 nor   RCW 10. 99. 050( 2)(    a)   expressly       require   intentional      contact.    Barker


does not point us to any statutory authority that imposes a requirement that a party must

intentionally violate the no- contact order to violate RCW 26. 50. 110( 1)( a).

        Instead, Barker cites to State v. Clowes, 104 Wn. App. 935, 944 -45, 18 P. 3d 596 ( 2001),

and Sisemore, 114 Wn. App. at 78, for her contention that the contact must be intentional. Because

her defense was that her contact with Shari was not intentional, Barker contends that her trial

counsel' s failure to object to the State' s argument was prejudicial.


        Barker' s reliance on Clowes and Sisemore is misplaced. Barker relies on a statement in

Clowes that " the instruction is inadequate because it does not tell the jury that not only must the

defendant know             of   the   no- contact order;   he    must also   have intended the           contact."     104 Wn. App.

at 944 -45. However, in Clowes the court clearly states that the elements of a violation of a no-

contact order are " when [ a defendant] willfully has contact with another knowing that a no-

contact order exists and prohibits                the   contact."   Id. at 944. Moreover, the court recognized, as we


do   above,    that   proof      that "   a person acted `   knowingly'      is    proof   that   they   acted ` willfully.'     " Id. at




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45678 -8 -II




944. And the court in Sisemore expressly held that the State must prove only that the defendant

acted   knowingly. 114 Wn. App. at 78.

          Neither Clowes nor Sisemore held that the State must prove that the defendant intended to

violate   the   no- contact order when   he   or she contacted   the   protected   party.   104 Wn. App. at 944;

114 Wn. App. at 78. Therefore, the prosecutor did not misstate the State' s burden during closing

argument and the trial court would have overruled any objection.

          We hold that Barker' s counsel did not engage in deficient performance in not objecting

and that any failure to object did not prejudice Barker because the objection would have been

overruled. Accordingly, Barker' s ineffective assistance of counsel argument fails.

          We affirm Barker' s conviction.


          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:




 B i` RCj' \1, A. C. J.
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