                                                                                                             FILED
                                                                                                   COURT OF APPEALS
                                                                                                           DIVISION II
                                                                                               20[ 5 JAS} 13 Al 11= 114

                                                                                                   STATE OF WASHINGTON
                                                                                                   BY
                                                                                                                CITY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                        DIVISION II

STATE OF WASHINGTON,                                                                    No. 45006 -2 -II


                                          Respondent,


             v.



LEO BRITTON BUNKER, III,                                                        UNPUBLISHED OPINION


                                          Appellant.


             JOHANSON, C. J. —       A jury found Leo Bunker, III guilty of second degree rape ( counts I

and   II),   felony harassment ( count         III),   and violation of no- contact orders ( VNCO)              ( counts IV and


V).   Bunker appeals, arguing that ( 1) the State violated his constitutional right to notice of the

charges against him because the charging document failed to properly allege an essential element

of   the VNCO charges, counts             IV   and     V, (2) he   was   denied his   right   to   a unanimous     jury, (3)     the


evidence was insufficient to convict him of the VNCO charges, counts IV and V, and to prove two

separate acts of second          degree    rape, (     4) the trial court erred by admitting evidence of Bunker' s

prior misconduct under          ER 404( b),      and ( 5) the trial court erred by imposing a community custody

condition         prohibiting   contact   with    minors.      We hold that the charging information was not

constitutionally deficient, there         was sufficient evidence          to support Bunker'           s convictions   for   second
No. 45006 -2 -I1



degree rape in count II and VNCO in counts IV and V, and the trial court did not abuse its discretion


by    admitting   evidence of   Bunker'   s prior misconduct.   But we accept the State' s concession that


the trial court violated Bunker' s right to a unanimous jury for count IV and that it erred by imposing

a community custody condition prohibiting contact with minors. Therefore, we vacate Bunker' s

conviction on count IV, affirm the remaining convictions, and remand for resentencing consistent

with this opinion.


                                                    FACTS


                                               I. BACKGROUND


          L.H.1 has known Bunker since childhood. L.H. and Bunker lost touch for over 30 years,

but     reconnected   in August 2011.         Bunker    and   L.H.   subsequently moved in together and

commenced a dating relationship.

          Shortly   thereafter,   Bunker    exhibited   controlling behavior.    He became possessive,


demanding, and aggressive physically and sexually towards L.H. Bunker reportedly told L.H. that

she "   had   no choice"   in anything he wanted to do to her sexually and regularly forced L.H. to

engage in sexual acts against her will. 1 Report of Proceedings (RP) at 25. Bunker also threatened


L.H., telling L.H. that she could not leave because she belonged to him and that if she did leave,

he would kill her. L.H. believed that Bunker would carry out these threats because she knew that

Bunker had previously assaulted and hospitalized his ex -wife.

          Despite L.H.' s wishes to the contrary, Bunker and L.H. were married on October 8. A few

days later, Bunker became enraged when he learned that L.H. had been on the phone with a man.




1 We refer to the victim by her initials to protect her privacy.

                                                         2
No. 45006 -2 -II



Bunker shoved L.H. onto the bed and pinned her down. Bunker bit L.H. and grabbed her around

the throat, making it difficult for her to breathe. L.H. told Bunker to stop, that "[ she didn' t] want


to do this,"      and   that   she was   hurt. 1 RP      at   56. Instead, Bunker removed L.H.' s pants and forced


her to have vaginal intercourse.


         L.H. testified that she had sex with Bunker nearly every day after the October 11 incident

and that she would frequently tell Bunker to stop when he performed sexual acts that she did not

like. L.H. described sex with Bunker after the October incident as " pretty much always forceful."

2 RP   at   75.   Specifically, L.H. claimed that she told Bunker to stop when they had oral sex, that

Bunker would not stop, and that Bunker told L.H. that she " didn' t have any choice what [ sic] he

wanted      to do."     2 RP at 74.


            After Bunker began serving a prison sentence in early November for an unrelated crime,

L.H.   called police       to   report   that   she   had been   raped.   L.H. then obtained a temporary protection

order prohibiting Bunker from having either direct or indirect contact with her. Bunker was served

with a copy of the temporary order on November 8. The order remained in effect until November

21.


            Subsequently, Bunker contacted Amy and Barbara Krahn and requested that they retrieve

his belongings from L.H.'           s    home.    L.H. testified that the Krahns called her as many as 10 times

and that she called the Krahns back sometime around November 9 or 10. On at least one occasion

on November 14, a police officer approached the Krahns as they left L.H.' s home. Furthermore,

L.H. claimed that Bunker called and text messaged her frequently after he was incarcerated,2 but


2 The record does not definitively establish the dates of these calls or texts and L.H. was not asked
specifically.



                                                                   3
No. 45006 -2 -II



that she stopped answering those calls because Bunker was often belligerent. Bunker also wrote

a letter to L.H., which, by her recollection, she received sometime after November 10.

                                                    II. PROCEDURE


            The Stated charged Bunker by fifth amended information with two counts of second degree

rape ( counts    I   and   II), one   count of harassment   —threat to kill (count III), and two counts of VNCO


 counts IV and V) occurring between November 8 and November 14. Before trial, the State moved

to introduce     evidence of several of        Bunker'   s prior convictions   for   assault.   The State argued that


L.H.' s knowledge that Bunker had previously assaulted his former wife established that L.H.' s

fear   of   Bunker    was an     objectively   reasonable    fear.   After weighing the probative value of the

evidence against its potential prejudicial effect, the trial court admitted evidence of Bunker' s prior


conviction for second degree assault under ER 404(b) for the limited purpose of establishing the

 reasonable fear" element of the harassment charge.


            The jury found Bunker guilty as charged and the trial court imposed an exceptional

sentence.       In addition, the trial court imposed community custody conditions that prohibited

Bunker from having contact with minors, frequenting locations where minors are known to

congregate, or occupying positions of trust or authority over minors. Bunker appeals.

                                                      ANALYSIS


                                              I. DEFICIENT INFORMATION


            Bunker argues that the State violated his constitutional right to notice of the charges against


him because the information. by which he was charged was deficient as to counts IV and V, the

two counts of VNCO. Specifically, Bunker contends that the information was deficient because it

failed to allege the specific statute under which the protection order had been issued. We disagree.



                                                              4
No. 45006 -2 -II


                                                     A. STANDARD OF REVIEW


          The Sixth Amendment to the United States Constitution                                      provides     in   part, "   In all .. .


prosecutions,        the     accused shall ...       be informed         of   the   nature and cause of the accusation."              Article


I,   section   22   of the         Washington Constitution provides in part, " In criminal prosecutions the accused


shall   have the      right ...        to demand the nature and cause of the accusation against him."


          A charging document is constitutionally insufficient if it fails to list the essential elements

of a crime.         State    v.     Zillyette, 178 Wn.2d 153, 158, 307 P. 3d 712 ( 2013) (                   quoting State v. Kjorsvik,

117 Wn.2d 93, 97, 812 P. 2d 86 ( 1991)).                          The     essential elements of a crime are                those "`   whose



specification        is necessary to           establish   the very      illegality    of   the   behavior   charged. "'    Zillyette, 178


Wn.2d     at    158 ( internal         quotation marks omitted) (             quoting State v. Ward, 148 Wn.2d 803, 811, 64

P. 3d 640 ( 2003)).                 Requiring the State to list the essential elements in the charging document

ensures the defendant' s right to notice of the nature of the criminal accusation against him


guaranteed by the United States and Washington State constitutions. Zillyette, 178 Wn.2d at 158.

Where, as here, the defendant challenges the sufficiency of the information for the first time on

appeal, this court construes the document liberally in favor of validity. State v. Brown, 169 Wn.2d

195, .197, 234 P. 3d 212 ( 2010).


          Under this liberal construction rule, we will uphold the charging document if an apparently

missing element may be " fairly implied" from the document' s language. Kjorsvik, 117 Wn.2d at

 104. We        ask, "(     1) [    D] o the necessary facts appear in any form, or by fair construction can they be

found, in the charging document;                     and,   if   so, (   2) can the defendant show that he was nonetheless


actually       prejudiced
                                    by the   inartful language      which caused a          lack   of notice ?"   Kjorsvik, 117 Wn.2d


 at   105 -06. If the necessary              elements are neither         found     nor   fairly implied in the    charging document,
No. 45006 -2 -II



we presume prejudice and reverse without reaching the question of prejudice. State v. Goodman,

150 Wn.2d 774, 788, 83 P. 3d 410 ( 2004).        We read the charging document as a whole, according

to common sense and including implied facts. State v. Nonog, 169 Wn.2d 220, 227, 237 P. 3d 250

 2010).


                          B. INFORMATION NOT CONSTITUTIONALLY DEFICIENT


          Former RCW 26. 50. 110 ( 2009), which governs violations of VNCOs, provides in pertinent


part,



           1)( a) Whenever an order is granted under this chapter, chapter 7. 90, 9. 94A, 10. 99,
          26. 09, 26. 10, 26.26, or 74. 34 RCW, or there is a valid foreign protection order as
          defined in RCW 26. 52. 020, and the respondent or person to be restrained knows of
          the order, a violation of any of the following provisions of the order is a gross
          misdemeanor, except as provided in subsections ( 4) and ( 5) of this section:


                    5) A violation of a court order issued under this chapter, chapter 7. 90,
          9. 94A, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or of a valid foreign protection
          order as defined in RCW 26. 52. 020, is a class C felony if the offender has at least
          two previous convictions for violating the provisions of an order issued under this
          chapter, chapter 7. 90, 9. 94A, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or a valid
          foreign   protection order as   defined in RCW 26. 52. 020. The previous convictions
          may involve the same victim or other victims specifically protected by the orders
          the offender violated.



          Here, the information charging Bunker with VNCO in count IV alleged,3
                    On or about and between November 8, 2011, and November 14, 2011,
          separate and distinct and earlier in time from what is charged in Count V, in the
          State of Washington, the above -named defendant, with knowledge that the Lewis
          County Superior Court had previously issued a protection order pursuant to [ L.H.]
          vs. Leo B. Bunker III, Cause No. 11 -2- 01392 -6, as a separate and distinct act and
          earlier in time from what is charged in Count V, did violate the order while the
          order was in effect by knowingly violating the restraint provisions therein, and/or
          by knowingly violating a provision excluding him or her from a residence, a

3
    Regarding the VNCO charge in count V, the charging language was identical to that in count IV
except that " Count V" is replaced with "Count IV" and the word " earlier" is replaced by the word
    later." Clerk' s Papers ( CP) at 191 -92.



                                                      6
No. 45006 -2 -II



          workplace,      a   school   or   a     daycare,   and /or   by knowingly     coming   within,   or


          knowingly remaining within, a specified distance of a location; and the defendant
          had at least two previous convictions for violating the provisions of an order issued
          under RCW Chapter 26. 50, 7. 90, 9. 94A, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34;
          contrary to Revised Code of Washington 26. 50. 110( 1) and ( 5).

Clerk' s Papers ( CP) at 191.


          Bunker claims that the State' s failure to include the specific statute under which the


protection order was entered rendered the information deficient for failure to allege each of the


essential elements of the charged crimes. But Bunker' s argument is unpersuasive for three reasons.


          First, essential elements of a crime include only those facts that must be proved beyond a

reasonable doubt to convict the defendant of an offense. Zillyette, 178 Wn.2d at 158. Bunker cites


no authority to support the proposition that the specific statute under which a protection order is

authorized constitutes a fact that the State must prove to convict a defendant of VNCO.

          Second, our courts have addressed which facts the State should include in an information


charging a VNCO to properly apprise a defendant as to the actual conduct being charged. City of

Seattle   v.   Termain, 124 Wn.        App.     798, 802, 103 P. 3d 209 ( 2004).       In Termain, Division One of


this court held that an information charging a VNCO was deficient when the document merely

charged Termain in the language of the statute and did not recite either the specific statute pursuant


to which the underlying order was issued, the number of the order, the date of issuance, any

underlying facts,    or   the   name of     the   protected person.     124 Wn. App. at 806. The Termain court

agreed that the information need not necessarily include the name ofthe victim, but concluded that

identification of the specific no- contact order, the issuance date from a specific court, the name of


the   protected person, or sufficient other          facts   must   be included in   some manner such   that there are
No. 45006 -2 -II



enough bare facts in the charging document that could fairly imply what actual conduct was being

charged. Termain, 124 Wn. App. at 805 -06.

         Here, as in Termain, the information did not recite the specific statute pursuant to which

the underlying      order was     issued. But unlike Termain, the information here contained sufficient


other   facts.    The information charging Bunker identified the protected party by name and it

included a range of dates during which the no- contact order was in effect, the county in which the

order was entered,        and    the    specific cause number            associated with       the   order.   Accordingly, in

contrast to the circumstances in Termain, there were enough facts in the information here to fairly

imply   to Bunker the          actual   conduct     being   charged.        The information therefore contained the


necessary essential element, that is, the existence of the specified underlying order.

         Finally, a charging document is constitutionally sufficient even if it is factually vague as to

some other significant matter.            State    v.   Winings, 126 Wn.        App.   75, 84, 107 P. 3d 141 ( 2005).      A


vague charging document may be corrected with a bill of particulars, but the failure to request a

bill of particulars waives any vagueness challenge. State v. Leach, 113 Wn.2d 679, 687, 782 P. 2d

552 ( 1989).      Thus, even if the failure of the State to allege the specific statute under which the

protection       order   was    authorized    is    an "   other       significant   matter"    capable of rendering the

information vague, Bunker waived any challenge associated with this lack of information because

he did not request a bill of particulars. We hold that Bunker' s claim fails for these reasons.




                                                                   8
No. 45006 -2 -II



                                             II. RIGHT TO UNANIMOUS JURY


             Bunker contends that the trial court violated his right to a unanimous jury by providing the

jury with a Petrich4 instruction as to count V, but failing to do so as to count IV, which required

the same instruction.               We accept the State' s concession because the inclusion of the Petrich


instruction only for the second count of VNCO could have led the jury to believe that it did not

need to agree unanimously as to which act constituted the crime for the first count of VNCO and,

therefore, prejudice is presumed.


                                                A. STANDARD OF REVIEW


             We review challenged jury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904

P. 2d 245 ( 1995),          cert.   denied, 518 U.S. 1026 ( 1996).     Our state constitution requires that in a


criminal prosecution, an             impartial jury   render a unanimous verdict.   CONST.   art.   I, §§ 21, 22; State


v.   Ortega -Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994); State v. Stephens, 93 Wn.2d 186,


190, 607 P. 2d 304 ( 1980).              The review standard for whether the failure to provide a unanimity

instruction was error hinges on whether we are dealing with an alternative means case or a multiple

acts    case.       State   v.   Bobenhouse, 166 Wn.2d 881, 892, 214 P. 3d 907 ( 2009).              When the State


presents evidence of multiple acts that could each form the basis for one charged crime, the State


must either choose which of the acts it relied on for a conviction, or the court must instruct the jury

to agree on a specific criminal act. State v. Coleman, 159 Wn.2d 509, 511, 150 P. 3d 1126 ( 2007).




4
     State   v.   Petrich, 101 Wn.2d 566, 683 P. 2d 173 ( 1984).
No. 45006 -2 -II


                                 B. VIOLATION OF RIGHT TO UNANIMOUS JURY


         Here, the State presented evidence of multiple acts, any one of which could arguably form

the basis for the two VNCO counts charged. The trial court provided the jury with instruction no.

22 related to count V:


                   For Count V —Violation of a Protection Order, the State alleges that the
         defendant committed acts violating the provisions of a Protection Order on multiple
         occasions. To convict the defendant of Violation of a Protection Order as charged
         in Count V, one particular act of Violation of a Protection Order, separate and
         distinct from what is alleged and charged in Count IV, must be proved beyond a
         reasonable doubt, and you must unanimously agree as to which act has been proved.
         You need not unanimously agree that the defendant committed all the acts of
         Violation of a Protection Order as alleged for Count V.


CP at 231.


         But the trial court did not provide this separate instruction for the VNCO charged in count


IV, despite the fact that the " to- convict" instructions for each count were virtually identical and

the State   was   relying   on   the    same series of acts         to   support each count.   This was error because


members of the jury may have proceeded on the misconception that unanimity as to the act that

constituted the crime was required for count V but was not required for count IV.


          And while error of this nature is sometimes harmless, we cannot reach such a conclusion


here.    To be harmless beyond a reasonable doubt, the State must show " no rational juror could

have    a reasonable   doubt     as   to any   of the   incidents   alleged."   Coleman, 159 Wn.2d at 512. Among

the State' s evidence were several phone calls and visits from the Khrans as well as phone calls,


text messages, and letters to L.H. from Bunker. Additionally, there was some uncertainty as to the

chronology of these alleged contacts. We cannot say that no rational juror could have a reasonable

doubt as to any of the incidents alleged. Consequently, we accept the State' s concession and vacate



                                                               10
No. 45006 -2 -II


                                                                    5
Bunker'    s   conviction    for VNCO in           count      IV.        But because the potential relief afforded in a


sufficiency challenge is different, we nevertheless address Bunker' s sufficiency of the evidence

claim.



                                          III. SUFFICIENCY OF THE EVIDENCE


           We turn next to Bunker' s assertion that the State presented insufficient evidence of his


convictions. Bunker argues that insufficient evidence existed to support his conviction for second .


degree rape in count II because the State failed to prove two separate acts of rape. Bunker argues


further that the State       also     failed to   prove   two distinct        acts   that   each amounted   to   a   VNCO.   We


hold that the State presented sufficient evidence to support each of Bunker' s convictions.

                                                  A. STANDARD OF REVIEW


           To determine whether evidence is sufficient to sustain a conviction, we review the evidence

in the light most favorable to the State. State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003).

The   relevant question       is "`   whether any rational fact finder could have found the essential elements

of   the   crime   beyond     a reasonable        doubt. "'    State v. Budik, 173 Wn.2d 727, 749, 272 P. 3d 816


 2012) ( quoting State          v.    Engel, 166 Wn.2d 572, 576, 210 P. 3d 1007 ( 2009)).                            In claiming

insufficient evidence, the defendant necessarily admits the truth of the State' s evidence and all

reasonable inferences that can be drawn from it. Drum, 168 Wn.2d 23, 35, 225 P. 3d 237 ( 2010)


 citing State      v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)).                     We interpret the evidence


  most     strongly      against   the defendant. "'       State v. Hernandez, 172 Wn. App. 537, 543, 290 P. 3d



5 Although we vacate count IV due to the lack of unanimity instruction, we note that because it is
not possible to ascertain which of the alleged acts the jury agreed constituted the crime in count
V, double jeopardy principles would likely prevent any attempt to retry Bunker for acts of VNCO
occurring between November 8 and November 14.

                                                                        11
No. 45006 -2 -II


1052 ( 2012) ( internal       quotation marks omitted) (   quoting State v. Joy, 121 Wn.2d 333, 339, 851

P.2d 654 ( 1993)),      review    denied, 177 Wn.2d 1022 ( 2013).    We consider both circumstantial and


direct evidence as equally reliable and defer to the trier of fact on issues of conflicting testimony,

witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-

75, 83 P. 3d 970 ( 2004).


                            B. EVIDENCE SUFFICIENT TO SUSTAIN EACH CONVICTION


1.    Two COUNTS OF SECOND DEGREE RAPE


           RCW 9A.44. 050 governs the crime of second degree rape. It provides in relevant part,


            1) A person is guilty of rape in the second degree when, under circumstances not
           constituting rape in the first degree, the person engages in sexual intercourse with
           another person:

                     a) By forcible compulsion.

     Sexual intercourse,"     in addition to its ordinary meaning,

                     c) [   a] lso means any act of sexual contact between persons involving the
           sex organs of one person and the mouth or anus of another where such persons are
           of the same or opposite sex.


RCW 9A. 44. 010. And "[ f]orcible compulsion" means


           physical force which overcomes resistance, or a threat, express or implied, that
           places a person in fear of death or physical injury to herself or himself or another
           person, or in fear that she or he or another person will be kidnapped.

RCW 9A.44. 010( 6).


           Bunker does not contest whether the State' s evidence established that he was guilty of

second      degree   rape as    a result of   the October 11 incident.   Rather, he argues that the State' s


evidence is insufficient to support a second charge of second degree rape because L.H. told police


about onlythis single incident and never specifically alleged that a second rape occurred. Bunker' s

argument is unavailing considering the deference we afford the trier of fact when the sufficiency

                                                         12
No. 45006 -2 -II



of   the evidence   is   challenged.     The information charging Bunker with a second count of second

degree rape alleged,


                   On or about and between September 17, 2011 and November 1, 2011, on a
         day other than October 11, 2011 in the State of Washington, the above -named
         defendant engaged in sexual intercourse with another person, to -wit: [ L.H.], by
         forcible compulsion; contrary to the Revised Code of Washington 9A.44. 050( 1)( a).

CP at 189.


         L.H. testified that Bunker          was "   pretty much always forceful" when he initiated sexual

intercourse after the October 11 incident and that he would hold her down by her thighs and

shoulders.     2 RP     at   75.   L.H. explained that she often asked Bunker to stop when he engaged in

sexual acts that she disliked, including oral sex, but that Bunker would not stop, instead telling

L.H. that she had no choice. Bunker testified on his own behalf. Bunker claimed that it was not

possible for him to have raped L.H. because he suffers from erectile dysfunction and that he was


visiting his   sister    during    the October 11 incident.     But we defer to the trier of fact on issues of


conflicting    testimony       and witness   credibility. Thomas, 150 Wn.2d     at   874 -75. Here, based on its


verdicts, the jury clearly found L.H.' s recitation of the events most credible.

         Because a claim of insufficient evidence necessarily admits the truth of the State' s evidence

and all reasonable inferences that can be drawn from it, Drum, 168 Wn.2d at 35, we hold that a

rational fact finder could have found that there was sufficient evidence to provide at least one


instance, other than the October 11 incident, of sexual intercourse by forcible compulsion beyond

a reasonable doubt.


2. Two COUNTS OF VNCO


          Similarly, Bunker does not argue that the State' s evidence was insufficient to support a

conviction for VNCO. Rather, Bunker asserts that the State' s evidence is insufficient to prove two

                                                           13
No. 45006 -2 -I1



distinct acts to support two convictions for VNCO. Bunker argues specifically that indirect contact

with L.H. through the Krahns did not constitute a violation because the temporary order of

protection allowed a        third party to   retrieve   belongings         on   his behalf. But Bunker mistakes the


permanent protection order, which did allow contact through third parties, for the temporary

protection order, which did not. The State charged Bunker with two counts of VNCO during the

period of November 8 to November 14 when the temporary order of protection was in effect and

when its provisions controlled. Among other things, the temporary order mandated. that Bunker

was




          r]estrained from coming near and from having any contact whatsoever, in person
         or through others, by phone, mail, or any means, directly or indirectly, except for
         mailing or service of process of court documents by a 3rd party or contact by
         respondent' s lawyer(s) with [ L.H.].


Ex. 15 (   emphasis added).       L.H. testified that the Krahns called her as many as 10 times and that

she called the Krahns back around November 9 or 10. Barbara6 admitted that she contacted L.H.


at Bunker' s behest to arrange to pick up some of Bunker' s belongings. Barbara testified that she

and Amy made two separate trips to L.H.' s home to retrieve Bunker' s personal effects, one of

which occurred on November 14.


           Bunker     also wrote a   letter to L.H.     after   he   was   detained.   L.H. could not remember the


exact   date   of   the letter, but thought that it   was " around     the first    part of   November."   2 RP at 148.


Furthermore, L.H. claimed that Bunker called and text messaged her frequently after he was

incarcerated, but that she stopped answering those calls because Bunker was often belligerent.




6 We refer to Amy and Barbara Krahn individually by their first names for clarity. We intend no
disrespect.



                                                                14
No. 45006 -2 -II



According    to L.H.,   Bunker was not dissuaded by her refusal to take his calls and he continued

making them.       Despite the fact that there is some uncertainty .regarding the exact 'dates of these

contacts, when the evidence is viewed in a light most favorable to the State, a rational trier of fact

could conclude there were at least two instances during the relevant timeframe in which Bunker

violated the terms of the temporary protection order either by contacting L.H. himself, or by

arranging contact through a third party contrary to the provisions of the order. We so hold.

                                        IV. ER 404( B) EVIDENCE.


         We turn next to Bunker' s claim that the trial court erred by ruling that his prior conviction

for second degree assault was admissible evidence because the risk of unfair prejudice was

substantial and there was a reasonable probability that the error materially affected the outcome of

his case. We hold that the trial court did not abuse its discretion by admitting the prior misconduct

for the limited purpose on which it based the ruling.

                                       A. STANDARD OF REVIEW


         We review the trial court' s interpretation of ER 404( b) de novo as a matter of law. State

v.   Foxhoven, 161 Wn.2d 168, 174, 163 P. 3d 786 ( 2007).       If the trial court interprets ER 404( b)


correctly, we review the trial court' s ruling to admit or exclude evidence of misconduct for an

abuse of discretion. Foxhoven, 161 Wn.2d at 174. A trial court abuses its discretion where it fails


to abide by the rule' s requirements. Foxhoven, 161 Wn.2d at 174.




                                                    15
No. 45006 -2 -II



           Generally, evidence of a defendant' s prior misconduct is inadmissible to demonstrate the

accused' s propensity to commit the crime charged. ER 404( b)7; State v. Fisher, 165 Wn.2d 727,
744, 202 P. 3d 937 ( 2009).           But ER 404( b) allows the introduction of prior misconduct for other


purposes like demonstrating motive or intent, common scheme or plan, or lack of mistake or

accident.    Fisher, 165 Wn.2d             at   744. And     we read    ER 404( b) in     conjunction with   ER 403. ER


403 requires the trial court to exercise its discretion in excluding relevant evidence that would be

unfairly prejudicial.$


           Prior to the admission of misconduct evidence, the court must ( 1) find by a preponderance

of   the   evidence    the    misconduct         actually    occurred, (   2)    identify the purpose of admitting the

evidence, (   3) determine the relevance of the evidence to prove an element of the crime, and ( 4)


weigh the probative value against the prejudicial effect of the evidence. Fisher, 165 Wn.2d at 745


 citing State   v.   Lough, 125 Wn.2d 847, 853, 889 P.2d 487 ( 1995)); Foxhoven, 161 Wn.2d at 175.


Doubtful     cases must      be   resolved      in favor    of exclusion.       State v. Thang, 145 Wn.2d 630, 642, 41

P. 3d 1159 ( 2002).




7 ER 404( b) provides,
           Evidence of other crimes, wrongs, or acts is not admissible to prove the character
           of a person   in   order   to   show action       in conformity therewith.
                                                                         It may, however, be
           admissible for         other    purposes,       such   as      opportunity, intent,
                                                                       proof    of   motive,

           preparation, plan, knowledge, identity, or absence of mistake or accident.

8 ER 403 provides that relevant evidence
           may be excluded if its probative value is substantially outweighed by the danger of
           unfair prejudice,  confusion   of the    issues, or misleading the jury, or by
           considerations of undue    delay, waste of time, or needless presentation of
           cumulative evidence.




                                                                  16
No. 45006 -2 -II


                                          B. EVIDENCE PROPERLY ADMITTED


         Contrary to Bunker' s assertion, the trial court properly interpreted and applied ER 404(b)

in ruling that one of Bunker' s prior assault convictions was admissible for a very limited purpose.

Our courts have previously addressed similar questions in factually comparable circumstances.

For   example,    in State   v.   Ragin, 94 Wn.       App.   407, 410, 972 P.2d 519 ( 1999), the State charged the


defendant with harassment when he called the victim from jail and threatened him. There, Division


One of this court held that it was not error to admit evidence of the defendant' s prior violent acts


to demonstrate to the jury that it was reasonable for the victim to be fearful of the defendant' s

threats.. Raglin, 94 Wn.          App.    at   413.   Similarly, in State v. Barragan, 102 Wn. App. 754, 760, 9

P. 3d 942 ( 2000), Division Three of this court affirmed the trial court' s admission of Barragan' s


prior assaults because the victim' s knowledge of these prior assaults was relevant to show that the


victim   reasonably feared that the defendant'               s   threats to him   would   be   carried out.   Our Supreme


Court has explicitly approved of this reasoning. State v. Magers, 164 Wn.2d 174, 182, 189 P. 3d

126 ( 2008).


         Here, the trial court ruled that evidence of Bunker' s prior violence towards his former wife


was admissible solely for the purpose of showing that L.H. reasonably feared that Bunker would

carry   out   the threats    he   made.    This reasoning is consistent with the aforementioned cases where

our courts found no error. Furthermore, in addition to endorsing the reasoning employed in Ragin

and Barragan, the Magers court also reiterated the long- recognized rule that evidence of prior

misconduct      is   admissible " if   it is `necessary to       prove a material   issue.'    164 Wn.2d at 183 ( quoting

State v. Powell, 126 Wn.2d 244, 262, 893 P. 2d 615 ( 1995)).




                                                                  17
No. 45006 -2 -I1



            Being placed in " reasonable fear" that a threat will be carried out was at issue here as it

was   in the      cases cited above.    The trial court excluded several other instances of misconduct the


State sought to introduce, properly considered the probative value of the evidence against its

prejudicial effect, and also provided proper limiting instructions, both during L.H.' s testimony and

as   part    of   the   final instructions.   Accordingly, we hold that the trial court' s ruling was not

manifestly unreasonable and, therefore, it was not an abuse of discretion to admit evidence of

Bunker' s prior misconduct.


                                      V. COMMUNITY CUSTODY CONDITIONS


             Bunker next argues that the trial court erred by imposing the community custody conditions

related      to   minors   because those   conditions were not crime related.             The State concedes that this


condition was not crime related and was, therefore, improperly imposed by the sentencing court.

We accept the State' s concession and remand with instructions to strike this condition.


             A defendant may argue for the first time on appeal that sentencing conditions placed on his

community custody            were   imposed   without      authority   under   existing   statutes.   State v. Jones, 118


Wn.     App.      199, 204, 76 P. 3d 258 ( 2003).       Whether to impose community custody conditions is

within the discretion of the sentencing court and will be reversed only if manifestly unreasonable.

State   v.   Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 ( 2008). RCW 9. 94A.703( 3)( f) states that a court


may     order an offender       to comply     with   any   crime -related prohibitions.       Additionally, the statute

allows a court to order that an offender refrain from direct or indirect contact with the victim of

the   crime or a specified class of        individuals. RCW 9. 94A.703( 3)( b). A court abuses its discretion


when it exceeds its sentencing authority. State v. C.D.C., 145 Wn. App. 621, 625, 186 P.3d 1166

 2008).




                                                               18
No. 45006 -2 -II


        In the "    other conditions"         portion of Bunker' s judgment and sentence there are several


provisions related to minor children including prohibitions on contact with minor children and

against holding any position of trust or authority over minor children.

        But Bunker' s crime was unrelated to contact with minors. As the State admits is possible,


the imposition of this community custody condition appears to be a scrivener' s error during the

completion    of   boiler   plate      sentencing forms.        Accordingly, the sentencing court exceeded its

authority   by imposing         this   condition    contrary to RCW 9. 94A.703( 3)( f). We accept the State' s


concession and remand to the sentencing court to strike the conditions prohibiting contact with

minors.



                                VI. STATEMENT OF ADDITIONAL GROUNDS ( SAG)


          Bunker filed      a   SAG in       which    he   asserts   that ( 1)   he received ineffective assistance of


counsel, (2) his speedy trial rights were violated, (3) the State committed prosecutorial misconduct,

and ( 4) he could not assist in his own defense because of cancer treatment that was

contemporaneous with            his trial.    We hold that these claims either lack merit or rely on matters

outside of the record.9

                                       A. INEFFECTIVE ASSISTANCE OF COUNSEL


          Bunker contends that he received ineffective assistance of counsel because his attorney

 never came    to   see [   him]," did       not   sufficiently investigate L.H., and failed to subpoena tapes of




9 Bunker also argues that the trial court erroneously allowed improper hearsay evidence, but he
does not state what evidence should have been excluded. Bunker also appears to contend that the
trial court erred by not offering a lesser included jury instruction, but this portion of Bunker' s
handwritten SAG is illegible and we are not required to search the record in support of Bunker' s
claims. RAP 10. 10( c).



                                                                19
No. 45006 -2 -I1



L.H.' s interviews with police along with telephone records that Bunker argues would have

impeached L.H.' s testimony. SAG at 5.

        But because the trial court did not consider these tapes or telephone records, Bunker wishes


to raise issues on appeal that require evidence or facts not in the existing trial record, and when a

defendant    seeks    to do   so,   the   appropriate means       is through   a personal restraint petition.   State v.


McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                      We hold that Bunker' s claim fails for


this reason.


                                               B. SPEEDY TRIAL RIGHTS


         Bunker    asserts    that the trial    court violated     his speedy trial   rights.   Bunker appears to base


this argument on the fact that Judge Nelson Hunt found good cause to grant a continuance beyond


the September trial date notwithstanding a previous warning from Judge Richard Brosey that a
failure to proceed with the case as scheduled would result in dismissa1. 10 In Bunker' s view, it was

an abuse of the trial court' s discretion for one judge to " overrule" another. Bunker' s argument is


unavailing.


         Bunker provides no authority to support the proposition that a judge hearing a pretrial

motion cannot find good cause to grant a continuance solely because a different judge in a previous

hearing intimated that he or she would not make such a ruling. Bunker also fails to show how his

speedy trial rights were violated when it appears that he waived those rights on at least one

occasion.      Bunker fails to establish that the State violated his speedy trial rights and we are not

obligated to search the record in support of his claims. RAP 10. 10.



1°
     Judge   Brosey   apparently      made     thisduring a hearing on July 19, 2012. The record
                                                      statement

before this court does not include any report of proceedings on that date, but the record does show
that the original trial date was September 17, 2012.

                                                              20
No. 45006 -2 -II


                                         C. PROSECUTORIAL MISCONDUCT


         Bunker next contends that the State committed prosecutorial misconduct by moving to

continue    the   case   before Judge Hunt despite Judge             Brosey' s       statements    to the contrary. But as


mentioned above, Bunker offers no authority to suggest that one superior court judge is bound by

another superior court judge' s mere statements on the record. During the ER 404(b) hearing before

Judge Brosey, the State first mentioned potential scheduling complications resulting from an injury

that L.H.    had recently     sustained.    But there was no motion for continuance made at that time.


Judge   Brosey    suggested    that the State "   redouble     its   effort   to   get [   L.H.] down here,"   implying that

he   would not continue       the case   because   of   her   injury.   RP ( Sept. 5, 2012)         at   30. Later, the State


brought a motion to continue the trial after learning that L.H. could not travel to testify as planned.

The motion was heard by Judge Hunt because Judge Brosey was on vacation.

         Bunker claims that the State committed misconduct by bringing the motion to continue in

light of Judge Brosey' s earlier ruling. But Judge Brosey never heard a motion to continue the trial

based   on   L.H.' s injuries.    His    statement was not a "          ruling."       It does not follow that the State


committed misconduct simply by filing a motion. We hold that Bunker' s claim fails.

                                         D. ABILITY TO ASSIST IN DEFENSE


         Bunker next argues that he was unable to assist in his defense because he was under the

influence of painkillers related to his cancer treatment and because he could not speak. Bunker' s


claim lacks merit.


         A person' s due process rights can be violated if he or she lacks the capacity to understand

the   nature of   the    proceedings against   him      and   to   assist   in his    own     defense.   State v. Anene, 149


Wn. App. 944, 955, 205 P. 3d 992 ( quoting State v. Hahn, 106 Wn.2d 885, 895, 726 P.2d 25


                                                              21
No. 45006 -2 -II



 1986)),    review   denied, 167 Wn.2d 1017 ( 2009).   But here, the trial court specifically considered

Bunker' s condition, stated that he appeared lucid, and asked Bunker whether there was any

particular reason     that he felt he   could not proceed   to trial because   of   his   medications.   Bunker


answered, "    No."   RP ( Jan. 24, 2013) at 70. Bunker also testified in support of his innocence. We


hold that Bunker was able to assist in his own defense and, therefore, his claim fails.

                                               CONCLUSION


           We vacate Bunker' s conviction on count IV, affirm the remainder of Bunker' s convictions,


and remand to strike the community custody condition related to minors and for further

proceedings consistent with this opinion.


           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:




 W( t .SWICK, J.




SUTTON, J.




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