                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        November 8, 2016
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 48053-1-II

                                  Respondent,

          v.

    JEROME PATRICK MEDINA,                                   UNPUBLISHED OPINION

                                  Appellant.

         WORSWICK, P.J. — Jerome Medina appeals his convictions of eight counts of felony

violation of a court order.1 He argues (1) the State provided insufficient evidence to support his

convictions, (2) the no-contact order prohibiting contact except by e-mail was unconstitutionally

vague, (3) the trial court violated double jeopardy by entering multiple convictions for messages

sent within the same day, and (4) the trial court exceeded its authority by imposing a $100

“expert witness fund” obligation. We affirm Medina’s convictions, but remand to strike the

expert witness fund obligation.

                                                FACTS

         Medina and Heather Mattox dated for a few years and have a child in common. A no-

contact order prohibits Medina from contacting Mattox, except “written contact by U.S. Post

Office or e-mail is permitted ONLY.” Ex. 16.




1
    RCW 26.50.110(5).
No. 48053-1-II


        The State charged Medina with nine counts of felony violation of a court order against a

family or household member.2 Count I is based on a picture sent to Mattox’s phone showing

Medina holding a shotgun with the caption, “I’m ready.” Ex. 1. Counts II-IX are based on

several text messages sent to Mattox’s phone on April 28, 2014. The picture and text messages

were sent from a phone number Mattox recognized as being associated with Medina.

        A jury found Medina guilty of counts I-III and counts V-IX, but rendered no verdict on

count IV. The sentencing court concluded that Counts V-IX included the same criminal conduct

and therefore merged those counts for sentencing purposes. The sentencing court imposed

various legal financial obligations, including a $100 contribution to the Kitsap County expert

witness fund.

                                           ANALYSIS

                                     I. SUFFICIENT EVIDENCE

        Medina argues that the State produced insufficient evidence to support his convictions

because the State presented no evidence that he sent the messages to Mattox as text messages as

opposed to e-mails. We disagree.

        Sufficient evidence supports a conviction if, when viewed in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the charged crime

proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A

claim of insufficient evidence admits the truth of the State’s evidence and all reasonable

inferences that can be drawn therefrom. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182

(2014). We draw all reasonable inferences from the evidence in favor of the State and interpret


2
    RCW 10.99.020.


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No. 48053-1-II


them most strongly against the defendant. Hosier, 157 Wn.2d at 8. In the sufficiency context,

we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150

Wn.2d 774, 781, 83 P.3d 410 (2004). We defer to the fact finder on issues of conflicting

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

821, 874-75, 83 P.3d 970 (2004).

          To prove felony violation of a no-contact order, the State must prove beyond a reasonable

doubt that Medina knew of the existence of a no-contact order, and that he violated a provision

of that order. See RCW 26.50.110.

          For the first time on appeal, Medina argues that because the messages he sent to Mattox

could have been sent via e-mail and then converted to text messages via email-to-text

technology, the State failed to prove the messages violated the provisions of the no-contact order,

which permitted written contact via e-mail.3 He contends that because the State did not offer

evidence as to how Medina sent the messages, no rational jury could have found beyond a

reasonable doubt that Medina violated the court order. But Medina misunderstands our standard

of review in the sufficiency context.

          Taking all the State’s evidence as true and drawing all reasonable inferences therefrom in

favor of the State, the evidence was sufficient to support Medina’s convictions. The State

presented evidence that Mattox received text messages on her phone, which listed a phone

number as the sender. Mattox testified that she recognized the phone number as one associated

with Medina. From this evidence, a rational juror could have found beyond a reasonable doubt

that Medina sent the messages to Mattox as text messages in violation of the no-contact order.


3
    Medina’s defense theory at trial was that he had not personally sent the offending messages.


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No. 48053-1-II


                                          II. VAGUENESS

       Medina also argues that the court order prohibiting contact with Mattox except by e-mail

is unconstitutionally vague and therefore violates his due process rights. We disagree.

       The due process vagueness doctrine under the Fourteenth Amendment requires that

citizens have fair warning of proscribed conduct. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d

678 (2008) (plurality opinion). An order is unconstitutionally vague if it is insufficiently definite

such that ordinary people cannot understand what conduct is proscribed, or if it does not provide

ascertainable standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wn.2d at

752-53.

       “Generally, ‘imposing conditions of community custody is within the discretion of the

sentencing court and will be reversed if manifestly unreasonable.’” State v. Sanchez Valencia,

169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (quoting Bahl, 164 Wn.2d at 753). An

unconstitutional condition is manifestly unreasonable. Bahl, 164 Wn.2d at 753. Unlike statutes

or ordinances, conditions of community custody are not presumed to be constitutional. Sanchez

Valencia, 169 Wn.2d at 793.

       In deciding whether a term is unconstitutionally vague, we do not consider the term in a

vacuum, rather, it is considered in the context in which the term is used. Bahl, 164 Wn.2d at

754. “If ‘persons of ordinary intelligence can understand what the [law] proscribes,

notwithstanding some possible areas of disagreement, the [law] is sufficiently definite.’” Bahl,

164 Wn.2d at 754 (alterations in original) (quoting City of Spokane v. Douglass, 115 Wn.2d 171,

179, 795 P.2d 693 (1990)). “‘[A] community custody condition is not unconstitutionally vague

merely because a person cannot predict with complete certainty the exact point at which his



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No. 48053-1-II


actions would be classified as prohibited conduct.’” State v. Sanchez Valencia, 169 Wn.2d 782,

793, 239 P.3d 1059 (2010) (internal quotations omitted) (quoting State v Sanchez Valencia, 148

Wn. App. 302, 321, 198 P.3d (2009)).

       Contrary to Medina’s contention, an ordinary person would understand what the term “e-

mail” as used in the no-contact order entails. E-mail, as used in common practice, means

electronic mail, or mail sent electronically from one network system to another. An ordinary

person would associate the act of “e-mailing” with sending a written message from one e-mail

address to another e-mail address. Whereas a “text message” is ordinarily associated with a short

SMS (short message service) message sent directly between cell phones.

       Medina urges us to rely on one particular dictionary definition of e-mail, namely “a

means or system for transmitting messages electronically (as between computers on a

network).”4,5 Br. of Appellant 10. He argues that this definition could encompass text messages,

Facebook messages, or communications on other social networking platforms. Alternative

definitions offered for the term “e-mail” offer slight variations including (1) “a system for

sending messages from one computer to another computer,” (2) “messages that are sent

electronically from one computer to another,” (3) “messages sent and received electronically




4
 Merriam-Webster Dictionary of the English Language, http://www.merriam-
webster.com/dictionary/e-mail (accessed Oct. 28, 2016).
5
 We may consider the plain and ordinary meaning of a term as set forth in a standard dictionary.
Bahl, 164 Wn.2d at 754.



                                                 5
No. 48053-1-II


through an e-mail system.” On the other hand, “text message” is defined as “a short message

sent electronically usually from one cell phone to another.”6

         While these dictionary definitions may not provide the most clear-cut distinctions

between “e-mail” and “text message” because they are both forms of electronic communication,

to an ordinary person the distinction between the forms of electronic communication remains

clear. We hold that the ordinary meaning of the word provides sufficient guidance regarding

what kind of contact in this context is permitted and which is prohibited.

         Medina also argues that the no-contact order fails to provide ascertainable standards to

protect against arbitrary enforcement. He reiterates the possibility that a message could be sent

as an e-mail but received as a text message through the use of e-mail-to-text technology. As

previously discussed, an ordinary person would understand what conduct is proscribed and what

conduct is permitted by the no-contact order. This is not a condition like that in Bahl or State v.

Sansone, 127 Wn. App. 630, 638, 111 P.3d 1251 (2005), where courts held that community

custody conditions that required further definition from community custody officers were

unconstitutionally vague for their lack of ascertainable standards for enforcement. See Bahl, 164

Wn.2d at 758.

         Here, the sentencing condition is definite and enforceable; it is not unconstitutionally

vague.




6
 Merriam-Webster Dictionary of the English Language, http://www.merriam-
webster.com/dictionary/text%20message (accessed Oct. 28, 2016).



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No. 48053-1-II


                                      III. DOUBLE JEOPARDY

       Medina also argues that the trial court violated the prohibition on double jeopardy by

entering convictions for seven different counts based on multiple messages sent over the course

of a day. We disagree.

       The Fifth Amendment to the United States Constitution provides that no “person be

subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I,

section 9 of the Washington Constitution provides, “No person shall . . . be twice put in jeopardy

for the same offense.” These double jeopardy provisions prohibit, among other things, multiple

convictions for the same offense. State v. Hall, 168 Wn.2d 726, 729-30, 230 P.3d 1048 (2010).

We review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 979-

80, 329 P.3d 78 (2014).

       “If a defendant is charged with violating the same statutory provision more than once,

multiple convictions can withstand a double jeopardy challenge only if each is a separate ‘unit of

prosecution.’” State v. Allen, 150 Wn. App. 300, 313, 207 P.3d 483 (2009) (quoting State v.

Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000)). “The first step in the unit of prosecution

inquiry is to analyze the criminal statute.” Allen, 150 Wn. App. at 313. Once the unit of

prosecution is determined, we must conduct a factual analysis to determine if more than one unit

of prosecution is present. Hall, 168 Wn.2d at 735.

       RCW 26.50.110(1) makes it unlawful for a person to violate any restraint provision

contained in a no-contact order. We have held that an individual violation of a no-contact order

constitutes a single unit of prosecution. Allen, 150 Wn. App. at 313-14 (each act of sending an e-




                                                  7
No. 48053-1-II


mail constituted a statutory violation); see also State v. Brown, 159 Wn. App. 1, 10-13, 248 P.3d

518 (2010).

       Here, the essential question is whether Medina’s multiple text messages to Mattox

constituted one continuing offense or if Medina committed the crimes anew with each message.

Medina argues that messages sent on the same day constitute just one violation of the no-contact

order. The State responds that each message was a discreet communication with Mattox in

violation of the no-contact order and therefore the multiple counts did not violate double

jeopardy. Because Washington case law makes it clear that each individual contact in violation

of a no-contact order constitutes one unit of prosecution, we agree with the State.

       As Medina correctly points out, the multiple violations in Allen and Brown were based on

violations occurring on separate days. However, the court’s focus in those cases was not on the

temporal separation between each violation. Rather, the court focused on the defendant’s

actions. See Allen, 150 Wn. App. at 313-14 (each act of sending an e-mail constituted a statutory

violation). Indeed, in Brown, Division One of this court emphasized that RCW 26.50.110

criminalizes each contact, explaining, “The Supreme Court ‘has consistently interpreted the

legislature’s use of the word ‘a’ in a criminal statute as authorizing punishment for each

individual instance of criminal conduct, even if multiple instances of such conduct occurred

simultaneously.” Brown, 159 Wn. App. at 11 (emphasis added) (quoting State v. Ose, 156

Wn.2d 140, 147, 124 P.3d 635 (2005)).

       Each time Medina messaged Mattox, he took the affirmative action of picking up the

phone, typing a message to Mattox, and pressing “send.” Consequently, Medina’s seven

convictions of violation of a no-contact order did not violate double jeopardy protections.



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No. 48053-1-II


                                   IV. EXPERT WITNESS FUND

       Finally, Medina argues that the trial court exceeded its statutory authority by ordering

him to pay $100 into the Kitsap County expert witness fund. We agree.

       The trial court’s authority to impose costs and fees is statutory. See State v. Hathaway,

161 Wn. App. 634, 652-53, 251 P.3d 253 (2011); RCW 10.01.160. Under RCW 10.01.160(2)

“costs shall be limited to expenses specially incurred by the State in prosecuting the defendant.”

RCW 10.01.160(2) also provides that costs “cannot include expenses . . . in connection with the

maintenance and operation of government agencies that must be made by the public irrespective

of specific violations of law.”

       Here, Medina’s case did not require the testimony of an expert witness. Therefore, the

trial court exceeded its statutory authority by imposing costs that were not incurred by the State

in Medina’s prosecution.

       We affirm Medina’s convictions, but remand to strike the expert witness fund obligation.

       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.


                                                                    Worswick, P.J.
 We concur:


 Lee, J.



 Sutton, J.




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