  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                     )         No. 77963-0-1
                                         )
                     Respondent,         )
                                         )
       v.                                )
                                         )
CHARLES RANDALL TURNER, SR.,             )         UNPUBLISHED OPINION
                                         )
                     Appellant.          )         FILED: August 5, 2019
                                         )

       VERELLEN, J. — Charles Turner, Sr. appeals his convictions for residential
burglary with a deadly weapon and felony violation of a domestic violence no

contact order with a deadly weapon. Turner contends the jury instructions allowed

him to be convicted of an uncharged crime because of differences between the

charging document and the jury instructions. But Turner fails to show the

discrepancies added to the State's burden at trial or risked jury confusion.

       He also takes issue with a jury instruction that he argues let him be

convicted of committing residential burglary in his own home. But the jury

instruction correctly stated the law, and Turner's factual argument relies on second

guessing credibility determinations by the jury.

      Turner contends absence of a unanimity instruction for an alternative

means crime resulted in a nonunanimous conviction in violation of article I, section
No. 77963-0-1/2


22 of the Washington State Constitution. But this argument relies on case law

disclaimed by our Supreme Court, and he fails to show the alternative means

alleged lacked substantial evidence.

      Turner also contests imposition of the deadly weapon sentencing

enhancements because he contends the enhancement lacked substantial

evidence. The record shows otherwise.

       Finally, Turner argues and the State agrees that the court improperly

imposed a criminal filing fee and a DNA1 collection fee.

      Therefore, we affirm Turner's conviction and remand so the invalid fees can

be stricken.

                                       FACTS

      Since December 2011, a domestic violence no-contact order has prohibited

Turner, Lisa Turner's2 husband of over 30 years, from contacting her or coming

within 300 feet of her person or residence.3 Lisa lived in a two-bedroom apartment

with Gary White.4 Only White's name was on the lease, although both of them

paid rent and had their own bedrooms.5




      1   Deoxyribonucleic acid.
      2  Because both Lisa and Charles share a last name, we refer to Lisa by her
first name for clarity.
      3   Ex. 26; Report of Proceedings(RP)(Oct. 17, 2017) at 269.
      4   Id. at 236.
      5   Id. at 236-39.


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       Turner had already been convicted twice of violating a no-contact order6

when, in November of 2016, he moved in with Lisa.7 On April 2, 2017, Lisa and

Turner had a loud, drunken argument that turned violent.8 The night ended with

both of them bleeding, with Turner getting arrested, and with both of them being

treated at hospitals for their injuries.8

       The State charged Turner with second degree assault of Lisa, with

committing residential burglary by entering and remaining "unlawfully in the

dwelling of Lisa Turner, located at 15326 40th Ave. W.#2, Lynnwood," and with

violating a no-contact order." Each charge carried the potential of a deadly

weapon enhancement for use of a knife.11

       The jury found Turner not guilty of assault.12 It found him guilty of burglary

and violating the no contact order, both while armed with a deadly weapon."

Because Turner's criminal history qualified him as a persistent offender under

RCW 9.94A.570, the court sentenced him to lifetime confinement without the




       6   RP (Oct. 19, 2017) at 419.
       7 RP (Oct. 17, 2017) at 237.

       8   Id. at 241-43, 245.
       9   1d. at 277-78, 292-94, 306-07; RP (Oct. 19, 2017) at 454-55.
       10 Clerk's Papers(CP) at 84-85.
       11 Id.
       12 CP    at 35-36.
       13   CP at 37-38, 41-42.


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possibility of parole.14 The court also imposed a criminal filing fee and a DNA

collection fee.15

       Turner appeals."

                                      ANALYSIS

       Turner contends his conviction for residential burglary violated his due

process rights. We review constitutional issues de novo.17

       Turner argues the information failed to "give[] notice that he might be

convicted of burglarizing . . . a particular residence (identified by address)."15 But

about one month before trial, the State filed an amended information accusing

Turner of committing residential burglary:

       That the defendant, on or about the 2nd day of April, 2017, with
       intent to commit a crime against a person or property therein, did
       enter and remain unlawfully in the dwelling of Lisa Turner, located at
       15326 40th Ave. W.#2, Lynnwood; proscribed by
       RCW 9A.52.025.(191

Contrary to Turner's contention, the information clearly stated the address of the

particular residence he was accused of burglarizing. Turner had notice.




       14   CP at 9, 11; RP (Dec. 28, 2017) at 17-18.
       15   CP at 13.
      16 We note Turner violated RAP 10.3(g) and RAP 10.4 by failing to identify
and set out the jury instructions he alleges were erroneous. Because his
procedural failing did not hinder the State's ability to identify the allegedly
erroneous instructions and respond, Resp't's Br. at 7, 11, 14, we will consider his
arguments only as to those instructions identified by the State. RAP 1.2(a), (c).
       17 State   v. Armstrong, 188 Wn.2d 333, 339, 394 P.3d 373(2017).
       18   Reply Br. at 4.
       19   CP at 84-85.


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       Turner argues that because the information charged him with remaining "in

the dwelling of Lisa Turner" but the jury instructions did not so specify, the jury

could have convicted him of the uncharged crime of burglarizing White's

residence.2° The State argues it had no burden to prove and the jury had no need

to find that the dwelling was Lisa's because the phrase "of Lisa Turner" was

surplus and nonessentia1.21

       Article I, section 22 of the Washington State Constitution prohibits trying an

accused for uncharged offenses.22 Accordingly, an information "must state all the

essential statutory and nonstatutory elements of the crimes charged."23 But

"surplus language in a charging document may be disregarded" at trial and left

unproven unless the jury instructions repeated the surplus language.24 Because

the jury instructions do not repeat the allegedly surplus language,25 the question is

whether the phrase "of Lisa Turner" was required to correctly state the elements of

residential burglary.



       20 See Appellant's Br. at 11, 15 ("The evidence presented at trial raised a
factual question of whether the apartment [in the information] was indeed Lisa's
dwelling at the time of the incident. The instructions did not inform the jury that in
order to convict [Turner,] it had to resolve this question and find beyond a
reasonable doubt that the apartment was in fact Lisa's dwelling at the time of the
incident.").
       21   Resp't's Br. at 7-8.
       22 State   v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 (1987).
             v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728(2005)(citing U.S.
       23 State
CONST. amend. 6; WASH. CONST. art. I, § 22; CrR 2.1(a)(1); State v. McCarty, 140
Wn.2d 420, 424-25, 998 P.2d 296 (2000)).
       24   Tvedt, 153 Wn.2d at 718.
       25   CP at 60.


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       Under RCW 9A.52.025(1), "[a] person is guilty of residential burglary if, with

intent to commit a crime against a person or property therein, the person enters or

remains unlawfully in a dwelling other than a vehicle." A person "enters or remains

unlawfully" when he "is not licensed, invited, or otherwise privileged to so enter or

remain."26 RCW 9A.52.025(1) does not require naming the owner of the dwelling

allegedly burglarized. The information accurately identified the address of the

dwelling in question, making the phrase "of Lisa Turner" superfluous. Thus, the

phrase was mere surplus in the information and did not need to be proved at trial.

Turner fails to show harm to his due process rights.

       Turner contends the court improperly instructed the jury and let him be

convicted of burglary for remaining in his own home.27 We review jury instructions

de novo for legal errors.28

       Jury instruction 16 defined the phrase "enters or remains unlawfully" for

purposes of residential burglary:

       A person enters or remains unlawfully in or upon premises when he
       or she is not then licensed, invited, or otherwise privileged to so
       enter or remain.



       A person who is prohibited by court order from entering a premises
       cannot be licensed, invited, or otherwise privileged to so enter or
       remain on the premises by an occupant of the premises.[29]



       26   RCW 9A.52.010(2).
       27   Appellant's Br. at 16-19.
       28   State v. Dreewes, 192 Wn.2d 812, 819, 432 P.3d 795 (2019).
       29   CP at 62.


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       An accused person can be guilty of burglarizing his own property, including

when the accused enters a property in violation of a no contact order.3° Even if

the person protected by the no contact order authorizes entry, that permission

"cannot override a court order excluding a person from the residence."31 The jury

instruction properly stated the law.

       Because the no-contact order here prohibits Turner from contacting Lisa

and from coming within 300 feet of her residence,32 Turner's argument turns on

whether Lisa occupied the residence. Turner testified he rented a bedroom in the

residence, and Lisa did not live there at the time.33 Lisa and White both testified

she occupied the residence and lived there before Turner, but she allowed Turner

to move in with her despite the no-contact order.34 Had the jury believed Turner's

testimony, then he could not have been found guilty because his presence in his

own home could not have been made unauthorized by Lisa showing up.35 But




       30   State v. Sanchez, 166 Wn. App. 304, 308, 271 P.3d 264 (2012).
       31  Id. at 310. Turner relies on State v. Wilson, 136 Wn. App. 596, 150 P.3d
144 (2007), to argue an accused person subject to a no contact order cannot be
guilty of violating that order and committing burglary when the protected person
visits the accused at home. App. Br. at 16-17. But Wilson is only applicable
where, unlike here, a no contact order prohibits contact only with the person and
does not limit contact with a person's residence. Wilson, 136 Wn. App. at 612.
       32   Ex. 26.
       33   RP (Oct. 19, 2017) at 446, 447,459.
       34   RP (Oct. 17, 2017) at 237-40, 270-72.
       35 SeeWilson, 136 Wn. App. at 612(holding "as a matter of law that Wilson
could not have burglarized the 1123 East Park residen[ce] by entering and
remaining unlawfully because it was his residence and neither a court order nor
Sanders had lawfully excluded him from it.").


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No. 77963-0-1/8


because the jury found Turner guilty of residential burglary, it must have weighed

the conflicting testimony and found Lisa and White more credible than Turner.

      "We must defer to the trier of fact on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence."36 Credibility

determinations are not reviewable on appea1.37 Thus, we decline to second guess

the jury's necessary conclusion that Turner was in Lisa's residence.

       Turner argues his right to a unanimous verdict was violated because the

court did not give a unanimity instruction for the alternative means crime of

violating a no contact order.38 But this instruction, while generally preferable, is

not always reguired.39

       Article 1, section 21 of our state constitution provides criminal defendants

the right to a unanimous jury verdict. "But in alternative means cases, where

substantial evidence supports both alternative means submitted to the jury,

unanimity as to the means is not reguired."4° Only when one of the means



       36   Id. at 604 (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533
(1992)).
       37   Id. (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
       38 Appellant's Br. at 20. Felony violation of a no-contact order is an
alternative means crime. See State v. Joseph, 3 Wn. App.2d 365, 369-70, 416
P.3d 738(2018)(analyzing felony violation of a no-contact order as an alternative
means crime).
       39 Armstrong, 188 Wn.2d at 344. Turner relies on State v. Owens, 180
Wn.2d 90, 95, 323 P.3d 1030 (2014), to argue the right to a unanimous jury verdict
extends to the means by which a crime was committed. Appellant's Br. at 20-21.
But the Supreme Court expressly rejected both this argument and the statement in
Owens used to support it. Armstrong, 188 Wn.2d at 342, 342 n.4.
       40 Armstrong, 188 Wn.2d at 340 (citing State v. Sandholm, 184 Wn.2d 726,
732, 364 P.3d 87(2015); State v. Ortega-Martinez, 124 Wn.2d 702, 705, 881 P.2d


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No. 77963-0-1/9


charged to the jury lacks sufficient evidence is "a 'particularized expression' of jury

unanimity required."'"

        The issue is whether substantial evidence supported both alternative

means by which the jury could convict Turner for felony violation of a no contact

order. Evidence is sufficient if it permits any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt when viewed in a light

most favorable to the State.42 A claim of insufficiency admits the truth of the

State's evidence and all inferences that reasonably can be drawn from it.43

        To convict Turner, the State had to prove that "(a)[Turner's] conduct was

reckless and created a substantial risk of serious physical injury to another person

or (b)[Turner] has twice been previously convicted for violating the provisions of a

court order."44

        The State proved alternative (b) because Turner stipulated to having been

previously convicted twice for violating a court order.45 And the State presented

substantial evidence for alternative (a). White and Lisa both testified that Turner


231 (1994); State v. Whitney, 108 Wn.2d 506, 508, 739 P.2d 1150 (1987); State v.
Franco, 96 Wn.2d 816, 823,639 P.2d 1320 (1982)).
        41   State v. Woodlyn, 188 Wn.2d 157, 165, 392 P.3d 1062(2017).
        42 Armstrong, 188 Wn.2d    at 341 (quoting Ortega-Martinez, 124 Wn.2d at
708).
      43 Wilson, 136 Wn. App. at 604 (quoting State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 99 (1980)).
      44 CP at 65. The State also had to prove that Turner was subject to a no
contact order on April 2, 2017; that he knew of the existence of the order; that he
knowingly violated the order on April 2, 2017; and that these events occurred in
Washington. Id. Turner does not contest whether the State proved these.
        45   RP (Oct. 19, 2017) at 419.


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pulled Lisa's head back and held a knife to her neck.46 The police officers who

investigated found blood on the knife Turner held to Lisa's neck.47 Lisa testified

she bled "a lot of blood" after Turner cut her with the knife." The emergency room

doctor who saw Lisa said she had a laceration just beneath the bottom corner of

her left jaw and "had a fair amount of blood on her, particularly [her] neck and over

the shirt."49 He also testified the laceration Lisa received "absolutely" could be

dangerous.53 The emergency room worker who treated Lisa testified the wound

required seven stitches to close.51 Lisa also told the EMTs who responded to the

911 call that she had been "stabbed by her husband."52 Based on this testimony,

a rational juror could certainly infer that Turner acted recklessly and created a

substantial risk of serious harm to Lisa.

       Turner contends the jury rejected this evidence because it found him not

guilty of second degree assault.53 But the jury's rejection of second degree

assault does not prove Turner,acted safely or negate the evidence presented at

trial. Conduct can be reckless and create a substantial risk of serious harm

without constituting intentional second degree assault. Because substantial

evidence viewed in a light most favorable to the State supports both alternative



       46   RP (Oct. 17, 2017) at 245, 277, 279.
       47   Id. at 197, 202, 236.
       49   Id. at 277.
       49   Id. at 294-95.
       5°   Id. at 295.
       51   RP (Oct. 19, 2017) at 410-11, 418.
       52   Id. at 415.


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means presented to the jury, Turner's right to a unanimous jury verdict was not

violated.

       Turner argues jury findings on the deadly weapon enhancement were

unsupported because the evidence did not show a nexus between his crimes and

the knife.54

       A person is armed with a deadly weapon if it is easily accessible and ready

for use.55 But mere possession is insufficient because there must be a nexus

between the defendant, the crime, and the weapon.58 We analyze the nature of

the crime, the type of weapon, and the circumstances to ascertain whether a

nexus exists.57 Where "the facts and circumstances support an inference of a

connection. . . sufficient evidence exists."58

       Here, Turner obtained the knife only because he knowingly violated the no

contact order and remained in the residence without authorization.59 And he held

the knife up to Lisa's neck after she told him to leave.80 This shows a nexus

between Turner's crimes, the circumstances, and possession of the knife.




       53 Appellant's   Br. at 26.
       54   Id. at 24, 27.
       55 Statev. Brown, 162 Wn.2d 422, 431, 173 P.3d 245(2007)(citing State v.
Easterlin, 159 Wn.2d 203, 208-09, 149 P.3d 366, 370(2006)).
       56   Id.
       57   Id. (citing State v. Schelin, 147 Wn.2d 562, 570, 55 P.3d 632(2002)).
       58   Easterlin, 159 Wn.2d at 210.
       59   Ex. 26; RP (Oct. 17, 2017) at 276-77.
       89   RP (Oct. 17, 2017) at 243, 276-77.


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       As a final matter, the State concedes both the criminal filing fee and DNA

collection fee should be stricken.61

       Therefore, we affirm Turner's conviction and remand so the invalid fees

may be stricken.




WE CONCUR:




                                                   1717av        A•U:




       61   Resp't's Br. at 18-19.


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