                                                                                            FILED
                                                                                  COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OI                                                 i #   lINGTON
                                                                                                  MI
                                                  DIVISION II
                                                                                 2015 FEB -   3        8: 55
                                                                                  STATE OF WASHINGTON
 STATE OF WASHINGTON,                                                              No. 44963
                                                                                  BY
                                       Respondent,


          v.



 FAGALULU FEAU FILITAULA,                                                    UNPUBLISHED OPINION


                                       Appellant.


         MELNICK, J. —        Fagalulu Filitaula appeals his conviction and sentence for violating a no-

contact order, contending that insufficient evidence existed to support his conviction that the to-

convict instruction and charging document omitted some elements of the offense, and that the trial

court erred by imposing a term of community custody. Because the evidence is sufficient to show

that Filitaula willfully violated the no- contact order, we reject his sufficiency challenge. Because

the " to convict" instruction and the information alleged that Filitaula knowingly violated the no-

contact order, we reject his challenges to those documents as well. Finally, because the combined

total of Filitaula' s exceptional sentence and the community custody imposed did not exceed the

statutory maximum for his offense, we reject his sentencing challenge. We affirm.

                                                          FACTS


         On July 12, 2012, Filitaula signed a domestic violence no- contact order that prohibited him

from   having    any   contact with    Faufau Boyd for       a   two -year   period.   Filitaula and Boyd had dated


for   eight years and   had two   children     together. In December 2012, Boyd went to the residence of


her   cousin,   Anna Hartman, to       see   Filitaula.   Filitaula had been living at the Hartman home for a

few   months.    Boyd    wanted   to   confront   Filitaula   about   being   unfaithful.   She knew about the no-


contact order and      the   consequences of     its   violation.
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         After an initial conversation with Filitaula, Boyd left and then returned for an additional

discussion.     When Filitaula became angry, Boyd called her mother, who heard Filitaula yelling

and   cursing in the background.             Boyd' s mother called the police who arrested Filitaula at the


Hartman residence.


         The State charged Filitaula with felony violation of a no- contact order and added a bail

jumping      charge after   he failed to     appear   for   a pretrial   hearing.' Boyd, her mother, the Hartmans,

and a deputy prosecutor testified to the above facts. Boyd added that she and Filitaula talked for

about 45 minutes, that they both knew about the no- contact order, and that Filitaula made no

attempt to leave the house or go into a different room. Filitaula stipulated to two prior no- contact


order violation convictions. The jury found him guilty as charged.

         On appeal, Filitaula challenges only his conviction for violating the no- contact order.

                                                       ANALYSIS


I.       SUFFICIENCY OF THE EVIDENCE


         Filitaula initially argues that the State failed to prove that he willfully violated the no-

contact order. We disagree.


             The State must prove every element of a crime beyond a reasonable doubt for a

conviction     to be   upheld. "'    State   v.   Sibert, 168 Wn.2d 306, 311, 230 P. 3d 142 ( 2010) ( quoting


State   v.   Byrd, 125 Wn.2d 707, 713, 887 P. 2d 396 ( 1995)).                    To determine whether sufficient


evidence supports a conviction, we view the evidence in the light most favorable to the State and


determine whether any rational trier of fact could have found the elements of the crime beyond a

reasonable     doubt. State     v.   Homan, 181 Wn.2d 102, 105, 330 P. 3d 182, 185 ( 2014).             A claim of




1 The no- contact order violation was charged as a felony because of Filitaula' s two prior
convictions for violating no- contact orders. RCW 26. 50. 110( 5).

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insufficient evidence admits the truth of the State' s evidence and all reasonable inferences that can

be drawn therefrom. State               v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). Circumstantial


and   direct   evidence         are   equally    reliable.         State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99

 1980).      We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,

and   the   persuasiveness of          the    evidence.          State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970


 2004).


            Under RCW 10. 99. 050, a defendant commits the offense of violating a no- contact order

when he willfully has contact with another, knowing that a no- contact order exists and prohibits

the   contact.   State     v.   Clowes, 104 Wn. App. 935, 943 -44, 18 P. 3d 596 ( 2001), disapproved on other


grounds,      State   v.   Nonog,      169 Wn.2d 220, 237 P. 3d 250 ( 2010).                       The offense has three essential


elements: willful contact with another, the prohibition of such contact by a valid no- contact order,

and   the defendant'        s   knowledge       of    the      no- contact order.      State v. Washington, 135 Wn. App. 42,

49, 143 P. 3d 606 ( 2006) ( quoting Clowes, 104 Wn.                                 App.   at   944).   The element of willfulness


requires a purposeful act.             State    v.   Sisemore, 114 Wn.              App.   75, 78, 55 P. 3d 1178 ( 2002). Filitaula


contends that the State did not prove that he acted willfully or purposefully because he simply

remained at home when Boyd came over to confront him.


            The fact that the protected party initiated the forbidden contact is not a defense to violating

a no- contact     order.         See RCW 10. 99. 040( 4)( b)                  and   RCW 26. 50. 035( 1)(      c) (   domestic violence


protection orders must inform restrained person that he is subject to arrest even if protected party

invites     or permits contact);         State       v.   Dejarlais, 136 Wn.2d 939, 942, 969 P. 2d 90 ( 1998) (                consent




is   not   defense to      charge of     violating         a   domestic   violence protection           order).   The evidence shows


that Filitaula engaged in conversation with Boyd and did not attempt to terminate that conversation

either by leaving or by asking her to leave. See Sisemore, 114 Wn. App. at 78 ( defendant did not



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44963 -3 -II




violate no- contact order with accidental or inadvertent contact if he immediately broke it off).

Because his conversation with Boyd was a purposeful act, we find the evidence sufficient to prove


that Filitaula willfully violated the no- contact order.

II.     ADEQUACY OF THE TO- CONVICT INSTRUCTION


        Filitaula argues here that instruction 8, the " to convict" instruction, omitted the essential


element of willfulness. We disagree.


        A " to convict" instruction must contain all elements of the crime because it serves as a

 yardstick"       by   which    the   jury   measures   the   evidence   to determine   guilt or   innocence.   State v.


Smith, 131 Wn.2d 258, 263, 930 P. 2d 917 ( 1997).                    Instruction 8 informed the jury as follows:

                       To convict the defendant of the crime of violation of a no contact order as
        charged, each of the following elements of the crime must be proved beyond a
        reasonable doubt:
                        1)   That on or about December 16, 2012 there existed a no contact order
        applicable to the defendant regarding a family or household member;
                       2) That the defendant knew of the existence of this order;
                 3) That on or about said date, the defendant knowingly violated a provision
        of this order against a family or household member[;]
                 4) That the defendant has twice been previously convicted for violating the
        provisions of a court order; and

                        5)   That the defendant' s act occurred in the State of Washington.


Clerk' s Papers ( CP)         at   14 -15.   Filitaula did not object to this instruction in the trial court, but he


raises an issue of manifest constitutional error that may be reviewed for the first time on appeal.

RAP 2. 5(   a)(   3); State v. Stein, 144 Wn.2d 236, 240 -41, 27 P. 3d 184 ( 2001).


        Instruction 8 refers to a knowing rather than a willful violation of a no- contact order. The

requirement that an offense be committed willfully is generally satisfied if a person acts knowingly

with   respect     to the      material      elements   of    offense.   RCW 9A.08. 010( 4).        Consequently, the

substitution of "knowingly" for "willfully" in an instruction setting forth the elements of violating

a no- contact order is not error. Clowes, 104 Wn. App. at 944; see also Sisemore, 114 Wn. App. at



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44963 -3 -II



78 ( defendant       acts    willfully is    he   acts   knowingly      with respect      to the   contact element).      But, such


an instruction must inform the jury of the need to find both that the defendant knew of the no-

contact order and that he intended the contact. Clowes, 104 Wn. App. at 944 -45.

          Instruction 8, which mirrors the pattern jury instruction, informed the jury that it had to

find that Filitaula knew of the existence of the no- contact order and that he knowingly violated

that   order.       11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS, CRIMINAL

36. 51. 02,    at   79 ( 3d   ed.   2014).    The " to convict" instruction in this case adequately set forth the

essential elements of the crime of violating .a no- contact order.

III.         ADEQUACY OF THE CHARGING DOCUMENT


             Filitaula argues next that the charging document was fatally flawed because it did not

contain      the   willfulness element.           Because an inadequate information raises due process concerns,


Filitaula may        raise    this challenge for the        first time    on appeal.       State v. Kjorsvik, 117 Wn.2d 93,


107 -08, 812 P. 2d 86 ( 1991).              We disagree, however, with his claim of error.


             A charging document is constitutionally adequate only if all essential elements of a crime

are included so as to inform the accused of the charges and to allow him to prepare a defense.

State   v.   Vangerpen, 125 Wn.2d 782,               787, 888 P. 2d 1177 ( 1995). When a defendant challenges a

                                                                         it               in favor                    Kjorsvik, 117
charging document             after   the   verdict, we construe              liberally              of   validity.


Wn.2d at 105. Under that liberal analysis, we determine whether the necessary facts appear in any

form, or by fair construction can be found, in the charging document; and, if so, whether the

defendant shows that he was nonetheless actually prejudiced by the inartful language that caused

a lack of notice. Kjorsvik, 117 Wn.2d at 105 -06.

             The charging document            provided     in   pertinent part     that Filitaula, " with      knowledge that the


Grays Harbor          County        District Court had previously issued              a no contact order...           did violate the




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44963 -3 -II




order while the order was in effect by knowingly violating the restraint provision therein pertaining

to Faufau I. Boyd[.]"           CP     at   7.    As stated above, a requirement that an offense be committed


willfully is     satisfied   if the   person acted          knowingly.      RCW 9A. 08. 010( 4).     Even if the substitution


of knowingly for willfully can be characterized as inartful, we see no prejudice as a result. Filitaula

does not show that his defense would have differed had the information charged him with willfully

violating the no- contact order.

IV.       COMMUNITY CUSTODY


          Finally, Filitaula argues that the trial court violated RCW 9. 94A.701( 9) by imposing 12 .

months of community custody. We disagree.

          RCW 9.94A.701( 9) provides that a community custody term " shall be reduced by the court

whenever an offender' s standard range term of confinement in combination with the term of


community custody            exceeds    the statutory         maximum       for the   crime."   The crime of felony violation

of a no- contact order         is   a class       C   felony   punishable     by   up to 60     months'   confinement.   RCW


26. 50. 110( 5);    RCW 9A. 20. 021( 1)(              c).    Because Filitaula had an offender score of more than 9

points,   his   standard range was           60   months as well.          RCW 9. 94A. 510, . 515.


          During      sentencing,           Filitaula argued that an               exceptional     sentence   downward was


appropriate      because Boyd initiated the                  prohibited contact.       See RCW 9. 94A.535( 1)(    a) ( victim' s




initiation   of crime   is mitigating factor). The trial court agreed and imposed an exceptional sentence


downward of 48 months plus 12 months of community custody.

          Filitaula now argues that the trial court erred by imposing 12 months of community custody

because his total      sentence could             have      exceeded   the statutory    maximum.     He contends that RCW


9. 94A.701( 9) does not focus on the confinement actually imposed but on the confinement that is

possible.       According to Filitaula, whenever a defendant' s standard range and term of community




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custody could together exceed the statutory maximum, a reduction or elimination of community

custody is required.

         The State responds that RCW 9. 94A.701( 9) is irrelevant to Filitaula' s sentence because the


trial court imposed an exceptional rather than a standard range sentence. The Washington Supreme

Court recently      agreed and     held that RCW 9. 94A. 701( 9),   by its terms, applies only to standard

range sentences.     In   re   Pers. Restraint ofMcWilliams, No. 88883 -3, 2014 WL 7338498, * 2 ( Wash.


Dec. 24, 2014).


         Accordingly, we affirm the conviction and sentence for felony violation of a no- contact

order.




         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:




                    IBC,


          Jjorgen, A.C. J.




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