                                                                                         FILED
                                                                                    COURT OF APPEALS
                                                                                       DIVISION II

                                                                                   2o1' DEC : 2    AM 8: 58
                                                                                   STATE OF WASHINGTON

                                                                                    BY
                                                                                               P' TY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

 STATE OF WASHINGTON,                                                               No. 44843 -241


                                      Respondent,


        v.



 JESSE COLE HUNOTTE,                                                         UNPUBLISHED OPINION


                                       Appellant.


       JOHANSON, C. J. —              Jesse Cole Hunotte appeals his jury trial conviction for a felony

violation of a   domestic     violence court order.           He   argues   that ( 1)   the trial court erred when it


amended the to- convict instruction after having read the instruction to the jury, and ( 2) the State

failed to present sufficient evidence to prove that he had personal contact with the protected party,

that he was the person named in one of the two no- contact /protection orders at issue, or that he had

knowledge of either no- contact /protection order. We hold that Hunotte' s jury instruction argument

has no merit and that the evidence is insufficient to establish Hunotte' s knowledge of a superior


court order or that he had personal contact with the protected party as prohibited by a municipal

court order.    But we further hold that because the trial court provided the jury with a unanimity

instruction    and   the   evidence   was   sufficient   to   allow   a   jury   to unanimously find that Hunotte
No. 44843 -2 -II



violated the municipal court order by contacting the protected party by telephone, we must reverse

and remand for additional proceedings rather than dismiss.

                                                                     FACTS


                                                              I. BACKGROUND


           On October 17, 2012, a Tacoma police officer served Hunotte with a copy of a Pierce

County Superior Court temporary protection order restraining him from contacting his girlfriend,

Tajha Anne Ekstrand. The superior court held a hearing to extend this protection order on October

23, 2012; the court extended the order for a year.1 The order includes the following notation on

the " Respondent"        signature        line: " Checked in but did              not remain when case was called.      Left


courtroom      20   minutes prior."            Ex. 3,   at   4. This    order named "    Tajha Ann Ekstrand," date of birth


December 1972,        as   the protected party               and "   Jesse Cole Hunotte," date of birth December 9, 1976,


as   the   respondent.     Ex. 3,   at    1.    It also stated that Hunotte was a white male, was 5 feet 11 inches


tall, and weighed 175 pounds.




1
     The   superior   court protection            order       prohibited     Hunotte from ( 1)      causing harm, molesting,
harassing, threatening,         or       stalking Ekstrand; ( 2)             harassing   Ekstrand   by electronic means; ( 3)
coming near Ekstrand or having any contact with her whatsoever in person or through others, by
phone, mail, or any other means other than for service of court documents by a third party or
attorney contact; ( 4) entering the grounds or going into Ekstrand' s residence, employment, or
school; ( 5) knowingly coming or remaining within the property boundaries of such places; and ( 6)

having contact with Ekstrand' s son.


                                                                         2
No. 44843 -2 -II



         On January 23, 2013, Ekstrand obtained a Tacoma Municipal Court domestic violence no-
                  2
contact order.        This   order named "   Tajha Ekstrand," date of birth December 1972, as the protected


party   and "   Hunotte, Jesse,"   date of birth January 29, 1976, as the defendant. Ex. 2. It also stated

that Hunotte was a white male, was 5 feet 11 inches tall, and weighed 180 lbs. There is an illegible

signature on the " Defendant" signature line in this order.


         On January 27, 2013, Hunotte' s brother came to Ekstrand' s apartment to pick up some of

Hunotte' s belongings. Although she later testified that she did not see Hunotte, Ekstrand assumed


Hunotte was nearby and she told her son " to sneak out" and go to " the neighbors and tell them."

2 Report    of   Proceedings ( RP)     at    158.   The   neighbor   called   the   police.   Tacoma Police Officer


Edwin Franklin Huebner responded to the call.


          About 11 minutes after the call, Officer Huebner approached the area and saw Hunotte and


his brother walking about a half to three quarters of a mile from Ekstrand' s apartment, so he pulled

over and called        to Hunotte.    Hunotte responded to Officer Huebner; Hunotte' s brother walked


away. Officer Huebner detained Hunotte.

          Meanwhile, Tacoma Police Officer Jared Williams contacted Ekstrand at her apartment

and took a statement.3 Ekstrand told Officer Williams that another person was with Hunotte..

Officer Williams then joined Officer Huebner                where    he had detained Hunotte.        At some point,




2 The municipal court domestic violence no- contact order prohibited Hunotte from ( 1) causing or
attempting to cause harm, molesting, harassing, threatening, or stalking Ekstrand; ( 2) coming near
or having any contact whatsoever with Ekstrand in person or through others, by phone, mail or
any means other than for service of court documents by a third party or attorney contact; or ( 3)
 coming within 500 feet of Ekstrand' s workplace or residence.

 3 This statement was not admitted at trial.


                                                             3
No. 44843 -2 -II



Officer Williams determined that there was a protection order prohibiting Hunotte from contacting

Ekstrand.


         During     a subsequent search, officers           found   a set of   keys   and $   160 in Hunotte' s pockets.4

Officer Williams returned the keys to Ekstrand.


         After the officers transported Hunotte to jail, a corrections officer monitoring inmate

telephone calls overheard a call from the booking area to a telephone number that traced back to a

Jason   Smalley     at    Ekstrand'    s address.      The call was recorded and was later played for the jury.

During   this   call, a man and a woman were              talking   about $   160 that was found in the man' s wallet


when    he   was   arrested.      The woman kept accusing the man of taking her money, and the man

insisted that he did not know the money was in his wallet. He also said he had tried unsuccessfully

to have an officer give her the wallet along with some keys the officer delivered to her.

         Later that afternoon, Ekstrand called Officer Williams and he returned to her apartment.


After speaking to Ekstrand, Officer Williams went to the j ail to attempt to " retrieve" the $ 160 " that

had been booked           with   Mr. Hunotte."      2 RP at 119 -20. Officer Williams was unable to do so.

                                                        II. PROCEDURE


                                               A. CHARGE AND TESTIMONY


         Because Hunotte had two prior convictions for violating a domestic violence protection

order, the State charged him with a felony violation of a domestic violence protection order.5 The

information alleged that Hunotte had violated " Pierce County Superior Court order 12 -2- 03671 -9


4
    According to Officer Huebner, when the officers found the money, Hunotte " looked surprised,"
and stated, "[`    I] t   shouldn'   t be there.[']"    1 RP at 47.


5 RCW 26. 50. 110( 5).


                                                               4
No. 44843 -2 -II



and/ or   Tacoma Municipal Court          order    D00045167."        Clerk' s Papers ( CP) at 6. Hunotte stipulated


that   he " had two   prior convictions      for   violation of a court order."        CP at 9, 12 ( bold type omitted).


The State' s witnesses testified consistent with the facts above, and the trial court admitted copies


of the October 2012 Pierce County protection order and January 2013 Tacoma Municipal Court

no- contact order.       The jury had access to the admitted copies of the protection order and the no-

contact order.



          In addition, Ekstrand was a reluctant witness for the State.6 Throughout her testimony, she

repeatedly asserted that she had trouble recalling anything from about October 27, 2012 until early

April 2013 because          she   had been     on medication          for   an   injury.   She testified, however, that


Hunotte' s brother had come to her house to get some of Hunotte' s property and that the brother

was    going to   meet   Hunotte   at a   friend'   s   house   about a mile     away. She admitted that she had her


son go to the neighbor' s house because she " assumed that [Hunotte] was in the neighborhood with

his brother,"     but she denied having told any officer that she had sent her son to the neighbor' s after

Hunotte     arrived at    her   apartment.    2 RP       at   160.   And she testified that she never actually saw

Hunotte and that she had given Hunotte' s brother some of Hunotte' s belongings, including his

wallet. She was also unable to recall whether she called the police later and told them that Hunotte

had taken $ 160 from her purse when he was inside her home. She did, however, recall an officer


coming to her house and asking about her house keys. She also testified that she did not remember

telling the officer that Hunotte had arrived at her apartment, that he had come into her apartment

and "   freak[ ed]   out and want[ ed]    his belongings," or that Hunotte still had her keys. 2 RP at 162.




6 At one point, the trial court sent Ekstrand to j ail for contempt when she refused to answer the
 State' s questions.



                                                                 5
No. 44843 -2 -II



         Additionally, Ekstrand could not recall if she spoke to Hunotte on the phone later that day.

And after hearing the recording of the call, she testified that she could not verify that it was her

voice or Hunotte' s voice on the recording.

         Ekstrand acknowledged that she had obtained the October 2012 Pierce County protection

order,   but    she   testified that        she never " served"           it. And she testified that she was not aware of a


municipal court protection order.



                                  B. JURY INSTRUCTIONS AND CLOSING ARGUMENT


         After the parties rested, the trial court read the jury instructions to the jury. The trial court' s

to- convict instruction         stated      in   part, "   That on or about said date the defendant knowingly violated

                                                           7
a provision of        this   order [   in   person]."          CP   at   29 ( emphasis       added).    The trial court also provided

                      Petrich8
the   jury   with a               unanimity instruction that stated,

                      The State alleges that the defendant committed acts of violation of a court
             order on multiple occasions. To convict the defendant of violation of a court order,
             one particular act of violation of a court order 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
             court order.




CP at 26.


             After the trial court read all of the instructions to the jury but before the jury retired to

deliberate, the State           asked       the trial      court    to   strike   the   phrase "   in   person"   from the to- convict


instruction and to reinstruct the jury. Hunotte' s counsel objected, arguing that the instructions the

trial court     had    read   to the    jury      were     the " law      of   the   case"   and could not    be   altered.   Hunotte' s




7 Neither party objected to this instruction before the trial court orally instructed the jury.

8 State v. Petrich, 101 Wn.2d 566, 683 P. 2d 173 ( 1984).


                                                                           6
No. 44843 -2 -II



counsel also told the trial court that he had relied on the law as stated in the to- convict instruction

in preparing closing argument, so any change at this time would prejudice Hunotte. The trial court

disagreed with Hunotte, struck the phrase " in person" from the written instruction, and read the

altered   to- convict instruction to the        jury. Hunotte' s counsel did not request additional time to

prepare for argument.


          In its closing   argument,       the State   argued   that Hunotte   had   violated each order     twice —once



by going to her home and again by calling her from the jail.9 The State reminded the jury that
because it was alleging more than one violation of the court order, the jury had to be unanimous

as   to what act was " the    violation of the no contact order."          3 RP at 210. And it argued that although


the jury could find that Hunotte had violated both court orders, it need only be unanimous as to

one.



          Hunotte    argued    that ( 1)    the State had to prove knowledge             of   the order, (   2) if the jury

believed the signature on the municipal court order was Hunotte' s, the State had proved knowledge

of that order, (   3) the State didnot prove that Hunotte had been served with the superior court order,


 4) there was no proof that Hunotte went to Ekstrand' s house, and ( 5) the State failed to prove that


Hunotte had made the call from the jail. Hunotte did not talk about any unanimity issues.

          The jury convicted Hunotte of felony violation of a domestic violence protection order.

Hunotte appeals his conviction.




9 Throughout the trial and closing argument, neither party mentioned that the underlying orders
could also    be   violated   by   contact   through    a   third party.
No. 44843 -2 -II


                                                           DISCUSSION


                                          I. AMENDED TO- CONVICT INSTRUCTION


           Hunotte first argues that the trial court erred when it amended the to- convict instruction

and reinstructed the jury before the jury' s deliberations. Although Hunotte presents this argument

as   a "   law   of   the    case"    argument, because the jury reached its verdict based on the corrected

instruction, the real issue here is whether the trial court abused its discretion in giving the corrected

                        10
       instruction.           See State          Calvin,        Wn.   App. .      316 P. 3d 496, 506 ( 2013).     We hold
jury                                        v.




that the trial court did not abuse its discretion.


            Generally, if the parties do not object to a jury instruction, it becomes the law of the case

and the State must prove any added elements stated in a to- convict instruction. State v. Hickman,

135 Wn.2d 97, 102, 954 P. 2d 900 ( 1998).                       But a trial court has the discretion to give additional


instructions to the          jury,   even   if the   jury has   started   deliberating. State v. Langdon, 42 Wn. App.

715, 718, 713 P. 2d 120,              review     denied, 105 Wn.2d 1013 ( 1986);        see also   CrR 6. 15( f)(1) (   court




may give additional instruction on any point of law in response to jury questions during
deliberations).        The court abuses that discretion only when its decision is manifestly unreasonable

or exercised on untenable grounds or                   for   untenable reasons.    State v. Wilson, 144 Wn. App. 166,

183, 181 P. 3d 887 ( 2008).               It is within the trial court' s discretion whether to give supplemental


instructions to the jury as long as those instructions " do not go beyond matters that had been, or

could      have been,        argued   to the jury."    Calvin, 316 P. 3d at 507 ( citing State v. Hobbs, 71 Wn. App.




 10 Although we reverse on other grounds, we address this issue because if Hunotte' s " law of the
 case" argument was correct, it would affect our sufficiency analysis.


                                                                      8
No. 44843 -2 -II



419, 424, 859 P. 2d 73 ( 1993));       see also State v. Ransom, 56 Wn. App. 712, 714, 785 P. 2d 469

 1990).


          Hunotte relies on Hickman for the proposition that the State was required to object to the


to- convict instruction before     the   trial    court   instructed the   jury. Hickman does not, however,

establish that the trial court cannot amend an instruction after orally instructing the jury but before

deliberations.     It merely establishes that an instruction becomes the law of the case if there is no

objection. And, unlike here, Hickman did not object to the instruction at any time during the trial

court proceeding. Hickman, 135 Wn.2d at 100 -01.

          Instead,   we   find Hobbs     more     instructive.   In Hobbs, the trial court gave the jury an

instruction that unnecessarily narrowed the venue element to a particular county rather than to the

State   of   Washington.    71 Wn.   App.    at   420 -21.    While the jury was deliberating, the trial court

granted the State' s motion to amend the instruction to remove this defect. Hobbs, 71 Wn. App. at

421.    Defense counsel objected, arguing that she had been aware of the narrowed venue element

and had made strategic trial decisions based on that knowledge. Hobbs, 71 Wn. App. at 421, 424.

On appeal, although Division One of this court ultimately reversed, 11 the court acknowledged that

trial courts can give supplemental instructions to the jury so long as those instructions did not go

beyond matters that had been, or could have been, argued to the jury. Hobbs, 71 Wn. App. at 424.

          Here, unlike in Hobbs, the trial court corrected the jury instruction before the jury started

its deliberations    and   before closing   argument.        Although defense counsel may have planned his




11 The court held that because Hobbs' s counsel had adapted her trial strategy to reflect the original
instruction, there was actual prejudice and remanded for a new trial with proper instructions.
Hobbs, 71 Wn. App. at 425.


                                                             9
No. 44843 -2 -II



closing argument based on the original instruction, he had the opportunity to alter his argument to

reflect   the   corrected   instruction.    Because the trial court amended the jury instruction before the

jury started to deliberate and before closing argument and because there is no other suggestion in

the record that defense counsel made any strategic trial decisions based on the original instruction,

Hunotte fails to show that the trial court abused its discretion is amending the jury instruction and

this argument fails.

                                                   II. SUFFICIENCY


          Hunotte next argues that the State failed to present sufficient evidence to prove that ( 1) he

had knowledge        of either of   the   no- contact /protection orders, (   2) he violated the orders by having

personal contact with Ekstrand, and ( 3) he was the person named in the municipal court no- contact

order.    We agree that the evidence was insufficient to prove that Hunotte violated the municipal


court order by having personal contact with Ekstrand or that he had knowledge of the Pierce

County     protection order.        But we hold that the evidence was sufficient to prove that Hunotte


violated the municipal court order by having telephone contact with Ekstrand.12 Because the

evidence was sufficient to support a conviction based on one of several acts, but we have no way

of discerning which act the jury relied on when reaching its verdict in this multiple acts case,

reverse and remand, rather than dismissal, is appropriate.


                                              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).



12 Hunotte does not argue that there was insufficient evidence that he contacted Ekstrand by
telephone.




                                                            10
No. 44843 -2 -II



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

of   the   crime   beyond       a reasonable      doubt. "' State v. Drum, 168 Wn.2d 23, 34 -35, 225 P. 3d 237


 2010) ( quoting Wentz, 149 Wn.2d                    at   347).   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 at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068
                                                                                                                  13
 1992)).      We    consider       both    circumstantial and      direct   evidence   as   equally   reliable.        State v.


Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).


                                                          B. KNOWLEDGE


           To prove a violation of a no- contact order, the State had to prove beyond a reasonable


doubt that Hunotte knew of the existence of the no- contact /protection orders that the State alleged

he   violated.     State   v.   Washington, 135 Wn. App. 42, 49, 143 P. 3d 606 ( 2006), review denied, 160


Wn.2d 1017 ( 2007).             Hunotte argues that the State failed to present sufficient evidence to prove


that he    knew    about either of        the   orders.   We agree that the State failed to prove knowledge of the


Pierce County Superior Court protection order, but the State did prove knowledge of the municipal

court order.




           The evidence established that Hunotte was served with notice of the temporary Pierce

County order, that he was present in the courtroom on the date the superior court held the hearing

on whether to extend the order, and that he left the courtroom 20 minutes before the case was


called. But there is no evidence in the record showing that Hunotte knew that the superior court

in fact extended this orderthere was no evidence that he was present when the superior court




13 We address the proper remedy under these circumstances in a separate section below.

                                                                  11
No. 44843 -2 -II



extended the order or that Hunotte was ever served with the resulting order. Accordingly, the State

failed to prove knowledge of the Pierce County order.

        In contrast, however, there is sufficient evidence that Hunotte had knowledge of the

municipal court order.       The municipal court order has an illegible signature on the " Defendant"


signature    line.   Viewing the evidence in the light most favorable to the State, this is sufficient to

allow a reasonable jury to conclude that Hunotte was aware of this order. See State v. France, 129

Wn.   App.   907, 911, 120 P. 3d 654 ( 2005) (   certified copy of no- contact order signed by defendant

sufficient to establish knowledge of that order).


                                          C. IN- PERSON CONTACT


        Hunotte further argues that the evidence was insufficient to prove that he violated the court


orders by having personal contact with Hunotte. We agree there was insufficient evidence that he

had personal contact with Hunotte. 14

        Although the evidence was sufficient to show that the police found Hunotte within a half


to three quarters of a mile of Ekstrand' s home and that Hunotte had Ekstrand' s keys and money

when he was arrested, there was no evidence that Hunotte had been at or in the immediate vicinity

of Ekstrand, her son, or their home. At best, it suggested that Ekstrand assumed Hunotte might be

in the area when his brother arrived. 15 This does not establish that Hunotte violated the court

orders by coming near Ekstrand or by being within 500 feet of Ekstrand' s residence.



14 Again, we note that Hunotte does not argue that there was insufficient evidence to prove that he
contacted Ekstrand by phone.

15 We note that the State never argued that Hunotte' s brother' s contact with Ekstrand violated the
municipal court order.




                                                      12
No. 44843 -2 -II



                                                               D. IDENTITY


          Hunotte next argues that the State failed to prove the identity of the person named in the

municipal court no- contact order because the State presented no evidence that he was the person

named in that order. 16 We disagree.

              The State had the burden of proving that Hunotte was the person who committed the

offense.       See State     v.   Hill, 83 Wn.2d 558, 560, 520 P. 2d 618 ( 1974). In respect to whether Hunotte


violated the municipal court order, this included the burden of proving that he was the same person

named     in that      order.     See State    v.   Huber, 129 Wn.         App. 499,    502, 119 P. 3d 388 ( 2005). But to do


so, "   the State must do more than authenticate and admit the document; it also must show beyond

a reasonable          doubt ` that the     person named         therein is the    same person on       trial.    Huber, 129 Wn.


App.     at   502 ( quoting State        v.   Kelly,   52 Wn.2d 676, 678, 328 P. 2d 362 ( 1958)); see also State v.


Brezillac, 19 Wn.             App.    11, 12, 573 P. 2d 1343 ( 1978).             Identity of names alone is not sufficient

because        people      often share       identical   names.      Huber, 129 Wn. App. at 502; see also State v.

Harkness, 1 Wn.2d 530, 542 -43, 96 P. 2d 460 ( 1939). Rather, the State must                                 show, "'   by evidence

independent           of   the record, '      that the   person named         in the   prior   orders is the defendant.     Huber,


129 Wn. App. at 502 ( quoting United States v. Jackson, 368 F. 3d 59, 63 ( 2d Cir. 2004)).

              Here, the two         orders    contained almost        identical    identifying     information17; involved the


same protected party, Ekstrand; and Ekstrand testified that she had obtained the October 2012


16 Hunotte admits that the State presented sufficient evidence to prove that he was the person
named in the superior court order.


17 The only significant difference in the identifying information in the two orders were the Hunotte
birthdates.       The       birthday   noted on        the   municipal court order was "                     while the birthday
                                                                                                   1/ 29/ 76,"
noted on        the   superior court order was "             12/ 09/ 1976."    Exs. 2, 3.      This discrepancy could easily be
explained by someone misplacing the slash between the date and the month.
                                                                      13
No. 44843 -2 -II



protection order against Hunotte. We hold that based on this evidence a rational fact finder could

have found that Hunotte was the same person named in the municipal court order.

        Although Hunotte argues that the similarity of names is not conclusive proof that he was

the person named in the municipal court order because there was no proof that both he and

Ekstrand   were    the   same people named             in both    orders, we   disagree.    In a sufficiency argument,

conclusive proof is not required; we consider circumstantial and direct evidence as equally reliable.

Thomas, 150 Wn.2d         at   874.     And the similarity of names, the identical birth dates for Ekstrand,

and the identical general physical descriptions of Hunotte in the two orders, combined with

Ekstrand' s testimony that she had sought the Pierce County order, provide sufficient circumstantial

evidence that Hunotte was the person named in the municipal court order.

                                                         E. REMEDY


        The usual remedy for insufficient evidence is to reverse the conviction and dismiss the

charges with prejudice.         State   v.   B.J.S., 140 Wn.      App. 91, 97   n. 2,   169 P. 3d 34 ( 2007). But in this


unique case, where there was sufficient evidence that Hunotte committed the charged crime by

one of the multiple acts alleged, that remedy is not appropriate. Because there is no way for us to

discern which act the jury relied on to convict Hunotte, the court' s unanimity instruction was not

sufficient   to   preserve     Hunotte'      s   constitutional   guarantee    of a unanimous      verdict.   To protect


Hunotte' s guarantee of a unanimous verdict, we reverse the convictions but remand for further

proceedings.      See State    v.   Kitchen, 110 Wn.2d 403, 409, 756 P. 2d 105 ( 1988).                Because we hold


that there was insufficient evidence of Hunotte' s knowledge of the superior court order or that he

violated either order in person, however, the State may not pursue charges based on the superior

court order or the alleged personal contact. See B.J.S., 140 Wn. App. at 97 n.2.


                                                                  14
No. 44843 -2 -II



        We reverse and remand 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:




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