IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83822-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION WIN JAMES,
Appellant.
BIRK, J. — Win James appeals his conviction and sentence for domestic
violence felony violation of a no-contact order. The trial court admitted copies of
two prior judgments and sentences for violation of a no-contact order and their
accompanying statements on plea of guilty under ER 404(b). James asserts this
was error, arguing the exhibits were not relevant to prove an element of the crime
and their prejudicial impact outweighed their probative value. We conclude the
admission of one of the convictions served as evidence supporting James’s
knowledge of the existence of the order and James’s knowledge that he was
violating its provisions, and any error in admitting the other was harmless. We
accept the State’s concession that the trial court improperly imposed a community
custody fee. We affirm James’s conviction, reverse the imposition of the
community custody fee, and remand to strike the community custody fee. No. 83822-9-I/2
I
While driving on patrol on August 20, 2020, Washington State Patrol
Lieutenant Christopher Caiola, observed a man and woman arguing outside of a
car on a road shoulder of I-5. The woman had a child with her. Caiola later
identified the man as James and the woman as S.A. A domestic violence no-
contact order, entered on December 30, 2015, protected S.A. from James for five
years. When Caiola asked S.A. what had happened, S.A. said, “ ‘He hit me.’ ”
Caiola noticed S.A.’s cheek was red and appeared swollen, and her lip was
swollen.
The State charged James with domestic violence felony violation of the
December 30, 2015 court order under former RCW 26.50.110 (2019). To convict
James, each of the following five elements of the crime was required to be proved
beyond a reasonable doubt:
(1) That on or about August 20, 2020, there existed a no-contact order applicable to the defendant; (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; (4) That either a. The defendant’s conduct was an assault, or b. 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.
11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
36.51.02, at 714-15 (5th ed. 2021).
During motions in limine, the court admitted a redacted version of the
December 30, 2015 no-contact order. The State moved to admit four documents:
2 No. 83822-9-I/3
certified copies of two statements of guilty pleas and their associated judgments
and sentences of two prior convictions for violations of a no-contact order. In the
first pair of documents, James pleaded guilty and was sentenced on December
30, 2015 for willfully violating a prior court order by coming within 1,000 feet of S.A.
on December 18, 2015.1 Also on December 30, 2015, the same court entered the
no-contact order the State charged James with violating in the present case. In
the second pair of documents, James pleaded guilty and was sentenced on July
9, 2019 for knowingly violating a “no contact order issued by King County District
Court” by intentionally contacting S.A. on August 2, 2018.
The parties initially stipulated to the fact James had two prior convictions,
which was to serve as evidence only of their existence. The State disclosed it
planned to use the stipulation additionally to argue the prior convictions showed
James had “knowledge of those things.” When the trial court indicated the
stipulation did not provide for the latter, the State moved to offer the documents
under ER 404(b) as evidence of “knowledge.” The trial court granted the State’s
motion. In its ruling, the court noted, “evidence of a prior conviction of the exact
same thing is evidence that the defendant knew or should have known, I suppose,
that he was not to have contact, or at least what the meaning of a no-contact order
is and, in particular, this no-contact order with regard to this person.” The court
found, “the prejudicial effect is significantly dampened by the fact that the jury’s
already going to have this evidence for a different purpose. It will be in front of
1 It is not clear from the documents if the handwritten date is December 18,
2015 or December 15, 2015. In its closing argument, the State referred to the date as being the 18th, and we have assumed this is correct.
3 No. 83822-9-I/4
them already. It will not constitute a surprise.” The probative value of the prior
convictions was “very strong” because they “strongly suggest . . . that a person
who was convicted of these things had every reason to know that he wasn’t
supposed to have contact.” The trial court allowed James to withdraw from the
earlier stipulation. Redacted versions of the documents were admitted at trial.
James did not request and the trial court did not give a limiting instruction on these
four exhibits. The jury convicted James as charged.
At sentencing, the trial court imposed a standard range sentence and
ordered James to serve 12 months of community custody. After inquiring about
his ability to pay legal financial obligations, the court found James indigent and
waived “additional court costs and fees.” As a condition of community custody, the
judgment and sentence provides, “the defendant shall . . . pay supervision fees as
determined by [the Department of Corrections].” James appeals.
II
A
James argues the trial court erred by admitting the four documents because
they were irrelevant to prove an element of the crime charged and the prejudicial
impact of these exhibits outweighed their probative value. A trial court’s decision
to admit evidence of other acts is reviewed for abuse of discretion. State v.
Denham, 197 Wn.2d 759, 771, 489 P.3d 1138 (2021). A trial court abuses its
discretion when its decision is manifestly unreasonable, based on untenable
grounds, or based on untenable reasons. State v. Dye, 178 Wn.2d 541, 548, 309
P.3d 1192 (2013).
4 No. 83822-9-I/5
Evidence of other crimes is not admissible to prove the character of a
person in order to show action in conformity therewith, but it may be admissible for
other purposes. ER 404(b). Prior to the admission of evidence under ER 404(b),
the trial court must (1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the purpose for which the evidence is sought to be
introduced, (3) determine whether the evidence is relevant to prove an element of
the crime charged, and (4) weigh the probative value against the prejudicial effect.
State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). “It is likely a reversible
error to admit evidence about prior convictions, ‘unless that evidence pertained to
another element of the crime and unless the trial judge properly found that the
probative value of such evidence outweighed its significant prejudicial effect.’ ”
State v. Nguyen, 10 Wn. App.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83822-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION WIN JAMES,
Appellant.
BIRK, J. — Win James appeals his conviction and sentence for domestic
violence felony violation of a no-contact order. The trial court admitted copies of
two prior judgments and sentences for violation of a no-contact order and their
accompanying statements on plea of guilty under ER 404(b). James asserts this
was error, arguing the exhibits were not relevant to prove an element of the crime
and their prejudicial impact outweighed their probative value. We conclude the
admission of one of the convictions served as evidence supporting James’s
knowledge of the existence of the order and James’s knowledge that he was
violating its provisions, and any error in admitting the other was harmless. We
accept the State’s concession that the trial court improperly imposed a community
custody fee. We affirm James’s conviction, reverse the imposition of the
community custody fee, and remand to strike the community custody fee. No. 83822-9-I/2
I
While driving on patrol on August 20, 2020, Washington State Patrol
Lieutenant Christopher Caiola, observed a man and woman arguing outside of a
car on a road shoulder of I-5. The woman had a child with her. Caiola later
identified the man as James and the woman as S.A. A domestic violence no-
contact order, entered on December 30, 2015, protected S.A. from James for five
years. When Caiola asked S.A. what had happened, S.A. said, “ ‘He hit me.’ ”
Caiola noticed S.A.’s cheek was red and appeared swollen, and her lip was
swollen.
The State charged James with domestic violence felony violation of the
December 30, 2015 court order under former RCW 26.50.110 (2019). To convict
James, each of the following five elements of the crime was required to be proved
beyond a reasonable doubt:
(1) That on or about August 20, 2020, there existed a no-contact order applicable to the defendant; (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; (4) That either a. The defendant’s conduct was an assault, or b. 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.
11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
36.51.02, at 714-15 (5th ed. 2021).
During motions in limine, the court admitted a redacted version of the
December 30, 2015 no-contact order. The State moved to admit four documents:
2 No. 83822-9-I/3
certified copies of two statements of guilty pleas and their associated judgments
and sentences of two prior convictions for violations of a no-contact order. In the
first pair of documents, James pleaded guilty and was sentenced on December
30, 2015 for willfully violating a prior court order by coming within 1,000 feet of S.A.
on December 18, 2015.1 Also on December 30, 2015, the same court entered the
no-contact order the State charged James with violating in the present case. In
the second pair of documents, James pleaded guilty and was sentenced on July
9, 2019 for knowingly violating a “no contact order issued by King County District
Court” by intentionally contacting S.A. on August 2, 2018.
The parties initially stipulated to the fact James had two prior convictions,
which was to serve as evidence only of their existence. The State disclosed it
planned to use the stipulation additionally to argue the prior convictions showed
James had “knowledge of those things.” When the trial court indicated the
stipulation did not provide for the latter, the State moved to offer the documents
under ER 404(b) as evidence of “knowledge.” The trial court granted the State’s
motion. In its ruling, the court noted, “evidence of a prior conviction of the exact
same thing is evidence that the defendant knew or should have known, I suppose,
that he was not to have contact, or at least what the meaning of a no-contact order
is and, in particular, this no-contact order with regard to this person.” The court
found, “the prejudicial effect is significantly dampened by the fact that the jury’s
already going to have this evidence for a different purpose. It will be in front of
1 It is not clear from the documents if the handwritten date is December 18,
2015 or December 15, 2015. In its closing argument, the State referred to the date as being the 18th, and we have assumed this is correct.
3 No. 83822-9-I/4
them already. It will not constitute a surprise.” The probative value of the prior
convictions was “very strong” because they “strongly suggest . . . that a person
who was convicted of these things had every reason to know that he wasn’t
supposed to have contact.” The trial court allowed James to withdraw from the
earlier stipulation. Redacted versions of the documents were admitted at trial.
James did not request and the trial court did not give a limiting instruction on these
four exhibits. The jury convicted James as charged.
At sentencing, the trial court imposed a standard range sentence and
ordered James to serve 12 months of community custody. After inquiring about
his ability to pay legal financial obligations, the court found James indigent and
waived “additional court costs and fees.” As a condition of community custody, the
judgment and sentence provides, “the defendant shall . . . pay supervision fees as
determined by [the Department of Corrections].” James appeals.
II
A
James argues the trial court erred by admitting the four documents because
they were irrelevant to prove an element of the crime charged and the prejudicial
impact of these exhibits outweighed their probative value. A trial court’s decision
to admit evidence of other acts is reviewed for abuse of discretion. State v.
Denham, 197 Wn.2d 759, 771, 489 P.3d 1138 (2021). A trial court abuses its
discretion when its decision is manifestly unreasonable, based on untenable
grounds, or based on untenable reasons. State v. Dye, 178 Wn.2d 541, 548, 309
P.3d 1192 (2013).
4 No. 83822-9-I/5
Evidence of other crimes is not admissible to prove the character of a
person in order to show action in conformity therewith, but it may be admissible for
other purposes. ER 404(b). Prior to the admission of evidence under ER 404(b),
the trial court must (1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the purpose for which the evidence is sought to be
introduced, (3) determine whether the evidence is relevant to prove an element of
the crime charged, and (4) weigh the probative value against the prejudicial effect.
State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). “It is likely a reversible
error to admit evidence about prior convictions, ‘unless that evidence pertained to
another element of the crime and unless the trial judge properly found that the
probative value of such evidence outweighed its significant prejudicial effect.’ ”
State v. Nguyen, 10 Wn. App. 2d 797, 820, 450 P.3d 630 (2019) (quoting State v.
Case, 187 Wn.2d 85, 91, 384 P.3d 1140 (2016)).
James argues the trial court erred in finding the prior convictions relevant
and that their prejudicial effect did not substantially outweigh their probative value.
In Nguyen, we held the trial court did not abuse its discretion by admitting the
defendant’s guilty pleas to prove that the defendant knew of a no-contact order
and knowingly violated it. 10 Wn. App. 2d at 821. A trial court issued several no-
contact orders protecting the defendant’s partner after several incidents of
domestic violence. Id. at 801-02. After the defendant repeatedly contacted the
protected party via text messages, the State charged him with two counts of
domestic violence felony violation of a court order and felony stalking. Id. at 802-
06. We held entering the guilty pleas with the no-contact orders constituted
5 No. 83822-9-I/6
stronger evidence of the defendant’s knowledge than admitting the orders alone.
Id. at 821.
The same reasoning applies to James’s July 9, 2019 guilty plea and
judgment and sentence for violating the December 30, 2015 no-contact order in
2018. As in Nguyen, admitting evidence of his guilty plea to violating the no-
contact order was stronger evidence of his knowledge of the December 30, 2015
order and his conduct being a knowing violation than admitting the order alone.
The same cannot be said of his guilty plea on December 30, 2015 to committing a
violation on December 18, 2015. The December 30, 2015 order stated on its face
that it was a “replacement” order, and James’s trial brief made reference to the
original no-contact order having stemmed from a malicious mischief conviction.
We can infer that the December 30, 2015 order was reissued in connection with
James’s guilty plea on that date to violating an earlier order. But none of that is in
the record, and the State in this case only charged violation of, and knowledge of,
the December 30, 2015 order. Evidence that James committed a violation on
December 18, 2015 is evidence that he knew he could not contact S.A., but it is
not evidence he knew of an order entered 12 days later. The reasoning of Nguyen
does not directly support the admission of this prior conviction in the same way it
supports admission of the later one.
Nevertheless, even if admitting the earlier conviction to prove knowledge
had been error, it would be harmless. In analyzing the erroneous admission of
evidence in violation of ER 404(b), we apply the nonconstitutional harmless error
standard. State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). Under
6 No. 83822-9-I/7
this standard, the error is harmless unless “ ‘within reasonable probabilities, had
the error not occurred, the outcome of the trial would have been materially
affected.’ ” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). “The error is
harmless if the evidence is of minor significance compared to the overall evidence
as a whole.” State v. Everybodytalksabout, 145 Wn.2d 456, 469, 39 P.3d 294
(2002).
A no-contact order “provides evidence of multiple elements of a felony
violation of a no-contact order charge.” State v. Taylor, 193 Wn.2d 691, 701, 444
P.3d 1194 (2019). A domestic violence no-contact order provides the dates during
which the order is active, identifies the protected party, and shows that the
defendant knows of the order’s existence and its contents. Id. The December 30,
2015 no-contact order served as evidence of both knowledge elements. The order
identified S.A. as the protected party and prohibited James from coming near or
contacting S.A. James’s signature on the order showed he knew the order existed
and knowingly violated it. Moreover, with the 2019 guilty plea admissible under
the reasoning of Nguyen, any extent to which the guilty plea for a violation
occurring before the December 30, 2015 order failed to similarly show relevant
knowledge did not add any significant prejudice.
B
James argues the trial court erred by failing to give a required limiting
instruction after admitting the ER 404(b) evidence. We disagree.
7 No. 83822-9-I/8
If the evidence is admitted under ER 404(b), the trial court must also give a
limiting instruction to the jury. Gunderson, 181 Wn.2d at 923. But the trial court
has no duty to give an ER 404(b) limiting instruction sua sponte; a limiting
instruction must be requested. State v. Russell, 171 Wn.2d 118, 123, 249 P.3d
604 (2011).
Here, the trial court did not provide any limiting instruction on how the
admitted exhibits were to be used. Neither James nor the State requested a
limiting instruction, and under Russell, the trial court was not required to provide
one sua sponte. Accordingly, James’s argument that the court erred by failing to
provide a limiting instruction is meritless. We affirm James’s conviction.
III
The State concedes the trial court improperly imposed a community custody
fee on James despite finding him indigent. We accept the State’s concession.
Community custody supervision fees are discretionary legal financial
obligations. State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020).
Under former RCW 9.94A.703(2)(d) (2018), a trial court could waive community
custody supervision fees. In 2022, the legislature amended RCW 9.94A.703(2)
and removed subsection (d). See SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg.
Sess. (Wash. 2022). The amended statute does not provide for the imposition of
community custody supervision fees. RCW 9.94A.703. Costs imposed under
former RCW 9.94A.703(2)(d) were not final until the termination of all appeals.
State v. Wemhoff, 24 Wn. App. 2d 198, 202, 519 P.3d 297 (2022). The cost statute
“in effect at the conclusion of a defendant’s appeal appl[ies] to a defendant’s case.”
8 No. 83822-9-I/9
Id. Because of the amended statute and trial court’s intent to waive discretionary
legal financial obligations, we accept the State’s concession and reverse the
imposition of the community custody supervision fee.
IV
We affirm James’s conviction, reverse the imposition of the community
custody fee, and remand to strike the community custody supervision fee from his
judgment and sentence.
WE CONCUR: