Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )            No. 66117-5-I
                                              )          
                      Respondent,             )         DIVISION ONE
                                              )
             v.                               )
                                              )
BRIAN LEE HAYNES, aka BRYAN LEE               )         UNPUBLISHED
HAYNES,                                       )
                                              )         FILED: March 12, 2012
                      Appellant.              )
                                              )
                                              )

       Cox, J.  --  Brian Haynes appeals his conviction for three counts of felony 

violation of a no-contact order.  He argues that the State failed to prove beyond 

a reasonable doubt one of the counts.  We hold that a rational trier of fact could 

have found Haynes guilty beyond a reasonable doubt and thus, we affirm.

       Cathy Haynes obtained a no-contact order and a protection order against 

Brian Haynes, her estranged husband, after their marriage failed.  Despite these 
court orders, Haynes contacted Cathy1 several times.

       In May 2010, Haynes spoke to Cathy in a YMCA parking lot.  On June 14, 

2010, he spoke with her at her work.  Later that day, he called Cathy's mother's 

house and asked if Cathy was there.  Although she was not, his mother-in-law 

told him that Cathy did not want to speak to him and hung up the phone.

       1 We adopt the naming conventions of the parties and refer to Cathy 
Haynes by her first name. 

No. 66117-5-I/2

       The State charged Haynes by amended information with six counts of 

Domestic Violence Felony Violation of a Court Order.  Each contact with Cathy 

formed the basis for two counts: one for the violation of the no-contact order and 

one for the violation of the protection order.  The June 14, 2010 contact at 

Cathy's workplace was the subject of counts I (A) and (B); the June 14, 2010, 

phone call to her mother's home was the subject of counts II (A) and (B); and the 

May 2010 contact was the subject of counts III (A) and (B).  

       A jury found Haynes guilty on all counts. Haynes moved for dismissal of 

counts II (A) and (B), arguing that there was no evidence of actual contact with 

Cathy.  Thus, he claimed that the evidence was insufficient to support a 

conviction on those counts.  The trial court denied his motion, but vacated the 

alternative counts related to his violations of the no-contact order. The trial court 

entered a felony judgment and sentence against Haynes on the remaining three 

counts: I (B), II (B), and III (B).

       Haynes appeals.

                        SUFFICIENCY OF THE EVIDENCE

       Haynes argues that the State presented insufficient evidence to convict 

him of count II (B) and, therefore, the trial court erred by denying his motion to 

dismiss this count.  We disagree.

       Where a party challenges the sufficiency of evidence, we review the 

evidence to determine whether any rational fact finder could have found the 
essential elements of the crime beyond a reasonable doubt.2 In applying this 

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No. 66117-5-I/3

test in a criminal case, all reasonable inferences from the evidence must be drawn in 

the State's favor and interpreted most strongly against the defendant.3

       Haynes was convicted on count II (B) of felony violation of a no-contact 

order, arising from his telephone call to his mother-in-law's house on June 14, 

2010.  The to-convict instruction set forth five elements of this crime.  For the 

jury to convict, the State was required to prove beyond a reasonable doubt:

       (1)  That on or about June 14th, 2010, there existed a protection 
       order applicable to the defendant;

       (2)  That the defendant knew of the existence of the protection 
       order;

       (3)  That on or about June 14th, 2010, in an act separate and 
       distinct from the act in Count I (A) and Count I (B), the defendant 
       knowingly violated a provision of the protection order;

        (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.[4]

Instruction 13 stated:

              In alleging that the defendant committed the crime of felony 
       violation of a court order in . . . Count II (B), the State relies on 
       evidence regarding a single act of telephonic contact on June 14, 
       2010 constituting the alleged crime.  To convict the defendant of 
       Count II . . . (B), you must unanimously agree that this specific act 
       was proved.[5]

       2 State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

       3 State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).

       4 Clerk's Papers at 26-27 (emphasis added).

       5 Id. at 27 (emphasis added).

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No. 66117-5-I/4

       Haynes does not dispute elements 1, 2, 4, or 5 of the charged crime.  But 

he argues that the evidence was not sufficient to prove that he made "telephone 

contact," part of element 3.  He claims that because he did not actually speak to 

Cathy by telephone there was no violation of the protection order.  

       In making this argument, Haynes concedes that the State likely proved 

that he attempted to violate the protection order by calling his mother-in-law's 

home.  Essentially, he argues that the "telephonic contact" required by the jury 

instructions was not proved beyond a reasonable doubt without evidence of an

actual telephonic exchange of verbal communication with Cathy.

       A similar argument was made and rejected by the supreme court in State 
v. Ward.6  There, one of the two defendants, Baker, was subject to a no-contact 

order protecting Ivanov.7 Under the no-contact order, Baker was ordered to 

have no contact with Ivanov "in person, by telephone or letter, through an 
intermediary, or in any other way, except through an attorney of record."8  Baker 

tried to contact Ivanov by calling his residence, but instead of reaching Ivanov, 

Baker reached and briefly spoke with Ivanov's spouse, who recognized Baker's 
voice.9 Baker argued that the State's evidence demonstrated no more than his 

attempt to violate the no-contact order.10

       6 148 Wn.2d 803, 64 P.3d 640 (2003).

       7 Id. at 815.

       8 Id.

       9 Id.

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No. 66117-5-I/5

       The supreme court affirmed Baker's conviction.  It held that:

       a rational trier of fact could have found Baker guilty beyond a 
       reasonable doubt of the misdemeanor violation. We do not, 
       however, find it necessary to engage in speculation as to whether 
       Cornwell told Ivanov of the phone call.  The no-contact order 
       prohibited Baker from contacting Ivanov by telephone or through 
       an intermediary, and the evidence shows that Baker telephoned 
       Ivanov's home and conveyed information about Ivanov to his wife. 
       Based on this conduct alone, a jury was entitled to find that Baker 
       violated the order.[11]

The court thus established that the State can prove that a defendant violates a 

no-contact order by calling the victim's home, in violation of a provision of a no-

contact order, even if there is no evidence that he actually communicated with 

the victim by telephone or through an intermediary.

       Here, the same type of contact at issue in Ward is present: telephonic 

contact. Although this contact was with the mother-in-law, she testified that she 

later told Cathy that Haynes called and wanted to talk to her.  This was sufficient 

evidence for the jury to find beyond a reasonable doubt that Haynes had

"telephonic contact" with Cathy in violation of the no-contact order.  

       Haynes argues that Ward is inapposite because there, the court did not 

instruct the jury that it had to find Ward made "telephonic contact" with the 

victim.  This difference is not material to the outcome because the court's 

holding was based on facts that are indistinguishable from this case.  It held that

a defendant can be guilty of violating a no contact order by knowingly calling a 

       10 Id. at 815-16.
       11 Id. at 816.

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No. 66117-5-I/6

victim's home even where he does not speak with the victim and his message is 

not communicated to the victim.12

       We affirm the judgment and sentence.

WE CONCUR:

       12 Ward, 148 Wn.2d at 816.

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