State Of Washington, Respondent V. Chad Johnson, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49468-0-II
Respondent,
v.
CHAD EUGENE JOHNSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Chad Johnson appeals from his conviction of felony violation of a
no-contact order, asserting that the trial court erred by providing jury instructions that lowered
the State’s burden of proof. We affirm.1
FACTS
Christina Upcraft is named as a protected person in a domestic violence no-contact order
issued against Johnson on October 20, 2015. The no-contact order provided in relevant part that
Johnson “not contact the protected person, directly, indirectly, in person or through others, by
phone, mail, or electronic means . . . .” Exhibit 3. The no-contact order further provided that a
“[w]illful violation of this order is punishable under RCW 26.50.110.” Exhibit 3. The no-
contact order is valid until October 20, 2020.
1 Johnson requests that we exercise our discretion to waive appellate fees in this matter. Because
Johnson’s current or likely future ability to pay appellate costs may be addressed by a
commissioner of this court under RAP 14.2, we defer this matter to our commissioner in the
event that the State files a cost bill.
Filed
Washington State
Court of Appeals
Division Two
February 6, 2018

No. 49468-0-II
2
On May 23, 2016, Jessica Guthrie saw Johnson and Upcraft with a group of people
outside of a grocery store in Port Angeles and contacted the police. While awaiting the police,
Guthrie saw Johnson and Upcraft walk “[s]ide by side” through the parking lot. 1 Report of
Proceedings (RP) at 180. Guthrie later saw Johnson and Upcraft sitting “[s]ide by side” on some
stairs next to a bar. RP at 180.
Port Angeles police officer Jeff Ordona arrived and saw Johnson and Upcraft standing
within five feet of each other behind a bus shelter next to a gas station parking lot. Ordona then
saw Johnson and Upcraft walk down the street “side by side.” 1 RP at 201-202. Ordona twice
called out Upcraft’s name before Upcraft stopped and turned around; Johnson continued walking
down the street. Ordona arrested Upcraft on an outstanding warrant.
Port Angeles police officer Trevor Dropp arrived and saw Johnson and Upcraft walking
“shoulder to shoulder” near the gas station. 2 RP at 237. Dropp contacted Johnson and, after
advising him of his Miranda2 rights, asked why he was walking with Upcraft when there was a
no-contact order issued against him. Johnson told Dropp that he did not have any contact with
Upcraft and that Upcraft had been following him.
On May 26, 2016, the State charged Johnson with felony violation of a no-contact order.
The State further alleged that Johnson committed the offense against a family or household
member. The matter proceeded to a jury trial.
At trial, Guthrie, Ordona, and Dropp testified consistently with the facts stated above.
Upcraft testified that she approached Johnson after seeing him talking with someone in front of a
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 49468-0-II
3
grocery store. Upcraft further testified that Johnson turned and walked away when he noticed
her approaching. Upcraft stated that she followed Johnson and tried to get his attention because
she still desired a relationship with him. Upcraft said that Johnson continued to ignore her and
walk away as she followed him. Upcraft stated that she got as close as an arm length behind
Johnson before being arrested.
Johnson testified that upon seeing Upcraft walk toward him calling his name, he turned
and started walking away. Johnson stated that he did not say anything to Upcraft and that he
walked away because he feared going to jail for violating the no-contact order. Johnson further
stated that he continued to ignore and walk away from Upcraft until police apprehended her.
The State proposed the following instruction defining felony violation of a no-contact
order based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
36.51.01, at 672 (2016) (WPIC):
A person commits the crime of felony violation of a court order when he
knows of the existence of a no-contact order and knowingly violates a provision of
the order, and the person has twice been previously convicted for violating the
provisions of a court order.
Suppl. CP at 97. The State also proposed a to-convict instruction based on WPIC 36.51.02, at
674-75, which provided in relevant part:
To convict the defendant of the crime of felony violation of a court order,
each of the following five elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about May 23, 2016, 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;

No. 49468-0-II
4
(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.
Suppl. CP at 98.
Johnson proposed the following definitional and to-convict instructions:
A person commits the crime of violation of a domestic violence no-contact
order when he or she willfully has contact with another when such contact was
prohibited by a no-contact order and the person knew of the existence of the no-
contact order.
To convict the defendant of the crime of violation of a no-contact order,
each of the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about May 23, 2016 the defendant intentionally had contact
with Christina Upcraft;
(2) That such contact was prohibited by a no-contact order;
(3) That the defendant knew of the existence of the no-contact order;
(4) That the acts occurred in the State of Washington.
CP at 57-58.
Johnson opposed the State’s proposed instructions, arguing that the instructions lowered
the State’s burden of proof because they allowed the jury to convict even if the jury believed that
he did not intend to contact Upcraft. The trial court accepted the State’s proposed definitional
and to-convict instructions and instructed the jury accordingly. The trial court further instructed
the jury that “[w]hen acting knowingly as to a particular fact is required to establish an element
of the crime, the element was also established if a person acts intentionally as to that fact.” CP at
48. Johnson objected to this instruction to the extent that it suggested the State only had to prove
the mental element of knowledge to convict him of the charged crime.

No. 49468-0-II
5
The jury returned a verdict finding Johnson guilty of felony violation of a no-contact
order. The jury also returned a special verdict finding that Johnson and Upcraft were members
of the same family or household. Johnson appeals.
ANALYSIS
Johnson contends that the trial court erred by instructing the jury in a manner that
relieved the State of its burden of proof. We disagree.
We review challenged jury instructions de novo “in the context of the instructions as a
whole.” State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Jury instructions are
sufficient if they allow the parties to argue their theories of the case, are not misleading, and
properly inform the jury of the applicable law when read as a whole. State v. McCreven, 170
Wn. App. 444, 462, 284 P.3d 793 (2012). In general, “a ‘to convict’ instruction must contain all
of the 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) (quoting State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953)). A trial court does
not err by refusing a proponent’s specific instruction if the instruction given “adequately explains
the law and allows each party to argue its theory of the case.” Bennett, 161 Wn.2d at 307. Jury
instructions that relieve the State of its burden to prove each element of a crime beyond a
reasonable doubt constitute reversible error. Bennett, 161 Wn.2d at 307.
RCW 10.99.050(2)(a) provides, “Willful violation of a court order issued under this
section is punishable under RCW 26.50.110.” (Emphasis added). Former RCW 26.50.110
(2015) provided in relevant part:

No. 49468-0-II
6
(1)(a) Whenever an order is granted under . . . chapter . . . 10.99 . . . and the
respondent or person to be restrained knows of the order, a violation of any of the
following provisions of the order is a gross misdemeanor, except as provided in
subsections (4) and (5) of this section:
(i) The restraint provisions prohibiting . . . contact with a protected party.
. . . .
(5) A violation of a court order issued under . . . chapter . . . 10.99 . . . is a
class C felony if the offender has at least two previous convictions for violating the
provisions of an order . . . .
Under RCW 9A.08.010(4), “A requirement that an offense be committed wilfully is satisfied if a
person acts knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements plainly appears.”
Johnson contends that RCW 10.99.050’s use of the term “willful” required the trial court
to instruct the jury that it had to find he intentionally contacted Upcraft to convict him of the
charged crime. In support of this contention, Johnson cites to our opinions in State v. Clowes,
104 Wn. App. 935, 18 P.3d 596 (2001) (disapproved of by State v. Nonog, 169 Wn.2d 220, 237
P.3d 250 (2010)), and State v. Sisemore, 114 Wn. App. 75, 55 P.3d 1178 (2002). Johnson’s
reliance on Clowes and Sisemore is unavailing.
In Clowes, we held that the trial court did not err by providing a to-convict jury
instruction that used the term “knowingly” as a substitute for “willfully” because “proof that a
person acted ‘knowingly’ is proof that they acted ‘willfully.’” 104 Wn. App. at 943 n. 4, 944
(quoting RCW 9A.08.010(4)). But we reversed the defendant’s conviction in Clowes because
the challenged to-convict instruction “contained only the single element that ‘the defendant
knowingly violated the provisions of a no contact order.’” Sisemore, 114 Wn. App. at 77
(quoting Clowes, 104 Wn. App. at 944) (internal quotation marks omitted). In reversing the

No. 49468-0-II
7
defendant’s conviction based on the faulty to-convict instruction in Clowes, we stated that “the
instruction is inadequate because it does not tell the jury that not only must the defendant know
of the no-contact order; he must also have intended the contact.” 104 Wn. App. at 944-45.
Johnson relies on this statement in Clowes to support his contention that the trial court
was required to instruct the jury that it must find Johnson intended to contact the protected
person to find him guilty of the charged offense. But we clearly stated in Clowes that the
elements of violation of a no-contact order are “when [a defendant] willfully has contact with
another knowing that a no-contact order exists and prohibits the contact.” 104 Wn. App. at 944.
We further held in Clowes that proof that “a person acted ‘knowingly’ is proof that they acted
‘wilfully.’” 104 Wn. App. at 944 (quoting RCW 9A.08.010(4)). Further, as we explained in
Sisemore:
A defendant acts willfully if he acts knowingly with respect to the material
elements, including the contact element. Thus, Sisemore violated the no-contact
order if he knowingly acted to contact or continue contact after an original
accidental contact. He did not violate the no-contact order if he accidentally or
inadvertently contacted [the protected person] but immediately broke it off. In
essence, this means Sisemore must have intended the contact. This is consistent
with the Supreme Court’s definition of “willful” as requiring a purposeful act. State
v. Danforth, 97 Wn.2d 255, 258, 643 P.2d 882 (1982).
114 Wn. App. at 78. In short, neither Clowes nor Sisemore require the State to prove that the
defendant intended to violate the no-contact order when he or she contacted the protected party.
To the contrary, both Clowes and Sisemore make clear that the requisite mens rea is a knowing
violation of the no-contact order. Accordingly, the trial court’s to-convict instruction, instruction
defining felony violation of a no-contact order, and instruction defining knowledge are correct
statements of law.

No. 49468-0-II
8
Johnson also appears to contend that the jury instructions as a whole were deficient
because the jury would be required to return a guilty verdict based on his mere awareness that
Upcraft was in close proximity to him, thus preventing him from presenting the defense that he
did not violate the no-contact order because he did not purposely come into contact with her. We
disagree. To return a guilty verdict under the instructions provided here, the jury would have to
find that Johnson knowingly violated a provision of the no-contact order issued against him,
specifically the provision stating in relevant part, “do not contact the protected person, directly,
indirectly, in person or through others . . . .” Exhibit 3. This no-contact order provision directs
Johnson to “not contact” Upcraft as the named protected person on the no-contact order. Exhibit
3. The provision restricts Johnson from engaging in an action, i.e., contacting Upcraft, and is not
directed at circumstances for which he has no control. Thus, the jury as instructed here would
have to find that Johnson engaged in the volitional or purposeful act of contacting Upcraft to find
that he knowingly violated a provision of his no-contact order. Therefore, the trial court’s jury
instructions permitted Johnson to argue, as he did below, that he did not violate the no-contact
order because he attempted to walk away from Upcraft when he saw her approach him.
Because the trial court’s jury instructions accurately stated the law and did not lower the
State’s burden of proof, and because the instructions as a whole permitted Johnson to present his
theory of the case, his claims of instructional error fail. Accordingly, we affirm his conviction of
felony violation of a no-contact order.

No. 49468-0-II
9
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.
Worswick, P.J.
We concur:
Lee, J.
Melnick, J.