IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
f-O
STATE OF WASHINGTON, ] No. 70912-7-1 XT
Respondent, ) DIVISION ONE
V-
UNPUBLISHED OPINION
HUNG MINH HOANG,
Appellant. FILED: November 17, 2014
Schindler, J. —A jury convicted Hung Minh Hoang of four counts of felony
violation of a no-contact order in violation of RCW 26.50.110(1) and (5). Hoang seeks
reversal, arguing the court violated his right to due process by placing the burden of
proof on him in a contested competency hearing, the amended information is
constitutionally deficient because it incorrectly identifies the date the court issued the
no-contact order, and insufficient evidence supports finding he knew of the existence of
the November 10, 2003 no-contact order. In a recent case, State v. Colev, 180 Wn.2d
543, 551-57, 326 P.3d 702 (2014), the Washington Supreme Court held that in a
contested competency hearing following an evaluation under RCW 10.77.060, the
burden of proof is on the party contesting competency. And because the charging
documents sufficiently identify the November 10, 2003 no-contact order, substantial
evidence supports finding Hoang knew of the existence of the no-contact order. We
affirm.
No. 70912-7-1/2
FACTS
Hung Minh Hoang and B.Y.Q. met in Vietnam and got married when B.Y.Q. was
16-years-old. In 2000, B.Y.Q. moved to the United States and got a job at a
supermarket in Seattle. In 2002, Hoang came to the United States.
Hoang was convicted in 2002 of assault in the fourth degree against B.Y.Q. The
court issued a no-contact order prohibiting Hoang from contacting B.Y.Q. In 2003,
Hoang pleaded guilty to assault in the second degree against B.Y.Q. and misdemeanor
violation of a no-contact order. At the sentencing hearing on November 10, 2003, the
court issued a 10-year no-contact order prohibiting Hoang from having any contact with
B.Y.Q.
On April 9, 2004, Hoang pleaded guilty to a charge of felony violation of the no-
contact order issued on November 10, 2003. On May 7, the court imposed a standard
range sentence of 13 months and issued a 5-year no-contact order. After he was
released from jail, Hoang moved to San Francisco. B.Y.Q. filed a petition for dissolution
of the marriage. The decree of dissolution was entered in 2005.
In November 2011, Hoang returned to Seattle. Hoang contacted B.Y.Q. and
asked her to help him renew his expired identification card and find a place to stay.
B.Y.Q. agreed to help him and paid his rent because she was scared of what he might
do if she refused.
During the next seven months, Hoang often went to the supermarket where
B.Y.Q. worked to ask her for money. If B.Y.Q. refused, Hoang would threaten and
curse at her. B.Y.Q. testified that Hoang threatened to kill her if she called the police.
During the last week of June 2012, Hoang went to the supermarket to ask B.Y.Q.
for money three different times. When B.Y.Q. called the police, Hoang "t[ook] off."
No. 70912-7-1/3
The State charged Hoang with four counts of felony violation of a no-contact
order (FVNCO) in violation of RCW 26.50.110(1) and (5) for violating the no-contact
order issued on November 10, 2003. The certification for determination of probable
cause correctly identifies the no-contact order as issued in November 2003, but the
amended information incorrectly states the no-contact order was issued on November 3,
2006.
On September 25, 2012, defense counsel filed a motion for a competency
evaluation of Hoang. The court ordered an evaluation to take place at the King County
jail. After Hoang refused to cooperate, the court entered an order requiring Western
State Hospital to conduct an inpatient evaluation.
Hoang spent 50 days at Western State Hospital. The hospital staff used the
services of a Vietnamese interpreter to communicate with Hoang. Psychologist
Elizabeth Bain conducted a "Forensic Mental Health" evaluation of Hoang and prepared
a report. Dr. Bain stated that Hoang "does not appear to meet the statutory definition of
an incompetent person, since Mr. Hoang does not present with any signs of a mental
disease or defect." The hospital records also reflect that Hoang did not exhibit any
symptoms of mental illness such as delusions or hallucinations during his commitment.
Hoang was discharged from Western State Hospital on January 25, 2013.
The defense retained neuropsychologist Tedd Judd to conduct a competency
evaluation of Hoang. On March 29, Dr. Judd met with Hoang for four hours at the King
County jail with the assistance ofa Vietnamese interpreter and a cultural consultant. Dr.
Judd prepared a "Preliminary Forensic Neuropsychological Report" with a "probable
diagnosis" of paranoid schizophrenia.
No. 70912-7-1/4
The court conducted a hearing to determine whether Hoang was competent to
stand trial. Dr. Bain and Dr. Judd testified during the two-day hearing. The court found
there was "no evidence, or insufficient evidence to find that Mr. Hoang suffers from
schizophrenia." The court ruled Hoang was competent to stand trial.
During the three-day jury trial, Seattle Police Detective Jason Stolt, B.Y.Q., and
B.Y.Q.'s supervisor testified. The court admitted into evidence a number of exhibits,
including the 10-year no-contact order issued on November 10, 2003; the 5-year no-
contact order issued on May 7, 2004; and the 2004 "Statement of Defendant on Plea of
Guilty." Hoang stipulated that he was convicted of assault in the fourth degree in 2002
and assault in the second degree and misdemeanor violation of a no-contact order in
2003.
The defense theory at trial was that Hoang did not know the November 10, 2003
no-contact order was still in effect when he returned to Seattle in 2011. In closing, the
defense argued Hoang did not know of the "current existence" of the November 10,
2003 no-contact order because of the confusion created by overlapping no-contact
orders with different expiration dates.
The jury found Hoang guilty as charged of four counts of FVNCO. The court
imposed a standard range sentence of 54 months and issued a 5-year no-contact order.
ANALYSIS
Contested Competency Hearing
Hoang contends the court violated his right to due process by placing the burden
of proof on him at the contested competency hearing. In State v. Colev. 180 Wn.2d
543, 326 P.3d 702 (2014), the Washington Supreme Court squarely addressed and
rejected the same argument. The court held that in a contested competency hearing
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No. 70912-7-1/5
following an evaluation ordered under RCW 10.77.060, the burden of proof is on the
party contesting competency. Colev. 180 Wn.2d at 547, 556. The court concluded
placing the burden of proving incompetence on the defendant does not violate due
process. Colev. 180 Wn.2d at 558-59.
Sufficiency of the Information
For the first time on appeal, Hoang contends the amended information is
constitutionally deficient. There is no dispute the amended information erroneously
identifies the date of issuance of the no-contact order as November 3, 2006 instead of
November 10, 2003.
The essential elements of the crime must be included in a charging document to
afford notice to an accused of the nature and cause of the accusation against him. U.S.
Const, amend. VI; Wash. Const, art. I, § 22; State v. Kiorsvik. 117 Wn.2d 93, 97, 812
P.2d86(1991).
To convict Hoang of FVNCO, the State had the burden of proving beyond a
reasonable doubt that (1) Hoang willfully contacted B.Y.Q., (2) a valid no-contact order
prohibited such contact, (3) Hoang knew of the existence of the no-contact order, and
(4) Hoang had two previous convictions for violating a no-contact order. State v.
Washington. 135 Wn. App. 42, 49, 143 P.3d 606 (2006); RCW 26.50.110(1) and (5).
When reviewing a challenge to the language in a charging document for the first
time on appeal, we engage in a two-part inquiry. Kiorsvik. 117 Wn.2d at 105-06. First,
we examine whether "the necessary facts appear in any form, or by fair construction can
they be found, in the charging document" and liberally construe the language in favor of
finding it sufficient. Kiorsvik, 117 Wn.2d at 105-06. To determine whether the
necessary facts appear in the charging document, we evaluate "whether all the words
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No. 70912-7-1/6
used would reasonably apprise an accused of the elements of the crime charged."
Kiorsvik. 117 Wn.2d at 109.
Secondly, we consider whether the defendant can demonstrate actual prejudice.
Kiorsvik. 117 Wn.2d at 105-06. To determine whether the defendant was prejudiced by
"inartful or vague language" in the charging documents, we evaluate whether "other
circumstances of the charging process . . . reasonably inform[ed] the defendant in a
timely manner of the nature of the charges." Kjorsvik, 117 Wn.2d at 106.
Hoang contends the amended information is constitutionally deficient because it
does not accurately state the date of issuance for the November 10, 2003 no-contact
order.
The date of issuance is only one of several facts that may be used to identify a
no-contact order in a charging document. City of Seattle v. Termain, 124 Wn. App. 798,
805-06, 102 P.3d 183 (2004). In Termain. we concluded the charging document was
constitutionally deficient because it did not include any facts identifying the no-contact
order or the victim. Termain. 124 Wn. App. at 806. We held that a charging document
alleging violation of a no-contact order must include "reference to the identity of the
victim or to the underlying domestic violence order or facts of the crime." Termain. 124
Wn. App. at 805.1
Here, the charging documents are constitutionally sufficient to apprise Hoang of
the charges against him. The amended information accurately identifies the victim and
the court that issued the no-contact order. Count I of the amended information states, in
Emphasis added.
No. 70912-7-1/7
pertinent part:
That the defendant HUNG MINH HOANG in King County,
Washington, on or about June 29, 2012, did know of and willfully violate
the terms of a court order issued on November 3, 2006 by the King County
Superior Court pursuant to RCW chapter 10.99, for the protection of
[B.Y.Q.], and at the time of the violation having at least two prior
convictions for violating the provisions of an order.[2l
In addition, the certification for determination of probable cause describes the
facts of the crime, the terms of the no-contact order, and accurately identifies the
November 10, 2003 no-contact order by the superior court cause number and expiration
date. The certification for determination of probable cause states, in pertinent part:
There is an extensive history of violence between [Hoang and B.Y.Q.]
involving the police to include a 2003 felony assault conviction for Hung
and an Order Prohibiting Contact Conditions of Sentence was issued. The
order clearly shows Hung as the defendant and [B.Y.Q.] as the protected
person, and it orders Hung to maintain a minimum of 500 feet distance
from [B.Y.Q.], her residence, and her workplace. . . .
Court Orders:
King County Superior Court
No-Contact Order #03-1-02260-4KNT
Issued: 11-03-2003
Expires: 11-10-2013
At 6-29-12 at 1024 [hours], Seattle Police Officer J. Wade #7535 was
dispatched to 412 12 Ave S (Hau Hau Market) for a female saying her ex-
husband was there at her place of employment yelling at her 10-15
minutes ago. . . . Hung had left on foot. Officer Wade used his patrol
vehicle in car MDT [(mobile data terminal)] to conduct [a] records check
and found that there is a current No Contact Order in effect.[3]
Sufficiency of the Evidence
In the alternative, Hoang contends the State did not prove every element of the
crime beyond a reasonable doubt. Specifically, Hoang asserts the State did not prove
2 Counts II through IV repeat this language but state different dates of violation (March, April, and
May 2012).
3 Emphasis in original.
No. 70912-7-1/8
he knew of the existence of the November 10, 2003 no-contact order. Hoang claims he
did not know the November 10, 2003 no-contact order remained in effect.
The State must prove each essential element of the crime beyond a reasonable
doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State
v. Oster. 147 Wn.2d 141, 146, 52 P.3d 26 (2002). The State had the burden of proving
beyond a reasonable doubt that Hoang knew of the existence of the November 10, 2003
no-contact order. RCW 26.50.110(1 )(a); State v. Phillips. 94 Wn. App. 829, 833, 972
P.2d 932 (1999).
In deciding whether sufficient evidence supports a conviction, we must view the
evidence in the light most favorable to the State to determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A challenge to the
sufficiency of the evidence admits the truth of the State's evidence. Salinas. 119 Wn.2d
at 201. "[A]ll reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant." Salinas. 119 Wn.2d at 201.
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), abrogated in part on other grounds by Crawford v. Washington. 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The evidence at trial established that on April 9, 2004, Hoang pleaded guilty to
FVNCO for violating the November 10, 2003 no-contact order. The court admitted into
evidence as an exhibit the 2004 Statement of Defendant on Plea of Guilty. The
Statement of Defendant on Plea of Guilty states in Hoang's "own words" that "[i]n King
County, [Washington], on February 2, 2004, I knew of and willfully violated the terms of
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No. 70912-7-1/9
a court order issued by King County Superior Court pursuant to RCW 10.99 for the
protection of [B.Y.Q.] by intentionally assaulting her."
Without objection, the court instructed the jury that it could consider the exhibit for
the limited purpose of determining knowledge. Jury instruction 9 states, in pertinent
part, "You may consider Exhibit 4 in determining whether the defendant had current
knowledge of the no contact order at the time of the currently charged offenses."
Viewed in the light most favorable to the State, sufficient evidence supports the
finding that Hoang knew of the existence of the November 10, 2003 no-contact order.
We affirm.
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WE CONCUR:
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