### FILED FEBRUARY 16,2016 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31154-6-III Respondent, ) ) 

### v. ) ) DAVID BRUCE GUNKEL-RUST, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J.

­ Will the realKaliMayBleichnerplease standup? To Tell the Truth, television program, modified. This appeal asks us to address the quantum ofevidence needed toprove that the victim ofan assault is the samepersonprotected by a no-contactorder. DavidBruce Gunkel-Rust assaulted a Kali Bleichner and a protective orderalso shielded a Kali Bleichner. No Kali Bleichnertestified attrial. We hold that sufficient circumstantial evidencepresented by the Statewarranted a finding that the two Kali Bleichners were the

### No. 31 1 54-6-II1 State 

### v. Gunkel-Rust

same person and merited a conviction for violation oftheprotective order. Thus, we affirm Gunkel-Rust's conviction. We remand for resentencing, nonetheless. FACTS On July 11,2012, friends Jordan Brosius and Kali Bleichnerjoined each other in Kennewick's Keewaydin Park. Brosius had first metBleichner four years earlierthrough Bleichner's ex-boyfriend, defendant David Gunkel-Rust. A court orderprohibited Gunkel-Rust from contactwith Kali May Bleichner. As Jordan Brosius and Kali Bleichnerwalked through Keewaydin Parkto a gas station, David Gunkel-Rust appeared and approached Bleichner. Gunkel-Rust called Bleichner a slut, asked with whose baby she was pregnant, and followed her as Bleichner attemptedto flee his presence. Gunkel-RustbackedBleichner against a bathroom wall and balled his fists. A worried JordanBrosius called 

### 9-1-1. Kennewick Police OfficerElizabeth Grant responded to Jorddn Brosius' emergency call. Officer Grant sawDavid Gunkel-Rust walk from the park bathrooms, peer at her, andjoin ten to fifteen otherpeople on a large park**ben~h.** Grant called: "Hey, Bruce, come overhere," and Gunkel-Rust complied. Verbatim Report ofProceedings (VRP) (Sept. 20, 2012) at

### 44. Gunkel-Rust gave Grant his driver's license, and Grant confirmed his identity. Officer Grantphotographed Gunkel-Rust's right hand, which showed a bleeding cut. Grant spoke with Kali Bleichner and observedthatherright upper lip was swollen and freshly bruised. 2No. 31 I54-6-III State v. Gunkel-Rust
PROCEDURE The State ofWashington charged DavidBruce Gunkel-Rust with felony violation ofa postconviction protection order. The State alleged that Gunkel-Rustthrice previously violated courtprotection orders or, in violating the protection order on July II, he assaulted Kali Bleichner. The State also sought a domestic violence enhancement
on the charge. At the beginning oftrial, David Gunkel-Rust personally addressed the court: THE COURT: Ok. We've entered the plea to the Second Amended Information. Are weready for thejury? MR. ZEIGLER [Defense counsel]: No, Judge. The defendant wants to address the Court. MR. GUNKEL-RUST: I wpuld like to get the rest ofmy discovery. THE COURT: That's it? MR. GUNKEL-RUST: Urn, and I would like to knowwhen and if I'm supposed to have my Mirandarights read to me when I get arrested. THE COURT: Well, I'mnot in a positionto answerthat. That's a question for your attorney. You should ask him, and he's probably capable oftellingyouthe answerto that. And with regard to the discovery, we'rehere on the eve oftrial. I justthink that's an untimely motion. So. MR. ZEIGLER: Judge, to address that issue, we hadpreviously obtained the permission from the state. I providedhim a copy ofwhat I had in the file, police reports. Mr. Gunkel-Rusthas a fundamental misunderstanding ofthe obligations ofthe state andthe Court in regard to discovery. He's seen everything that I've got. In our last conversation he indicatedto me that he thought it was my responsibility to find all ofthe peoplewho were in the park at the alleged time, none ofwhom were in the police reports, but he said that he thought it was up to me to find them and get statements, and I told them it's not incumbent on defense counsel to do something like that, buthe didn'tunderstand that. I'm satisfiedwith the discovery. He basically hung up, terminated the conversation. Iprovided everything in discovery pursuantto the Court's order, and I gave him what 3

# I I ! 

# I No. 31154-6-111 State 

### v. Gunkel-Rust 

# I ! 

# I 1had. 1indicated to him that 1interviewed the state's primary witness. 1also reported to him on the results ofthat interview, and that's basically where we sitthis morning. So I'mprepared for trial. I'm I i satisfied withthe aggravators being offat this point in time. We've I accomplished what we really needed to accomplish, and we'repreparedto 

# ! j proceed. 

# i Transcript (TR) (Sept. 17,2012)at 6-7. 

# I J During trial, Jordan Brosius and OfficerElizabeth Granttestified. Kali 

## 1 { 

### l 

## I Bleichner did not. Brosius testified that she believed Bleichner was, atthe time of trial, either seventeen or eighteen years old. The trial court admitted as exhibits a 

### f 

# I postconviction no-contact orderprotecting Kali May Bleichner,judgments and 

## i sentences for Gunkel-Rust's four earlier no-contact order violations, five booking 

# I I ! photos ofGunkel-Rust, and aphoto ofGunkel-Rust's bleeding hand. During deliberations, thejuryasked how old Bleichnerwas on the date ofthe 

# I i 

# I**~** incident. The trial court responded, "Youhave heard all ofthe evidence." Clerk's Papers 

## I (CP) at 57. 

## I ,**~ ~** **~** i Thejury found DavidBruce Gunkel-Rust guilty offelony violation ofa court 

# i i order. Thejury also found by special verdict that Gunkel-Rust's conduct in violating the 

## I 

# I order constituted an assault and that Gunkel-Rust had previously been convicted at least 

# I twice for violating the provisions ofa court order. Thejury was notunanimous in i 

### ! 

## i finding that Gunkel-Rust and Kali Bleichnerwere members ofthe same family or 1 l 

# I household and thus did not enter a verdict for a domestic violence enhancement.

, 4No. 31154-6-III State 

### v. Gunkel-Rust
In compliance with thejuryverdict, the trial court convicted David Bruce GunkelRust. In its findings, thejudgment and sentenceprovided: Ifthe crime [charged] is a drug offense, the type ofdrug involved is: [X] as charged in the Amended Information. CP at 61. The trial court made no finding regarding Gunkel-Rust's present orfuture ability to pay legal financial obligations. Nevertheless, the court ordered Gunkel-Rustto pay $2,420 in financial obligations and to begin immediately making payments of$50 permonth. Discretionary legal financial obligations comprised $1,220 ofthe total amount ofthe financial obligations. Gunkel-Rust registered no objection during sentencing to the financial obligations. The trial court sentenced Gunkel-Rustto thirteen months' confinement, and also ruled (A) The defendant shall be on community placement or community custody for the longer of: (1) the period ofearly release. RCW 9.94A.728(1)(2); or (2) the period imposed by the court, as follows: Count 1for 12 months. CP at 66. LAW AND ANALYSIS David Gunkel-Rustraises four contentions on appeal: (1) insufficient evidence supports his conviction for a felony violation ofa no-contact order, (2) the trial court erred in imposing legal financial obligations without inquiring into his current and future ability to pay, (3) the trial court erred in sentencinghim to a variable term ofcommunity
5No. 31154-6-II1 State 

### v. Gunkel-Rust custody, and (4) thejudgmentand sentence contains a scrivener's error that shouldbe corrected. We reject Gunkel-Rust's first assignment oferror and affirm his conviction. We agree with his remaining assignments oferror and remand for resentencing. Insufficient Evidence The State prosecuted David Bruce Gunkel-Rust, underRCW 26.50.110, for felonious violation ofa protection order. The statute reads, in relevantpart: (1)(a) Whenever an order is granted under
... chapter
... 10.99
... and the respondent orperson to be restrained knows ofthe order, a violation ofany ofthe following provisions ofthe order is a gross misdemeanor, except as provided in subsections (4) and (5) ofthis section: (4) Any assault that is a violation ofan order issued under
... chapter
... 10.99
... andthat does not amountto assault in the first or second degree underRCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation ofsuch an orderthat is reckless and creates a substantial risk ofdeath or serious physical injury to anotherperson is a class C felony. (5) A violation ofa court order issued under
... chapter
... 10.99

... is a class C felony ifthe offenderhas at least twoprevious convictions for violating the provisions ofan order issued under
... chapter
... 10.99.

. .. Theprevious convictions may involve the same victim or other victims specifically protected by the orders the offenderviolated. Violations ofprotection orders under subsections otherthan subsections (4) and (5) of RCW 26.50.110 constitute gross misdemeanors. To convictDavid Bruce Gunkel-Rust for a felony under RCW 26.50.110, the State needed to submit sufficient evidence for thejury to find the following elements beyond a reasonable doubt: (1) a validno-contact orderexisted at the time ofthe confrontation in

6No. 31154-6-111 State v. Gunkel-Rust
the park, (2) Gunkel-Rust knew the no-contact order existed, (3) the protective order safeguardedthe Kali Bleichner who Gunkel-Rust confronted, (4) Gunkel-Rust knowingly violated the order, (5) the violation constituted an assault ofBleichner or Gunkel-Rust had twice been previously convicted for violating a court orderprotecting anyone, and (6) the violation occurred in the State ofWashington. Gunkel-Rust only challenges the sufficiency ofthe evidence to establish that the Kali Bleichnerhe confronted was the Kali May Bleichnernamed in the protection order. He posits that another Kali Bleichner might be the person protectedunder the no-contact order. He emphasizes that no one testified to the middle name ofthe Kali Bleichner he confronted at the park. The State responds that the evidence sufficed for thejuryto infer Kali Bleichner's identity beyond a reasonable doubt. The State also expresses concern that requiring the State to provide direct evidence ofthe identity ofthe person safeguarded by aprotective orderwould impede its ability to prosecute domestic violence, because many victims avoid testifying out offear oftheir abusers. Dueprocess requires the State to prove, beyond a reasonable doubt, every element ofthe crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). Evidence is sufficient if, after viewing it in the light most favorable to the State,
a rational trier offact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980); State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014). A reasonable doubt is a doubt for which a reason 7No. 31154-6-111 State v. Gunkel-Rust
based on the evidence exists. State 

### v. Tanzymore, 54 Wn.2d 290,291 n.2, 340 P.2d 178 (1959). A defendant challenging the sufficiency ofthe evidence at trial admits the truth ofthe State's evidence and all reasonable inferences therefrom. Witherspoon, 180 Wn.2d at 883.David Gunkel-Rust suggests that direct evidence must prove the identity ofa domestic violence victim. The general rule, contrary to Gunkel-Rust's argument, is that indirect evidence may support thejury's verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). Ajury may draw inferences from evidence so long as those inferences are rationally related to the proven facts. State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d 1211 (1989). Thejurymay inferfrom one fact the existence ofanother essential to guilt, ifreason and experience supportthe inference. Tot v. UnitedStates, 319 U.S. 463, 467, 63 S. Ct. 1241,87 L. Ed. 1519 (1943). David Gunkel-Rustrelies principally on State v. Huber, 129 Wn. App. 499, 119 P.3d 388 (2005). The State charged Wayne Alan Huber with violating aprotection order and tampering with a witness. After Huber failed to appear at apreliminary hearing, the State additionally charged Huber with bailjumping. At trial, the State's evidence consisted solely ofcopies ofthe information for Huber's original charges, the court order requiring Huber to appear, clerk's minutes indicating Huberhad failed to appear, and the bench warrant. The State did not call any witness to identifY the Wayne Huberpresent at trial as the Wayne Huberwho violated the order to appear. Huber movedto dismiss at 8No. 31154-6-111 State 

### v. Gunkel-Rust
the close ofevidence, which motion the trial court denied. On appeal, this court reversed and held that identity ofnames alone was insufficient to prove a defendant's identity beyond a reasonable doubt. This court wrote in State v. Huber: To sustain this burden when criminal liability depends on the accused's being the person to whom a documentpertains-as, for example, in most ifnot all prosecutions for first degree escape, being a felon in possession ofan item that a felon may not lawfully have, lying under oath on a written application, and being an habitual criminal-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." Because "in many instances men bear identical names," the State cannot do this by showing identity ofnames alone. Rather, itmust show, "by evidence independent ofthe record." that the person named therein is the defendant in the present action. The State can meet this burden in a variety ofspecific ways. Depending on the circumstances, these may include otherwise-admissible booking photographs, booking fingerprints, eyewitness identification, or, arguably, distinctive personal information. But the State does not meet its burden merely because the defense opts not to present evidence; ifthe State presents insufficient evidence, the defendant's election not to rebut it does not suddenly cause it to become sufficient. 129 Wn. App. at 502-03 (footnotes omitted). In State v. Huber, the State presented no evidence to relate the defendant on trial to the person named in the order to appear. Thus, Huber does not stand for the proposition that indirect evidence is always insufficient to establish the identity ofa person named in a document. Another Washington decision holds that the identity ofa defendant may be established by indirect evidence. In State v. Hill, 83 Wn.2d 558, 560,
9No. 31 1 54-6-III State v. Gunkel-Rust
520 P.2d 618 (1974), our state high courtruled that identity involves a question or fact for thejury and any relevant fact, either direct or circumstantial, which would convince
ortend to convince a person ofordinaryjudgment, in carrying onhis everyday affairs, of the identity ofaperson should be received and evaluated. Wejuxtapose State v. Huber with State v. Hill, 83 Wn.2d 558 (1974). Our Supreme Courtreversed Jimmy Hill's conviction for possession ofnarcotics on other grounds, but held that the Statepresented sufficient evidence to identify Hill as the one who committed the offense. Hill's presence in the courtroom during trial, references during testimony to "the defendant" and "Jimmy Hill," and ajury verdict form containing Hill's full name were adequate to establish Hill's identity. The state high court did not find the omission ofan in-court identification ofHill fatal to the State's conviction. State v. Huber involved the identity ofthe accused notthe identity ofone shielded under a protective order. One might ask iflooser standards apply to identifying a victim
or aperson other than the accused. We need not resolve this question because distinctive personal information confirmed that the Kali Bleichner Gunkel-Rust confronted at the park was the Kali May Bleichnernamed in the protective order. Kali Bleichner is an uncommon name. Only one Kali Bleichner may reside in Kennewick and its environs. Therefore, one might conclude that the victim ofDavid Bruce Gunkel-Rust's park assault musthave been the subject ofthe no-contact order imposed on Gunkel-Rust. In tum, one might argue that no further evidence was needed lONo. 31154-6-111 State v. Gunkel-Rust

to identifY the woman Gunkel-Rust mugged atKeewaydin Park. We conclude that a rare appellation may be evidence to include in a calculation to determine the sufficiency of evidence, butState v. Huber requires more. The State during trial presented such additional evidence. Viewing the evidence in the light most favorable to the State, thejury couldhave reasonably inferred that the Kali Bleichner, aboutwhom Jordan Brosius and Officer Elizabeth Grant testified, was the Kali May Bleichnernamed as the protected party inthe no-contact order that David Gunkel-Rust violated. Witness Brosius met the Kali Bleichnerpresent in Keewaydin Park through Gunkel-Rust. Gunkel-Rust and the Kali Bleichnernamed in the orderwere former boyfriend and girlfriend. Gunkel-Rust c<;llled the Kali Bleichnerpresent at thepark a slut before accosting her. Gunkel-Rustwould unlikely accuse any random Kali Bleichner ofbeing a slut. The Kali Bleichnerpresent at the park attempted to escape the presence ofGunkel-Rust. This conduct confirms a desire and need for no contactwith Gunkel-Rust. When OfficerElizabeth Grant arrived, Gunkel-Rust attempted to distance himselffrom the Kali Bleichner present at the park. LegalFinancial Obligations David Gunkel-Rust next contends thatthe trial court improperly assessed legal financial obligations without considering his financial resources under RCW 10.01.160(3). He does not distinguish, however, between mandatory financial obligations and discretionary financial obligations. Thetrial court imposed $1,220 in 11No. 31154-6-III State 

### v. Gunkel-Rust discretionary obligations. Gunkel-Rust did not objectto the imposition ofany costs at sentencing, but argues that he may still raise the assignment oferror for the first time on appeaLWhenever a person is convicted in superior court, the court may order the payment oflegal financial obligations as part ofthe sentence. RCW 9.94A.760(1). The financial obligations may include certain costs, including expenses incurred by the State in prosecuting the defendant. RCW 10.01.160(1), (2). A $500 victim assessment fee is mandated by RCW 7.68.035, and a $100 deoxyribonucleic acid (DNA) collection fee is mandated by RCW43.43.754(1). Neither fee is subject to the defendant's ability to pay. By statute, the court is not authorized to order a defendant to pay discretionary fees unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining the amount and method ofpayment ofcosts, the court shall take account ofthe financial
resources ofthe defendant and the nature ofthe burden thatpayment ofcosts will impose. RCW 10.01.160(3);State 

### v. Kuster, 175 Wn. App. 420, 424, 306 PJd 1022 (2013). Our Supreme Court's recent opinion in State 

### v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), addressed whether this court should acceptreview ofa challenge to legal financial obligations, when the defendant failed to objectbelow. In State v. Blazina, the state high court clarified that RCW 10.01.160(3) requires the trial court "do more than sign ajudgment and sentence with boilerplate language statingthat it engaged in the required inquiry." Rather, the "record must reflect that the trial courtmade an 12No. 31154-6-111 State v. Gunkel-Rust
individualized inquiry into the defendant's current and future ability to pay." Blazina, 182 Wn.2d at 838. This inquiry includes evaluating a defendant's financial resources, incarceration, and other debts, including restitution. Blazina, 182 Wn.2d at 838-39. The Blazina court noted reasons for review oflegal financial obligations before collection activities. The high court directed the Court ofAppeals to exercise discretion in determining whether to grant review, pursuant to RAP 2.5, ofchallenges not exercised before the trial court. The trial court did not make an individualized determination ofwhether David Gunkel-Rust had or would in the future possess the ability to pay discretionary legal financial obligations. Because ofthe high amount ofdiscretionary obligations, we exercise our discretion to remand the sentence to the trial court for such an individualized assessment. Variable Term o/Community Custody The trial court imposed community custody for the longer ofany term ofearly release or twelve months. David Gunkel-Rust contends the sentencing court exceeded its statutory authority when it imposed a variable term ofcommunity custody. The State maintains that the trial court placed Gunkel-Rust on twelve months ofcommunity custody and that the term is notvariable. We agree with Gunkel-Rust. A trial court may only impose sentences that statutes authorize. State v. Albright, 144 Wn. App. 566, 568, 183 P.3d 1094 (2008). This court reviews issues ofstatutory 13No. 31154-6-II1 State 

### v. Gunkel-Rust
construction de novo as a question oflaw. State v. Wilson, 170 Wn.2d 682, 687, 244 PJd 950 (2010). Previously, a court could impose a variable term ofcommunity custody under RCW 9.94A.715. But our legislature repealed RCW 9.94A.715 in 2008 in favor offixed terms ofcommunity custody. LAWS OF 2008, ch. 231, 

### § 57; LAWS OF 2009, ch. 28, 

### §42. Underthe amended statute, RCW 9.94A.701 (1)-(3), a court may no longer sentence an offenderto a variable term ofcommunity custody contingent on the amount ofearned release, but instead it must determine the precise length ofcommunity custody atthe time ofsentencing. State 

### v. Franklin, 172 Wn.2d 831, 836, 263 PJd 585 (2011). David Gunkel-Rust's contingent sentence, the longer ofthe period ofearly release ortwelve months, violates the new statute. Onremand, the trial court should impose the proper statutory community custody term oftwelve months. Scrivener's Error David Gunkel-Rust contends that thejudgment and sentence entered by the trial court contains a scrivener's errorthat should be corrected on remand. He underscores the following language as erroneous: Ifthe crime [charged] is a drug offense, the type ofdrug involved is: [X] as charged in the Amended Information. CP at 61. Because the trial court did not convict Gunkel-Rust ofa drug offense, he asks that this language be stricken from hisjudgment and sentence onremand. The State
14No. 31154-6-III State v. Gunkel-Rust
argues that there is no scrivener's errorbecause it filed an amended information in the
case. The State does not explain how this fact obviates Gunkel-Rust's claimed error. Appellate courts have remanded solely for correction ofa scrivener's error in a judgment and sentence in orderto ensure that the document "accurately reflects the sentence the trial court intended." State v. Healy, 157 Wn. App. 502, 516,237 P.3d 360 (2010). A remand has included the circumstances when ajudgment and sentence misstates the crime ofconviction. State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999). Particularly since we remand this case on other grounds, we grant David GunkelRust's request to also remand with instructions to correct the scrivener's error. Statementof Additional GroundsforReview David Gunkel-Rust also submits a statement ofadditional grounds for review, in which he contends that he received ineffective assistance ofcounsel because his attorney withheld evidence from him and delivered a weak closing argument that contributed to his conviction. A criminal defendant can submit a pro se statement ofadditional grounds for review "to identify and discuss those matters related to the decision underreview that the defendant believes have notbeen adequately addressed by the brieffiled by the defendant's counsel." RAP 1O.10(a). The rule additionally provides in part: Reference to the record and citationto authorities are not necessary orrequired, but the appellate court will not consider a defendant's statement ofadditional grounds for review if

### itdoes not inform the court of the nature and occurrence ofalleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the 15No. 31154-6-111 State v. Gunkel-Rust appellate court is not obligated to search the record in support ofclaims made in a defendant's statement ofadditional grounds for review. RAP 10.10(c); see also State v. Alvarado, 164 Wn.2d 556,569,192 P.3d 345 (2008). A claim ofineffective assistance ofcounsel requires proving that (1) counsel's performance was deficient, and (2) the deficientperformance prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficientperformance
occurs when counsel's performance falls below an objective standard ofreasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). This courtpresumes that counsel was effective. Stricklandv. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322,335,899 P.2d 1251 (1995). To rebut the strong presumption that counsel's performance was effective, the defendant bears the burden ofestablishing the absence ofany conceivable legitimate tactic explaining counsel's performance. State v. Hamilton, 179 Wn. App. 870, 879-80, 320 P.3d 142 (2014). David Gunkel-Rust complains that his attorney withheld evidence from him. Nevertheless, defense counsel allowed Gunkel-Rustto view all available discovery. Gunkel-Rust identifies no information withheld from him. Gunkel-Rust also complains that his attorney implicated his guilt during closing argument, buthe identifies no remark uttered by his counsel that inculpated him. Thus, we reject Gunkel-Rust's contention of ineffective assistance ofcounsel.
16No. 31154-6-III State v. Gunkel-Rust
CONCLUSION We affirm David Bruce Gunkel-Rust's conviction for felonious violation ofa protective order. We remand for resentencing, however. On remand, the trial court should remove the scrivener's error suggestingthatthe court convicted Gunkel-Rust ofa drug offense, amend the sentenceto limit community custody for one year, and conduct
an individualized determination ofGunkel-Rust's ability topay discretionary legal financial obligations. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, 1. 

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