IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

WIN JAMES,

Appellant.

No. 83822-9-I

DIVISION ONE

UNPUBLISHED OPINION

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.
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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 nocontact 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 WASHINGTON PRACTICE: WASHINGTON 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:
No. 83822-9-I/3

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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. 
No. 83822-9-I/4

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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). 
No. 83822-9-I/5

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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 nocontact 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 
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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 nocontact 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 
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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.
No. 83822-9-I/8

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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.” 
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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: