Full Opinion

FILED NOVEMBER 5, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 40848-5-III Respondent, ) ) v. ) ) DAVID ISAAC MALDONADO, ) UNPUBLISHED OPINION ) Appellant. ) COONEY, J. — A jury found David Maldonado guilty of two counts of felony violation of a domestic violence protection order. The order restrained David 1 from contacting Mollie Maldonaldo and from knowingly coming, or remaining within, 300 feet of her, among other restrictions. The charges arose from two closely related incidents: (1) David parked his vehicle a few stalls away from Mollie, violating the order’s 300-foot restriction (count 1), and (2) during his arrest, David spoke to Mollie, violating the order’s no contact provision (count 2). David appeals, arguing (1) the evidence was insufficient to support his conviction on count 1, (2) he received ineffective assistance of counsel, and (3) his conviction on count 2 violated double jeopardy. We reject each claim and affirm. 1 We refer to the parties by their first names for clarity. No disrespect is intended. No. 40848-5-III State v. Maldonado BACKGROUND On December 5, 2023, the Stevens County District Court entered a postconviction domestic violence no contact order restraining David from, among other things, contacting Mollie or knowingly coming or remaining within 300 feet of any place Mollie arrives first. On February 12, 2024, David and his girlfriend were parked in a Safeway parking lot in Chewelah, Washington. Mollie later arrived, parked, and began walking to the store entrance. Before reaching the entrance, Mollie saw David and his girlfriend and returned to her vehicle. Mollie thought David was leaving the store parking lot, but he instead moved his vehicle to the next aisle, approximately three cars away from her vehicle. Mollie observed David and his girlfriend looking at her and laughing. Officer Kade Middlesworth of the Chewelah Police Department responded and observed David in his vehicle approximately 50 feet from Mollie. Officer Middlesworth reviewed the no contact order and determined that David was required “to remain approximately 300 [feet] away from Mollie and anywhere she arrives first.” Clerk’s Papers (CP) at 4. After taking Mollie’s statement, Officer Middlesworth arrested David for violating the no contact order. During the arrest, David looked toward Mollie and yelled, “[R]eally[?]” CP at 4. The State originally charged David with one count of felony violation of a protection order. 2 No. 40848-5-III State v. Maldonado Defense counsel filed a Knapstad 2 motion and argued the State could not prove David knowingly violated the no contact order because he arrived at Safeway before Mollie and because the order does not prohibit his alleged laughter toward her. The trial court denied the motion and ruled that David’s act of moving his vehicle to within three parking stalls of Mollie was sufficient to establish a prima facie case. On June 18, the State filed an amended information charging David with two counts of felony violation of a domestic violence protection order. A jury trial began on October 16. Mollie testified that she drove to Safeway on February 12, 2024, to buy Tylenol for her child. After arriving, she parked, exited her vehicle, and began walking to the store entrance. As she walked, David and his girlfriend suddenly appeared from behind a nearby car, approximately 10 to 12 feet from Mollie. Mollie testified that they were close enough for her to see their facial expressions and “[t]hey looked directly in [her] eye.” Verbatim Rep. of Proc. (VRP) at 207. Mollie felt intimidated about walking past the pair and instead returned to her vehicle and locked the doors. Mollie further testified that David then backed out of his parking spot, drove behind her, and parked in the closest available spot to her about three or four stalls away. She stated that David and his girlfriend “were laughing a lot,” and she believed they were 2 State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). 3 No. 40848-5-III State v. Maldonado laughing because they had moved closer and “thought it was pretty funny.” VRP at 224. Mollie then contacted law enforcement. Officers arrived at the Safeway within minutes. Mollie testified that David attempted to leave once law enforcement arrived. She explained that an officer stopped David, questioned him, and then arrested him. Mollie further testified that David directed comments toward her while he was placed under arrest, including “are you kidding” and “don’t you want your money?” VRP at 217. Officer Middlesworth testified that he was dispatched to Safeway on February 12, 2024. He contacted Mollie while she was seated in her vehicle, parked approximately 50 feet from David’s vehicle. Officer Middlesworth testified that he observed David backing out of his parking space and directed another officer to stop him. Officer Middlesworth stated he then contacted David, who acknowledged he was not supposed to contact Mollie. Officer Middlesworth testified that he heard David call Mollie “a bitch” and, at one point, looked toward her and said, “[R]eally[?]” VRP at 299-300. The court admitted clips recorded from Officer Middlesworth’s body camera that showed David was handcuffed before he made statements toward Mollie. A second officer’s body camera recorded David yelling, “[R]eally[?]” and “[Y]ou want your fucking money or not?” while handcuffed. Ex. P29, clip no. 14. Tabitha Barrett, David’s purported girlfriend, testified that she was with David during the February 12 incident. She testified they arrived at Safeway while she was on a 4 No. 40848-5-III State v. Maldonado court call and remained in the vehicle until she finished. Ms. Barrett explained that David was in the driver’s seat on his phone, and they spoke intermittently while she was muted. She further testified they later changed parking spots after the space where they had first met “freed up,” and she asked David to move. VRP at 390. Ms. Barrett stated she was focused on her court call, and David was “messing around on his phone too” while they waited to go inside. VRP at 391. At the close of evidence, the jury was instructed on the elements of felony violation of a protection order as charged in count 1: 1. That on or about February 12, 2024, there existed a protection 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 by knowingly violating the restraint provisions therein: “do not cause, attempt, or threaten to cause bodily injury to, assault, sexually, harass, stalk, or keep under surveillance the protected” or “do not knowingly enter, remain, or come within 300’ of the protected person’s home, school, business, place of employment, or any place protected person arrives first” 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. CP at 89. The jury was also instructed on felony violation of a protection order as charged in count 2: 1. That on or about February 12, 2024, there existed a protection order applicable to the defendant; 5 No. 40848-5-III State v. Maldonado 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 by knowingly violating the restraint provisions therein: “do not contact the protected person directly, indirectly, in person, or through others, by phone, mail, or electronic means, except for mailing or service or process of court documents through a third party, or contact by the defendant’s lawyers” 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. CP at 90. The jury ultimately found David guilty of both counts and returned special findings that David and Mollie were intimate partners. David timely appeals. ANALYSIS SUFFICIENCY OF EVIDENCE David argues the evidence was insufficient to support his conviction on count 1. We disagree. Due process requires the State prove every essential element of a crime beyond a reasonable doubt. State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135 (1994). “A conviction based on insufficient evidence contravenes the due process clause of the Fourteenth Amendment [to the United States Constitution] and thus results in unlawful restraint.” In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). 6 No. 40848-5-III State v. Maldonado Sufficiency of the evidence is a question of law this court reviews de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). In a sufficiency of the evidence analysis, the court considers whether “after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt 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 and all inferences that reasonably can be drawn therefrom.” Id. “[I]nferences based on circumstantial evidence must be reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). We defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The remedy for insufficient evidence is dismissal with prejudice. State v. Irby, 187 Wn. App. 183, 204, 347 P.3d 1103 (2015). David argues the evidence was insufficient to support his conviction on count 1 because he arrived at the Safeway parking lot before Mollie. The State responds that the evidence was sufficient and points to testimony that David moved his vehicle within three parking stalls of Mollie after she arrived. To convict David of the violation of a no contact order in count 1, the State had to prove beyond a reasonable doubt that David (1) knew of the no contact order, (2) knowingly violated a restraint provision of the order, and (3) had twice previously 7 No. 40848-5-III State v. Maldonado been convicted for violating the provisions of a court order. RCW 7.105.450(1)(a)(i-v), (5). David contends the State failed to prove a violation occurred because the order prohibited him from knowingly coming or remaining within 300 feet of any place Mollie arrived first, and he asserts the evidence shows he was already at Safeway when Mollie arrived. He further argues the State presented no evidence he threatened Mollie or engaged in stalking as defined in RCW 7.105.010(35). The no contact order restrained David from, among other things, knowingly entering, remaining, or coming within 300 feet of “any place” Mollie arrives first. CP at 7; Ex. P25 (emphasis added). Although evidence showed David arrived at Safeway before Mollie, Mollie testified that she saw David and his girlfriend close enough to make eye contact and see their facial expressions as she approached the store. She further testified that after she retreated to her vehicle, David backed out, drove behind her vehicle, and parked in the closest available spot to her, about three stalls away. Viewing this evidence in a light most favorable to the State, a rational trier of fact could find that David knowingly entered or remained within 300 feet of the area— “any place”—where Mollie arrived first in violation of the order’s distance restriction as charged in count 1. Indeed, Mollie arrived at her parking spot first, and David moved his vehicle closer to her. Had David simply left the Safeway parking lot or remained in his original spot, there would have been no violation of the no contact order. Because this 8 No. 40848-5-III State v. Maldonado evidence is sufficient to support the conviction, we do not reach whether the evidence also supported other means of violating the order as to count 1. INEFFECTIVE ASSISTANCE OF COUNSEL David argues he received ineffective assistance from his trial attorney because his attorney did not move to suppress statements he made after his allegedly unlawful arrest. We disagree. Defendants have a constitutionally guaranteed right to effective assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190 Wn.2d 104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an issue of constitutional magnitude that may be raised for the first time on appeal. State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). We review ineffective assistance of counsel claims de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). We examine the entire record in considering an ineffective assistance of counsel claim. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To prevail on a claim of ineffective assistance of counsel, the appellant bears the burden of showing (1) that his counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s poor performance, the outcome of the proceedings would have been different. Id. at 334-35. If either element is not satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). 9 No. 40848-5-III State v. Maldonado A defendant alleging ineffective assistance of counsel bears the burden of showing deficient representation. McFarland, 127 Wn.2d at 335. In reviewing the record, there is a strong presumption that counsel’s performance was reasonable. Id. “The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). “When counsel’s conduct can be characterized as legitimate trial strategy or tactics, [their] performance is not deficient.” Kyllo, 166 Wn.2d at 863. Even if we find that counsel’s performance was deficient, a defendant must affirmatively prove prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). This requires more than simply showing that “the errors had some conceivable effect on the outcome.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant demonstrates prejudice by showing that the proceedings would have been different but for counsel’s deficient representation. McFarland, 127 Wn.2d at 337. David argues his arrest was unsupported by probable cause and therefore unlawful; he contends his attorney was ineffective for failing to move to suppress his postarrest statements that formed the basis for count 2. The State responds that probable cause supported the arrest and, in any event, David’s statements were not incriminating but constituted a separate violation of the no contact order. 10 No. 40848-5-III State v. Maldonado Both our state and federal constitutions require arrests to be supported by probable cause. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996). We review whether probable cause exists de novo. State v. Grande, 164 Wn.2d 135, 140, 187 P.3d 248 (2008). “Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed.” State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). Therefore, the validity of an arrest does not hinge on whether a crime was actually committed. State v. Afana, 169 Wn.2d 169, 183, 233 P.3d 879 (2010). Rather, the lawfulness of an arrest depends on whether the arresting officers’ belief that probable cause exists was reasonable. Id. Here, Officer Middlesworth observed David’s vehicle was parked approximately 50 feet from Mollie. He reviewed the no contact order and understood it required David to remain approximately 300 feet away from Mollie at any place she arrives first. Mollie reported that after she returned to her vehicle, David moved his vehicle to a parking spot “approximately three vehicles away” from where she arrived first and that David and his girlfriend looked at her and laughed. CP at 4. When contacted by Officer Middlesworth, David acknowledged that he knew about the order and its conditions. These facts were sufficient to warrant a person of reasonable caution to believe that David had violated the 11 No. 40848-5-III State v. Maldonado order. Officer Middlesworth therefore had probable cause to arrest David for violation of a no contact order. Because the arrest was lawful, defense counsel was not deficient for failing to move to suppress statements as the fruit of an unlawful arrest. Such a motion would have been unsuccessful. DOUBLE JEOPARDY For the first time on appeal, David argues double jeopardy bars his conviction for count 2. 3 We disagree. We review double jeopardy claims de novo. State v. Smith, 177 Wn.2d 533, 545, 303 P.3d 1047 (2013). Under both our federal and state constitutions, individuals have a right to be free from double jeopardy. State v. Hancock, 17 Wn. App. 2d 113, 117, 484 P.3d 514 (2021); State v. Heaven, 127 Wn. App. 156, 161, 110 P.3d 835 (2005); U.S. CONST. amends. V, XIV; WASH. CONST. art. I, § 9. “The state and federal double jeopardy clauses offer the same scope of protection.” Heaven, 127 Wn. App. at 161. One component of this protection is “the right not to be punished multiple times for the same offense.” Hancock, 17 Wn. App. 2d at 117. “A double jeopardy claim is of constitutional proportions and may be raised for the first time on appeal.” State v. Land, 172 Wn. App. 593, 598, 295 P.3d 782 (2013). The right to be free from double jeopardy 3 Because this issue is of constitutional magnitude, we review the merits of this claimed error. See RAP 2.5(a). 12 No. 40848-5-III State v. Maldonado is unique in that “[t]he State has broad authority to extract multiple punishments for the same conduct.” Hancock, 17 Wn. App. 2d at 117. There is no double jeopardy violation where legislative intent permits multiple punishments of the same conduct. Id. Where a defendant has multiple convictions for violating the same statute, we look to “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute,” otherwise known as the “unit of prosecution” test. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998) (citing Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. E. 2d 905 (1995)). A defendant is protected from more than one conviction under a single statute if they commit just one unit of the crime. State v. Reeder, 184 Wn.2d 805, 825, 365 P.3d 1243 (2015). A unit of prosecution can be an act or a course of conduct. State v. Hall, 168 Wn.2d 726, 731, 230 P.3d 1048 (2010). We answer this inquiry by first looking to the statute itself. State v. Jensen, 164 Wn.2d 943, 949, 195 P.3d 512 (2008). If the statute does not define the unit of prosecution, we look to the legislative history to determine legislative intent. Id. Then, we conduct a factual analysis to determine whether the facts of the case show more than one unit of prosecution. State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007). Finally, where there is still doubt and “[u]nless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the rule of lenity requires a court to resolve ambiguity in favor of one offense.” Jensen, 164 Wn.2d at 949; see also In re Pers. Restraint of France, 199 Wn. App. 822, 834, 401 P.3d 336 (2017). 13 No. 40848-5-III State v. Maldonado David argues his conviction on count 2 violates double jeopardy because the State prosecuted him twice for a single encounter. The State responds that double jeopardy is not implicated because the two convictions are not the same in fact and do not involve the same unit of prosecution: count 1 was based on David’s proximity to Mollie in the parking lot while count 2 was based on his subsequent verbal contact with her during his arrest. Because David was convicted of two counts of felony violation of a domestic violence protection order under the same statute, the question is whether his conduct constituted more than one unit of prosecution. RCW 7.105.450(5) provides, “A violation of a domestic violence protection order” is a class C felony if the defendant has at least two previous convictions for violating the provisions of a court order. (Emphasis added.) In State v. Brown, this court construed similar “a violation” of language in the former no contact order statute and held that the unit of prosecution is each individualized violation of the order. 159 Wn. App. 1, 10-11, 248 P.3d 518 (2010). As Brown explained, the legislature’s use of the word “a” generally authorizes punishment for each discrete instance of criminal conduct, even if multiple instances occur close in time. Id. at 11. Because Brown involved separate calls to the protected party on separate days, there was no double jeopardy violation. Id. at 13. By contrast, in State v. Madden, 16 Wn. App. 2d 327, 334-35, 480 P.3d 1154 (2021), we held that a single act that simultaneously violated multiple court orders 14 No. 40848-5-III State v. Maldonado constituted only one unit of prosecution. In reversing two of Mr. Madden’s three convictions, we relied on the principle that “‘each count must be based on a separate and distinct criminal act.’” Id. at 335-36 (internal quotation marks omitted) (quoting State v. Mutch, 171 Wn.2d 646, 662, 254 P.3d 803 (2011)). David also relies on two unpublished cases, but neither controls here. In State v. Gardner, No. 76042-4-I, slip op. at 2-3 (Wash. Ct. App. Apr. 15, 2019) (unpublished) https://www.courts.wa.gov/opinions/pdf/760424.pdf., this court reversed, and ruled that one of the two felony violation of a no contact order convictions must be vacated where the defendant’s entry into the protected party’s home and ensuing assault should be treated as a single course of conduct amounting to one violation. In State v. Juarez, No. 34638-2-III, slip op. at 6-7, 16 (Wash. Ct. App. Jan. 4, 2018) (unpublished) https://www.courts.wa.gov/opinions/pdf/346382_unp.pdf., this court found a double jeopardy violation where the State charged two counts for conduct that occurred simultaneously and for what we characterized as one “ongoing assault” (a “close call”). These facts show two separate acts—and two distinct ways of violating the protection order—not a single, continuous course of conduct. First, David intentionally moved his vehicle closer to Mollie and remained within 300 feet of her, knowingly violating the order’s distance restriction. Second, after officers intervened and David was arrested for that conduct, he directed statements at Mollie and violated the order’s separate no contact provision. The acts were separated by David’s attempt to drive away 15 No. 40848-5-III State v. Maldonado as law enforcement arrived. 4 Having begun to disengage from the proximity-based violation, David then chose to commit a new, contact-based violation. These are separate and distinct criminal acts, and thus separate units of prosecution, even though they occurred on the same day and under the same statute. Accordingly, double jeopardy does not bar David’s conviction on count 2. Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Cooney, J. WE CONCUR: Staab, C.J. Hill, J. 4 David argues the first violation never stopped, citing Officer Middlesworth’s testimony that David was stopped “120 to 200 feet” from Mollie after he had been parked within 50 feet of her. VRP at 296. Even if David remained within 300 feet until stopped by Officer Middlesworth, he had disengaged from the initial proximity-based conduct when he backed out and began to drive away; the subsequent verbal contact was therefore not part of a single continuing course of conduct. 16