UNPUBLISHED OPINION

BRIDGEWATER, J.

Shane H. Nulf appeals his conviction for assault in violation of a no-contact order for domestic violence. We affirm the conviction, but we remand for correction of the judgment and sentence to clarify that the duration of confinement plus the term of community custody shall not exceed the five-year statutory maximum.

FACTS

On February 9, 2007, during daylight hours, a car pulled into a driveway just across from Barrie Christman's house. Christman heard someone yelling for help from the unfamiliar car. Then from about 150 feet away, Christman saw someone striking the passenger of the car. As Christman proceeded toward the car, the driver "gunned the motor like they were going to turn around and come towards [Christman]." RP (Mar. 22, 2007) at 20. Christman pointed at him to stop; the driver put the car in reverse and proceeded to back up the driveway. The driver then turned around and started to drive away. Before the driver sped off, the passenger got out and ran away from the car.

The passenger, Rebecca Moose, was bloody, frantic, hysterical and appeared to be "pretty badly hurt." RP (Mar. 22, 2007) at 21. Christman called 911 and remained with Moose until the ambulance arrived. When he spoke to 911 dispatch, Christman provided the license plate number, a description of the vehicle, and a description of the events he witnessed. Grays Harbor County law enforcement officers also arrived on the scene. Moose told the officers that the registered owner of the car was the person who assaulted her.

Based on Moose's statement and Christman's description of the car and license plate number, Grays Harbor County sheriff, Lieutenant David Porter, stopped Nulf on the night of the incident. Nulf was driving the car fitting Christman's description when they stopped him. Deputy Tracy Gay was also on the scene and immediately advised Nulf that he was under arrest for the assault. As Deputy Gay was handcuffing him, Nulf said "that was one of the dumbest things I have done in my life. I should not have met up with her." RP (Mar. 22, 2007) at 57-58.

The State charged Nulf with one count of assault in violation of a no-contact order — domestic violence, under RCW 26.50.110 and RCW 10.99.020. The case proceeded to trial, but Moose did not testify. The jury convicted Nulf as charged. The trial court sentenced Nulf to 54 months' confinement, the high end of the standard sentencing range.

ANALYSIS I. Sufficient Evidence

Nulf first contends that there was insufficient evidence to support his conviction. He argues that the State did not meet its burden of proving that the assault in violation of the no-contact order occurred in Grays Harbor County.

In a criminal case, evidence is sufficient to support a guilty verdict if, when viewed in the light most favorable to the State, any rational trier of fact could find each element of the crime proved beyond a reasonable doubt. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). When the sufficiency of evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We give circumstantial and direct evidence equal weight. State v. Linden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). In addition, we leave resolution of conflicting testimony, credibility determinations, and the persuasiveness of evidence to the fact finder and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

To prove the charged crime, the "to-convict" instruction required the State to prove that the assault in violation of the no-contact order occurred in Grays Harbor County. Nulf relies on State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), to support his contention that the State was required to and failed to show that he committed the crime in Grays Harbor County.

In Hickman, the defendant participated in a plan to steal his car for financial gain. Hickman, 135 Wn.2d at 100. The defendant was living in Hawaii when the car was stolen. Hickman, 135 Wn.2d at 100. He called his insurance company, located in Kent, Washington, from Hawaii to report his car stolen. Hickman, 135 Wn.2d at 100. The car was eventually found in Snohomish County. Hickman, 135 Wn.2d at 100-01. The State charged the defendant with Page 5 insurance fraud in Snohomish County. Hickman, 135 Wn.2d at 100-01. Although venue was not an element of the crime, the State agreed to the to-convict jury instructions, including an element that the crime occurred in Snohomish County. Hickman, 135 Wn.2d at 100-01.

The Washington Supreme Court held that because the State failed to object to the "to-convict" jury instructions, venue became an element of the crime that the State was required to prove beyond a reasonable doubt. Hickman, 135 Wn.2d at 105. Moreover, the Supreme Court found the State failed to prove that the fraud occurred in Snohomish County. Hickman, 135 Wn.2d at 105-06. Specifically, one statement by a deputy sheriff that he received a call reporting the car stolen "off Logan Road" without specification as to the Logan Road location was insufficient to prove the fraud occurred in Snohomish County. Hickman, 135 Wn.2d at 106.

This case is distinguishable from Hickman. Although the State presented no direct and explicit evidence that Nulf committed the assault in Grays Harbor County, it did present sufficient circumstantial evidence from which a rational trier of fact, drawing all reasonable inferences, could find the State met its burden of proving beyond a reasonable doubt that the incident occurred in Grays Harbor County. First, contrary to Hickman, the incident in this case occurred at one location. Second, several Grays Harbor County deputies and detectives testified that they responded and/or investigated the incident. The deputies and detectives also testified that Grays Harbor County employed them and the record contains no evidence that any of the officers worked for a jurisdiction outside of Grays Harbor County. Moreover, Deputy Eric Cowsert testified that the incident occurred in the "area of State Route 12 in Alfredson Road." RP (Mar. 22, 2007) at 48. Lieutenant Porter testified that he responded to the incident from Montesano (the Grays Harbor County seat), leading to a reasonable inference that the incident was in Grays Harbor County. Drawing all reasonable inferences from the evidence in favor of the State, a rational trier of fact could reasonably find that Nulf committed the assault in violation of the no-contact order in Grays Harbor County. DeVries, 149 Wn.2d at 849.

There was substantial evidence to support the gratuitous element of venue.

II. Sixth Amendment Right to Confrontation

Nulf next contends that the trial court violated his Sixth Amendment right to confrontation by admitting testimonial statements that Lieutenant Porter made while testifying for the State. The State concedes that Lieutenant Porter's testimony that the victim told the officers that Nulf was the car's owner and also that the person who assaulted her were likely testimonial statements. But the State maintains that the testimonial statements were harmless under the overwhelming untainted evidence test. The State is correct.

A confrontation clause violation does not require reversal if the error is harmless. State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff'd, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We employ the overwhelming untainted evidence test to determine whether an error implicating the confrontation clause is harmless. State v. Hieb, 107 Wn.2d 97, 109-10, 727 P.2d 239 (1986). The overwhelming untainted evidence test requires a finding of harmless error if the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt. Hieb, 107 Wn.2d at 110 (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)).

Here, the State elicited Christman's testimony that he observed the assault from his property. He observed the victim walking away from the car, leaving a trail of blood. He identified the car. He also identified Nulf in a photo lineup as the person in the car committing the assault. In addition, Officer Gay testified that when he arrested Nulf, Nulf made the statement, "that was one of the dumbest things I have done in my life. I should not have met up with her." RP (Mar. 22, 2007) at 57-58. Furthermore, the officers described blood found in Nulf's car and the victim's significant injuries. The State also submitted the no-contact order showing that Nulf was prohibited from contacting Moose due to domestic violence.

Given this overwhelming and untainted evidence, the trial court's admission of Lieutenant Porter's statement that Moose told officers that the owner of the car was the person who assaulted her was harmless error. See Hieb, 107 Wn.2d at 110.

III. Missing Witness Instruction

Nulf also contends that the trial court erred when it denied his request for a missing witness jury instruction. He maintains that he was entitled to the instruction because the victim did not testify during the trial. We disagree.

We review a trial court's refusal to give a requested instruction for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). A trial court abuses its discretion when it exercises that discretion on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). It is error to give an instruction that the evidence does not support. State v. Hoffman, 116 Wn.2d 51, 111, 804 P.2d 577 (1991).

"A party's failure to produce a particular witness who would ordinarily . . . testify raises the inference in certain circumstances that the witness's testimony would have been unfavorable." State v. McGhee, 57 Wn. App. 457, 462-63, 788 P.2d 603, review denied, 115 Wn.2d 1013 (1990). To invoke the "missing witness" rule and obtain an instruction in a criminal case, the defendant is not required to prove that the State deliberately suppressed unfavorable evidence. McGhee, 57 Wn. App. at 463. Instead, the defendant must establish circumstances indicating that the State would not knowingly fail to call the witness unless the witness's testimony would be damaging. State v. Davis, 73 Wn.2d 271, 280, 438 P.2d 185 (1968). No such inference arises if the State provides a satisfactory explanation for the absence of the missing witness. State v. Blair, 117 Wn.2d 479, 489, 816 P.2d 718 (1991).

Additionally, the "missing witness" instruction is appropriate only when the uncalled witness is "peculiarly available" to one of the parties. Davis, 73 Wn.2d at 276. For a witness to be "peculiarly available" to one party, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, that it was reasonably probably that the witness would have been called to testify for such party except for the fact that the testimony would have been damaging. Davis, 73 Wn.2d at 277.

Here, the trial court rejected Nulf's proposed missing witness instruction because Moose was not a witness who was peculiarly within the State's power to produce. We hold that the trial court did not err. Moose's status as a domestic violence victim did not establish the type of professional or personal relationship typically viewed as necessary to make a witness "peculiarly available" to one party. See Davis, 73 Wn.2d at 278 (uncalled witness, who was a law enforcement officer, worked so closely with the county prosecutor's office as to indicate a community interest between the prosecutor and the uncalled witness); see also Blair, 117 Wn.2d at 490 (defendant had business or personal relationship with people who owed him money such that prosecutor's reference to them as missing witnesses was permissible). Moose was simply not peculiarly available to the State.

Moreover, the State in this case provided a satisfactory explanation for Moose's absence. See Blair, 117 Wn.2d at 489. Although the State attempted personal service on Moose, it was not able to complete it. The State implied that it was unable to secure personal service on Moose because she had a warrant outstanding. The trial court found the State's explanation adequate to prevent the inference that Moose's testimony would be unfavorable to the State. The record supports the trial court's finding; accordingly, there was no abuse of discretion. The trial court did not err when it refused Nulf's proposed missing witness instruction.

IV. Community Placement

Nulf also contends that his sentence exceeds the statutory maximum for assault in violation of a no-contact order, a class C felony, because his total combined sentence exceeds the statutory maximum of five years. Nulf is correct.

The maximum punishment for every offense is set by the legislature. State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004). The total punishment, including imprisonment and community custody, may not exceed the statutory maximum for a particular offense. Sloan, 121 Wn. App. at 221. Where a defendant is sentenced to the statutory maximum, and also sentenced to community custody, the judgment and sentence should set forth the statutory maximum and clarify that the term of community custody cannot exceed that maximum. Sloan, 121 Wn. App. at 221.

Here, the jury convicted Nulf of assault in violation of a no-contact order. RCW 26.50.110, 10.99.020. This is a class C offense for which the maximum punishment is 60 months' confinement. RCW 26.50.110(4); RCW 9A.20.021(1)(c). The sentencing court imposed a sentence of 54 months' confinement. The sentencing court also imposed 9-18 months' community custody. Nevertheless, the sentencing court failed to make any notation on the judgment and sentence to clarify that the duration of confinement plus the term of community custody shall not exceed the five-year statutory maximum. Accordingly, we remand for the sentencing court to include such a notation. See Sloan, 121 Wn. App. at 224.

V. Statement of Additional Grounds (SAG)

Nulf raises several issues in his SAG. This court holds that the issues Nulf enumerates in his SAG lack merit.

Nulf is not required to cite to the record or authority in his SAG, but he must "inform the court of the nature and occurrence of [the] alleged errors," and we are not required to search the record to find support for his claims. RAP 10.10(c). Additionally, this court cannot review matters outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) (stating that a personal restraint petition is the appropriate means for having the reviewing court consider matters outside the record). And finally, we cannot review credibility and weight issues. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

A. Admission of Photographs

Nulf first asserts that the trial court abused its discretion by admitting photographs of Moose's injuries. He argues the pictures were more prejudicial than probative. We disagree.

To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." ER 401. Even if evidence is relevant, however, a trial court may exclude it "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. The decision of whether to admit evidence is within the trial court's sound discretion and we will not reverse absent an abuse of discretion, which occurs when no reasonable person would take the view the trial court adopted. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).

Here, the trial court admitted three photographs that officers took of Moose after the assault. Photographs of a victim and his or her injuries may be relevant for a number of purposes, such as proving intent and injury. See State v. Finch, 137 Wn.2d 792, 812-13, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Nulf's defense counsel did not object to the admission of any of these exhibits and the record does not explicitly contain the trial court's specific reason for allowing admission of the photographs. When the State offered the photographs for admission, however, it elicited testimony from witnesses regarding the Moose's injuries and defensive wounds on her hands. Therefore, it may be inferred that the trial court allowed admission of the Page 12 photographs to show that the victim had been assaulted, the central issue of the case. In other words, based on the record before this court, the photographs of the victim were relevant and more probative than prejudicial. See ER 403; Atsbeha, 142 Wn.2d at 913-14.

Likewise, the photographs of the interior of Nulf's car depicting stains consistent with blood stains were relevant and more probative than prejudicial. Again, Nulf did not object to the admission of these photographs. But he did object to the State's characterization that the stains depicted in them were blood stains. While admitting these photographs, the State elicited testimony from the officers who took the photographs that they were of stains found in Nulf's car and that, in the officers' professional opinions, the stains were consistent with blood. It may be inferred from the record that the trial court allowed admission of the photographs of Nulf's car for identification purposes. Therefore, based on this record, the trial court properly found that the photographs of Nulf's car were more probative than prejudicial. See ER 403; Atsbeha, 142 Wn.2d at 913-14.

We reject Nulf's contention that the trial court erroneously admitted photographs during trial. The photographs were relevant and Nulf has not established that they were more prejudicial than probative. The trial court did not abuse its discretion by admitting them.

B. Effective Assistance of Counsel

Nulf also seems to contend that he was denied effective assistance of counsel because his trial counsel failed to object to testimony that a blue backpack found in his car belonged to Moose. This argument lacks merit.

To establish ineffective assistance of counsel, Nulf must show that: (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 334-35. Nulf must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, he must establish, "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694) (emphasis omitted).

Here, Nulf has failed to show how his counsel's failure to object to Officer Tracy Gay's statement that the blue backpack belonged to the victim prejudiced him. This is particularly evident, given that Nulf testified that the backpack did not belong to Moose. Because Nulf has failed to satisfy the prejudice prong of the test, we reject his contention that he was denied effective assistance of counsel because his attorney failed to object to Officer Gay's statement that the backpack belonged to Moose. See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

C. Imposition of Attorney Fees

Finally, Nulf contends that the trial court violated his Sixth Amendment rights because, as a part of his sentence, the trial court imposed $1,100 in costs and fees, even though he has been deemed indigent. This argument fails.

RCW 10.01.160 authorizes a trial court to impose costs on a convicted indigent defendant if he or she is or will become able to pay them. RCW 10.01.160(3); State v. Eisenman, 62 Wn. App. 640, 644, 810 P.2d 55, 817 P.2d 867 (1991). "In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose." RCW 10.01.160(3).

Here, the trial court complied with RCW 10.01.160. Moreover, the constitutionality of that statute is not in question. Washington's Supreme Court expressly upheld the constitutionality of RCW 10.01.160 in State v. Barklind, 87 Wn.2d 814, 557 P.2d 314 (1976). See State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992). Additionally, it is premature to challenge the constitutionality of an assessment before an effort is made to collect the fee. State v. Zeigenfuss, 118 Wn. App. 110, 113, 74 P.3d 1205 (2003), review denied, 151 Wn.2d 1016 (2004). "Constitutional principles will be implicated . . . only if the government seeks to enforce collection of the assessments `at a time when [the defendant is] unable, through no fault of his own, to comply.'" Curry, 118 Wn.2d at 917 (internal quotations omitted). Finally, we note that Nulf has a remedy available under RCW 10.01.160(4), which permits a defendant to petition the sentencing court for payment remission. For these reasons, we reject Nulf's contention that the trial court violated his Sixth Amendment rights when it imposed fees and costs on him, despite his indigent status. See RCW 10.01.160; Curry, 118 Wn.2d at 915-16.

Affirmed but remanded for correction of the judgment and sentence.

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 pursuant to RCW 2.06.040, it is so ordered.

Van Deren, C.J., I concur: