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                                                        201^ APR 28 AH 9=59




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             NO. 69648-3-1

                     Respondent,                 DIVISION ONE


                    v.



MELINA K. HARRIS,                                UNPUBLISHED OPINION

                     Appellant.                  FILED: April 28, 2014



       LAUi j. —a criminal defendant is entitled to a unanimous verdict. When the State
presents evidence of several distinct acts, any one of which could form the basis of a
criminal charge, the trial court must instruct the jury that it must reach a unanimous
verdict on one particular incident as the basis for the conviction. Multiple acts that
amount to a continuing course of conduct, however, do not require a unanimity
instruction. Because Melina Harris's assault on a police officer constitutes a continuous
course of conduct, the trial court properly refused to give a unanimity instruction. And
because the third degree assault and obstruction of a police officer offenses do not
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contain the same elements, the double jeopardy clause does not prevent convictions for

both offenses. We affirm.


                                        FACTS

      On October 29, 2011, the Saturday before Halloween, Kent police officers were

responding to a number of noise complaints, including a Halloween party at Melina

Harris's house at approximately 11:20 pm. Detective Jonathan Thompson and Officer

Eric Doherty responded to the call. Both officers heard loud music coming from the

house as they approached on foot.

      Harris came to the front door dressed in a long dress and high heels. Harris

removed her shoes and walked to the middle of the cul de sac, stating repeatedly that

she could not hear anything, the party was not very loud, and she wanted to know who

had complained.

      While Officer Doherty was attempting to speak with Harris about the noise, Harris

pointed at Detective Thompson, whom she thought she recognized and said, "He's

been doing this for a while. I'm talking to him instead." Report of Proceedings (RP)

(Oct. 16, 2012) at 124). Thompson suggested how the noise could be controlled.

      Harris started to walk back toward her house. Officer Doherty followed Harris

asking again for her name. Harris refused. Officer Doherty continued to follow Harris

back to the house. Harris retrieved her shoes and turned to face Officer Doherty.

Because of the darkness, Officer Doherty shined his flash light at Harris. When Harris

complained about the flashlight, Officer Doherty lowered it and asked whether it was

any better. Harris hit Officer Doherty with her shoes. Officer Doherty raised his hands

to block her and pushed her hands away with his forearm. Harris grabbed Officer


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Doherty's collar while still holding on to one of her shoes. Officer Doherty maneuvered

Harris to the ground. At that point, Officer Doherty noticed that Harris's lip was

bleeding. Officer Doherty tried to control her flailing arms and legs to get Harris in a

face down position. Harris bit Officer Doherty's hand. Officer Doherty pushed Harris's

head away and moved his hand. Thompson helped to subdue Harris. This entire

confrontation occurred quickly.

      After aid personnel treated Harris, she was booked into Kent city jail. The State

charged Harris with third degree assault and obstructing a law enforcement officer. A

jury found Harris guilty of both charges. Harris appeals.

                                         ANALYSIS


       Harris argues that the court erred in refusing to instruct the jury that it must be

unanimous as to which act constituted the third degree assault. She argues that the

jury could have found separate acts of assault based on hitting Officer Doherty with her

shoes and then biting him while she was on the ground.

       Unanimity Instruction

       The standard of review depends on whether the trial court's refusal to grant the

jury instruction was based on a matter of law or facts. State v. Walker. 136 Wn.2d 767,

771-72, 966 P.2d 883 (1998). A trial court's refusal to give instructions to a jury, if

based on a factual dispute, is reviewable only for abuse of discretion. Walker. 136

Wn.2d at 771-72. The trial court's refusal to give an instruction based upon a ruling of

law is reviewed de novo.1 Walker. 136 Wn.2d at 772. Here, we review the trial court's

refusal to give a jury instruction for abuse of discretion.


       1 We reach the same result under either standard of review.
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       Criminal defendants in Washington are entitled to a unanimous jury verdict.

State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the State

presents evidence of multiple acts that could each form the basis for one charged crime,
the State must choose which of the acts it relied on or the court must give a Petrich2

instruction to the jury requiring them to agree on a specific criminal act. State v.

Coleman. 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).

       The necessity for a unanimity instruction arises only in multiple acts cases, not

where the evidence indicates a continuing course of conduct. State v. Handran, 113

Wn.2d 11, 17, 775 P 2d 453 (1989V overruled on other grounds by State v. Kitchen.
110Wn.2d403, 756 P.2d 105(1998). To determine whether there is a continuing

course of conduct, we evaluate the facts in a commonsense manner considering the

time separating the criminal acts and whether the criminal acts involved the same
parties, location, and ultimate purpose. State v. Brown. 159 Wn. App 1,14, 248 P.3d
518 (2010). Evidence that a defendant engaged in a series of actions intended to
secure the same objective supports the characterization ofthose actions as a
continuing course of conduct rather than as several distinct acts. State v. Fiallo-Lopez,
78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

        Here, Harris's actions of hitting Officer Doherty with her shoes, wrestling with him
as she was taken down, and biting him as he tried to restrain her all constituted a
continuing course of conduct. The conduct involved one location, the same victim, and
 a brief time period. Accordingly, the trial court properly refused to give a Petrich
 instruction.


        2State v. Petrich. 101 Wn.2d 566, 683 P.2d 173 (1984), overruled on other
 grounds by State v. Kitchen. 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).
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       Double Jeopardy

       Harris also argues that her convictions for third degree assault and obstructing a

law enforcement officer violate double jeopardy. The guaranty against double jeopardy

in the United States and Washington Constitutions protects against multiple

punishments for the same offense. State v. Calle. 125 Wn.2d 769, 776, 888 P.2d 155

(1995). The State is permitted to file and prosecute multiple counts where the evidence

supports the charges, as long as convictions are not entered in violation of double

jeopardy protections. Calle. 125 Wn.2d at 777 n.3. Harris contends that the jury should

have been instructed that it was required to find "separate and distinct acts" as the basis

for the third degree assault and obstruction convictions.

       In analyzing whether a crime falls within the prohibition against double jeopardy,

Calle sets forth a three-part test to determine whether multiple punishments were

intended by the legislature. Calle. 125 Wn.2d at 776. First, the court examines the

statutory language to determine if the applicable statutes expressly permit punishment

for the same act or transaction. State v. Smith. 177 Wn.2d 533, 545, 303 P.3d 1047

(2013) (quoting State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009)); Calle. 125

Wn.2d at 776; State v. Martin. 149 Wn. App. 689, 698, 205 P.3d 931 (2009).

       Second, ifthe relevant statutes do not reveal an express intent to impose

multiple punishments, Washington courts apply a "same evidence test" that is similar to
the rule set forth in Blockburger v. United States. 284 U.S 299, 304, 52 S. Ct. 180, 6 L.

Ed. 306 (1932), i.e., offenses are the "same offense" for purposes of double jeopardy
when the crimes are the same in fact and in law. State v. Vladovic. 99 Wn.2d 413, 423,

662 P.2d 853 (1983). "Offenses are the same in fact when they arise from the same act
69648-3-1/6

or transition. They are the same in law when proof of one offense would also prove the
other." Martin. 149 Wn. App. at 699 (citing Calle 125 Wn.2d at 777-78.)

       Third, when two offenses satisfy the Blockburger "same evidence" test, courts

look for any evidence of contrary legislative intent that would rebut the presumption that
multiple convictions are appropriate. In instances where the degree of one offense is

elevated by conduct constituting a separate offence, "the merger doctrine may help

determine legislative intent     " State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212

(2008) (citing Vladovic. 99 Wn.2d at 419).

       At issue here is the second prong, the same evidence test. As charged and

proved in this case, the jury found that Harris committed the crime of third degree

assault because she assaulted a law enforcement officer who was performing his

official duties at the time of the assault. RCW 9A.36.031(1)(g). An assault is an

unlawful touching that is harmful or offensive. State v. Jarvis. 160 Wn. App. 111, 117-

18, 246 P.3d 1280 (2011). In contrast, a person commits the crime of obstructing a law

enforcement officer if that person "willfully hinders, delays or obstructs any law

enforcement officer in the discharge of his or her official powers or duties." RCW

9A.76.020(1).

       These two offenses are not the same in law or in fact. State v. Nystra. 168 Wn.

App. 30, 275 P.3d 1162 (2012). Third degree assault contains an assault element,

while obstructing contains a hinder, obstruct, or delay element. Because each offense

contains an essential element the other does not, they are not the same in law for

double jeopardy purposes. Nor are they the same in fact. To prove third degree

assault, the State must prove a harmful or offensive touching against a law enforcement
69648-3-1/7


officer who was performing his or her duties. No proof of hindrance or delay of those

duties is required. But to prove obstructing, the State must prove that the defendant

willfully engaged in conduct that hindered, delayed, or obstructed the officer in the

discharge of his or her duties. No proof of touching is required. That each offense

requires proof of facts that the other does not, demonstrates they are not the same in

fact. Harris establishes no double jeopardy violation.3

       Statement of Additional Grounds


       In a statement of additional grounds, Harris challenges the sufficiency of the

evidence. The test for reviewing a defendant's challenge to the sufficiency of evidence

in a criminal case is whether, after viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable double. State v. Montgomery. 163 Wn.2d 577, 586, 183 P.3d 267

(2008). Issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence are matters within the province of the trier of fact.   State v. Truong. 168 Wn.

App. 529, 534-35, 277 P.3d 74 (2012). We do not disturb credibility determinations on

appeal. State v. Camarillo. 155 Wn.2d 60, 71, 794 P.2d 850 (1990).




       3 We note Harris provides no evidence that the legislature did not intend to
punish these two offenses separately. And her reliance on State v Borsheim, 140 Wn.
App. 357, 165 P.3d 417 (2007). and State v. Noltie. 116 Wn.2d 831, 809 P.2d 190
(1991), is not persuasive. Unlike here, the defendants there were charged with multiple
counts of the same crime based on multiple separate acts. See Borsheim. 140 Wn.
App. at 366-67 (separate and distinct language necessary where defendant charged
with four counts of first degree rape of a child to ensure that jury did not convict
defendant of more than one count based on a single act); Noltie. 116 Wn.2d at 843
(instruction that jury must "'unanimously agree that at least one separate act of sexual
intercourse pertaining to each count has been proved . . .'" was appropriate where
defendant was charged with two identical counts of statutory rape).
69648-3-1/8


       To prove third degree assault, the State had to prove that Harris assaulted a law

enforcement officer who was performing his or her official duties at the time of the

assault. RCW 9A.36.031(1)(g). Assault is an unlawful touching that is harmful and

offensive. Jarvis. 160 Wn. App. at 117-18. To prove obstruction, the State had to prove

that Harris "willfully hinders, delays or obstructs any law enforcement officer in the

discharge of his or her official powers or duties." RCW 9A.76.020(1). Officer Doherty

testified that Harris swung her shoes at him, grabbed him, and bit him in the webbing of

his hand. Harris testified that she did not recall what happened but remembered

struggling on the ground with Officer Doherty. When viewed in a light most favorable to

the State, sufficient evidence supports the third degree assault and obstruction

convictions.

       Harris's challenges are really challenges to the credibility of the witnesses and

thus not reviewable.

                                      CONCLUSION


       For the reasons discussed above, we affirm.




WE CONCUR:




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