                                                                                         ILED
                                                                                  COURT OF APPEALS
                                                                                     DIVISION II

                                                                               2014 DEC 30       AM 9: 43

                                                                                  STATE OF WASHINGTON

                                                                                  BY
                                                                                                 TY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

 STATE OF WASHINGTON,                                                        No. 44365 -1 - II


                                   Respondent,


          v.



 MICHAEL TODD BOSWELL,                                                    PUBLISHED OPINION


                                   Appellant.




         LEE, J. —    A jury found Michael Todd Boswell guilty of two counts of attempted first

degree   murder.     Boswell   appeals,   arguing that ( 1)   double jeopardy bars his conviction for two

counts of attempted murder, (     2) the trial court erred by refusing to instruct the jury on attempted

third degree assault as a lesser included offense, and ( 3) the jury instructions on attempted first

degree   murder omitted an essential         element of    the   crime.   Because we hold that the unit of


prosecution for attempted murder is based on a course of conduct, Boswell' s convictions for two

counts of attempted murder        do   not violate   double   jeopardy. We further hold that third degree

assault is not a lesser included offense of attempted murder and that the jury instructions included

all essential elements of attempted       first degree   murder.   Accordingly,   we affirm.
No. 44365 -1 - II



                                                      FACTS


          Boswell   and   Jessica Fix had been in          a romantic   relationship.     About a month before


November 14, 2011, Fix told Boswell that             she wanted   to   end   their relationship.    Boswell became


very upset and was crying, so Fix decided to stay with him. Just prior to November 14, Fix again

discussed ending their relationship, but Boswell again became upset and Fix did not end the

relationship.


          Early in the morning on November 14, Fix returned home from working the prior evening,

and   Boswell   made      her   peppermint   tea.    After drinking the tea, Fix became nauseous, began

vomiting, and then fell asleep on the living room couch.

          Later, Fix woke up with a loud ringing in her ears and blood dripping from her head. She

saw Boswell sitting on the opposite side of the couch holding a gun. Fix left the house and went

to the hospital. At the hospital, Fix was treated for a brain hemorrhage and liver failure. Doctors

determined that Fix' s head wound was consistent with a gunshot wound and that her liver failure


was caused by an extremely high dose of acetaminophen.

          The State   charged     Boswell    with   two   counts of attempted     first degree     murder.   Count 1


alleged that Boswell " on or about November 14, 2011, with a premeditated intent to cause the


death   of another person ...     did an act which was a substantial step toward the commission of that

crime."    Clerk' s Papers ( CP) at 62. Count 2 alleged that Boswell " on or about November 14, 2011,

at a separate time than the acts charged in Count 1, with a premeditated intent to cause the death

of another person ...      did an act which was a substantial step toward the commission of that crime."

CP at 62.




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No. 44365 -1 - II



        At trial, Boswell testified that Fix' s injuries were caused by his failed suicide attempts.

First, Boswell crushed a large amount of Tylenol and methocarbamol in a glass and then used a

second glass as a shaker to help dissolve the pills in the liquid. Then, he inadvertently put Fix' s

tea in the   second     glass   containing a large   amount   of   Tylenol   residue.   He became ill after


consuming the medication he mixed for himself but failed in his suicide attempt. After his failed

suicide attempt with the Tylenol, Boswell decided to attempt to take his own life with a gun.

Boswell' s arm slipped when he attempted to shoot himself, and he accidentally shot Fix in the

head.


        Boswell requested that the trial court instruct the jury on third degree assault as a lesser

included offense of the attempted first degree murder predicated on the shooting. The trial court

concluded that third degree assault was not a lesser included offense of attempted first degree


murder and did not instruct the jury on third degree assault.

        The trial court gave the following " to convict" instruction on the attempted first degree

murder charge in count 1:


                    To convict the defendant of the crime of Attempted Murder in the First
        Degree as charged in Count 1, each of the following elements of the crime must be
        proved beyond a reasonable doubt:
                    1) That on or about November 14, 2011, the defendant did an act that was
        a substantial step toward the commission .of Murder in the First Degree;
                    2) That the act was done with the intent to commit Murder in the First
        Degree; and
                    3) That the act occurred in the State of Washington.
                    If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you have a reasonable
        doubt as to any one of these elements, then it will be your duty to return a verdict
         of not guilty.




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No. 44365 -1 - II



CP    at   80.    The " to 'convict" instruction on the attempted first degree murder charge in count 2

contained the same elements. CP at 81.


           The    jury found    Boswell guilty           of   both   counts of attempted        first degree    murder.   Boswell


appeals.



                                                               ANALYSIS


A.         DOUBLE JEOPARDY


           Boswell argues that double jeopardy bars his convictions for two counts of attempted first

degree murder because the unit of prosecution for crimes of attempt is the intent to commit the


crime and not each substantial step toward committing that crime. We disagree.

           The United States        and     Washington Constitutions               prohibit    double   jeopardy.   U. S. CONST.


amend.      V; WASH. CONST.         art   1, §   9. We review alleged double jeopardy violations de novo. State

v.   Villanueva -Gonzalez, 180 Wn.2d 975, 979 -80, 329 P. 3d 78 ( 2014). " The prohibition on double


jeopardy generally means that a person cannot be prosecuted for the same offense after being

acquitted,        be   prosecuted    for the        same        offense after being           convicted,   or   receive   multiple



punishments         for the   same offense."        Villanueva -Gonzalez, 180 Wn.2d at 980.


            Although       Boswell        alleges    a    constitutional          error, .   determining whether Boswell' s

convictions constitute multiple punishments for the same offense requires determination of

legislative intent        and presents a question of               statutory interpretation.         Villanueva -Gonzalez, 180


Wn.2d       at   980. "   The legislature is tasked with defining criminal offenses, and the prohibition on

double     jeopardy imposes [ f]ew, if any,                   limitations'   on   that   power. "'   Villanueva -Gonzalez, 180


Wn.2d at 980 ( quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43

 1978)).




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No. 44365 -1 - II



         When a defendant has multiple convictions under the same statutory provision, we

determine   whether        there is   a   double     jeopardy   violation     by   asking "'   what act or course of conduct




has the Legislature defined               as   the   punishable   act. "'     Villanueva -Gonzalez, 180 Wn.2d at 980


 quoting State      v.   Adel, 136 Wn.2d 629, 634, 965 P. 2d 1072 ( 1998)).                       Boswell was convicted of


two counts of attempted first degree murder under RCW 9A.28. 020 and RCW 9A.32.030.

Therefore, we, must determine what act or course of conduct the legislature intended as the


punishable act under RCW 9A.28. 020 and RCW 9A.32. 030. State v. Turner, 102 Wn. App. 202,

206, 6 P. 3d 1226 ( 2000) ( citing Adel, 136 Wn.2d                    at   634), review denied, 143 Wn.2d 1009 ( 2001).


         RCW 9A.28. 020( 1) states:


         A person is guilty of an attempt to commit a crime if, with intent to commit a
         specific crime, he or she does any act which is a substantial step toward the
         commission of that crime.


And, RCW 9A.32. 030 states, in part:


          1) A person is guilty of murder in the first degree when:
                         a) With a premeditated intent to cause the death of another person, he or
                     she causes the death of such person or of a third person.


Therefore, attempted first degree murder requires ( 1) intent to commit first degree murder and ( 2)


a substantial step toward committing first degree murder.

         Boswell argues that the unit of prosecution for attempted murder is defined by the

defendant' s intent to commit the murder and relies on cases analyzing the unit of prosecution for

other   inchoate    offenses such as solicitation and             conspiracy.         Specifically, Boswell relies on State

v.   Varnell, 162 Wn.2d 165, 170 P. 3d 24 ( 2007) ( unit of prosecution for solicitation) and State v.


Bobic, 140 Wn.2d 250, 996 P. 2d 610 ( 2000) ( unit                         of prosecution for conspiracy) to support his

proposition that a defendant may only be convicted of one count of attempted first degree murder



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No. 44365 -1 - II



for every act taken to further the intent to kill a person.1 These cases, however, do not support
Boswell' s proposition because the unit of prosecution for solicitation and conspiracy is different

than the unit of prosecution for attempted murder.


          Varnell and Bobic did not determine the unit of prosecution for solicitation and conspiracy

based exclusively on the defendant' s intent. Rather, they focus on the actual act that is necessary

to   commit solicitation or        conspiracy.    In -Varnell, the defendant was convicted of five counts of


solicitation to commit murder based on one conversation in which he asked an undercover officer

to kill four   people.    162 Wn.2d at 167 -68. Our Supreme Court reversed, reasoning that the unit of

prosecution for solicitation was the act of promoting or facilitating a crime rather than the crime

the defendant      was   soliciting.   Varnell, 162 Wn.2d at 169. Therefore, the defendant could only be

convicted of one count of solicitation based on one conversation regardless of how many crimes

the defendant      solicited   during that conversation.        Varnell, 162 Wn.2d at 170.


          Similarly, in Bobic the defendants were convicted of one count of conspiracy for each

crime they conspired to commit ( conspiracy to commit first degree theft, conspiracy to commit

first degree possession of stolen property, and conspiracy to commit first degree trafficking in




1 Boswell also relies on State v. Luther, 157 Wn.2d 63, 134 P. 3d 205, cert. denied, 549 U.S. 978
 2006),   for the proposition that our Supreme Court has already established that attempt is defined
by intent rather than action. But, Boswell' s reliance on Luther is misplaced. In Luther, the court
held that there was sufficient evidence to support a conviction for attempted possession of child
pornography if the State provided that the defendant believed he was possessing child pornography
or clearly intended to obtain child pornography, regardless of whether the State proved that the
sexually explicit images were actually children. 157 Wn.2d at 73 -74. A large portion of the Luther
analysis rested on the fact that the defendant' s argument was essentially an impossibility defense
which     the legislature has specifically        stated   is   not a   defense to   criminal   attempt.   Luther, 157
Wn.2d     at   73 -74.   Therefore, Luther provides no guidance in determining the appropriate unit of
prosecution      for   attempted   first degree   murder.
No. 44365 -1 - II



stolen   property).     140 Wn.2d       at   256.    Again, our Supreme Court focused on the act necessary to

commit    conspiracy —an        agreement to engage in a criminal enterprise. Bobic, 140 Wn.2d at 265.

Therefore, our Supreme Court held that the appropriate unit of prosecution for conspiracy is the

agreement to engage in a criminal enterprise, not the number of crimes that could be committed in

the course of carrying out that criminal enterprise. Bobic, 140 Wn.2d at 265.

         Thus, contrary to Boswell' s assertion, Yarnell and Bobic do not stand for the proposition

that the unit of prosecution for all inchoate crimes is based on the defendant' s intent. Rather, they

stand for the proposition that the unit of prosecution for inchoate crimes is the act necessary to

support the inchoate offense, not the underlying crime.

          Boswell argues that if the unit of prosecution for attempt is based on the act rather than the


intent, the State will be able to charge a defendant with one, count for each substantial step taken

toward    commission of        the   crime ( e. g.,    separate counts for each shot fired in an attempt to kill


someone or      procuring      a gun,   driving      to the scene, waiting at the        scene,       etc.).    But, as the State


points   out,   Boswell'   s   interpretation        also    leads to   an   absurd   result.    Under Boswell' s unit of


prosecution analysis, a defendant could only ever be charged with one count of attempted murder

against one victim, regardless of how many attempts the defendant makes on the victim' s life. For

example, as the State points out, Boswell could be released from prison, make another attempt on


Fix' s life, and, as long as he does not succeed, he could not be charged with another count of

attempted    first degree      murder.       It is   clear   that the legislature did     not   intend         such a result.   The


Boeing Co.      v.   Doss, 180 Wn.      App.    427, 437, 321 P. 3d 1270 ( 2014) ( "` We do not interpret statutes


to   reach absurd and     fundamentally unjust results. ") (             quoting Flanigan       v.   Dep 't ofLabor      & Indus.,


 123 Wn.2d 418, 426, 869 P. 2d 14 ( 1994)); State                  v.   J.P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003)




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No. 44365 -1 - II



 We do      not     interpret    statutes   to   reach '   absurd results ') (    quoting State v. Delgado, 148 Wn.2d

723, 733, 63 P. 3d 792 ( 2003)).


            Although we agree with Boswell that the unit of prosecution for attempted first degree


murder should not allow the State to arbitrarily charge an unlimited number of counts based on

each substantial step taken toward the commission of first degree murder, we also agree with the

State that Boswell'         s   interpretation     cannot   be   what     the legislature intended.   Therefore, we adopt


the analysis used to determine the unit of prosecution for offenses that involve a continuing course

of conduct. Under this analysis, double jeopardy does not bar Boswell' s convictions for two counts

of attempted first degree murder.


            State   v.   Hall, 168 Wn.2d 726, 230 P. 3d 1048 ( 2010),               and State v. Chouap, 170 Wn. App.

114, 285 P .3d 138 ( 2012) provide a reasonable analytical structure to determine the appropriate

unit of prosecution             for first degree     attempted murder.         In Hall, the defendant was convicted of


three counts of witness tampering after calling a witness over 1, 200 times in an attempt to convince

her   not   to   testify    against   him.       168 Wn.2d       at   729.   Our Supreme Court held that the unit of


prosecution for witness tampering is the " ongoing attempt to persuade a witness not to testify in a

proceeding." Hall, 168 Wn.2d at 734. Because the defendant' s conduct was continuous, aimed at


a single person, and meant to tamper with her testimony in a single proceeding, there was only one

unit of prosecution. Hall, 168 Wn.2d at 736. However, our Supreme Court noted circumstances


in which multiple units of prosecution could be present:


                   Our determination might be different if Hall, had changed his strategy by,
            for example, sending letters in addition to phone calls or sending intermediaries, or
            if he had been stopped by the State briefly and found a way to resume his witness
            tampering campaign.

Hall, 168 Wn.2d at 737.



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No. 44365 -1 - II



             In Chouap, the defendant was convicted of two counts of attempting to elude a police

vehicle      based    on events   that occurred   during   the   same   evening.   170 Wn.   App.   at   118 -21.   We


determined that the defendant' s convictions did not violate double jeopardy because the " second

pursuit was separated from the first by time, by Chouap' s return to lawful driving, and by different

pursuing       police officers."
                                   Chouap, 170 Wn. App. at 125.

             Reading Hall and Chouap together, the proper analysis to determine the
                                                                                . unit of prosecution

for crimes involving a course of conduct is whether there are facts that make each course of

conduct separate and distinct. Factors that can be considered in addressing whether each course

of conduct is separate or distinct include the method used to commit the crime; the amount of time


between the two courses of conduct; and whether the initial course of conduct was interrupted,

failed, or abandoned. Hall, 168 Wn.2d at 737 -38.


             Here, Boswell engaged in two separate distinct courses of conduct in his attempts to take


Fix'   s   life.   First, he attempted to poison her by crushing pills, mixing them in tea, and giving the

tea to her. After this attempt on Fix' s life failed, there was a period of time before Boswell engaged


in his second course of conduct. Fix was sleeping and Boswell had a period of time to consider

his actions after Fix fell asleep. Then Boswell acquired the gun and shot Fix in the head. Because

Boswell employed different methods of attempting to kill Fix, the attempts were separated by a

period of time and the second attempt began only after the first attempt had failed, Boswell' s two

convictions properly represent two units of prosecution. Even Boswell' s own testimony supports

this analysis.        Boswell admitted that his first plan to take his own life was limited to using the

Tylenol. It was only after that plan failed that Boswell formulated the plan to use the gun. There




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No. 44365 -1 - II



was no evidence that Boswell' s original plan included using both the Tylenol and the gun as part

of one continuous plan.




         Using a course of conduct analysis to determine the appropriate unit of prosecution for

attempted first degree murder clearly leads to the most sensible result. It prevents the State from

arbitrarily charging multiple counts based on each conceivable substantial step leading up to the

commission of the crime, and it allows the State to hold defendants accountable for repeated


attempts on one victim' s life. Based on this analysis, we hold that Boswell' s two convictions for


attempted first degree murder do not violate the constitutional prohibition against double jeopardy.

B.           LESSER INCLUDED OFFENSE


             Boswell asserts that the trial court erred by refusing to instruct the jury on third degree

assault as      a   lesser included   offense.   State   v.   Harris, 121 Wn. 2d 317, 849 P. 2d 1216 ( 1993),


resolves      this issue.   However, Boswell argues that the rule in Harris has been implicitly rejected
                                                 Workman2

by   subsequent case        law applying the                   test to determine lesser included   offenses.   We


disagree.


             A defendant is entitled to an instruction on a lesser included offense if two conditions are


met:




             First, each of the elements of the lesser offense must be a necessary element of the
             offense charged.    Second, the evidence in the case must support an inference that
             the lesser crime was committed.


State   v.    Workman, 90 Wn.2d 443, 447 -48, 584 P. 2d 382 ( 1978) ( internal         citations omitted).     We


review the first element of the test, the legal prong, de novo. State v. LaPlant, 157 Wn. App. 685,




2 State v. Workman, 90 Wn.2d 443, 447 -48, 584 P. 2d 382 ( 1978).



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No. 44365 -1 - II



687, 239 P. 3d 366 ( 2010).          And, we review the second prong of the test, the factual prong, for an

abuse of discretion. LaPlant, 157 Wn. App. at 687.

             In Harris, our Supreme Court held that assault is not a lesser included offense of attempted

murder       because, the legal prong       of   the Workman test was not met.             121 Wn. 2d   at   321.   The court


explained       that   under   the legal prong " if it is possible to commit the greater offense without



committing the lesser          offense,   the   latter is   not an   included   crime."   Harris, 121 Wn.2d 320 ( citing

State   v.   Bishop,   90 Wn.2d 185, 191, 580 P. 2d 259 ( 1978)).                  The court reasoned that, to commit


attempted murder, the defendant must take a substantial step toward committing the murder, but

that step does not necessarily require the defendant to commit an assault ( obviously an element of

first degree     assault).     Harris, 121 Wn.2d        at   321. Harris controls the outcome of this case, and we


hold that the trial court did not err by refusing to give Boswell' s proposed instruction on third

degree assault as a lesser included offense of attempted first degree murder.

             Boswell argues that the rule in Harris is no longer good law because our Supreme Court


has implicitly abrogated the rule announced in Harris. Boswell cites primarily to State v. Berlin,

133 Wn.2d 541, 947 P. 2d 700 ( 1997), to support his proposition.


             Boswell' s   reliance   on   Berlin is     misplaced.       Boswell reads Berlin as instructing us to

consider the crimes as charged when determining whether a lesser included instruction is

appropriate; therefore, the analysis in Harris is improper because it categorically states that assault

cannot be a lesser included offense of attempted murder. Under Boswell' s application of Berlin,


third degree assault is a lesser included offense of attempted murder in this case because, by

shooting Fix in the head, Boswell necessarily                        committed   third degree   assault.     But Boswell' s




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No. 44365 -1 - II



analysis is based on a misreading of Berlin, a misapplication of the law our Supreme Court

articulated in Berlin, and a conflation of the two prongs of the Workman test.

         In Berlin, the defendant was charged with second degree murder with intentional murder


and   felony murder       charged as alternative means.           133 Wn.2d at 550. Our Supreme Court held that


manslaughter can be a lesser included offense of second degree murder. Berlin, 133 Wn.2d at 551.


In doing so, the court reaffirmed its adherence to the Workman test and clarified the application of

the legal prong of the test. Berlin, 133 Wn.2d at 548, 550 -51.

         The court explained that under the legal prong of the Workman test, the court examines the

statutory   elements of      the   crime charged, not       the    statute as a whole.   Berlin, 133 Wn.2d at 548.


However, this clarification is relevant only so far as the statute under which the defendant is

charged presents alternative means of committing the crime. Berlin, 133 Wn.2d at 548. Therefore,

the rule under Berlin is that when a defendant is charged with an alternative means crime, the court


determines whether a lesser included offense instruction is appropriate based on the alternative

means charged, not          the    statute as a whole.      133 Wn.2d       at   550 ( " We emphasize that both the


statutory language of RCW 10. 61. 006 and the language of Workman necessitate that we examine

the   elements of   the   offense charged").        Attempt is not an alternative means crime. Therefore, the


clarification articulated in Berlin does not apply. Berlin does not change or undermine the analysis

employed by our Supreme Court in Harris.

         Furthermore, nothing in Berlin stands for the proposition that we are required to examine

the   elements of   the    offense    based   on   the   alleged   facts supporting the   charge.   Rather, Berlin is


clear —  when examining the legal prong of the Workman test we look at the statutory elements of

the crime to determine whether each element of the lesser offense is a necessary element of the



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No. 44365 -1 - II



charged offense. 133 Wn.2d at 550 -51. We do not examine the facts underlying the charge unless

we reach    the factual prong   of   the Workman test. Berlin, 133 Wn.2d         at   551.   Accordingly, contrary

to Boswell' s assertion, there is nothing in Berlin that supports deviating from the rule or analysis

articulated by our Supreme Court in Harris. We hold that the trial court did not err in refusing to

instruct the jury on third degree assault as a lesser included offense to attempted murder.

C.       JURY INSTRUCTIONS


         Finally, Boswell argues that the " to convict" jury instructions omitted an essential element

of the crime because the jury instruction failed to include the element of premeditation.3 We
disagree.

         We explicitly rejected this argument in State v. Reed, 150 Wn. App. 761, 208 P. 3d 1274,

review   denied, 167 Wn.2d 1006 ( 2009). We held that the essential elements of attempt are ( 1) the


specific    intent to   commit a crime and (     2)    a substantial   step toward committing that     crime.   See


Reed, 150 Wn. App. at 772 -73. As we explained:

                    Reed' s argument conflates the intent necessary to prove an attempt with that
         necessary to      prove first degree         murder.    The State did not charge Reed with
           completed first degree murder; thus, to prove only an attempt to commit first degree
         murder, the State was not required to prove that Reed acted with premeditated intent
         to commit murder, only that he attempted to commit murder.

         Reed, 150 Wn.        App.    at   772 -73.     Reed is controlling.    The jury instruction properly

instructed the jury on the essential elements of attempt. Reed, 150 Wn. App. at 774 -75.




3 Boswell failed to object to the " to convict" instructions at the trial court. Generally, a party may
not raise an issue for the first time appeal.   RAP 2. 5( a)( 3). However, because jury instructions

omitting an essential element relieve the State of its burden to prove each element of the crime
beyond a reasonable doubt, the error is considered a manifest error affecting a constitutional right
that may be raised for the first time on appeal. State v. Chino, 117 Wn. App. 531, 538, 72 P. 3d
256 ( 2003).



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No. 44365- 1- II


         Boswell asks us to reconsider the decision in Reed based on State v. Vangerpen, 125 Wn.2d

782, 888 P. 2d 1177 ( 1995).              Boswell alleges that Vangerpen explicitly states that premeditation is

an essential element of attempted first degree murder. We decline Boswell' s request.

             In State   v.   Vangerpen, 71 Wn.        App.     94, 856 P. 2d 1106 ( 1993),   aff'd, 125 Wn.2d 782, 888

P. 2d 1177 ( 1995),          the defendant was charged with attempted first degree murder by an information

that stated:


              T] he defendant Shane Michael Vangerpen in King County, Washington on or
             about July 20, 1991, with intent to cause the death of another person did attempt to
             cause the death of Officer D.C. Nielsen, a human being.

71 Wn. App. at 97 n.1. Our Supreme Court held that the information failed to charge the defendant

with attempted first degree murder because acting with the intent to cause a death is second degree

murder rather than first degree murder. Vangerpen, 125 Wn.2d at 791. In other words, Vangerpen


states that, because ofthe specific language contained in the information, the State failed to charge

the defendant           with   attempted        first degree   murder   when   the information    omitted "   one of the



statutory      elements of      first degree     murder."      125 Wn.2d at 791.


             Vangerpen does not articulate what the essential elements of attempted first degree murder


are. Our Supreme Court has clearly established that the essential elements of criminal attempt are

an intent to commit a specific crime and a substantial step toward committing that crime. See, e. g.,

State   v.   DeRyke, 149 Wn.2d 906, 910, 73 P. 3d 1000 ( 2003).                  Therefore, an instruction on attempt


is not defective for failing to include the essential elements of the attempted underlying crime.

DeRyke, 149 Wn.2d               at   910 -11.    Because Vangerpen addresses whether the language used in the


information in that case properly charged the defendant with attempted first degree murder, not

what all the essential elements of first degree murder are, Vangerpen is not grounds for us to




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No. 44365 -1 - II



abandon our decision in Reed. Accordingly, Boswell' s challenge to the " to convict" instructions

fails.


         We reject Boswell' s contention that the unit of prosecution for attempted first degree

murder   is defined   by   the defendant'   s   intent.   Instead, we hold that the unit of prosecution for


attempted first degree murder is defined by a course of conduct. Under the facts presented here,

Boswell' s convictions for two counts of attempted first degree murder do not violate double


jeopardy. Further, under Harris, third degree assault is not a lesser included offense of attempted

first degree   murder.   And, our decision in Reed continues to be good law; thus, the " to- convict"

instruction did not omit an essential element of the crime. Accordingly, we affirm.




                                                                                 Lee, J.
 We concur:




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