    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

STATE OF WASHINGTON,                             No. 73804-6-1


                      Respondent,

            v.



EDWARD T. WASHINGTON,                            UNPUBLISHED OPINION
                                                                                   22   -'- C"1 *
                      Appellant.                 FILED: January 17, 2017


         Verellen, C.J. — The State charged Edward Washington by amended

information with felony telephone harassment. King County Superior Court denied

Washington's request for a State v. Petrich1 instruction because Washington's calls

were a continuing course of conduct. A jury found Washington guilty as charged and

the trial court sentenced him to nine months in jail. Because Washington's phone calls

served the same objective and occurred within the same time frame and place,

Washington was not entitled to a Petrich instruction, nor was the State required to elect

which act constituted the crime. Because the trial court determined Washington's

indigency, we presume indigency throughout his appeal and decline to award appellate

costs.


         We affirm.



         1 101 Wn.2d 566, 683 P.2d 173 (1984), overruled in part on other grounds. State
v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
No. 73804-6-1/2



                                         FACTS


       Edward Washington was charged by amended information with felony telephone

harassment. At trial, Faye Givens testified that she received four telephone calls from

Washington on March 10, 2015. Givens testified she received the first call at 10:20

a.m., the second at 11:10 a.m., the third at 11:40 a.m., and the fourth at 11:41 a.m.

Givens testified that she did not answer the 11:40 a.m. call. Givens called 911 at 11:43

a.m.



       Givens testified that in the first call, Washington said he "was going to come

shoot [Givens' son], smoke us, and blow up my house and all this kind of stuff, and

shoot me in the process."2 Givens said Washington also told her that he was going to

come to her house, shoot up her house, "he had a 45, and [she knew] that he would do

it."3 Washington also told Givens that "[h]e was serious. He told me I could call the

police. Tell me to get ready, prepare for a funeral."4 Givens believed that in

Washington's second call, he was talking about blowing up her house.

       On cross-examination, Givens said she could not remember whether Washington

made the threats to "smoke everybody" in the first or second call. Givens testified she

told police that, in the second call, Washington said, "[S]tay where you are because I'm

going to come and smoke all of you."5 Givens also said that she told police that in the




       2 Report of Proceedings (RP) (July 15, 2015) at 123. Givens also testified that
she had heard that term before "[i]n the context that they were going to shoot someone."
]d\at125.
       3 jd, at 126.
       4]d,
       5 RP (July 16, 2015) at 20.
No. 73804-6-1/3


"third phone call," Washington told her "I'm coming to your house to shoot up

everybody. You can tell your son . . . too."6

       Givens testified she told police that Washington said he was going to bomb her

house, but acknowledged that threat was not in her initial statement to police. Givens

did not remember specifically what Washington said in the final call, nor did she

remember the order of all of the conversations. All the threats that Washington made

came during the three phone calls Givens answered.

       Washington proposed a Petrich unanimity instruction. The State argued the calls

were a continuing course of conduct, and the trial court concluded that a Petrich

instruction was not appropriate. In its closing argument, the State argued:

               So how, if it's three calls, how is it one call in the instruction? And
       that's simple. That's because on that day, Mr. Washington engaged in a
       continuing course of conduct. When he picked up the phone that first time
       and called Faye Givens, he was intending to harass her, he was intending
       to intimidate her, and he made the threats against her two sons in those
       three calls. So although there was a break in the action, that it wasn't one
       long continuous call, and you'll see that, there's not a very lengthy call,
       there are three. His intent was the same. She's the person who received
       all three calls, he's the person who made all three calls, and the threats
       span those three calls.[7]

       A jury found Washington guilty as charged. The trial court sentenced

Washington to nine months in jail and waived all nonmandatory legal financial

obligations.

       Washington appeals.




       6 Jd,
       7 Id. at 90-91.
No. 73804-6-1/4


                                          ANALYSIS

                                       /. Jury Unanimity

       Washington argues the trial court violated his right to a unanimous jury verdict

when it did not give a unanimity instruction and the State did not elect which threat was

the basis for the charge. The State argues Washington was not entitled to a unanimity

instruction, or election because Washington's threats were part of a continuing course

of conduct. We agree.

       Criminal defendants have a right to a unanimous jury verdict.8 When the State

presents several acts that could constitute the crime charged, the jury must

unanimously agree on a specific act.9 To ensure jury unanimity, "[t]he State must tell

the jury which act to rely on in its deliberations or the [trial] court must instruct the jury to

agree on a specific criminal act."10 However, the State does not need to make an

election and the court does not need to give a unanimity instruction ifthe evidence

shows that the defendant was engaged in a continuous course of conduct.11 To

determine whether the defendant's conduct constitutes one continuing criminal act, "the

facts must be evaluated in a common sense manner."12




       8Wash. Const, art. 1, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881
P.2d231 (1994).
       9 State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988).
       10 jd, at 409; Petrich, 101 Wn.2d at 572.
     11 State v. Handran, 113Wn.2d11, 17. 775 P.2d 453 (1989): State v. Craven, 69
Wn. App. 581, 587, 849 P.2d 681 (1993).
      12 Petrich, 101 Wn.2d at 571; Craven, 69 Wn. App. at 588; State v. Fiallo-Lopez,
78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
No. 73804-6-1/5


       This court has considered various factors to determine whether a case involved a

continuing course of conduct.13 Evidence that a defendant engaged in a series of

actions intended to "secure the same objective supports the characterization of those

actions as a continuing course of conduct rather than several distinct acts."14 Courts

have also looked to whether the acts occurred in a separate time frame or place.15

       Washington contends there were three separate acts since he called Givens four

times and she answered three of the calls. Because there were three phone

conversations and Givens' testimony about the substance of those calls differed from

the police reports, Washington contends that jurors could have "entertained reasonable

doubt as to which call or calls contained threats to kill."16 Alternatively, Washington

argues the State failed to elect a single phone call that constituted the crime of felony

telephone harassment. Washington argues his acts did not constitute a continuing

course of conduct because of the time between the calls.




       13 Fiallo-Lopez, 78 Wn. App. at 724.
       14 jd. at 726 ("Thus, the fact that the two deliveries here occurred at different
times and places is outweighed by the commonsense consideration that they were both
intended for the same ultimate purpose, delivery of cocaine by Fiallo-Lopez to
Cooper."); Handran, 113 Wn.2d at 17 (the two alleged assaults did not require a
unanimity instruction because the defendant's actions showed a continuing course of
conduct intended to secure sexual relations with the victim rather than several distinct
acts); State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (no unanimity instruction
required where multiple assaults during two-hour period resulted in child's death), cert-
denied. 501 U.S. 1237, 111 S. Ct. 2867, 115 L. Ed. 2d 1033 (1991): State v. Marko, 107
Wn. App. 215, 220, 27 P.3d 228 (2001) (threatening statements directed at different
people during a 90-minute time period formed a continuing course of conduct that did
not require a unanimity instruction or election by the State).
       15 Marko, 107 Wn. App. at 220-21 (citing Petrich, 101 Wn.2d at 571).
       16 Appellant's Br. at 6.
No. 73804-6-1/6


       But here, evaluating the evidence in a commonsense manner, Washington's

threats were clearly part of a continuing course of conduct. His threats were intended to

achieve the same common objective: to harass, intimidate, and torment Givens.

       Over the course of the phone calls, Washington told Givens (i) he was going to

"come shoot [Givens' son], smoke [them], and blow up [her] house and all this kind of

stuff, and shoot [her] in the process"; (ii) he was going to come to her house and shoot

up her house; and (iii) he had a .45 and Givens knew that Washington would use it.17

       Washington's repeated phone calls to Givens show that the threats were part of

a continuing course of conduct intended to frighten and harass Givens. Washington's

threats also occurred within the same time frame and place. Washington made the

threats over the phone to Givens on March 10, 2015, between 10:20 a.m. and 11:41

a.m.



       Washington's right to a unanimous jury verdict was not violated. Evaluating the

facts in a commonsense manner, the threats Washington made to Givens constituted

the same course of conduct and the trial court did not need to provide a unanimity

instruction, nor did the State need to elect which threat was the basis for the charge.

                                    //. Appellate Costs

       Washington argues that if the State is the substantially prevailing party on

appeal, the panel should not impose costs against him because he is indigent. The

State argues the issue of costs is premature.




       17 RP (July 15, 2015) at 123-30.
No. 73804-6-1/7


       Appellate courts may require an adult offender convicted of an offense to pay

appellate costs.18 The commissioner or clerk will award costs to the State ifthe State is

the substantially prevailing party on appeal, "unless the appellate court directs otherwise

in its decision terminating review."19

       A determination of a criminal defendant's indigency is entrusted to the trial judge

whose finding of indigency this court respects unless it is shown good cause not to do

so.20 Under the Rules of Appellate Procedure, where a party has been granted an order

of indigency, the party and the party's counsel must bring to the attention of the trial

court any significant improvement during review in the party's financial condition.21 This

court gives "a party the benefits of an order of indigency throughout the review unless

the trial court finds the party's financial condition has improved to the extent that the

party is no longer indigent."22

       The trial court issued an order finding Washington indigent and authorizing him to

appeal in forma pauperis. The trial court has not found that his financial condition has

improved or is likely to improve. The State offers no new financial information.

Therefore, we presume that Washington remains indigent.23 Under these

circumstances the issue of costs is not premature. Even though the State is the




       18 RCW 10.73.160(1).
       19 RAP 14.2.

       20 State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612 (2016), review denied,
185 Wn.2d 1034, 377 P.3d 733 (2016).
       21 RAP 15.2(f).
       22 Id,; Sinclair, 192 Wn. App. at 393.
       23 Sinclair, 192 Wn. App. at 393.
No. 73804-6-1/8



substantially prevailing party on appeal, we conclude that an award to the State of

appellate costs is not appropriate.

      We affirm.




WE CONCUR:




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