          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE
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STATE OF WASHINGTON,                           No. 70667-5-1                       (—)
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                       Respondent,                                                 G*i      ,>"- C-, ~'

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                v.                             UNPUBLISHED OPINION
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RUBEN AYON-ROSALES,                                                                 UD



                       Appellant.              FILED: October 6, 2014

      Schindler, J. — Ruben Ayon-Rosales seeks reversal of his jury conviction for

one count of rape in the second degree. Ayon-Rosales contends the trial court erred in

denying his request to give a unanimity instruction and admitting improper testimony of

guilt. Because the evidence establishes a continuing course of conduct, a unanimity

instruction was not required, and even if the testimony was improper, it was harmless

beyond a reasonable doubt. We affirm.

                                        FACTS

      Ruben Ayon-Rosales lived in Mexico and began dating M.B. when she was 16-

years-old. When M.B. was approximately 20-years-old, she came to Seattle to join

Ayon-Rosales. Ayon-Rosales and M.B. were in a relationship for approximately six

years. The couple lived together in a studio apartment on Cherry Street and both

worked. Ayon-Rosales and M.B. made payments toward the purchase of a car.
No. 70667-5-1/2



       The romantic relationship between M.B. and Ayon-Rosales ended in 2011.

Ayon-Rosales was deported to Mexico in the spring of 2011. Around the same time,

M.B. began dating Brandon Gregory, and M.B. told Ayon-Rosales she had a new

boyfriend.

       M.B. gave Gregory a key to the Cherry Street apartment. The couple spent

weekends at the apartment together. At some point, M.B. and Gregory went to Ayon-

Rosales's mother's home to retrieve the car. M.B. and Gregory both made payments

on the car.


       Ayon-Rosales returned to Seattle in September 2011. On September 23, he

called M.B. to tell her he planned to come to the apartment to pick up some documents.

When Ayon-Rosales arrived at the apartment, M.B. let him in but remained in the

doorway. Ayon-Rosales persuaded M.B. to come inside the apartment. When she did,

he demanded that she give him his "things," including the key to the car. M.B. told

Ayon-Rosales he would have to come to her workplace to get the key.

       Ayon-Rosales was angry M.B. let her new boyfriend drive the car. Ayon-Rosales

hit M.B. in the mouth with his fist and turned up the volume on the stereo. Ayon-

Rosales then hit M.B. in the stomach several times because he believed she was

pregnant. When M.B. tried to leave the apartment, Ayon-Rosales grabbed her by the

hair. Ayon-Rosales told M.B if she "wasn't with him, [she] wouldn't be with anybody

else." In an effort to stop him from hitting her, M.B. told Ayon-Rosales she would be

with him. After Ayon-Rosales told M.B to go clean herself up, M.B. went to take a

shower.
No. 70667-5-1/3


      After she got out of the shower, Ayon-Rosales would not let M.B. get dressed.

Ayon-Rosales told M.B. he wanted to have oral sex. M.B. said no. Ayon-Rosales had a

knife from the kitchen in his hand and told M.B. he would cut her and she would die.

Ayon-Rosales then pulled down his pants, shoved M.B.'s head toward him, and forced

her to put his penis in her mouth. M.B. said she could not perform oral sex because her

mouth was hurt and swollen. Ayon-Rosales then pushed M.B. onto the futon couch and

told her to spread her legs. M.B. again told him no, but Ayon-Rosales had vaginal

intercourse with her. During intercourse, Ayon-Rosales continued to hit M.B.

Afterward, Ayon-Rosales hugged M.B., asked her to forgive him, and told her he was

going to take her away.

      At this point, Gregory entered the apartment with his key. Gregory saw that both

M.B. and Ayon-Rosales were naked. At first, Gregory thought he had caught M.B.

cheating on him, but then he noticed "how she looked." Gregory said M.B. looked like

she had been crying and when she saw him, M.B. started crying and said," 'Help me.'"

       Ayon-Rosales told Gregory that he was M.B.'s husband. Gregory said he was

going to call the police. Ayon-Rosales laughed, "like it was a joke," put his clothes on,

took M.B.'s telephone and her debit card, and ran out of the apartment. Gregory

chased after Ayon-Rosales.

       M.B. went to a neighbor's apartment to call the bank and cancel her debit card.

The neighbor called 911. Police officers arrived and took M.B. to Harborview Medical

Center.
No. 70667-5-1/4


       The State charged Ayon-Rosales with one count of rape in the second degree.

The State alleged Ayon-Rosales engaged in "sexual intercourse" with M.B. by "forcible

compulsion" in violation of RCW 9A.44.050(1 )(a).

       A number of witnesses testified at the trial, including M.B., the neighbor who

called 911, Gregory, several police officers, health care providers, and a forensic

scientist. The swabs collected during the medical examination at Harborview contained

a mixed profile consistent with the DNA1 of both M.B. and Ayon-Rosales. The forensic

scientist testified that the probability of a random match was one in 150 trillion. Ayon-

Rosales did not testify.

       The defense asked the court to give a unanimity jury instruction because there

was evidence of "two potential acts of sexual intercourse." The court rejected the

request to give a unanimity instruction on two grounds. The court ruled the definition of

sexual intercourse created alternative means of committing the crime, and the evidence

supported both alternative means. The court also ruled the evidence established more

than one act, but those acts transpired "within a relatively short period of time,"

constituting a continuous course of conduct.

       The defense did not dispute that Ayon-Rosales and M.B. had sexual intercourse.

The defense argued that M.B. would not admit she had consensual sex with Ayon-

Rosales because she did not want to jeopardize her relationship with Gregory, who was

a United States citizen and a "much better deal."




       1 Deoxyribonucleic acid.
No. 70667-5-1/5


      The jury found Ayon-Rosales guilty of rape in the second degree and by special

verdict found the crime involved domestic violence. The court imposed a standard

range sentence.

                                         ANALYSIS

Unanimity Instruction

      Ayon-Rosales contends the trial court violated his constitutional right to a

unanimous jury by denying his request for a unanimity instruction.

      Ayon-Rosales contends the trial court erred in ruling that the definition of "sexual

intercourse" created alternative means. The State concedes the court erred. We

accept the State's concession as well taken. While the definition of "sexual intercourse"

includes more than one type of intercourse, definitions do not create alternative means

or implicate jury unanimity concerns. See RCW 9A.44.010(1); RCW 9A.44.050(1 )(a);

State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007).

       Next, Ayon-Rosales contends the court erred in denying his request for a

unanimity instruction on the grounds that there was a continuous course of conduct.

       Criminal defendants in Washington have a right to a unanimous jury verdict.

Const, art. 1, § 21; State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231

(1994). When the State presents evidence of several acts that could constitute the

crime charged, the jury must unanimously agree on which act constituted the crime.

State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). To ensure jury unanimity,

the State must either elect the act on which it relies, or the court must instruct the jury to

unanimously agree that at least one particular act constituting the charged crime has
No. 70667-5-1/6


been proved beyond a reasonable doubt. Kitchen. 110 Wn.2d at 411; see also State v.

Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).

       But no election or unanimity instruction is required if the evidence establishes a

"continuing course of conduct." Petrich, 101 Wn.2d at 571. We review the facts in a

commonsense manner to determine whether criminal acts consist of a continuing

course of conduct. Petrich, 101 Wn.2d at 571. Evidence that the charged conduct

"occurred at different times and places tends to show that several distinct acts

occurred." State v. Fiallo-Lopez. 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

Evidence that the 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." Fiallo-Lopez, 78 Wn. App. at 724.

       Viewed in a commonsense manner, the evidence establishes a continuing

course of conduct. Ayon-Rosales forced M.B. to have oral sex but when she could not

do so, he pushed her onto the futon couch and forcibly had vaginal sex with her. The

acts were against the same victim, occurred in an unbroken sequence of events, and

occurred at the same location with the intent to secure the single objective of sexually

assaulting M.B. Because the offense was a continuing course of criminal conduct, the

court did not err in refusing to give a unanimity instruction.

       Nonetheless, Ayon-Rosales claims the court should have conducted a double

jeopardy unit of prosecution analysis in determining whether there is a continuing

course of conduct. A double jeopardy analysis is distinct from whether there is a

continuing course of conduct that precludes a unanimity instruction. See State v.

French, 157 Wn.2d 593, 611, 41 P.3d 54 (2006). Further, in State v. Campbell, 69 Wn.
No. 70667-5-1/7



App. 302, 311-13, 848P.2d 1292 (1993), reversed on other grounds by State v.

Campbell, 125 Wn.2d 797, 888 P.2d 1185 (1995), we considered and rejected the same

argument. The defendant Campbell argued that he was entitled to a unanimity

instruction because the evidence supporting his single charge "showed 21 separate

instances of conduct which could have formed the basis for separate counts."

Campbell, 69 Wn. App. at 311. This court disagreed.

             When the evidence indicates that several distinct criminal acts may
       be committed but the defendant is charged with only one count,

                [t]he State may, in its discretion, elect the act upon which it will rely
                for conviction. Alternatively, if the jury is instructed that all 12 jurors
                must agree that the same underlying criminal act has been proved
                beyond a reasonable doubt, a unanimous verdict on one criminal
                act will be assured. When the State chooses not to elect, this jury
                instruction must be given to ensure the jury's understanding of the
                unanimity requirement.

Campbell, 69 Wn. App. at 3112 (quoting Petrich, 101 Wn.2d at 572).

      Ayon-Rosales's reliance on State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999), to

argue a unanimity instruction was required is misplaced. In Tili, the Supreme Court

addressed whether the convictions for three counts of rape in the first degree for three

distinct acts of penetration violated double jeopardy. Tili, 139 Wn.2d at 112-13. The

court rejected the argument that the legislature did not intend each act of penetration to

constitute a single unit of prosecution. The court held that for purposes of double

jeopardy, the unit of prosecution is "sexual intercourse." Til], 139 Wn.2d at 119. As the

State points out, the double jeopardy unit of prosecution analysis defines the maximum

but not the minimum number of convictions that may be based on the defendant's




       2 Alteration in original.
No. 70667-5-1/8


conduct. See State v. Calle. 125 Wn.2d 769, 777 n.3, 888 P.2d 155 (1995) (State may

file and prosecute multiple counts where the evidence supports the charges, as long as

convictions are not entered in violation of double jeopardy). The fact that it is

"theoretically possible" for the State to have filed two charges of rape does not mandate

a unanimity instruction in all cases.

       We also reject Ayon-Rosales's argument that the decisions in State v. Furseth,

156 Wn. App. 516, 233 P.3d 902 (2010), and State v. Brown, 159 Wn. App. 1, 248 P.3d

518 (2010), are inconsistent and that Brown was wrongly decided.

       In Furseth, the defendant Furseth was charged with one count of possessing

depictions of minors engaged in sexually explicit conduct. Furseth, 156 Wn. App. at

518. The State introduced into evidence multiple images stored on Furseth's computer.

Furseth, 156 Wn. App. at 518-19. The jury convicted him as charged. On appeal,

Furseth challenged his conviction on the basis that the jury was not instructed that it had

to unanimously agree as to which image found in his possession constituted child

pornography. Furseth, 156 Wn. App. at 519. We held that "because the State could not

have charged Furseth with multiple, separate counts of possession of child

pornography, evidence that he possessed multiple images does not constitute evidence

of multiple criminal acts," and the court did not err in refusing to give a unanimity

instruction. Furseth, 156 Wn. App. at 522. Because Furseth was not a multiple acts

case, the decision does not address the applicability of the continuing course of conduct

exception to the Petrich instruction requirement.

       In Brown, the defendant argued the State took an inconsistent position by

charging him with multiple felony violations of a no-contact order but then arguing he



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No. 70667-5-1/9


was not entitled to a unanimity jury instruction under the continuing course of conduct

exception. Brown, 159 Wn. App. at 13-14. We disagreed, and held the record showed

the continuing course of conduct exception applied. Brown, 159 Wn. App. at 15.

Gregory's Testimony

       In the alternative, Ayon-Rosales claims he was denied a fair trial because the

trial court admitted improper testimony of guilt.

       As a general rule, a witness may not offer opinion testimony regarding the guilt or

veracity of the defendant. Such testimony invades the province of the jury and is

unfairly prejudicial to the defendant. State v. Demerv, 144 Wn.2d 753, 759, 30 P.3d

1278(2001).

       On cross-examination, defense counsel asked Gregory if it was a "traumatic"

experience to walk in on M.B. and Ayon-Rosales. On redirect, the prosecutor asked

Gregory, "How has it been a traumatic experience for you?" Gregory responded,

"[Bjecause it was the first time ever someone got raped in front of me." Defense

counsel objected but did not move to strike the testimony or request a curative

instruction.


              [DEFENSE COUNSEL]:           Objection.
              THE COURT:       Well, the context is given in a statement to the
       police detective. That was later.
              [PROSECUTOR]:        It's in connection with that.
              THE COURT:       That doesn't expand the scope as broadly as the
       present time.
               [PROSECUTOR]:        I will move on.

       Ayon-Rosales argues Gregory's testimony that "itwas the first time ever

someone got raped in front of me" is improper opinion testimony of guilt. The State

asserts Gregory testified to what he observed, and even if admission of the testimony
No. 70667-5-1/10


was error, it was harmless. We agree any error was harmless. Under the constitutional

harmless error standard, we will not vacate the jury's finding if it appears beyond a

reasonable doubt that the alleged error did not affect the verdict. State v. Monday, 171

Wn.2d 667, 680, 257 P.3d 551 (2011).

      On direct, Gregory testified that when he walked into the apartment, Ayon-

Rosales and M.B. were both naked and he thought he had "caught them in the act." But

Gregory said that then he noticed M.B. was bleeding, and had been hit in the eye and

had a "broken lip." Gregory testified that M.B. looked like she had been crying and

when she saw him, M.B. began crying again and said," 'Help me.'" Gregory also

testified that after chasing Ayon-Rosales and catching up to him, Ayon-Rosales said,

"[l]f you touch me, you know, you will get arrested." Without objection, Gregory testified

that he told Ayon-Rosales, "[Y]ou just committed like rape."

       M.B.'s testimony that Ayon-Rosales used physical force and threats to have sex

with her was also supported by the testimony of other witnesses. After Gregory and

Ayon-Rosales ran out of the apartment, M.B. went to a neighbor's apartment for help.

M.B. told the neighbor that she had been attacked and raped. The neighbor testified

that M.B.'s hands were shaking and her voice was trembling, and described her "whole

demeanor" as "very terrified." Police officers who responded to the 911 call described

M.B. as visibly "distraught" and "shook up." When M.B. discussed the incident with a

hospital social worker, M.B. was "anxious" and "tearful." A number of witnesses also

described M.B.'s injuries. In light of the overwhelming uncontroverted testimony, we




                                            10
No. 70667-5-1/11



conclude beyond a reasonable doubt that even if admission of Gregory's statement was

error, it did not affect the verdict.

       We affirm the jury conviction of rape in the second degree.




                                                 ch(ilAK rOOf.
WE CONCUR:




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