                                                                             FILED 


                                                                         April 9, 2013 


                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )        No. 30235-1-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
JESUS VIDALES MORALES,                       )        PUBLISHED OPINION
                                             )
                    Appellant.               )

       SIDDOWAY, J. -   The meaning of the harassment statute, RCW 9A.46.020, is

central to Jesus Morales's appeal of his conviction of two counts of felony harassment.

He was convicted on one count for a harassment offense against the mother of his

children, from whom he was estranged. His conviction on the other count might have

been for a second harassment offense against her or might have been for a harassment

offense against the third party to whom it was communicated. We agree with Mr.

Morales that the criminal information did not put him on notice of one means advanced at

trial by the State. We also agree that prosecuting him for a second count, with the mother

of his children as the asserted victim, would violate double jeopardy. We reverse his

conviction on the problematic count and remand for resentencing.
No.30235-I-II1
State v. Morales


                     FACTS AND PROCEDURAL BACKGROUND

       Jesus Morales and Yanett Farias have three children in common but had not lived

together for a year and a half as of February 2011. On February 14, Mr. Morales stopped

at the home of Ms. Farias's sister and the sister's husband, Trinidad Diaz, where he spoke

to Mr. Diaz, venting his anger at Ms. Farias. Mr. Morales believed that Ms. Farias had

taken $4,000 belonging to him. He had stopped at her home earlier that day to speak

with her and, although she was home, she refused to open the door.

       According to Mr. Diaz, Mr. Morales was so angry in speaking about Ms. Farias

that he was trembling. He told Mr. Diaz that when Ms. Farias dropped her children off at

day care the next morning, he would be waiting for her and kill her. Mr. Morales's

conversation with Mr. Diaz lasted about three minutes. When it was over, Mr. Diaz, who

feared that Mr. Morales would follow through with his threats, told his wife to call her

sister and relate what Mr. Morales had said. Ms. Farias's sister called Ms. Farias, Ms.

Farias contacted the police, and later that night police spoke with Ms. Farias and Mr.

Diaz about the threats.

       The next morning, Ms. Farias took her children to day care at the home of the

baby-sitter, Araceli Castel, as usual, although with a plan for avoiding Mr. Morales ifhe

was there when she arrived. She told the children to watch for their father and tell her if

they saw him. The children knew why she was concerned, because her ll-year-old




                                             2

No.30235-I-II1
State v. Morales


daughter had acted as interpreter when Ms. Farias was contacted by police the night

before.

       As soon as Ms. Farias pulled up to Ms. Castel's home, the children pointed out

Mr. Morales's truck across the street. He pulled out and drove his truck toward hers.

Ms. Farias told the children to run inside; they quickly got out of the truck and ran into

Ms. Castel's home. The children told Ms. Castel that their father was threatening their

mother. Ms. Castel helped the I1-year-old call the police and then watched the

altercation between Mr. Morales and Ms. Farias from her front door.

       By then, Mr. Morales and Ms. Farias were still in their respective trucks, with Mr.

Morales's truck alongside Ms. Farias's, preventing her 'from leaving. As Ms. Farias tried

unsuccessfully to pull out from behind or in front of Mr. Morales's truck, he moved to

block her and Ms. Castel heard him yell, "'This is as far as you've gone, you fucking

bitch, because I'm going to kill you here.'" Report, of Proceedings (Aug. 11,2011) (RP)

at 267. Mr. Morales, whose driver's side window was partly down, was leaning toward

Ms. Farias's truck and pointing toward her-perhaps with something in his hand,

although no witness claimed to have seen a weapon. Ms. Farias was cowering. Ms.

Castel then began yelling at Mr. Morales and he left. After that Ms. Farias came into the

house, shaken and crying, and told Ms. Castel, "'I thought they would be killing me

today'" and "'[i]f it wouldn't have been for you, he could've killed me.'" RP at 274.




                                             3

No. 30235-1-II1
State v. Morales


       The State charged Mr. Morales with two counts of felony harassment under RCW

9A.46.020. The amended information stated, as to the first count:

              On or about February 14,2011, in the State of Washington, without
       lawful authority, you knowingly threatened to cause bodily injury
       immediately or in the future to Yanett Farias and the threat to cause bodily
       injury consisted of a threat to kill Yanett Farias or another person, and did
       by words or conduct place the person threatened in reasonable fear that the
       threat would be carried out.

Clerk's Papers (CP) at 2. Count two contained identical language, but substituted the

date of February 15.

       At trial, the elements instruction that the State originally proposed to address count

one (the February 14 threat) originally read, in part, as follows:

              To convict the defendant of the crime of Harassment of Another in
       Count 1, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
              (1) That on or about February 14, 2011, the defendant knowingly
       threatened to kill Yanett Farias immediately or in the future;
              (2) That the words or conduct of the defendant placed Yanett Farias
       in reasonable fear that the threat to kill would be carried out.

CP at 20.

       Before the instruction was read and provided to the jury the second numbered

element in the instruction was revised to read, "(2) That the words or conduct of the

defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to

kill would be carried out" (the revision being indicated by italics). CP at 39 (Instruction




                                              4

No. 30235·1-111
State v. Morales


7). The modification was discussed by counsel and was clearly intentional. Mr. Morales

did not object to the instruction.

       The jury found Mr. Morales guilty on both counts.

       At sentencing, defense counsel argued the two threats constituted a single course

of conduct and that the unit of prosecution should be the number of victims rather than

the number of threatening statements. The court rejected the argument, treated the two

counts as separate convictions for purposes of Mr. Morales's offender score, and imposed

a standard-range IO-month sentence for each count, to run concurrently. Mr. Morales

appeals.

                                       ANALYSIS

       Two of Mr. Morales's arguments on appeal are based on an asserted inconsistency

between count one as it was charged and as tried. The parties' disagreement about the

asserted inconsistency largely arises from the several actors contemplated by subsection

(a)(i) ofRCW 9A.46.020(l}-one of the four alternative means of committing

harassment-and which role Mr. Diaz played in the State's theory of count one. In

addition to the perpetrator, subsection (a)(i) contemplates (A) a person to whom a threat

is communicated, (B) an intended victim of bodily harm, and (C) a target of the

perpetrator's harassment (the individual the perpetrator hopes to coerce, intimidate, or

humiliate). For clarity, we will sometimes refer to the person to whom the threat is




                                             5

  No. 30235-1-111
. State v. Morales


 communicated as A, the intended victim of bodily harm as B, and the target of the

 harassment as C. The A, B, and C roles can be filled by one, two, or three persons.

        The relevant provisions of the harassment statute state:

        ( I) A person is guilty of harassment if:
               (a) Without lawful authority, the person knowingly threatens:
               (i) To cause bodily injury immediately or in the future to the person
        threatened or to any other person [and]

              (b) The person by words or conduct places the person threatened in
        reasonable fear that the threat will be carried out.

 RCW 9A.46.020. "Threat" is defined elsewhere as including "to communicate, directly

 or indirectly the intent ... [t]o cause bodily injury in the future to the person threatened

 or to any other person." Former RCW 9A.04.l10(27)(a) (2007) (emphasis added).

        Two cases are key in sorting out the parties' conflicting views of Mr. Diaz's role

 in the State's theory of count one. In State v.   as., 104 Wn. App. 643, 17 P.3d 1221
(iOO 1), Division One of this court examined whether the definition of harassment in

RCW 9A.46.020(1)(a) created alternative means of committing the crime or only a single

means. In that case, a juvenile made statements to Tina Myrick, a school bus driver,

threatening students at his school. She became concerned, reported the threats to school

 administrators, and G.S. was charged in juvenile court with felony harassment. The

 information alleged that he '''knowingly and without lawful authority, did threaten to

 cause bodily injury immediately or in the future to Tina Myrick, by threatening to kill 


 students of Westside Place Alternative School, and the words or conduct did place said 


                                               6

No.30235-1-III
State v. Morales


person in reasonable fear that the threat would be carried out. '" ld. at 647-48. G.S. was

found gUilty.

       On appeal, he argued that the definition of the first element of the crime in RCW

9A.46.020(1)(a)(i) created two alternative means. One was to communicate to A a threat

to cause bodily injury to A, and the other was to communicate to A a threat to cause

bodily injury to B. He maintained that the information charged him with a "communicate

to Albodily injury to A" alternative (relying on "did threaten to cause bodily injury

immediately or in the future to Tina Myrick")·but the State's only evidence was evidence

of a "communicate to Albodily injury to B" alternative (B being his fellow students)-ati

uncharged offense. Division One concluded that the definition created only a single

means of committing the crime: communicating to A a threat to cause bodily injury to A

orB.

       A second issue raised by G.s. was whether, when the threat is to cause bodily

injury not to the person to whom the threat is communicated, but to another person, the

second element (provided at RCW 9A.46.020(1)(b)) required proof by the State that the

person to whom the threat was communicated (A) was placed in reasonable fear that the

threat will be carried out, or proof that the intended victim of bodily injury (B) was

placed in such fear. The court concluded that under a plain reading of the statute, the

"person threatened" who must be placed in reasonable fear is the person to whom the

threat was communicated. ld. at 652. It based its decision primarily on its construction

                                              7

No.30235-1-II1
State v. Morales


of "the person threatened" in both RCW 9A.46.020(1)(a)(i) and in the definition of threat

at former RCW 9A.04.11O(27)(a) as meaning A, the person to whom the threat is

communicated.

       Later the same year, the statute was examined by our Supreme Court in State v.

J.M, 144 Wn.2d 472, 482, 28 P.3d 720 (2001), in which the principal issue presented

for decision was the proper construction of the requirement that the threat be made

"knowingly." The parties disputed whether the crime is committed if a perpetrator

communicates to A a threat to harm B, with no knowledge that A will tell B about the

threat. The court concluded that the perpetrator commits the crime of felony harassment

by communicating to A the threat to harm B, even without knowing that A will then

communicate the threat to B. But it held that

       the statute as a whole requires that the perpetrator knowingly threaten to
       inflict bodily injury by communicating directly or indirectly the intent to
       inflict bodily injury; the person threatened must find out about the threat
       although the perpetrator need not know nor should know that the threat will
       be communicated to the victim; and words or conduct of the perpetrator
       must place the person threatened in reasonable fear that the threat will be
       carried out.

Id. at 482.

       The then-recent decision in   as. had been broUght to the court's attention, and it
addressed it briefly in the conclusion of J.M, stating:

       The issues in G.S. and those in this case are not the same, and thus the
       propriety of the holdings in that case is not before us. Nonetheless, lest
       confusion ensue, we do note that the court in G.S. appears to have equated

                                              8

No. 30235-1-III
State v. Morales


       the person threatened with the person to whom the communication of the
       threat is made. That conclusion is, of course, at odds with our decision
       here. Under RCW 9A.46.020(l)(a)(i), the person threatened is generally
       the victim o/the threat, i.e., the person against whom the threat to inflict
       bodily injury is made. The person to whom the threat is communicated
       mayor may not be the victim of the threat. ... The statute also
       contemplates that a person may be threatened by harm to another. An
       example that comes readily to mind is a communication of intent to harm
       the child of the person threatened. Again, however, the person to whom
       the perpetrator communicates the threat may be someone other than the
       person threatened.

Jd. at 488 (emphasis added).

       In other words, the Supreme Court did not construe "the person threatened" as

used in the statute to mean the person to whom the threat was communicated, as the

Court of Appeals had in G.S. Rather, it construed "the person threatened" to be the

person whom the harassment statute is intended to protect. It noted that the act was

aimed at making unlawful acts and threats "'which show a pattern of harassment

designed to coerce, intimidate, or humiliate the victim,'" and construed "the person

threatened" to mean the target of coercion, intimidation or humiliation. Jd. at 485

(quoting RCW 9A.46.010). As the court's hypothetical points out, the target of coercion

or intimidation when a parent is threatened with bodily injury to a child can clearly be the

parent. If so, the second element of the State's case would require proof that the parent,

not the child, was reasonably placed in fear.

       Thus construed, and if we identify the target of coercion or intimidation as C, the

first element of the State's proof when charging harassment under RCW 9A.46.020(l)(a)

                                                9

No. 30235-1-111
State v. Morales


is that the perpetrator threatens to cause bodily injury to the target of harassment (C) ·or to

any other person (B). The second element requires that the State prove that the.

perpetrator by words or conduct places the target of harassment (C) in reasonable fear

that the threat will be carried out. The person to whom the threat is communicated does

not enter into the elements at all, nor need they; the definition of "threat" at former RCW

9A.04.110(27)(a) includes direct or indirect communications of intent.

       Mr. Morales makes three arguments on appeal, two of which tum on a proper

construction of the elements as they relate to the person to whom a threat is

communicated and the person reasonably placed in fear. He argues first, that the

information was insufficient to inform Mr. Morales that he was charged with harassing

Mr. Diaz; second, that the trial court unconstitutionally charged Mr. Morales with an

uncharged crime; and third, that because the proper unit of prosecution is placing the

victim of harassment in fear, conviction of Mr. Morales for his actions on both

February 14 and 15 constitutes double jeopardy.

                                              1

       Mr. Morales's first two arguments are two sides ofthe same coin. He argues, first,

that the amended information did not identify Mr. Diaz as a victim of count one but that

he was later presented as one; the amended information therefore failed to include a

necessary element of the crime. Second, he argues that where the State presented Mr.

Diaz as a potential victim to the jury through evidence and instruction, the jury was

                                              10 

No.30235-I-III
State v. Morales


permitted to convict him of an uncharged crime. The second statement of the error is the

more apt.

       The State charged Mr. Morales in count one with violating RCW 9A.46.020(1)(a),

(b), which define harassment as requiring that the victim of the harassment-the "person

threatened"-be placed in reasonable fear that the threat will be carried out. Ms. Farias

was identified in the information as the victim. Yet at trial, the elements instruction

informed the jury that it could convict Mr. Morales on count one if it found that Mr. Diaz

was reasonably placed in fear that Mr. Morales's February 14 threat against Ms. Farias

would be carried out.

       A defendant has a constitutional right to be informed of the nature and cause of the

charges against him. WASH. CONST. art. I, § 22; U.S. CONST. amend. VI. Because of the

centrality of this notice to the ability to defend, it is error to instruct the jury on uncharged

offenses or uncharged alternative theories. State v. Kirwin, 166 Wn. App. 659, 676, 271

P.3d 310 (2012) (Korsmo, A.C.J., dissenting) (citing, e.g., State v. Severns, 13 Wn.2d

542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256

(2003)). The error can be harmless if other instructions define the crime in a manner that

leaves only the charged alternative before the jury. ld.

       The State argues that it did not intend to portray Mr. Diaz as a victim but only as a

person to whom the threat was communicated. But the jury clearly could have concluded

otherwise. To begin with, the record demonstrates why the State might want to present

                                               II 

No. 30235-1-III
State v. Morales


Mr. Diaz as an alternative victim. Mr. Morales's defense at trial was that he and Ms.

Farias had been combative for months over custody and other issues; most recently, over

his $4,000 that had gone missing. Their 11-year-old daughter, who testified at the trial,

agreed on cross-examination that she knew her mother was asking the court in custody

proceedings to prohibit her father from seeing her, that she thought it would make her

father mad, that her parents always seemed to find things to fight about, that her father

frequently got upset with her mother, and that his voice outside Ms. Castel's house on

February 15 was not that different from other times her parents had argued.

       Mr. Morales argued to the jury that the State had not met its burden of proving a

true threat, or that Ms. Farias was reasonably placed in fear. He pointed to the fact that

Ms. Farias drove her children to day care as usual on February 15 despite knowing of the

prior day's threat and without police protection-evidence that might have been

particularly persuasive as to count one. By offering Mr. Diaz as a second victim, the

State provided an alternative basis for conviction if the jury was persuaded by Mr.

Morales that after their long-term relationship Ms. Farias knew Mr. Morales better than

to take his threat seriously.

       The State's examination, instruction, and argument support Mr. Morales's claim

that it pursued a theory of Mr. Diaz as an alternative victim. During the State's direct

examination of Mr. Diaz, he testified that the sheriff's office "came to my house and

asked me what had happened. They also asked me if I thought he would follow through,

                                             12 

No.30235-1-III
State v. Morales


and I told them yes." RP at 250. The State's redirect examination elicited Mr. Diaz's

testimony that the reason he told his wife to call Ms. Farias was "[b]ecause the way I saw

him I thought he would, would do that, what he had told me." RP at 258.

       The State proposed (or, in any event, did not abject to) the trial court's instruction

7, which stated the second element of count one as being "[t]hat the words or conduct of

the defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to

kill would be carried out." In closing argument, the State referred to the instruction and

to its reference to Trinidad Diaz. It reminded the jury, twice, of Mr. Diaz's testimony

that he was fearful and concerned that Mr. Morales's threat would be carried out. Mr.

Diaz's being placed in reasonable fear would satisfy the State's burden of proving the

elements of harassment only ifhe was the "person threatened."

       The State argues that statements made during the sentencing hearing by Mr.

Morales's lawyer suggest that the lawyer, at least, was always clear about the State's

intended theory and proof. We do not attach the same significance to the lawyer's

statements as does the State, but what the lawyer believed about the prosecutor's intended

theory is irrelevant. What matters is what the jury knew about the State's theory. In light

of what was presented to the jury, it could have convicted Mr. Morales of an uncharged

alternative.

       Mr. Morales was, then, tried for count one on an uncharged alternative theory.

Because the elements instruction supported the new theory, the error was not harmless.

                                             13 

No. 30235-1-111
State v. Morales


Kirwin, 166 Wn. App. at 677. Mr. Morales would be entitled to a new trial on count one.

Also germane to any new trial, though, is his double jeopardy challenge, which we

address next.

                                              II

       Mr. Morales argues that the February 14 and 15 communications ofthe same

threat, in each case placing Ms. Farias in fear, is a course of conduct that is the proper

unit of prosecution for harassment. As a result, he argues, charging him with two counts

violates the double jeopardy provisions of the United States and Washington

Constitutions. U.S. CONST. amend. V; WASH. CONST. art. I, § 9. No Washington

decision addresses the unit of prosecution for harassment.

       A defendant may face multiple charges arising from the same conduct but the

principle of double jeopardy precludes multiple punishments for the same offense. State

v. Hall, 168 Wn.2d 726, 729-30, 230 P.3d 1048 (2010) (citing State v. Freeman, 153

Wn.2d 765, 770-71, 108 P.3d 753 (2005); State v. Vladovic, 99 Wn.2d 413,422,662

P.2d 853 (1983)). The determination of whether or not a defendant faces multiple

convictions for the same crime depends on the unit of prosecution. ld. at 730 (citing

State v. Westling, 145 Wn.2d 607,610,40 P.3d 669 (2002)). "The unit of prosecution for

a crime may be an act or a course of conduct." State v. Tvedt, 153 Wn.2d 705, 710, 107

P.3d 728 (2005) (citing United States v. Universal c.l.T. Credit Corp., 344 U.S. 218,

225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). "The proper question is to determine what

                                              14 

No. 30235-1-111
State v. Morales


act or course of conduct the legislature has defined as the punishable act." State v.

Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007).'

       The approach to analyzing the unit of prosecution is well settled:

       [T]he first step is to analyze the statute in question. Next, we review the
       statute's history. Finally, we perform a factual analysis as to the unit of
       prosecution because even where the legislature has expressed its view on
       the unit of prosecution, the facts in a particular case may reveal more than
       one "unit of prosecution" is present.

Varnell, 162 Wn.2d at 168 (citing State v. Bobic, 140 Wn.2d 250,263-66,996 P.2d 610

(2000)). If the statute is ambiguous as to the unit of prosecution, the rule oflenity applies

and the ambiguity is "'resolved against turning a single transaction into mUltiple

offenses.'" Tvedt, 153 Wn.2d at 711 (internal quotation marks omitted) (quoting State v.

Adel, 136 Wn.2d 629,635,965 P.2d 1072 (1998)).

       Looking first at the harassment statute, RCW 9A.46.01O codifies the legislative

finding in enacting the statute, including that "[ the] chapter is aimed at making unlawful

the repeated invasions of a person's privacy by acts and threats which show a pattern of

harassment designed to coerce, intimidate, or humiliate the victim." In State v. Alvarez,

74 Wn. App. 250,257, 872 P.2d 1123 (1994), Division One of our court rejected that

statement of intent as a basis for concluding that the statute requires more than one


       1 The fact that a series of arguably distinct criminal acts, evaluated in a
commonsense manner, may be prosecuted as a "continuing course of conduct"­
discussed at length by the dissent-is unrelated, in our view, to the threshold issue of the
proper unit of prosecution.

                                             15 

No.30235-I-II1
State v. Morales


communication of a threat. The Washington Supreme Court affirmed, stating that

"[a]lthough the legislative finding in RCW 9A.46.010 indicates the Legislature intended

to make criminal 'repeated invasions of a person's privacy' by acts and threats showing a

'pattern of harassment: this does not lead to a conclusion that a single act o/harassment

may not be charged under the act. ... Nothing in [the section defining harassment]

indicates a legislative intent to criminalize only invasion 0/privacy by repeated acts and

threats showing a pattern of harassment." State v. Alvarez, 128 Wn.2d I, 12,904 P.2d

754 (1995) (emphasis added). Neither Division One nor the Supreme Court explicitly

addressed the different question presented here: whether, if a person threatens a single

harm, placing the person threatened in fear, the unit of prosecution is then that threat of

harm, or is instead each time and place he or she repeats it to the victim or third parties.

       As recognized in Alvarez, the venue provision of the harassment statute sheds

some light on the unit of prosecution by discussing possible components of a harassment

offense. It provides:

       Any harassment offense committed as set forth in RCW 9A.46.020 ... may
       be deemed to have been committed where the conduct occurred or at the
       place from which the threat or threats were made or at the place where the
       threats were received.

RCW 9A.46.030, quoted in 74 Wn. App. at 259. Alvarez focused on the fact that the

venue provision treats a "harassment offense" as including a single threat. For present




                                              16 

No.30235-I-III
State v. Morales


purposes, the provision is illuminating in treating a "harassment offense" as also

including multiple threats.

       The State argues that the most important indication of the proper unit of

prosecution in the harassment statute is the stalking provision at RCW 9A.46.llO, which

criminalizes "repeatedly harass[ing] or repeatedly follow[ing] another person," defining

"repeatedly" to mean "on two or more separate occasions." RCW 9A.46.l10(1)(a), 6(e).

The State argues that the same language is "glaringly absent" from RCW 9A.46.020. Br.

ofResp't at 17.

       In Hall, the Supreme Court was not persuaded by an argument that if the

legislature intended a single unit of prosecution based on a course of conduct, it could

have said so plainly. 168 Wn.2d at 733. What matters is not what it did not say, but what

it did say. The language it used to define the operative criminal conduct in RCW

9A.46.020-to "knowingly threaten"-is not inherently a single act.

       Where the language of a statute does not directly suggest the unit of prosecution,

our Supreme Court has examined the language for the focus of the statute, seeking to

determine the statutory aim and whether some variables by which the unit of prosecution

might be measured are secondary. Thus, in Varnell, in which the Supreme Court

determined the unit of prosecution for criminal solicitation, it found the statute to focus

on a perpetrator's "'intent to promote or facilitate'" a crime rather than the crime to be

committed; it also found the number of victims to be secondary. 162 Wn.2d at 169. In

                                             17 

NO.30235·1·III
State v. Morales


Tvedt, in which the court determined the unit of prosecution for robbery, it found

indications that the legislature intended the unit of prosecution to include a forcible

taking of property from a person having an ownership, representative, or possessory

interest in the property, against the person's will. It found that other variables ofa

robbery-the number of items taken and the number of persons present--did not bear on

the unit of prosecution.

       We need not determine the unit of prosecution for all harassment scenarios to

conclude that where, as here, (1) a perpetrator threatens to cause bodily harm to a single

identified person at a particular time and place and (2) places a single victim of the

harassment in reasonable fear that the threat will be carried out, the conduct constitutes a

single offense. The harassment statute focuses on a perpetrator's coercing, intimidating,

or harassing the victim by a threat or threats that place her in reasonable fear. The

number of persons who might learn of the threat and communicate with the victim about

it and the number of times it might be communicated are secondary.

       As discussed in Tvedt, a unit of prosecution that results in additional charges based

on variables that are secondary can result in convictions that are disproportionate to an

offender's conduct. See 153 Wn.2d at 716 n.4. Suppose Mr. Morales had stopped at the

homes of other relatives or friends on February 14 and repeated the same conversation he

had with Mr. Diaz. Assume that the State did not contend that these third parties were

additional victims of harassment but relied upon the conversations as additional acts of

                                             18 

                                                                                              •



No.30235-1-II1 

State v. Morales 



harassment toward Ms. Farias-as it now says was its intention with the conversation

with Mr. Diaz. There would be no meaningful difference in Mr. Morales's conduct but

considerable disparity in the sentence he would face. 2

       Once the unit of prosecution is determined, a factual analysis is necessary to

decide if more than one unit of prosecution is present. Id. at 717. Double jeopardy is

avoided 'only where the facts of the case support mUltiple units of prosecution. Id. The

facts of this case present only one unit of prosecution for charging Mr. Morales with

harassing Ms. Farias. The parties have not briefed, and we do not reach, whether the

facts would support two units of prosecution if one of the State's counts had identified

Mr. Diaz as the victim.




       2 Or, to adopt the dissent's illustration of a threat on March I to kill a victim on
March 31 at high noon, is the unit of prosecution the threat, or every one of dozens of
times that the perpetrator repeats his threat to his companions in the saloon? Particularly
where the threat is addressed to the person threatened, we will agree with the dissent that
with repetition of the threat, there is a prospect of incrementally increased harm. But the
question is whether that difference is the key to the legislature's intended unit of
prosecution. The unit of prosecution for robbery, for instance, is not the number of
persons placed in fear. Tvedt, 153 Wn.2d at 714. The unit of prosecution for second
degree arson damaging automobiles is not the number of automobiles damaged.
Westling, 145 Wn.2d at 611. Again, while the Supreme Court in Alvarez agreed that a
single act of harassment may be charged under RCW 9A.46.020, it also recognized that
"the Legislature intended to make criminal 'repeated invasions of a person's privacy' by
acts and threats showing a 'pattern ofharassment.'" 128 Wn.2d at 12.

                                            19
No.30235-1-III
State v. Morales


      We reverse Mr. Morales's conviction of count one and remand for resentencing.




                                          Sidd~~'
I CONCUR:




                                          20 

                                       No.30235-1-III

       KORSMO, C.J. (dissenting) -     Communicating a threat to the intended victim the

day after making the same threat to another person is not a continuing course of conduct.

I dissent from that portion of the court's opinion. l The unit of prosecution here is the

number of threats rather than the victim ofthose threats. Precedent, the statutory

language, and prior case law establish that there was no continuing course of conduct

here. The majority's result flies in the face of legislative intent.

       This court has already decided that a single threat constitutes the unit of

prosecution for harassment. State v. Alvarez, 74 Wn. App. 250, 257, 872 P.2d 1123

(1994), aff'd, 128 Wn.2d 1,904 P.2d754 (1995). Since Alvarez has already decided the

issue, there is no reason to reconsider that ruling, let alone to vary from it. State v. Bobie,

140 Wn.2d 250,996 P.2d 610 (2000), does not support the majority's position. Bobie

holds that even where the legislature has defined a crime as a single offense, there still

can be multiple crimes if the facts support them. Id. at 266. It does not support the

converse proposition that a crime that can be committed by a single act necessarily

prohibits prosecution for multiple violations ofthe same offense.




       1 The instructional error identified by the majority requires a new trial on that
count. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117
Wn. App. 531, 540, 72 PJd 256 (2003).
No.30235-1-II1
State v. Morales


          Even when the offense is defined in the singular, multiple counts of the crime are

still subject to a continuing conduct analysis. Id. at 266-67. In applying unit of

prosecution analysis, courts look to discern "'the evil the legislature has criminalized.'"

State v. Hall, 168 Wn.2d 726, 731, 230 P.3d 1048 (2010) (quoting State v. Varnell, 162

Wn.2d 165, 169, 170 P.3d 24 (2007)). The continuing conduct analysis isa factual

inquiry applying the unit of prosecution to the charged behavior. E.g., Bobie, 140 Wn.2d

at 266.

          The language of the statute does not support the continuing conduct conclusion.

Paraphrased, the harassment statute defines a crime where a person "knowingly

threatens" harm to another with the result that the person threatened (the victim)

reasonably fears that the threat will be carried out. RCW 9A.46.020. The only r.:nental

state is to "knowingly" threaten; there is no requirement that the defendant intend that the

threat be conveyed to the victim. State v. J.M, 101 Wn. App. 716, 730,6 P.3d 607

(2000), ajJ'd, 144 Wn.2d 472,28 P.3d 720 (2001). This latter point is one reason the

majority's approach does not work under the facts of this case. Objectively viewed, a

threat about a victim made to a third party does not share the same purpose as a threat

made directly to the victim. The objective purpose of a threat to the third person is

unclear; the objective purpose of the threat to the victim is to place her in fear. The two

threats cannot have the same purpose because the person to whom they were directed was

                                               2

No.30235-1-III
State v. Morales


different. The first threat also did not further the second threat or appear related to it

other than both threats ultimately placed the victim in reasonable fear of death.

       Case law does not support the majority's approach. The object of a conspiracy is

not the unit of prosecution for conspiracy. Bobic, 140 Wn.2d at 265-66. Instead, the unit

of prosecution is the agreement to engage in criminal conduct without regard to how

many criminal objectives the agreement contains. Id. Similarly, the object of a

harasser's threats should not be the unit of prosecution for harassment. As previously

noted, the unit of prosecution is to knowingly threaten harm to another person; one threat

is sufficient. Alvarez, 74 Wn. App. at 257. That unit of prosecution does not suggest any

continuing course of conduct. Each discrete threat is its own crime without regard to any

similarity in the wording of the threats. Presumably, if Jesus Morales had run into the

victim in the grocery store before they met at the day-care facility, the majority would

conclude that a threat to kill her at the store would not be the same course of conduct as

the threat he had conveyed the day before to kill her at the day care. But the unit of

prosecution should not depend upon the specific language of the threat conveyed.

Nothing in RCW 9A,46.020 suggests that the legislature intended the specific threat

language to be an important factor in defining the offense.

       There is a difference between one threat communicated to 20 people on one

occasion and same threat individually communicated to those same 20 people on 20

                                               3
No. 30235-1-111
State v. Morales


occasions. The no-contact order violation cases provide the best analogy. There our

courts have repeatedly concluded that each violation of the no-contact order provision is

properly punished separately rather than constituting a continuing course of conduct.

E.g., State v. Brown, 159 Wn. App. 1,248 P.3d 518 (2010) (five violations based on

contacts on five different days); State v. Allen, 150 Wn. App. 300, 207 P.3d 483 (2009)

(two violations based on two separate e-mails opened on same day); State v. Parmelee,

108 Wn. App. 702, 32 P.3d 1029 (2001) (three letters to victim constituted three

violations). Where the continuing course of conduct analysis results in a single

prosecution, it frequently has been because the crime was legislatively defined as one

offense having either multiple objectives or multiple methods of achieving a single

objective. E.g., Hall, 168 Wn.2d 726 (witness tampering); Varnell, 162 Wn.2d 165 (unit

of prosecution for solicitation was each person solicited to commit crime rather than the

objective of the solicitation); Bobie, 140 Wn.2d 250 (conspiracy). Those cases are not

this one.

       This court should hold that a threat conveyed to two different people at two

different locations on two different days is not a continuing course of conduct merely

because the same victim is reasonably placed in fear by the threats. The unit of

prosecution is each threat. There is no evidence that these threats were part of the same




                                            4

No.30235-I-II1
State v. Morales


scheme to harass the victim. Rather, they merely reflected that Mr. Morales claimed he

intended to perform the same act of violence against the victim.

       Finally, the majority's approach flies in the face of the legislative intent to prevent

multiple acts of harassment. RCW 9A.46.01O. Knowing that one threat was the same as

one thousand threats, an offender has no reason to stop a campaign of harassment. A

threat on March I to kill the victim on March 31 at high noon constitutes a violation of

the statute. Repeating the same threat daily for the rest of the month would constitute a

continuing course of conduct according to the majority's construction of the statute. We

should not adopt that interpretation since that result is the exact opposite of what the

legislature expressly says it intended.

       The unit of prosecution here is the knowing threat, not the victim of the threat. 2

The trial court properly rejected Mr. Morales's argument. 1 would reverse count one due

to the instructional error and remand it for a new trial.



                                                      ~, C,J.
                                                       Korsmo,




       2  Under the majority's analysis, a single threat directed at a group ofpeople ("I
will kill everyone in this room") apparently could result in a multitude of convictions
depending upon how many victims took the threat to heart.

                                              5
