                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         August 16, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 47687-8-II

                        Respondent,

        v.

 ANDRES SEBASTIAN FERRER,                                     UNPUBLISHED OPINION

                                Appellant.


       SUTTON, J. — Andres Sebastian Ferrer appeals his conviction and sentence for one count

of second degree assault and one count of felony harassment. Ferrer argues that (1) the trial court

erred when it determined his convictions were not the same criminal conduct under

RCW 9.94A.589(1)(a) and (2) his 50-month exceptional sentence is clearly excessive. In his

Statement of Additional Grounds (SAG), Ferrer claims that the trial court made several

evidentiary, instructional and sentencing errors.

       We hold that (1) the trial court did not err when it determined that Ferrer’s second degree

assault and felony harassment convictions were separate and distinct offenses and not the same

criminal conduct, and (2) Ferrer’s 50-month sentence is not clearly excessive. As to Ferrer’s SAG

claims, we hold that Ferrer waived any challenges to the trial court’s admission of the photographs

and the trial court’s jury instructions on substantial bodily harm and disfigurement; Ferrer was not
No. 47687-8-II


entitled to a Petrich1 instruction on his felony harassment charge; and the sentencing court properly

imposed a 10-year no-contact order, but exceeded its authority in ordering Ferrer to seek mental

health treatment. Thus, we affirm Ferrer’s convictions, reverse the mental health sentencing

condition, and remand with instructions to the sentencing court to strike the mental health

evaluation and treatment condition from Ferrer’s judgment and sentence.

                                                 FACTS

A. BACKGROUND FACTS

          Ferrer and Kristina Ferrer2 were married in 2010. They have two daughters together, and

Kristina has an older daughter, AC,3 from a previous relationship. In January 2014, after Ferrer

and Kristina separated, Ferrer lived with his sister and Kristina lived with her daughters in the

family’s home in Vancouver, Washington.

          Ferrer would stop by the family home to get belongings or to see his two daughters. On

March 22, Ferrer visited the home during the day, returning later in the evening while Kristina was

at a barbeque with her two younger daughters. AC was at home when Ferrer arrived sometime

between 8:30 p.m. and 9:30 p.m., encountering Ferrer in the hallway outside her bedroom. Ferrer

left the home.




1
 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled on other grounds by State v.
Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
2
    We refer to parties with the same last name by their first name for clarity and intend no disrespect.
3
    AC was a minor in March 2014; therefore, we use the minor witness’s initials to maintain privacy.


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No. 47687-8-II


       Kristina returned home around 11:00 p.m., and AC helped her carry the smaller child

upstairs. AC and Kristina put both girls in Kristina’s bedroom. AC went downstairs, and upon

returning upstairs, saw Ferrer jump out of Kristina’s bedroom closet and start yelling at Kristina.

       Ferrer pushed Kristina down on the bed next to their young daughters, pinning her down

and punching her about the head and face. The girls woke up and began screaming and crying.

AC called 911. Throughout the assault, Ferrer threatened to kill Kristina, and then as he left the

bedroom, he apologized to his daughters and then told Kristina, “[D]ivorce me and you’ll die.”

II Verbatim Report of Proceedings (VRP) at 307. As Ferrer walked out the door into the hallway,

he punched picture frames on the wall and called back to Kristina, “[N]ext time I see you, you’re

dead.” II VRP at 308. When he left the house, Ferrer asked AC if she was on the phone with 911

and suggested that she check on Kristina because, “She might be dead.” II VRP at 234-35.

       At trial, Ferrer admitted that he returned to the family home a number of times that evening,

and that he encountered AC at home alone. Ferrer stated that he arrived at the house the last time

at 10:45 p.m., and that he parked his car away from the house because he knew if Kristina saw his

vehicle she would not come inside the house. Ferrer also admitted that he hid in the closet when

he heard Kristina’s car pull up, that he punched her a number of times, and that he became aware

that his young daughters were on the bed when he hit Kristina and knew that they were screaming

and crying.

B. PROCEDURAL FACTS

       1. Trial

       The State charged Ferrer with one count of second degree assault and one count of felony

harassment based on the death threats Ferrer made to Kristina. Both charges carried a domestic



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No. 47687-8-II


violence aggravator based on the fact that Kristina’s three minor children were present during the

assault.4

         Before trial, the State moved to admit about 30 photographs of Kristina’s injuries. The

trial court examined each photograph, requiring the State to make an initial offer of proof as to

each. During the hearing, the State withdrew nine disputed photographs of Kristina’s injuries, and

the trial court excluded 12 photographs due to their cumulative nature or poor quality and reserved

ruling on the admissibility of the remaining photographs.

         During trial, the State offered 20 photographs of Kristina’s injuries from the evening of

March 22 and then from a week later to show bruising and the extent of her injuries. The trial

court admitted the 20 photographs without objection.

         Ferrer proposed a Petrich5 instruction, arguing that there were multiple allegations of death

threats during the course of the assault, that each were of a “different character,” and that the State

should have to “pick one.” IV VRP at 573. The State argued that it was charging one allegation

of felony harassment, that the multiple threats during the assault were one continuing course of




4
    RCW 9.94A.535(3)(h)(ii) provides in part:

                (h) The current offense involved domestic violence, as defined in RCW
         10.99.020, or stalking, as defined in RCW 9A.46.110, and one or more of the
         following was present:
         ....
                (ii) The offense occurred within sight or sound of the victim's or the
         offender's minor children under the age of eighteen years.
5
  Petrich, 101 Wn.2d at 572 (the court held that where the State does not elect which act it will
rely upon for a conviction on the charge, a Petrich instruction must be given that instructs the jury
that all 12 jurors must unanimously agree that the same underlying criminal act has been proved
beyond a reasonable doubt in order to ensure a unanimous verdict).


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No. 47687-8-II


conduct, and that Kristina was “only . . . in fear once.” IV VRP at 572. The trial court initially

reserved ruling on Ferrer’s requested Petrich instruction, but later agreed with the State and denied

the instruction, finding that there were “no distinct time periods for which the incident stopped”

because of the short time period and that the incident was a continuous course of conduct. IV VRP

at 692.

          The jury found Ferrer guilty of both charges. The jury also found that both crimes were

“aggravated domestic violence offenses” because they were committed within the sight or sound

of Kristina’s three minor children, and that Ferrer and Kristina “were members of the same family

or household.” CP at 69-74.

          2. Sentencing

          The sentencing court determined that Ferrer’s convictions for second degree assault and

felony harassment required two separate criminal intents, and therefore, they did not constitute the

same criminal conduct. Based on his offender score, Ferrer’s standard sentence ranges were 12 to

14 months for second degree assault and 4 to 12 months for felony harassment, and 36 additional

months above the standard sentence for the aggravators.

          After reviewing the testimony of AC, Kristina, and Ferrer on the record, the sentencing

court found that “substantial and compelling reasons” supported an exceptional sentence, and

stated,

          [Y]ou brutally attacked your wife. That previous to this event you knew [AC] was
          in the house - and you knew that she was under the age of eighteen yet in your
          testimony at trial you seemed to blame her - meaning you - the victim here - Ms.
          Ferrer that she shoved you - that she did everything.

                 That’s not the case sir. You brutally attacked her in his manner - your
          children were on the bed. For those reasons I believe there are substantial and



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No. 47687-8-II


       compelling reasons to justify an exceptional sentence. The findings for the
       compelling and substantial reasons I’ve just outlined by way of the testimony of
       [AC], Kristina Ferrer and your minimization of what took place on the night in
       question.

V VRP at 863-64. The sentencing court found that because the evidence showed that Kristina’s

children were present during the assault, the jury’s finding of the aggravating domestic violence

factor supported an exceptional sentence.

       The sentencing court then imposed the State’s recommended sentence—50 months for

second degree assault and 12 months for felony harassment, with both sentences running

concurrently. The exceptional sentence for second degree assault included a standard sentence of

14 months and an additional 36 months—12 months for each of Kristina’s three children present

during the assault—above the standard base sentence.

       The sentencing court also imposed a 10-year no-contact order, domestic violence

evaluation and treatment, and mental health evaluation and treatment as conditions of Ferrer’s

sentence. Ferrer appeals.

                                            ANALYSIS

                                         I. SENTENCING

A. SAME CRIMINAL CONDUCT

       Ferrer argues that the trial court erred in calculating his offender score when it failed to

find that his convictions for second degree assault and felony harassment constituted the same

criminal conduct. We disagree.

       We review a trial court’s determination of same criminal conduct for an abuse of discretion.

State v. Davis, 174 Wn. App. 623, 641, 300 P.3d 465 (2013). The appellant bears the burden of




                                                6
No. 47687-8-II


proving that the trial court abused its discretion by relying on unsupported facts, applying an

incorrect legal standard, or adopting an unreasonable view. Davis, 174 Wn. App. at 641-42.

       Offenses constituting the same criminal conduct are treated as one crime for sentencing

purposes when they involve “the same criminal intent, are committed at the same time and place,

and involve the same victim.” RCW 9.94A.589(1)(a). Generally, courts construe the requirements

of RCW 9.94A.589(1)(a) narrowly “‘to disallow most claims that multiple offenses constitute the

same criminal act.’” Davis, 174 Wn. App. at 641 (quoting State v. Porter, 133 Wn.2d 177, 181,

942 P.2d 974 (1997)).

       When two statutes involve different criminal intents, they do not constitute the same

criminal conduct. State v. Chenoweth, 185 Wn.2d 218, 223, 370 P.3d 6 (2016). However, offenses

have the same criminal intent when, viewed objectively, the intent does not change from one

offense to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987). Often the

analysis will “include the related issues of whether one crime furthered the other and if the time

and place of the two crimes remained the same.” Dunaway, 109 Wn.2d at 215. When the

defendant has “the time and opportunity to pause, reflect, and either cease his criminal activity or

proceed to commit a further criminal act,” the crimes are separate and distinct from one another.

State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997).

       Here, Ferrer’s objective intent was not the same for the second degree assault and felony

harassment. Ferrer formed his intent for the second degree assault when he hid in Kristina’s

bedroom closet, jumped out of the closet, yelled at Kristina, and pushed her down on the bed next

to their two daughters, pinning her down and punching her in the head and face. Their two




                                                 7
No. 47687-8-II


daughters woke up and began to scream and cry. During this time, Ferrer repeatedly threatened

that he was going to kill her, telling Kristina, “[Y]ou’re going to die.” II VRP at 299, 303.

       Ferrer’s intent in the crime of felony harassment was to put Kristina in fear that she would

be killed in the future. He told Kristina that if she tried to divorce him, he would kill her. Then,

after he stopped hitting her and got up from the bed, Ferrer threatened Kristina two more times,

saying “[T]ry to divorce me[,] and you die,” and as he walked out into the hall, punching the

pictures on the wall, he turned back to Kristina and said, “[T]he next time I see you, you’re dead.”

II VRP at 307-08. Kristina testified that she believed the threats.

       In its ruling, the trial court stated,

               Mr. Ferrer’s objective intent in assaulting Ms. Ferrer was to harm her, to
       establish some bodily injury not to legitimize the threat to kill. . . . [A]lthough the
       conduct was similar one crime was not - or did not further the other.

V VRP 857.

       After the assault ended, Ferrer had time to pause and reflect on his conduct, and to form

the intent to create fear and apprehension of future harm to Kristina—the felony harassment. These

two later threats did not further the assault because the assault was already complete. The trial

court found that

       [t]he Assault II was completed before the last threat was made. The Defendant’s
       intent at that time shifted from placing [Kristina] in . . . apprehension of imminent
       fear during the assault to placing her in apprehension of future harm by making the
       last threat.”
       ....
       [H]e made statements quite clear to the victim that he would kill her if he divorces
       her [sic] that he was going to kill her. That is a separate intent - that’s different
       from the Assault II.




                                                 8
No. 47687-8-II


RP 857-58. The evidence supports the trial court’s finding that Ferrer had different intents when

he committed second degree assault and then felony harassment. Thus, the trial court did not abuse

its discretion when it concluded that these convictions did not constitute the same criminal conduct.

Accordingly, Ferrer’s argument fails.

B. SENTENCE LENGTH

       Ferrer also argues that the trial court’s 50-month exceptional sentence was “clearly

excessive.” Br. of Appellant at 21-22. Ferrer does not challenge any of the sentencing court’s

findings or the sufficiency of the facts supporting the findings; he only challenges the imposed 50-

month sentence as clearly excessive. We disagree.

       When reviewing an exceptional sentence, we ask whether (1) the sentencing court’s

reasons for an exceptional sentence are supported by the record, (2) those reasons justify a sentence

outside the standard range, and (3) the sentence imposed is clearly excessive. State v. Kolesnik,

146 Wn. App. 790, 802, 192 P.3d 937 (2008).

       We review whether an exceptional sentence is clearly excessive for an abuse of discretion.

Kolesnik, 146 Wn. App. at 805. The sentencing court has “‘all but unbridled discretion’” in

determining the structure and length of an exceptional sentence. State v. France, 176 Wn. App.

463, 471, 308 P.3d 812 (2013) (internal quotation marks omitted) (quoting State v. Halsey, 140

Wn. App. 313, 325, 165 P.3d 409 (2007)).

       A sentence is “clearly excessive” if it is clearly unreasonable, “‘i.e. exercised on untenable

grounds or for untenable reasons, or an action that no reasonable person would have taken.’”

Kolesnik, 146 Wn. App. at 805 (quoting State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1038

(1995)). When based on proper reasons, we will find an imposed exceptional sentence to be clearly



                                                 9
No. 47687-8-II


excessive only if its length, in light of the record, “‘shocks the conscience.’” State v. Vaughn,

83 Wn. App. 669, 681, 924 P.2d 27 (1996) (internal quotation marks omitted) (quoting Ritchie,

126 Wn.2d at 396).

        The sentencing court found that the exceptional sentence was supported by Kristina’s and

AC’s testimony, the jury’s finding that both Ferrer’s convictions were aggravated domestic

violence convictions under RCW 10.99.020, and the fact that the incident occurred “within the

sight or sound” of Kristina’s three minor children. RCW 9.94A.535(h)(ii); CP at 91 (FF 1). Also,

Ferrer admitted to parking away from the house so Kristina would not know he was there, and to

hiding in her closet. He also admitted that he knew AC was present and that he saw his two young

daughters on the bed next to Kristina crying and screaming when he assaulted Kristina. The

sentencing court found that Ferrer continually minimized his role in the assault, blaming Kristina.

        Given the testimony from AC and Kristina, and Ferrer’s admissions that he hid, waited,

and that he knew AC and his two young daughters were present for the assault, we hold that the

trial court’s sentence of 50 months was supported by the record and evidence, and that it does not

shock the conscience. Thus, we affirm Ferrer’s exceptional sentence of 50 months.

                         II. STATEMENT OF ADDITIONAL GROUNDS (SAG)

        Ferrer raises four additional claims in his SAG. For various reasons, three of his four

claims fail.

A. ADMISSION OF PHOTOGRAPHS

        Ferrer claims that the trial court abused its discretion when it admitted a number of

photographs of Kristina’s injuries and that the cumulative nature of the photographs was

prejudicial. But Ferrer failed to object at trail and thus failed to preserve this claim.



                                                  10
No. 47687-8-II


       Absent manifest constitutional error, failure to preserve an issue waives that issue on

appeal. State v. Powell, 166 Wn.2d 73, 82-83, 206 P.3d 321 (2009); RAP 2.5(a)(3). Evidentiary

errors are not constitutional errors. Powell, 166 Wn.2d at 84. Thus, we decline to review this

issue because Ferrer failed to preserve this argument.

B. TERMS OF SENTENCE—10-YEAR NO-CONTACT ORDER, MENTAL HEALTH TREATMENT

       Ferrer claims that the 10-year no-contact order with Kristina6 is excessive and that the

ordered mental health treatment is an abuse of discretion. We disagree that the no-contact order

is excessive, but we agree that the sentencing court exceeded its authority when it imposed the

requirement for mental health treatment.

       1. Standard of Review

       Ferrer did not object to any of the sentencing conditions at his sentencing hearing;

nevertheless, a defendant may challenge an erroneous or illegal sentence for the first time on

appeal. State v. Munoz-Rivera, 190 Wn. App. 870, 890, 361 P.3d 182 (2015). We review the

sentencing court’s imposition of crime-related prohibitions and sentencing conditions for an abuse

of discretion. State v. Corbett, 158 Wn. App. 576, 597, 242 P.3d 52 (2010).




6
 Ferrer claims that the no-contact order interferes with his parental rights and visitation with his
daughters. The parenting plan was not before the sentencing court, and it made no rulings on
Ferrer’s parental rights. Thus, the matter of Ferrer’s parental rights is not before us on appeal, and
we decline to consider this argument.


                                                 11
No. 47687-8-II


          2. No-Contact Order

          A sentencing court may “impose and enforce crime-related prohibitions,” including no-

contact orders under former RCW 9.94A.505(8) (2010).7 State v. Amendariz, 160 Wn.2d 106,

114, 156 P.3d 201 (2007). A sentencing court’s authority to impose a no-contact order is

independent of its authority to impose any conditions of community custody.                Amendariz,

160 Wn.2d at 119. The statutory maximum for the defendant’s conviction is an appropriate time

limit for a no-contact order imposed under former RCW 9.94A.505(8). Amendariz, 160 Wn.2d at

119. Second degree assault is a class B felony, subject to a maximum statutory sentence of 10

years. RCW 9A.36.021(2)(a); RCW 9A.20.020(1)(b).

          Here, the 10-year no-contact order was related to Ferrer’s second degree assault conviction.

Because the no-contact order does not exceed the 10-year statutory maximum sentence for Ferrer’s

conviction, we hold that the sentencing court did not abuse its discretion and that the no-contact

order was proper.

          3. Mental Health Treatment

          A sentencing court may order a defendant to undergo a mental status evaluation and

treatment under former RCW 9.94B.080 (2008),8

          [1] if the court finds that reasonable grounds exist to believe that the offender is a
          mentally ill person as defined in RCW 71.24.025, and [2] that this condition is
          likely to have influenced the offense.




7
 “[T]he law in effect at the time a criminal offense is committed controls the sentence.” State v.
Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526 (2010). The legislature amended the statute in
July 2015, after Ferrer’s May 2015 sentencing hearing. Laws of 2015, ch. 287 § 10.
8
    The legislature amended this statute in July 2015. Laws of 2015, ch. 80, § 1.


                                                   12
No. 47687-8-II


       Under former RCW 9.94B.080, a sentencing court was required to base its order for a

mental health evaluation and treatment on a presentence report or mental status evaluation of the

defendant’s competency. There is no evidence in the record from Ferrer’s May 2015 sentencing

hearing of any testimony regarding Ferrer’s mental health status, that he meets the definition of a

mentally ill person under former RCW 71.24.025(18) (2013),9 or that the sentencing court

considered a presentence report recommending mental health treatment for Ferrer. Thus, because

there was no evidence to support the sentencing condition, we hold that the sentencing court

exceeded its authority in imposing the mental health evaluation and treatment as a condition of

Ferrer’s sentence, and we reverse and remand with instructions to the sentencing court to strike

this condition from Ferrer’s judgment and sentence.

C. JURY INSTRUCTIONS

       1. Jury Instructions Nos. 9 and 10

       Ferrer claims that jury instructions 9 and 10 were incorrect because they failed to

adequately define “substantial bodily harm” and disfigurement. SAG at 9-11. Ferrer failed to

object to the instructions on appeal. A party who fails to object to jury instructions waives a claim

of error on appeal. RAP 2.5(a); State v. Smith, 174 Wn. App. 359, 364, 298 P.3d 785 (2013).

       2. Petrich Unanimity Instruction

       Ferrer also claims that the trial court abused its discretion when it declined his request to

provide a Petrich unanimity instruction defining the acts of harassment. We disagree.




9
  Persons who are acutely, chronically, or “seriously disturbed.” Former RCW 71.24.025(18)
(2013). The legislature amended this statue in 2016. Laws of 2016, ch. 29, § 501.


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No. 47687-8-II


          We review a trial court’s refusal to give a jury instruction for an abuse of discretion. State

v. Stacy, 181 Wn. App. 553, 569, 326 P.3d 136 (2014). “‘Criminal defendants in Washington have

a right to a unanimous jury verdict.’” Emery, 161 Wn. App. 172, 198, 253 P.3d 413 (2011)

(quoting State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P/2d 231 (1994)); WASH. CONST. art.

I, § 21. In some instances, the right to a unanimous jury verdict also includes the right to unanimity

on the means by which the jury finds the defendant committed the crime. Ortega-Martinez, 124

Wn.2d at 707; See also State v. Knutz, 161 Wn. App. 395, 407-08, 253 P.3d 437 (2011) (stating

that when the State presents evidence of multiple acts, unanimity is required for the particular

criminal act) (citing State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)).

          In multiple acts cases, the State must inform the jury which act to rely on in its deliberations

or the court must instruct the jury that they must all agree on a specific criminal act. State v.

Stockmyer, 83 Wn. App. 77, 86, 920 P.2d 1201 (1996). The threshold for determining whether

unanimity is required on an underlying means of committing a crime is whether sufficient evidence

exists to support each of the alternative means presented to the jury. Ortega-Martinez, 124 Wn.2d

at 707. When the State presents evidence of multiple “distinct criminal acts” supporting a charge,

the jury must be unanimous on the specific conduct supporting the conviction. State v. Petrich,

101 Wn.2d 566, 572, 683 P.2d 173 (1984); See also State v. Kitchen, 110 Wn.2d 403, 412, 756

P.2d 105 (1988) (stating that the State alleged several acts and any one act could constitute the

charged crime). However, no additional unanimity instruction is required if the evidence indicates

a “‘continuing course of conduct.’” Knutz, 161 Wn. App. at 408 (quoting Handran, 113 Wn.2d

at 17).




                                                    14
No. 47687-8-II


       Ferrer proposed a Petrich instruction at trial, arguing that there were five allegations of a

death threat during the course of the harassment and that each threat was characteristically

different. Ferrer argued that the State was required to “pick one” of the alleged threats as the

foundation for the felony harassment conviction. IV VRP at 573. The State argued, and the trial

court found, that based on the short time period during which Ferrer pushed Kristina on the bed,

punched her in the face and head, and threatened her life five times, there were “no distinct time

periods for which the incident stopped,” and that the incident was a continuous course of conduct.

IV VRP at 692. Thus, based on the record, we hold that Ferrer was not entitled to a Petrich

instruction on the felony harassment charge.

                                         CONCLUSION

       We hold that the trial court did not err when it determined that Ferrer’s second degree

assault and felony harassment convictions were separate and distinct offenses and not the same

criminal conduct, and that Ferrer’s 50-month sentence is not clearly excessive. As to Ferrer’s SAG

claims, we hold that Ferrer waived his challenges to the trial court’s admission of the photographs

and the trial court’s jury instructions on substantial bodily harm and disfigurement; Ferrer was not

entitled to a Petrich instruction on his felony harassment charge; and the sentencing court properly

imposed a 10-year no-contact order, but exceeded its authority in ordering Ferrer to seek mental




                                                15
No. 47687-8-II


health treatment.   Thus, we affirm Ferrer’s convictions, but we reverse the mental health

sentencing condition, and remand with instructions to the sentencing court to strike the mental

health evaluation and treatment condition from Ferrer’s judgment and sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                    SUTTON, J.
 We concur:



 JOHANSON, P.J.




 LEE, J.




                                               16
