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

STATE OF WASHINGTON,                             No. 67413-7-

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MARCELIS CHRISTOPHER KING,                       UNPUBLISHED OPINION                   3^
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      Verellen, J. — Marcelis King appeals his convictions for two counts of second

degree assault and two counts of felony harassment. King contends the assault and
harassment convictions violate double jeopardy. He challenges the sufficiency of the

evidence of one of the assault and one of the harassment convictions. King further

contends the Information and the to-convict instruction did not include the definition of "true

threat" as an element offelony harassment. Finally, King argues that prosecutorial
misconduct deprived him ofa fair trial. We disagree and affirm King's convictions for
assault and felony harassment.

       King also appeals the firearm enhancements imposed for each of his convictions.
He challenges the lack of a unanimity instruction for the firearm enhancement special
verdict forms. Because the general instructions on unanimity did not adequately inform the
jury of the proper deliberative process for imposing the enhancements, we vacate the
firearm enhancements and remand for further proceedings consistent with this opinion.
No. 67413-7-1/2



                                      BACKGROUND

       In the early morning of May 22, 2010, Michael Rosier and Ronny Johnson went out

dancing in Renton, Washington. They ran into an acquaintance, Makel Andrews, who

invited them back to her apartment. Soon after they arrived at Andrews' apartment,

Christopher King and Kurtis Walker entered the apartment.1 Rosierdid not know either of

them. Walker snorted cocaine, and appeared upset that Rosier was in the apartment.

King began pacing back and forth behind Walker. King said he was going to "pop"

someone and told Walker he would "pop him [Rosier] right now."2

      As Andrews attempted to remove Walker from the room, Rosier and Johnson left

the apartment quickly. Rosier remotely unlocked his car. He did not realize Walker and

King had followed them down to the car.

      As Rosier got in the driver's seat and Johnson in the passenger seat, Walker

jumped in the rear passenger door behind Johnson. Walker said to Rosier and Johnson,

"Where [do] you think you're all going?"3 King pulled a sports utility vehicle behind
Rosier's car, preventing Rosier and Johnson from leaving. King walked to the driver's side

window, pulled out a pistol, and motioned for Rosier to roll down the window.

      Andrews intervened, and as she led Walker away, Walker instructed King to keep

Rosier and Johnson where they were. Rosier testified that King then threatened to kill him

and Johnson. Rosier was afraid that King would shoot him or Johnson if they tried to drive

away. Johnson, in tears, asked King why he wanted to kill them. King continued to point

the gun at Rosier and Johnson. Rosier specifically testified that at times, King pointed the


      1 Kurtis Walker was King's codefendant.
      2 Report of Proceedings (RP) (Jan. 13, 2011) at 24.
      3 Id. at 28.
No. 67413-7-1/3


gun directly at the side of Rosier's head and directly at Johnson. Rosier and Johnson both

believed they were going to die.

       Johnson managed to dial 911 with her cell phone hidden in the space between the

driver's seat and the passenger seat. She could not speak to the emergency operator,

however, for fear that King would hear her and retaliate. Using Johnson's 911 call, police

determined her location.


       When the officers arrived, King was still standing at the driver's side window. King

dropped the gun onto Rosier's lap, told Rosier not to say anything about the gun, and ran.

The gun fell between Rosier's feet. Police arrested King near the scene.

       The State charged King with second degree assault and felony harassment as to

both Rosier (count land count 3) and Johnson (count 2 and count 4). The State also

charged King with first degree unlawful possession of a firearm.4 The jury convicted King
of all five counts.


       The State also sought firearm enhancements on counts 1 through 4. The court

read jury instruction 49,5 the special verdict instruction, to the jury:
               For purposes of a special verdict, the State must prove, beyond a
       reasonable doubt, that the defendant was armed with a firearm at the time of
       the commission of the crime in counts 1, 2, 3, and 4.

              A person is armed with a firearm if at the time of the commission of
       the crime the firearm is easily accessible and readily available for offensive
       or defensive use.

               The State must prove, beyond a reasonable doubt, that there was a
       connection between the firearm and the defendant, or an accomplice.




         King has not appealed the conviction for unlawful possession of a firearm.
       5 It appears from the record that jury instruction 49 was not included in the packet of
written instructions filed with the court clerk.
No. 67413-7-1/4


              The State must also prove, beyond a reasonable doubt, that there was
       a connection between the firearm and the crime.

              If one participant in a crime is armed with a firearm, all accomplices to
       that participant are deemed to be so armed, even if only one firearm is
       involved.


              A firearm is a weapon or device from which a projectile may be fired
       from an explosive such as gunpowder.16'
Jury instruction 49 did not instruct the jury it had to be unanimous to impose the firearm

enhancement.7

       The jury signed special verdict forms finding that King was armed with a firearm at

the time of the commission of both assault and both felony harassment charges, resulting

in firearm enhancements for counts 1 through 4.

                                         DISCUSSION

                                       Double Jeopardy

       King first contends that second degree assault with a deadly weapon and felony

harassment—as charged here, where King was not accused of assault for striking or

hitting anyone—are the same offense for double jeopardy purposes. The State relies on

this court's decision in State v. Mandanas,8 in which we held that convictions for felony

harassment and second degree assault with a deadly weapon do not violate double




       6 RP (Jan. 24, 2011) at 42. The State proposed WPIC 160.00, the "nonunanimity
rule" for special verdict forms, but that instruction was not included in either the verbal or
written instructions. See Clerk's Papers at 449 (citing 11A Washington Practice:
Washington Pattern Jury Instructions: Criminal 160.00 (3d ed. 2008)).
       7The codefendant's proposed jury instructions did not include a special verdict
instruction at all. King did not propose jury instructions. Nor did the special verdict forms
themselves include any direction on unanimity. See Clerk's Papers at 69-71, 81.
       8 163 Wn. App. 712, 717-20, 262 P.3d 522 (2011).
No. 67413-7-1/5


jeopardy because the two offenses have different elements and are therefore not the same

in law.


          Whether King's convictions violate double jeopardy is a question of law we review

de novo.9 The double jeopardy clause ofthe Fifth Amendment of the United States
Constitution and article I, section 9 of the Washington State Constitution protect a

defendant against multiple punishments for the same offense.10 However, the Washington
Supreme Court has consistently rejected the notion that "offenses committed during a

'single transaction' are necessarily the 'same offense'" for purposes ofdouble jeopardy.11
The State may therefore charge a defendant with multiple crimes arising from the same

criminal conduct.12

          "Where a defendant's act supports charges under two criminal statutes, a court

weighing a double jeopardy challenge must determine whether, in light of legislative intent,

the charged crimes constitute the same offense."13 The dispositive question in analyzing
whether two convictions violate double jeopardy is whether the legislature authorized

multiple punishments.14 In determining whether the legislature intended to punish two
separate offenses, courts first look to the language of the statutes.15




          9 State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).
          10 State v. Calle. 125 Wn.2d 769, 772, 888 P.2d 155 (1995).
          11 State v. Vladovic. 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
          12 State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
          13 In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
          14 Calle, 125Wn.2dat776.
          15 Id.
No. 67413-7-1/6


       If the language of the statutes does not expressly authorize cumulative punishment,

courts apply the Blockburqer or "same evidence" test to determine legislative intent.16 The

Blockburqer test examines the evidence required to prove each offense:

       [W]here the same act or transaction constitutes a violation of two distinct
       statutory provisions, the test to be applied to determine whether there are
       two offenses or only one, is whether each provision requires proof of a fact
       which the other does not.[17]

If one offense includes an element not included in the other, we presume the crimes are

not the same for double jeopardy purposes.18

       Although there may be a substantial overlap in the evidence that establishes the

two crimes, "'[i]f each requires proof of a fact that the other does not, the Blockburqer test

is satisfied"' and there is no double jeopardy violation.19 The test requires courts to
consider the offenses as charged.20

       The State charged King with second degree assault under RCW 9A.36.021(1)(c),

alleging he "assaulted] another with a deadly weapon." The State's burden was to prove




       16 State v. Clark, 170Wn.App. 166, 188, 283 P.3d 1116 (2012) (citing Blockburqer
v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
       17 Blockburqer, 284 U.S. at 304; see also Calle. 125Wn.2d at 777 ("'If there is an
element in each offense which is not included in the other, and proof of one offense would
not necessarily also prove the other, the offenses are not constitutionally the same and the
double jeopardy clause does not prevent convictions for both offenses.'") (quoting
Vladovic, 99 Wn.2d at 423); Mandanas, 163 Wn. App. at 717-18.
       18 Mandanas, 163Wn. App. at 718.
       19 Albernaz v. United States. 450 U.S. 333, 338, 101 S. Ct. 1137, 67 L Ed. 2d 275
(1981) (quoting lannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L Ed.
2d 616 (1975)); Vladovic, 99 Wn.2d at 423.
       20 Freeman, 153 Wn.2d at 772.
No. 67413-7-1/7



King used an instrument capable of causing serious injury under the circumstances to

intentionally act in a way to cause Rosier and Johnson to fear imminent bodily injury.21
       The State also charged King with felony harassment for threatening to kill Rosier

and Johnson. The State's burden was to prove King "knowingly threatened]" to "cause

bodily injury immediately or in the future" to Rosier and Johnson,22 and specifically that
King "harass[ed]" Rosier and Johnson "by threatening to kill" them.23

       In Mandanas. we held that the plain language of the two statutes indicates the

legislature "intended to distinguish felony harassment and second degree assault [with a

deadly weapon] as distinct offenses."24 The harassment statute "specifically criminalizes
threats to injure or kill another, which, standing alone, are insufficient to establish an

assault."25 Because the two crimes have distinct elements, they "do not constitute the
same offense for purposes ofdouble jeopardy."26
       Notwithstanding the holding in Mandanas, King contends his convictions violate

double jeopardy underthe analysis set forth in In re Personal Restraint of Orange.27 As
we explained in Mandanas, "Orange did not modify the test used by Washington courts to

determine whether the defendant was placed in double jeopardy."28 Oranqe stands for the
proposition that where the same exact action proves both crimes, without one crime



       21 Mandanas, 163Wn. App. at 719.
       22RCW9A.46.020(1).
       23 RCW 9A.46.020(2).
       24 Mandanas, 163 Wn. App. at 719-20.
       25 \± at 720.
       26kL
       27 152 Wn.2d 795, 816, 100 P.3d 291 (2004).
       28 Mandanas, 163 Wn. App. at 720 n.3.
No. 67413-7-1/8


requiring proof ofa fact that the other does not, a double jeopardy violation is present.29
Here, King's verbal threat to kill Rosier and Johnson is the act supporting the felony

harassment charge. King's pointing of the gun through the car window at Rosier and

Johnson is a distinct act supporting the second degree assault with a deadly weapon

charge.30 King's convictions for second degree assault with a deadly weapon and felony
harassment do not violate double jeopardy.

                                 Sufficiency of the Evidence

       King contends the State presented insufficient evidence to support his convictions

for felony harassment and second degree assault against Johnson. In analyzing a

challenge to the sufficiency of the evidence, we view the evidence in the light most

favorable to the State to determine whether any rational trier of fact could have found

elements of the crime beyond a reasonable doubt.31

       The charge of felony harassment required the State to present evidence that King

knowingly threatened to kill Johnson.32 Rosier testified that King threatened to kill
Johnson as he stood by the driver's side window.33 Johnson, in tears, asked King why he


      29 Jd,
      30 See jd. at 720-21 (concluding Orange did not control the outcome because the
convictions for assault and harassment in Mandanas were based on separate and distinct
acts). King's reliance on State v. Leming, 133 Wn. App. 875, 887-89, 138 P.3d 1095
(2006), is similarly misplaced. In Leming, the State had charged the defendant with
second degree assault with intent to commit a felony under RCW 9A.36.021(e), and the
felony underlying the second degree assault charge was felony harassment. Id. at 882-83,
888-89. The State relied on the same evidence to prove both crimes, jd. at 889. Because
the same act formed the predicate for both convictions, the court concluded the two
convictions subjected him to multiple punishments for the same offense. Id.
      31 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
      32 RCW 9A.46.020(1), (2)(b)(ii).
      33 King did not testify in his own defense.

                                              8
No. 67413-7-1/9



wanted to kill them, when they had done nothing to King. After Johnson dialed her 911

call, an officer overheard on the phone a male voice saying, "I'll kill you, motherfucker."34

Sufficient evidence supports King's conviction for felony harassment of Johnson.

       The charge of second degree assault with a deadly weapon required the State to

present evidence that King intentionally acted in a way to cause Johnson to fear imminent

bodily injury, and that King did so using a deadly weapon.35 Johnson testified she saw

King brandishing a gun through the driver's side window. Rosier testified that although

King occasionally lowered the gun to his own waist, King repeatedly raised the gun to point

it directly at both Rosier and Johnson. Johnson testified she was afraid she was going to

die. Accepting the truth of the State's evidence and drawing all inferences in the State's

favor, there is sufficient evidence that King used a gun to place Johnson in imminent fear

of bodily injury.

                      Definition of "True Threat" in Felony Harassment

       King next argues the definition of "true threat" is an element of felony harassment,

so that the omission of the definition from the Information and the to-convict instruction

constituted error.


       The harassment statute criminalizes a knowing threat to "cause bodily injury

immediately or in the future."36 If the threat is one ofdeath, the crime transforms from a
gross misdemeanor to a felony.37 Adefendant need not actually intend to carry out the




       34RP(Jan. 11, 2011) at 140.
       35 RCW 9A.36.021(1)(c); Mandanas, 163 Wn. App. at 719.
       36RCW9A.46.020(1)(a)(i).
       37 RCW 9A.46.020(2)(b)(ii).
No. 67413-7-1/10


threat; "[i]t is enough that a reasonable speaker would foresee that the threat would be

considered serious."38

       To avoid infringement of protected speech, the felony harassment statute prohibits

only true threats.39 A "true threat" is "'a statement made in a context or under such
circumstances wherein a reasonable person would foresee that the statement would be

interpreted as a serious expression of intention to inflict bodily harm upon or to take the life

of another person.'"40 Because true threats are not protected speech under the First
Amendment, we interpret statutes criminalizing threatening language as proscribing only

true threats.41

       The Washington Supreme Court recently confirmed that to ensure protected speech

is not criminalized, trial courts should instruct the jury on the State's burden to establish

that a reasonable person in the defendant's position would foresee that his statements or

acts would be interpreted as a serious expression of intention to carry out the threat.42
While the court must instruct the jury on the meaning of "true threat," the true threat

concept is definitional; it limits the scope of the essential threat element, but is not itself an

essential element of the crime.43 Because the true threat standard is not an essential

element of felony harassment, it need not be included in the Information or the to-convict


       38 State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010).
       39 State v. Kilburn, 151 Wn.2d 36, 41, 84 P.3d 1215(2004).
       40 Schaler. 169 Wn.2d at 283 (quoting Kilburn, 151 Wn.2dat43).
       41 State v. Allen, 161 Wn. App. 727, 749, 255 P.3d 784 (2011), review granted, 172
Wn.2d 1014, 262 P.3d 63 (2011).
       42 State v. Allen, No. 86119-6, slip. op. at 21 (Wash. Jan. 24, 2013); Schaler. 169
Wn.2d at 292.

      43 Allen, No. 86119-6, slip. op. at 22-24; see also State v. Atkins, 156 Wn. App. 799,
805, 236 P.3d 897 (2010); State v. Tellez, 141 Wn. App. 479, 483-84, 170 P.3d 75 (2007).


                                                10
No. 67413-7-1/11


instruction.44 So long as the court instructs the jury on the definition of"true threat," the
defendant's First Amendment rights are protected.45

       Consistent with these standards, the trial court here provided the following

definitional instruction:

             Threat means to communicate, directly or indirectly, the intent to
       cause bodily injury in the future to the person threatened or to any other
       person;


               To be a threat, a statement of act must occur in a context or under
       such circumstances where a reasonable person, in the position of the
       speaker, would foresee that the statement or act would be interpreted as a
       serious expression of intention to carry out the threat rather than as
       something said in jest or idle talk.[46]
Because the trial court correctly instructed the jury on the meaning of "true threat," we

reject King's challenge to the Information and the to-convict instruction.

                                    Prosecutorial Misconduct


       King contends a variety of comments by the prosecutor constituted misconduct. To

prevail on a claim of prosecutorial misconduct, King must show the conduct was both

improper and prejudicial in the context of the entire record and circumstances at trial.47

We will find prejudice only if there is a substantial likelihood that the misconduct affected

the jury's verdict.48 Absent a proper objection and request for a curative instruction, King




       44 Allen, No. 86119-6, slip. op. at 23.
       45kL
       46 Clerk's Papers at 116.
       47 State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).
       48 Id. at 718-19.


                                                  11
No. 67413-7-1/12



must demonstrate the prosecutor's comments were so flagrant or ill-intentioned that an

instruction could not have cured the prejudice.49

       A. Comment on Constitutional Right/Witness Demeanor

       During closing, the prosecutor discussed the demeanor of the State's witnesses:

             Their demeanor. You're able to observe the[ ] demeanor of
       Ms. Johnson and Mr. Rosier here in court while they were testifying. That
       was appropriate under the circumstances. I think Mr. Rosier got a little bit
       annoyed during the cross-examination [by] the questions that were being
       asked of him, and that was certainly appropriate under the circumstances.
       Ms. Johnson was clearly very nervous/501
The prosecutor further stated Rosier and Johnson had no motive to provide false

testimony, stating,

       Mr. Rosier and Ms. Johnson don't have anything to gain by accusing
       Mr. King and [the codefendant] of assaulting them with a firearm, or
       threatening to kill them. They have got a lot to lose by being a part of this
       process. Lose their privacy.1 ]

King did not object to either comment.52 King contends these comments disparaged him
for exercising his rights under the confrontation clause.

       But taken in context, the prosecutor was discussing how witness demeanor can

reflect positively or negatively on credibility rather than drawing adverse inferences about

King's constitutional right to cross-examine the witnesses against him.53


       49 State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009).
       50RP(Jan. 24, 2011) at 96.
       51 id, at 99.
       52 The verbatim report of proceedings reflects that an unidentified speaker
interjected something after each comment; however, each interjection was inaudible. King
makes no suggestion that his counsel objected to the prosecutor's comments.
       53 See, e.g., State v. Fiallo-Lopez, 78 Wn. App. 717, 728-30, 899 P.2d 1294 (1995)
(prosecutor committed misconduct by drawing adverse inferences about defendant's Fifth
Amendment rights by stating defendant did not rebut the State's evidence).


                                              12
No. 67413-7-1/13



       B. Improper Vouching

       King also asserts the prosecutor twice improperly vouched for the State's witnesses

during closing. It is improper for the prosecution to vouch for the credibility of a

government witness by either placing the prestige of the government behind the witness,

or indicating that information not presented to the jury supports the witness's testimony.54
But a prosecutor has wide latitude in closing argument to draw reasonable inferences from

the evidence and to freely comment on witness credibility based on the evidence.55

Prejudicial error will not be found unless it is "'clear and unmistakable'" that counsel is

expressing a personal opinion.56

       The prosecutor commented that Rosier's and Johnson's memory was "not perfect,"

but "it was appropriate under the circumstances."57 King did not object. This comment

does not constitute vouching at all. The discussion of the witnesses' memory neither

placed the prestige of the government behind the witnesses nor indicated that information

not presented to the jury supported their testimony. Rather, the prosecutor noted that,

given the "traumatic experience," the witnesses' memories were not perfect.58 The
argument did not constitute vouching.59


       54 Allen. 161 Wn. App. at 746.
       55 State v. Gregory. 158 Wn.2d 759, 860, 147 P.3d 1201 (2006).
       56 State v. Brett. 126Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v. Sargent.
40 Wn. App. 340, 344, 698 P.2d 598 (1985)); see also State v. Ish. 170 Wn.2d 189, 196,
241 P.3d 389 (2010) (it is misconduct for a prosecutor to vouch for a witness by
expressing a personal belief as to the witness's truthfulness).
       57RP(Jan. 24, 2011) at 95.
       58 Id,
       59 In Fiallo-Lopez. the prosecutor made a similar comment about the differing
testimony of the State's witnesses, stating, "Ifthey [the police] made this up, don't you think
that they would have gotten together from the start with Mr. Lima and Mr. Cooper and they

                                               13
No. 67413-7-1/14


       The prosecutor also stated, "And finally criminal liability. They [Rosier and Johnson]

expose themselves to criminal liability for making something like this up."60 King did not
object here, either. This comment, while unnecessary, does not constitute an expression

of the prosecutor's personal opinion of Rosier's and Johnson's credibility.

       The cases relied upon by King involve more emphatic expressions of the

prosecutor's personal opinion on credibility. For example, in State v. Ramos.61 we held the
prosecutor improperly vouched for the credibility of police witnesses when the prosecutor

said, "[T]he truth of the matter is [the police witnesses] were just telling you what they saw

and they are not being anything less than 100% candid."62 It is not clear and unmistakable
that the prosecutor's passing comment about the risk of criminal liability was a personal

opinion of credibility.




would have made sure that every single statement, every single description by every single
witness was the same? The fact is, they didn't. And the fact that they didn't and the fact
that differences exist resulting from lapse[s] in time, and differences in perspective, and
differences in training indicates that, in fact, everybody is telling the truth about their honest
recollection about what happened." Fiallo-Lopez. 78 Wn. App. at 729-30 (emphasis
omitted) (second alteration in original). This comment was held to not constitute misconduct
because the prosecutor was arguing "that the facts indicated the officers were truthful." id.
at 730.

      60RP(Jan. 24, 2011) at 100.
      61 164 Wn. App. 327, 341 n.4, 263 P.3d 1268 (2011) (alteration in original).
      62 See ajso Fiallo-Lopez. 78 Wn. App. at 730-31 (a prosecutor may comment on
witness veracity if he or she does not express a personal opinion and does not make the
comment to incite the passion of the jury). King relies on the Ninth Circuit's decision in
United States v. Witherspoon. 410 F.3d 1142 (9th Cir. 2005), where the prosecutor stated,
"[T]hey [the police officers] took the stand and they told you the truth.. . . And, on top of
that if they come in here and lie, I guess they're riskin' bein' prosecuted for perjury.
Doesn't make sense because they came in here and told you the truth, ladies and
gentlemen." id, at 1146. The court held the comment constituted prosecutorial vouching,
id. Unlike the comment in King's case, however, the prosecutor discussed the perjury in
the context of personal assurances of the witnesses' veracity.


                                                14
No. 67413-7-1/15


       C. Prosecutor's Assertion that Defense Counsel Misrepresented Facts

       A prosecutor may not disparage defense counsel or otherwise impugn defense

counsel's integrity.63 Aprosecutor may, however, argue the evidence does not support the
defendant's theory ofthe case.64 A prosecutor's remarks, even if improper, are not
grounds for reversal if defense counsel invited or provoked them.65

      The context of the closing argument and rebuttal reflect the prosecutor's intention to

argue the evidence did not support King's theory of the case—namely, that Rosier told the

police the gun was King's because Rosier knew it was a crime to possess the weapon.

The State and defense counsel disagreed over whether it would be illegal for Rosier to

have a gun in the car. To rebut King's defense that Rosier knew it was a crime to possess

the weapon, the State presented testimony that a person may carry an unloaded gun in a

car without a concealed weapons permit.

      The prosecutor here objected to defense counsel's statement during closing that "I

could not help but think that it's very possible that someone other than Mr. King and

someone other than Mr. Walker could be sitting at this table facing charges. The charges

would be assault in the second degree."66 The court sustained the objection, at which
point the prosecutor turned to defense counsel and stated, "You misrepresented the

testimony."67 In rebuttal, the prosecutor stated King's defense was "based on extreme

misrepresentation. I could be here all night going in and picking out all of the



      63 State v. Thorgerson. 172 Wn.2d 438, 451, 258 P.3d 43 (2011).
      64 State v. Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
      65 id,
      66RP(Jan. 24, 2011) at 133.
      67 Id. at 134.


                                              15
No. 67413-7-1/16



misrepresentations that were made. ..68 The prosecutor later stated, "It's not a crime for Mr.

Rosier to have a gun in the car."69 King objected. King now argues these comments by
the prosecutor disparaged his counsel.

        Because the prosecutor's comments about misrepresenting the law were in

response to King's argument that Rosier could be charged with unlawful possession of a

firearm, the comments did not constitute reversible misconduct. None of the alleged

improper comments constituted prosecutorial misconduct, and King was therefore not

deprived of a fair trial.

                            Sentencing Enhancement Unanimity Instruction

        King contends the court erred by failing to instruct the jury it had to return a

unanimous decision on the firearm enhancements.70

       We review alleged errors of law in jury instructions de novo.71 Failure to timely
object usually waives a claim of instructional error on appeal.72 However, an appellant
may raise an issue for the first time on appeal if the error is both manifest and

constitutional.73 To be "manifest," King must show that the asserted error had practical




       68 id, at 154.
       69 id, at 160.
       70 The State argued that King invited the error by virtue of the defense's proposed
instructions. As King points out in his reply, codefendant Walker proposed the instructions,
so King has not waived the argument on the basis of invited error.
       71 State v. Lew. 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).
       72 RAP 2.5(a); State v. Williams. 159 Wn. App. 298, 312-13, 244 P.3d 1018, review
denied. 171 Wn.2d 1025 (2011).
       73 RAP 2.5(a)(3); State v. O'Hara. 167 Wn.2d 91, 98, 217 P.3d 756 (2009).


                                                16
No. 67413-7-1/17


and identifiable consequences at trial.74 King must therefore identify an error of
constitutional magnitude and show how the alleged error actually affected his rights at trial.

       The failure to instruct the jury on unanimity is an error of constitutional magnitude.

The jury must unanimously find beyond a reasonable doubt any aggravating circumstance

that increases the penalty for a crime.75 The error is also manifest because the jury did not
know whether it was to conduct the same deliberative process for the sentence

enhancements as is conducted for the substantive crimes.

       Because the error is both constitutional and manifest, the burden shifts to the State

to demonstrate the error was harmless beyond a reasonable doubt.76 The "test for

determining whether a constitutional error is harmless [is] 'whether it appears beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.'"77

      The State contends the error did not contribute to the verdict because the jury

necessarily found beyond a reasonable doubt that King assaulted Rosier and Johnson with

the gun, and that King possessed the gun at the same time as the assault. The State also

suggests that the unanimity portions in the opening and closing instructions are broad


      74 State v. Gordon. 172 Wn.2d 671, 676, 260 P.3d 884 (2011).
      75 State v. Nunez. 174 Wn.2d 707, 712, 285 P.3d 21 (2012) (citing Blakelv v.
Washington. 542 U.S. 296, 313-14, 124 S. Ct. 2531, 159 L Ed. 2d 403 (2004); Apprendi v.
New Jersey. 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
      76 Gordon. 172 Wn.2d at 676. It would be a structural error if the trial judge rather
than the jury made the determination whether the enhancement applied. State v.
Recuenco. 163 Wn.2d 428, 442, 180 P.3d 1276 (2008) ("[l]t can never be harmless to
sentence someone for a crime not charged, not sought at trial, and not found by a jury. In
this situation, harmless error analysis does not apply."). Here, the enhancement was
included in the Information, sought at trial, and found by a jury, but without a proper
unanimity instruction. The constitutional harmless error standard applies.
      77 State v. Brown. 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (internal quotation
marks omitted) (guoting Neder v. United States. 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L.
Ed. 2d 35 (1999)).


                                              17
No. 67413-7-1/18


enough to extend to the sentencing enhancement special verdict forms.78 But the State
offers no authority on point. The State's analysis also misses the mark.

       Unanimity is a critical concern.79 The general instructions on unanimity required to
enter the verdicts do not on their face extend to the special verdict forms. Given different

instructions, juries return different verdicts.80 A"flawed deliberative process tells us little
about what result the jury would have reached had it been given a correct instruction."81
Where an instructional error implicates unanimity, we must not substitute our judgment for

the judgment of the jurors:

       For instance, when unanimity is required, jurors with reservations might not
       hold to their positions or may not raise additional questions that would lead to
       a different result. We cannot say with any confidence what might have
       occurred had the jury been properly instructed. We therefore cannot
       conclude beyond a reasonable doubt that the jury instruction error was
       harm less.[82]

       Because we cannot divine whether the jury would have imposed all four firearm

enhancements on King given proper instruction, we cannot conclude the error was




       78 Jury instruction 2 read, "As jurors, you have a duty to discuss the case with one
another and to deliberate in an effort to reach a unanimous verdict." Clerk's Papers at 91.
With respect to each charged crime and each lesser included offense, the closing instruction
(jury instruction 48) read, "If you unanimously agree on a verdict, you must fill in the blank
provided in verdict form [A or A(1)]." Clerk's Papers at 138. The closing instruction also
stated, "[E]ach of you must agree for you to return a verdict." Clerk's Papers at 144.
        79 Although our Supreme Court has overruled the nonunanimity rule announced in
Goldberg and Bashaw, those decisions provide a helpful discussion of the fundamental
importance of jury unanimity in the deliberative process. State v. Goldberg. 149 Wn.2d 888,
72 P.3d 1083 (2003), overruled on other grounds by Nunez. 174Wn.2d at 718-19; State v.
Bashaw. 169 Wn.2d 133, 234 P.3d 195 (2010), overruled on other grounds by Nunez, 174
Wn.2d at 718-19.

       80 See, e.g., Goldberg. 149 Wn.2d at 891-93.
       81 Bashaw. 169 Wn.2d at 147.
       82 Id. at 147-48.


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harmless.83 We therefore vacate the sentence enhancements. If the State wishes to

impanel a jury to retry the enhancements, it may do so.84
                              Statement of Additional Grounds

       King filed a statement of additional grounds arguing the court erred in calculating his

offender score and challenging the sufficiency of the evidence of his conviction for unlawful

possession of a firearm, and asserting speedy trial and Brady85 violations. We find no
merit in his arguments.

       The court properly included his prior convictions for unlawful possession of a firearm

and two prior convictions for controlled substance violations. The court correctly

determined that counts 1 and 3 pertaining to Rosier do not constitute the same criminal

conduct as counts 2 and 4 pertaining to Johnson because they did not involve the same

victim.86

       With respect to the sufficiency of the evidence on his conviction for unlawful

possession of a firearm, the State presented sufficient evidence of King's dominion and

control over the gun itself, regardless of how the gun ended up in Rosier's car.87
       No speedy trial violation is apparent from the record before us. While King's trial

date was continued multiple times, the court explained the grounds for continuances in its


       83 This jury was confused about the unanimity requirement in general. The jury
asked whether it needed to be unanimous to decide one of the charged crimes, unlawful
possession of a firearm. See Clerk's Papers at 82.
       84 Nunez. 174 Wn.2d at 717 (except in the death penalty context, double jeopardy
does not preclude a retrial of sentence enhancements).
       85 Bradv v. Maryland. 373 U.S. 83. 83 Sup. Ct. 1194, 10 L Ed. 2d 215 (1963).
       86RCW9.94A.589(1)(a).
       87 The State presented testimony that King dropped the gun onto Rosier's lap and
told Rosier not to say anything about the gun, after having used the gun to threaten Rosier
and Johnson.



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No. 67413-7-1/20


order on the defendant's motion to dismiss under CrR 8.3. While King himself did not

agree to all the continuances, the court determined the continuances were "required in the

administration of justice."88 Nor has King shown how he was substantially prejudiced in
the presentation of his defense.89 This record does not support a speedy trial violation.
          Finally, with respect to the alleged Bradv violation, defense counsel raised this issue

in a CrR 8.3 motion. The court denied the motion, finding King had not shown actual

prejudice affecting his right to a fair trial, even though the State substantially delayed giving

defense counsel the transcript of the interview. King does not establish any reversible

error regarding the alleged Bradv violation.

          We affirm King's convictions for second degree assault and felony harassment. We

vacate the firearm enhancements and remand for further proceedings consistent with this
  •   •    90
opinion.




WE CONCUR:




          88 CrR 3.3(f)(2).
          89 id,
          90 The court's ruling on this matter necessarily renders moot the appellant's
January 28, 2013 motion to file a supplemental brief on the sentencing enhancements.


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