                                                                          FILED
                                                                        MAY 21, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 36314-7-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
TOMMY D. CANFIELD,                            )         PUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — On remand from a previous appeal, the State filed two additional

charges that could have been filed before the first trial. The charges should have been

precluded by our mandatory joinder rule. We reverse the two newest counts.

                                PROCEDURAL HISTORY

       Appellant Tommy Canfield previously appealed convictions for possession of

methamphetamine, second degree unlawful possession of a firearm, possession of a

stolen firearm, and obstructing a public servant to this court. State v. Canfield, No.

34881-4-III (Wash. Ct. App. Apr. 3, 2018) (Canfield I) (unpublished),

http://www.courts.wa.gov/pdf/348814_unp.pdf. This court affirmed the three felony

convictions and reversed the gross misdemeanor offense of obstructing a public servant.
No. 36314-7-III
State v. Canfield


       A majority of this court concluded that the obstructing a public servant charge had

been treated as a multiple acts case and that in the absence of an election or a special

verdict, the defendant’s right to a unanimous verdict could not be ensured.1 Id. at 10-11.

In particular, the prosecutor argued that Mr. Canfield had obstructed the officers by lying

about his identity, trying to hide evidence, and resisting handcuffing. Id. at 3. The

obstructing conviction was reversed due to the unanimity problem and the case remanded

for further proceedings. Id. at 12.

       The prosecutor opted to retry the obstructing incident. Prior to trial, the court

granted an amendment to the information that again charged obstructing a public servant

and added charges of making a false or misleading statement and tampering with physical

evidence. The defense did not object to the amendment. Mr. Canfield waived his right to

a jury trial and proceeded to a bench trial.

       The evidence was similar to that presented at the first trial. Law enforcement

officers testified that Mr. Canfield feigned sleep when first contacted, disregarded several

commands, and tried to start his vehicle as if to drive away from the scene. He also lied

about his identity and tried to hide a gun while being arrested. The court convicted Mr.

Canfield of obstructing for the “continuous course of conduct” including the behavior



       1
        The authoring judge believed the obstructing charge constituted a continuing
course of conduct for which no unanimity instruction was needed. Canfield I, slip op. at
11.

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State v. Canfield


noted above. The court also found Mr. Canfield guilty of giving a false statement and

guilty of attempted tampering with physical evidence due to the unsuccessful attempt to

conceal the revolver.

       The court imposed a 7 month sentence on the false statement conviction, 4 months

for the obstructing conviction, and 45 days for the attempted evidence tampering offense.

The false statement and obstructing sentences ran consecutively to all other sentences and

the evidence tampering sentence was ordered to be served concurrently. The court also

imposed a criminal filing fee and sheriff’s service fee.

       Mr. Canfield again appealed to this court. A panel considered his case without

hearing argument.

                                        ANALYSIS

       Mr. Canfield contends that his counsel was ineffective, the evidence did not

support the obstructing charge, and the noted financial obligations were improperly

ordered. We address his arguments in the order noted.

       Ineffective Assistance of Counsel

       Mr. Canfield first argues that his counsel provided ineffective assistance by failing

to object to the amendment of charges. We agree.

       Ineffective assistance claims are reviewed under well settled standards. Counsel’s

failure to live up to the standards of the profession will require a new trial when the client

has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-35,

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State v. Canfield


899 P.2d 1251 (1995). Review is highly deferential and we engage in the presumption

that counsel was competent; moreover, counsel’s strategic or tactical choices are not a

basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not

(1) counsel’s performance failed to meet a standard of reasonableness and (2) actual

prejudice resulted from counsel’s failures. Id. at 690-92.

       Also at issue is CrR 4.3.1(b)(3), the mandatory joinder rule. It provides:

         A defendant who has been tried for one offense may thereafter move to
       dismiss a charge for a related offense, unless a motion for consolidation of
       these offenses was previously denied or the right of consolidation was waived
       as provided in this rule. The motion to dismiss must be made prior to the
       second trial, and shall be granted unless the court determines that because the
       prosecuting attorney was unaware of the facts constituting the constituting the
       related offense or did not have sufficient evidence to warrant trying this
       offense at the time of the first trial, or for some other reason, the ends of
       justice would be defeated if the motion were granted.

“Two or more offenses are related offenses, for purposes of this rule, if they are within the

jurisdiction and venue of the same court and are based on the same conduct.” CrR

4.3.1(b)(1). The phrase “same conduct” means “conduct involving a single criminal

incident or episode.” State v. Lee, 132 Wn.2d 498, 503, 939 P.2d 1223 (1997). Related

offenses must be joined to avoid the possibility of multiple prosecutions based on the same

conduct. State v. McNeil, 20 Wn. App. 527, 532, 582 P.2d 524 (1978).

       There was a previous trial and the superior court had jurisdiction and venue over the

obstructing incident. Thus, if the new charges involved the same conduct as the original

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No. 36314-7-III
State v. Canfield


obstructing charge, then mandatory joinder applied and counsel erred by failing to object to

the amendment. Under both our original opinion and the case law, the new charges were

the same conduct as the original charge.

       The three principal components of the current charges—defendant’s failure to

comply with the deputy’s lawful commands and resistance to handcuffing, his efforts at

hiding the gun, and his lying about his identity—were argued to the jury in the first trial and

provided the ratio decidendi for the first opinion. From those facts, the original panel

concluded that there either were three instances of obstructing (majority) or one continuing

obstruction of public servants (author). No panel member considered any aspects of the

behavior unrelated to the case at hand. Rather, all members concluded that Mr. Canfield’s

behavior was part and parcel of the obstructing charge before the jury in the first trial. The

obstructing conduct at issue in the first trial was related.

       More importantly, our case law compels the same result. In a later case analyzing

the authority relied on by Lee, the court concluded that same conduct/related offenses

concepts referred to actions based on “the same physical act or actions” and relied on “the

close logical and temporal proximity of the events.” State v. Kindsvogel, 149 Wn.2d 477,

482-83, 69 P.3d 870 (2003) (construing former CrR 3.3 (2000)). The same physical actions

were before the jury in the first case as were before the judge in the second case. Those

actions also were logically and temporally related—the obstructing episode played out

between the initial efforts to take Mr. Canfield into custody at his vehicle and continued

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No. 36314-7-III
State v. Canfield


until his arrival at the jail. This was one related incident, no matter whether it was parceled

out into three offenses or one.

       McNeil presents one example of related offenses. There the defendant was

charged with embezzlement and, by a later information, falsifying accounts by a public

officer. 20 Wn. App. at 528-29. The charges arose from the same documents and

involved the same basic incident. Id. at 529. This court concluded that the offenses were

related and the mandatory joinder rule barred the second prosecution. Id. at 532-34.2

       Another example is presented by State v. Holt, 36 Wn. App. 224, 673 P.2d 627

(1983). There an adult bookstore owner was prosecuted for obscene materials found at

his place of business. Id. at 225. In a second case, 20 additional charges were filed

relating to obscene materials found in a storage unit; both charging documents referenced

the same dates. Id. at 225-26. The 20 later-filed charges were dismissed for failure to

have been joined with the charges arising from the operation of the store. Id. at 226-28.

       The Washington Supreme Court likewise has applied mandatory joinder to bar

trials of similar offenses arising from the same actions. E.g., State v. Dallas, 126 Wn.2d

324, 892 P.2d 1082 (1995) (possession of stolen property prosecution barred later theft

prosecution); State v. Anderson, 96 Wn.2d 739, 638 P.2d 1205 (1982) (dismissal of one



       2
        Different offenses arising at the same time are not subject to mandatory joinder.
See State v. Bradley, 38 Wn. App. 597, 687 P.2d 856 (1984) (marijuana possessed at
same time as eluding charge not related offenses).

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No. 36314-7-III
State v. Canfield


theory of first degree murder barred later prosecution under alternative theory of first

degree murder); State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978) (robbery and

assault charge barred subsequent assault charge involving different victim in the same

robbery incident).

       Accordingly, we believe the false statement and witness tampering charges that

arose from the same behavior underlying the original obstructing charge were subject to

mandatory joinder. The information necessary to prosecute those charges was available

to the prosecutor before the first trial. Accordingly, defense counsel erred by failing to

object to the amended information. The error was prejudicial because Mr. Canfield

received additional punishment for the new charges.

       The false statement and attempted witness tampering convictions are reversed.3

       Sufficiency of the Evidence

       Mr. Canfield next challenges the sufficiency of the evidence to support the

conviction for obstructing, raising a challenge that we previously said should not be

raised. We affirm the conviction.

       Sufficiency of the evidence challenges also are reviewed on appeal in accordance

with well settled standards. Evidence is sufficient to support a verdict if there is a factual

basis for finding each element of the offense proved beyond a reasonable doubt. Jackson


       3
        Because the two offenses are not felonies and did not impact Mr. Canfield’s
offender score, resentencing is not required.

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No. 36314-7-III
State v. Canfield


v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green,

94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). The evidence is viewed in the light most

favorable to the prosecution. Green, 94 Wn.2d at 221. Appellate courts defer to the trier-

of-fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness

of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       Here, sufficient evidence supported the judge’s determination that Mr. Canfield

hindered a public servant in the performance of his duties. Indeed, Mr. Canfield does not

truly dispute the sufficiency of the evidence and does not challenge any finding, but

attempts to liken his situation to that in State v. D.E.D., 200 Wn. App. 484, 402 P.3d 851

(2017). The comparison fails.

       D.E.D., also a prosecution for obstructing a public servant, involved a defendant

who passively resisted an investigatory detention. Id. at 487-88. Noting that no one has

a duty to cooperate with a police investigation, we concluded that passive resistance to an

investigatory detention was simply another form of declining to cooperate. Id. at 494-96.

“Passive resistance consistent with the lack of a duty to cooperate, however, is not

criminal behavior.” Id. at 496. Thus, the defendant’s resistance to being handcuffed did

not constitute obstructing a public servant. Id. However, we cautioned “against

extending our narrow holding, which is simply that resisting handcuffing when a suspect

is not under arrest does not constitute obstructing a law enforcement officer.” Id. That



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No. 36314-7-III
State v. Canfield


caution was warranted because only slight additional activity on top of passive resistance

could amount to a crime. Id. at 496-97.

         This case falls directly into the D.E.D. caution and fails because of it. The law

imposes a duty to cooperate with an arrest and makes it a crime to resist arrest. RCW

9A.76.040(1). Actions that hinder an arrest short of resisting can constitute obstructing a

public servant. E.g., State v. Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985) (assisting

another person to resist arrest constituted obstructing). Passive resistance to a lawful

arrest can constitute obstructing by itself. Here, there was additional evidence beyond the

handcuffing incident, including the repeated refusals to obey commands and feigning

sleep.

         Mr. Canfield did not merely refuse to cooperate with the police. He actively tried

to hinder them. The trial court had ample basis for concluding that Mr. Canfield was

guilty of obstructing a public servant.

         Financial Obligations

         Two weeks after the sentencing in this case, the Washington Supreme Court

determined that recent changes to the sentencing laws applied retroactively to all non-

final criminal cases. State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). The State

agrees with Mr. Canfield that the trial court must strike all discretionary financial

obligations from the sentence. We concur.



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No. 36314-7-III
State v. Canfield


       The trial court must strike the filing fee and the sheriff’s service fee from the

judgment.

       Reversed and remanded.



                                               _________________________________
                                                       Korsmo, J.

WE CONCUR:



_________________________________
      Pennell, C.J.



_________________________________
      Lawrence-Berrey, J.




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