                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 26, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 48518-4-II

                        Respondent,

         v.                                                    UNPUBLISHED OPINION

 ANDREW JENS PETER MORTENSEN,

                        Appellant.


       MAXA, A.C.J. – Andrew Mortensen appeals his convictions of two counts of second

degree assault, one involving assault with a deadly weapon. The convictions arose from an

incident in which Mortensen fought with one man while Mortensen’s friend fought with another

man. The fighting stopped when Mortensen used his gun to hit the man he was fighting and to

compel the other man to let go of his friend.

       We hold that (1) the trial court erred in refusing to amend the self-defense instructions to

incorporate the defense of another, but this error was harmless; (2) the trial court did not err in

excluding a defense witness from being recalled when she remained in the courtroom after

testifying in violation of the trial court’s ER 615 witness exclusion order; (3) defense counsel

provided ineffective assistance by not initially proposing a defense of another instruction and by

allowing the defense witness to remain in the courtroom after testifying, but Mortensen does not

show prejudice; (4) the trial court’s reasonable doubt instruction was not constitutionally
No. 48518-4-II


deficient; (5) as the State concedes, Mortensen’s two assault convictions violate double jeopardy;

(6) the trial court properly imposed the criminal filing fee, which is a mandatory legal financial

obligation (LFO) that could be imposed without considering Mortensen’s ability to pay; and (7)

as the State concedes, a scrivener’s error in the judgment and sentence must be corrected on

remand.

         Accordingly, we affirm Mortensen’s conviction of second degree assault with a deadly

weapon (count two), vacate Mortensen’s other conviction for second degree assault (count one)

and the sentence relating to that conviction, and remand for correction of the scrivener’s error in

the judgment and sentence.

                                              FACTS

Assault Incident

         On the night of July 5, 2014, Mortensen, his girlfriend Aisha Nottingham, Aisha’s1

brother Michael Nottingham, and others were camping on the bank of a fishing channel along the

Columbia River. The group was playing music at a high volume.

         Scott Burkett, Joshua McDonald, and Bianca Lujan were across the channel. McDonald

yelled to Mortensen’s group to turn their music down. When Mortensen’s group refused, the

two groups began yelling insults and profanities across the water at each other. Someone in

Mortensen’s group eventually yelled that they could come over there and that they had a gun.

         Mortensen and Michael Nottingham drove a boat across the channel, landing in front of a

fire that Burkett, McDonald, and Lujan had made. The two groups started fighting – Nottingham




1
    To avoid confusion, we refer to Aisha Nottingham by her first name. We intend no disrespect.


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No. 48518-4-II


with McDonald and Mortensen with Burkett. Eventually, Mortensen displayed a gun that he had

with him and the fighting stopped. Mortensen and Nottingham then went back to their camp.

Charged Offenses

       Mortensen was charged with three counts of second degree assault and three counts of

harassment.2 The first assault charge (count one) alleged that Mortensen inflicted substantial

bodily harm on Burkett under RCW 9A.36.021(1)(a). The second assault charge (count two)

alleged that Mortensen assaulted Burkett with a deadly weapon under RCW 9A.36.021(1)(c) and

included a firearm enhancement under RCW 9.94A.825. The third assault charge (count three)

alleged that Mortensen assaulted McDonald with a deadly weapon under RCW 9A.36.021(1)(c),

and also included a firearm enhancement.

Trial Testimony

       Burkett and McDonald testified at trial that Mortensen and Nottingham started the fight

by charging at them as soon the boat landed. Burkett testified that he was able to put Mortensen

in a choke hold on the ground, but he then heard the sound of a gun cocking and saw that

Mortensen had a gun. Burkett let go and put his hands up while he backed away. Mortensen

struck Burkett in the face and then in the head with the gun. Burkett yelled at McDonald to stop

fighting because Mortensen had a gun. Burkett and McDonald both testified that Mortensen

walked over to McDonald, pointed the gun at him, and said, “Do you want to die?” 2 Report of

Proceedings (RP) at 186.




2
 The State eventually added a charge of tampering with a witness, and at trial the court
dismissed the harassment charge involving Lujan based on insufficient evidence.


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No. 48518-4-II


       In contrast, Mortensen and Nottingham testified that they had attempted to avoid a fight.

They testified that they crossed the river not for a confrontation, but because Nottingham needed

to get to his car on the other side. Mortensen testified that because he did not want a fight, when

the boat approached the other group’s area he shouted out for the other people to stay where they

were and not to come near.

       Nottingham testified that when he got out of the boat, something hit him in the head,

causing his eyebrow to split open. He stated that he saw someone about 10 feet away.

Nottingham assumed that the person had hit him and rushed at the person, trying to detain him.

       Mortensen testified that he was still on the boat when he saw a very large person

dragging Nottingham away. Mortensen jumped out of the boat and attempted to run toward

Nottingham, but heard someone behind him. He thought that whatever was happening to

Nottingham was going to happen to him. He turned around and swung, connecting with

Burkett’s shoulder. Mortensen again tried to help Nottingham, but Burkett grabbed him from

behind and pulled him backwards.

       Mortensen testified that during the ensuing fight, his gun fell out of his waistband. Both

he and Burkett reached for the gun but Mortensen was able to get a better grip. Mortensen

swung the gun and connected with Burkett’s face. Mortensen then yelled for McDonald to let

Nottingham go. Nottingham heard Mortensen say “Get off my friend. Back up.” 4 RP at 851.

Mortensen and Nottingham then went back to the boat and left for the other side.

       Mortensen stated that when he and Nottingham got back to their camp, the group talked

about making up a story about what had happened. Mortensen admitted that he told a fabricated

story to the police. He told one officer, David Krebs, that Burkett and McDonald had come



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No. 48518-4-II


across the channel on a raft and started a fight. Mortensen testified that he told the story because

Officer Krebs and another officer had threatened him, saying that Mortensen would go to jail and

his children would be taken away from him if he had gone to the other side of the river.

Witness Exclusion

       Mortensen attempted to elicit testimony from Aisha about Officer Krebs’s alleged threat.

Aisha was at Mortensen’s campsite and apparently heard the threat, but she did not know who

made it. The State objected on the grounds that it would be difficult to offer rebuttal testimony

because Aisha did not know who made the statement. The trial court initially sustained the

objection. Aisha completed her testimony without testifying about the threat.

       The parties revisited the trial court’s ruling during Mortensen’s testimony. The court

determined that it would allow testimony on the threat. Immediately after that ruling, the court

noted that Aisha was in the courtroom, which would prevent her from being recalled under the

court’s ER 615 witness exclusion order. Defense counsel stated that he did not expect to recall

Aisha. But he later sought to recall her and have her corroborate Mortensen’s testimony. The

court denied permission, citing the ER 615 order requested by both parties that excluded

testifying witnesses from the courtroom.

Jury Instructions

       Mortensen intended to submit a jury instruction on defense of another, consistent with his

testimony about attempting to help Nottingham. However, his proposed instructions and the

instructions given by the trial court for both assault and harassment addressed only self-defense.

The court also gave a first aggressor instruction that did reference defense of another.




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No. 48518-4-II


       Immediately after the court finished reading the jury instructions but before closing

argument, defense counsel informed the court that the self-defense instructions erroneously did

not include a reference to the defense of another. Counsel acknowledged that he had drafted the

instructions and had only himself to blame. But he requested that the court add language to the

self-defense instructions stating that a person can use force to lawfully aid a person who he

reasonably believes is about to be injured.

       The trial court denied the request, stating, “I’ve already read the instructions to the jury.

We got all the way through the verdict forms. We’ve spent a lot of time on this.” 10 RP at 1425.

However, the court agreed that defense counsel could argue during closing argument that defense

of another applied and that the State could not argue that defense of another did not apply.

       The court also provided a standard instruction on reasonable doubt. The instruction

included the statement, “A reasonable doubt is one for which a reason exists.” Clerk’s Papers

(CP) at 142.

Conviction and Sentencing

       The jury found Mortensen guilty on counts one and two, both for second degree assault

of Burkett, and found that he was armed with a firearm on count two. The jury found Mortensen

not guilty on the remaining counts, including count three for assaulting McDonald.

       At sentencing, the State conceded that the two assault convictions constituted the same

criminal conduct for purposes of calculating Mortensen’s offender score. The trial court

sentenced Mortensen at the top of the standard range, nine months for each count to run

concurrently plus 36 months for the firearm enhancement. The court also imposed as an LFO a




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No. 48518-4-II


criminal filing fee of $200. The judgment and sentence stated that Mortensen was found guilty

based on a guilty plea rather than on a jury verdict.

       Mortensen appeals his convictions and the court’s imposition of the criminal filing fee

LFO.

                                            ANALYSIS

A.     INSTRUCTION ON DEFENSE OF ANOTHER

       Mortensen argues that the trial court erred by refusing his request, made after the court

had given the jury instructions but before closing arguments, to amend the self-defense

instructions to incorporate defense of another. We agree, but we hold that the error was

harmless.

       1.    Legal Principles

       A person’s use of force against someone is lawful if he or she (1) reasonably believes that

he or she is about to be injured or (2) is aiding a person who he or she reasonably believes is

about to be injured. RCW 9A.16.020(3); see also 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02, at 268 (4th ed. 2016) (WPIC).

       “A criminal defendant is entitled to an instruction on his or her theory of the case if the

evidence supports the instruction.” State v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010).

More specifically, a defendant is entitled to a self-defense or defense of another instruction if

there is “some evidence” demonstrating self-defense or defense of another. Id. at 336-37

(addressing self-defense); see also State v. Marquez, 131 Wn. App. 566, 578, 127 P.3d 786

(2006) (addressing defense of another). The “some evidence” threshold is a low burden; the




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No. 48518-4-II


evidence does not even need to create a reasonable doubt. State v. George, 161 Wn. App. 86, 96,

249 P.3d 202 (2011).

       The trial court must evaluate evidence of self-defense “from the standpoint of a

reasonably prudent person who knows all the defendant knows and sees all the defendant sees.”

State v. Read, 147 Wn.2d 238, 242, 53 P.3d 26 (2002). This analysis involves both subjective

and objective components. Id. at 242-43. For the subjective component, the court must “place

itself in the defendant’s shoes and view the defendant’s acts in light of all the facts and

circumstances the defendant knew when the act occurred.” Id. at 243. For the objective

component, the court must “determine what a reasonable person would have done if placed in the

defendant’s situation.” Id. The same approach applies to the defense of another. See Marquez,

131 Wn. App. at 575.

       Defense of another has other limitations. Specifically, a defendant’s use of force is

justifiable to protect a third party from injury when: (a) the defendant would be justified in using

force to defend himself or herself against the same injury being threatened against the third

party; (b) under the circumstances as understood by the defendant, the third party would be

justified in using force to protect himself or herself; and (c) the defendant believes that the

intervention is necessary to protect the third party. State v. Penn, 89 Wn.2d 63, 66, 568 P.2d 797

(1977). In addition, the defendant’s apprehension of danger must be reasonable under the

circumstances. Id.

       Whether the evidence is sufficient to support a self-defense or defense of another

instruction is a question of law that we review de novo. See State v. Fisher, 185 Wn.2d 836,

849, 374 P.3d 1185 (2016) (stating rule for self-defense). In deciding whether such an



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No. 48518-4-II


instruction should have been given, we must view the evidence in the light most favorable to the

defendant. Id. And the defendant can rely on any evidence produced at trial to support the

defense, even if inconsistent with his or her own testimony. Id. at 849-51.

       2.    Assault Charge Regarding McDonald

       The State charged Mortensen with assaulting McDonald with a deadly weapon. The

evidence was sufficient to support a defense of another instruction for the assault charge

involving McDonald. Mortensen testified that he saw McDonald dragging Nottingham away

and was trying to help Nottingham. He then pointed a gun at McDonald to make him stop

fighting with Nottingham.

       The trial court erred in refusing to give a defense of another instruction for this charge.3

However, the jury acquitted Mortensen on the assault charge regarding McDonald. Therefore,

the trial court’s error was harmless for this charge.

       3.    Assault Convictions Regarding Burkett

       The State charged Mortensen with two counts of assault against Burkett. The question is

whether there was sufficient evidence to support a defense of another instruction regarding these

charges.




3
  Defense counsel failed to propose a defense of another instruction, but discovered his mistake
in time to correct it – before closing arguments began. It appears that the trial court did not want
to go through the inconvenience of amending the instruction and reading the revised instruction
to the jury when the court was ready to proceed with closing argument. However, the court’s
convenience is not a valid reason for refusing to give an instruction to which a defendant is
entitled.


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No. 48518-4-II


            a.   Applicability of Defense of Another

       There is no evidence that Burkett ever fought with, attempted to fight with, or even was

anywhere near Nottingham. Burkett’s only involvement in the incident was fighting with

Mortensen. And there was no evidence that Mortensen used force against Burkett to prevent him

from joining McDonald in assaulting Nottingham. According to Mortensen, he fought with

Burkett only because Burkett ran up behind him and later grabbed him from behind. Therefore,

it would initially appear that Mortensen used force against Burkett only to defend himself, not to

defend Nottingham. The trial court properly gave a self-defense instruction that applied to

Mortensen’s use of force against Burkett.

       However, Mortensen argues that defense of another is applicable because his goal in

fighting with Burkett was to assist Nottingham. He testified that Burkett ran up behind him and

then attacked him from behind as he moved toward McDonald and Nottingham. Mortensen

argues that he was justified in using force against Burkett because Burkett was trying to prevent

him from coming to Nottingham’s aid.

       No Washington case addresses facts similar to this case – whether a defendant’s use of

force against the victim is justified as defense of another when the victim has not injured or

threatened to injure the person being defended but is trying to prevent the defendant from

coming to that person’s aid.

       A strict application of the second Penn prong would not seem to allow Mortensen’s use

of force against Burkett under a defense of another theory. Under that prong, Mortensen would

be justified in using force against Burkett only to the extent that Nottingham would have been

justified in using the same force to protect himself against Burkett. Penn, 89 Wn.2d at 66. But



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No. 48518-4-II


Burkett never threatened to injure Nottingham – only McDonald did. Therefore, Nottingham

would not have been justified in using force against Burkett.

       On the other hand, the more general analysis the Supreme Court has outlined in self-

defense cases involving subjective and objective components, see Read, 147 Wn.2d at 242-43, is

more favorable to Mortensen. Subjectively, there is evidence that Mortensen was in fact

attempting to come to Nottingham’s aid and that the only reason he used force against Burkett

was because Burkett attempted to stop him. Objectively, viewing the evidence in the light most

favorable to Mortensen, a reasonable person placed in Mortensen’s position could have believed

that it was necessary to get to Nottingham to defend him and would have fought off efforts to

prevent his assistance.

       Based on the evidence in this case, we hold that there was sufficient evidence to support a

defense against another instruction for Mortensen’s assault charges regarding Burkett.

            b.    Harmless Error

       The State argues that even if the trial court erred in refusing to give a defense of another

instruction, any error was harmless. A defendant has the constitutional right to a jury instruction

on defense of another when that defense is supported by the evidence. See George, 161 Wn.

App. at 100-01 (stating rule for self-defense). The State must show that any error of

constitutional magnitude was harmless beyond a reasonable doubt. State v. Lynch, 178 Wn.2d

487, 494, 309 P.3d 482 (2013).

       A combination of two factors demonstrates that the trial court’s error here was harmless.

First, the trial court’s self-defense instructions arguably allowed Mortensen to argue his theory of

the case. The court’s self-defense instruction stated:



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No. 48518-4-II


             It is a defense to a charge of Assault in the Second Degree that the force used or
          offered to be used was lawful as defined in this instruction.

             The force used or offered to be used upon or toward the person of another is
          lawful when used by a person who reasonably believes that he is about to be injured
          in preventing or attempting to prevent an offense against the person, and when the
          force is not more than is necessary.

CP at 153. The court provided a similar self-defense instruction regarding the harassment

charge.

          The court also gave a first aggressor instruction that specifically mentioned defense of

another:

          No person may, by any intentional act reasonably likely to provoke a belligerent
          response, create a necessity for acting in self-defense or defense of another and
          thereupon use, offer, or attempt to use force upon or toward another person.
          Therefore, if you find beyond a reasonable doubt that the defendant was the
          aggressor, and that defendant’s acts and conduct provoked or commenced the fight,
          then self-defense or defense of another is not available as a defense.

CP at 155 (emphasis added).

          In closing argument, defense counsel argued that the self-defense instructions included a

defense of another component:

          [T]here’s a jury instruction here on self-defense. It’s also -- it’s a dual-purpose
          instruction. It’s Instructions 16 and 17. Those are called “defenses.” They are
          defense of self or another person. It’s dual purpose. It’s a little confusing from
          reading at it, but it’s -- you can defend yourself or another person. If the person
          reasonably believes they’re about to be harmed, they can use reasonable, necessary
          force to protect themselves or protect another person.

RP at 1504 (emphasis added).

          Mortensen correctly points out that the fact that defense counsel was able to argue

defense of another even though the court’s instructions did not allow such a defense does not

necessarily make the court’s error harmless. The court’s instructions explicitly required jurors to




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No. 48518-4-II


disregard any remark not supported by evidence or the court’s instructions. However, when

refusing to give a defense of another instruction, the trial court expressly precluded the State

from arguing that defense of another did not apply. Therefore, here Mortensen was able to argue

defense of another based on the language of the court’s instructions without contradiction from

the State.

        Second, the jury found Mortensen guilty of assaulting Burkett despite the self-defense

instruction. As noted above, the trial court’s instructions stated that if Mortensen was the first

aggressor he could not rely on either self-defense or defense of another. Because the jury

rejected Mortensen’s self-defense argument, it must have found that Mortensen was the

aggressor with regard to Burkett. This same finding would have precluded Mortensen’s defense

of another defense.

        Mortensen responds that the defense of another instruction could have impacted the

jury’s assessment of whether Mortensen was the first aggressor. Mortensen claims that without a

defense of another instruction, the jurors were not permitted to consider that Mortensen’s

objective in knocking Burkett down was not to act as an aggressor against Burkett but to come to

Nottingham’s aid.

        But the absence of a defense of another instruction did not prevent Mortensen from

arguing that Burkett was the first aggressor in their altercation by running up behind him and

then grabbing him from behind as Mortensen attempted to reach Nottingham. And Mortensen

did testify and argue that he was attempting to assist Nottingham. Mortensen’s defense of

another argument would have been the same as his self-defense argument: that he was justified

in fighting with Burkett because Burkett attacked him first. The jury rejected this argument



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No. 48518-4-II


regarding self-defense. There is no reason to believe that the result would have been different

had the court’s instructions included defense of another.

       Including a defense of another instruction would not have changed the outcome of the

trial under the facts here. Therefore, we hold that the trial court’s failure to include a defense of

another instruction was harmless error with regard to the assault charges involving Burkett.

B.     EXCLUSION OF DEFENSE WITNESSES

       Mortensen argues that the trial court violated his constitutional right to present a defense

when the court prevented him from recalling Aisha. He had intended for her to testify about the

alleged threat Officer Krebs made to Mortensen that Mortensen would go to jail and his children

would be taken away from him if he had gone to the other side of the river. The court refused to

allow Aisha to testify because she had remained in the courtroom while Mortensen testified

about the alleged threat. We hold that the trial court did not err.

       1.    Legal Background

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution require that defendants have a meaningful opportunity to present a

defense. State v. Ortuno-Perez, 196 Wn. App. 771, 783-84, 385 P.3d 218 (2016). This right

includes the right to present witness testimony in establishing a defense. State v. Lizarraga, 191

Wn. App. 530, 551-52, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022 (2016).

       A defendant’s right to present testimony is not absolute and is subject to established rules

of procedure and evidence designed to ensure fairness and reliability in determining guilt or

innocence. Id. at 553. Evidentiary rules do not infringe on a defendant’s right to present a

defense so long as they are not arbitrary and disproportionate to their intended purpose. Id. As a



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No. 48518-4-II


result, a defendant’s interest in presenting relevant evidence may, on occasion, yield to

accommodate other legitimate interests in the criminal trial process. Id.

       Here, the trial court had issued an order excluding all witnesses from the courtroom under

ER 615. That rule states:

       At the request of a party the court may order witnesses excluded so that they cannot
       hear the testimony of other witnesses, and it may make the order of its own motion.
       This rule does not authorize exclusion of (1) a party who is a natural person, or (2)
       an officer or employee of a party which is not a natural person designated as its
       representative by its attorney, or (3) a person whose presence is shown by a party
       to be reasonably necessary to the presentation of the party’s cause.

ER at 615. The rule’s purpose is to discourage or expose inconsistencies, fabrication, or

collusion in witnesses’ testimony. State v. Skuza, 156 Wn. App. 886, 896, 235 P.3d 842 (2010).

A trial court can respond to an ER 615 violation in three ways: (1) hold the witness in contempt,

(2) allow cross-examination concerning the violation or address the violation in closing

argument, or (3) preclude the witness from testifying. Id. The trial court has discretion in

imposing an appropriate sanction for violation of an ER 615 order. Id.

       Skuza appears to be the only Washington case addressing a trial court’s decision to

exclude witness testimony based on violation of ER 615. However, the relevant part of the rule

is identical to the federal version and the issue has been repeatedly litigated in federal appellate

courts. When interpreting a Washington rule of evidence that mirrors the federal rule, we can

look to federal cases as persuasive authority. State v. McBride, 192 Wn. App. 859, 870, 370

P.3d 982 (2016).

       The Ninth Circuit addressed this issue in United States v. Hobbs, 31 F.3d 918 (9th Cir.

1994). There, two witnesses in a suppression hearing were in the courtroom during part of the




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No. 48518-4-II


hearing. Id. at 920. The court held that exclusion of the witnesses’ testimony was error

implicating the defendant’s constitutional right to present evidence in his defense. Id. at 923.

       The court explained that generally a witness in violation of ER 615 “ ‘cannot be excluded

on that ground merely, although the right to exclude under particular circumstances may be

supported as within the sound discretion of the trial court.’ ” Id. at 921 (quoting Holder v.

United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010 (1893)). But the court noted three

factors in determining whether exclusion of the witness is an appropriate remedy: (1) whether the

excluded witness’s testimony would be cumulative of testimony by other witnesses, (2) how

central the excluded testimony was to the defendant’s case, and (3) whether the defendant or

defense counsel cooperated in the violation. Hobbs, 31 F.3d at 922-23.

       2.    Analysis

       Here, Aisha’s proposed testimony about Officer Krebs’s threat involved a collateral issue

– why Mortensen admittedly lied to law enforcement about the incident – and was not central to

Mortensen’s case. And her testimony was cumulative of Mortensen’s testimony about the threat,

although it would have corroborated his account. The exclusion of Aisha’s testimony on this

issue therefore did not prevent Mortensen from presenting a defense and did not rise to the level

of a constitutional violation.

       In addition, the trial court noted at the time that Aisha was in the courtroom and expressly

informed defense counsel that if she was going to be recalled she could not remain. The trial

court’s warning came immediately after the court had allowed Mortensen to testify about Officer

Krebs’s alleged threat. Defense counsel informed the court that he did not plan to recall Aisha.




                                                16
No. 48518-4-II


But counsel should have recognized that Aisha might need to be recalled. Defense counsel

therefore participated in Aisha’s violation of the court’s ER 615 order.

       The record shows that the trial court did not enforce its ER 615 order in an arbitrary or

unfair manner. Its reason for excluding Aisha’s testimony was directly related to the rule’s

intended purpose of exposing inconsistencies, fabrication, or collusion. Skuza, 156 Wn. App. at

896. That purpose is particularly significant here, where Aisha had limited knowledge and could

have adjusted her testimony to match Mortensen’s testimony.

       We hold that Mortensen’s right to present a defense was not violated and that the trial

court did not abuse its discretion in excluding Aisha from being recalled to testify about Officer

Krebs’s alleged threat to Mortensen.

C.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Mortensen argues that he received ineffective assistance when defense counsel (1) failed

to initially propose an instruction on defense of another, and (2) failed to ensure that Aisha

remained outside the courtroom in case she needed to be recalled. We agree that defense

counsel’s performance was deficient. However, we hold that Mortensen cannot show that he

was prejudiced.

       1.    Legal Principles

       We review ineffective assistance of counsel claims de novo. State v. Clark, 187 Wn.2d

641, 649, 389 P.3d 462 (2017). To prevail on an ineffective assistance claim, the defendant must

show both that (1) defense counsel’s representation was deficient and (2) the deficient

representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011). Representation is deficient if, after considering all the circumstances, it falls below an



                                                 17
No. 48518-4-II


objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable

probability that, except for counsel’s errors, the result of the proceeding would have been

different. Id. at 34. A reasonable probability of prejudice is sufficient if the deficient

performance undermines confidence in the trial’s outcome. Id.

        We begin our analysis with a strong presumption that counsel’s performance was

effective. Id. at 33. To rebut this presumption, the defendant must establish the absence of any

“ ‘conceivable legitimate tactic explaining counsel’s performance.’ ” Id. (emphasis added)

(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). If defense counsel’s

conduct can be considered to be a legitimate trial strategy or tactic, counsel’s performance is not

deficient. Grier, 171 Wn.2d at 33. We review the challenged conduct from defense counsel’s

perspective at the time. Id. at 34.

        2.   Instruction on Defense of Another

        Here, defense counsel erred by not submitting timely proposed jury instructions that

supported Mortensen’s defense of another theory of the case. As discussed above, Mortensen

was entitled to a defense of another instruction. Defense counsel admitted the error to the trial

court when he requested a corrected instruction. Therefore, defense counsel’s conduct was

deficient.

        But defense counsel realized his mistake and informed the trial court in time to correct it.

In addition, as discussed above, the trial court’s error in refusing to give a defense of others

instruction was harmless. If the State satisfies the “beyond a reasonable doubt” standard for

determining harmless error relevant to a trial court’s error of constitutional magnitude, it




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No. 48518-4-II


necessarily satisfies the “reasonable probability” standard for determining prejudice on an

ineffective assistance of counsel claim.

        We hold that Mortensen failed to show that defense counsel’s deficient performance

prejudiced him. Accordingly, we hold that Mortensen’s ineffective assistance of counsel claim

on this basis fails.

        3.   Allowing Aisha to Remain in Courtroom

        Defense counsel also was deficient by allowing Aisha to remain in the courtroom when it

was likely that she would be recalled. However, as stated above, defense counsel’s error did not

prevent Aisha from testifying on other issues. The excluded testimony was relevant only to

Mortensen’s credibility. Mortensen had already admitted to lying to Officer Krebs, and Aisha

could testify only to Mortensen’s likely motivation for doing so. But even on this narrow point,

Aisha’s testimony was of limited value because she apparently did not know which officer made

the threat. The prejudicial effect of her exclusion was limited to a relatively minor point on

which she knew little. Therefore, Aisha’s exclusion does not undermine confidence in the trial’s

outcome.

        We hold that Mortensen has not shown that he was prejudiced by defense counsel’s

decision to allow Aisha into the courtroom. Accordingly, we hold that Mortensen’s ineffective

assistance of counsel claim on this basis fails.

D.      REASONABLE DOUBT INSTRUCTION

        Mortensen argues that the trial court’s reasonable doubt instruction was constitutionally

deficient because it includes the statement that “[a] reasonable doubt is one for which a reason

exists.” Br. of Appellant at 33. We disagree.



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No. 48518-4-II


        The trial court’s instruction was taken verbatim from WPIC 4.01. In State v. Bennett, the

Supreme Court admonished trial courts to use the exact language of WPIC 4.01. 161 Wn.2d

303, 318, 165 P.3d 1241 (2007). The court reaffirmed that WPIC 4.01 was proper in State v.

Kalebaugh, 183 Wn.2d 578, 585, 355 P.3d 253 (2015). In State v. Parnel, this court responded

to the same challenge to WPIC 4.01 that Mortensen now makes. 195 Wn. App. 325, 381 P.3d

128, review denied, 186 Wn.2d 1031 (2016). The court stated that it was bound by the Supreme

Court’s affirmation that WPIC 4.01 provides the correct legal instruction on reasonable doubt.

Id. at 328.

        Accordingly, we hold that the trial court did not err in giving a reasonable doubt

instruction identical to WPIC 4.01.

E.      DOUBLE JEOPARDY

        Mortensen argues that his conviction for two counts of second degree assault against

Burkett violated double jeopardy. The State concedes that one of Mortensen’s convictions

should be dismissed. We agree.

        The constitutional guarantee against double jeopardy protects defendants from being

punished multiple times for the same offense. State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803

(2011); see U.S. CONST. amend. V; WASH. CONST. art. I, § 9. The remedy is to vacate the lesser

charge or the charge that carries a lesser sentence. State v. Weber, 159 Wn.2d 252, 269, 149

P.3d 646 (2006). We review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180

Wn.2d 975, 979-80, 329 P.3d 78 (2014).

        The applicable double jeopardy analysis depends on the type of convictions at issue.

When the defendant has multiple convictions under a single statutory provision, we apply a “unit



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No. 48518-4-II


of prosecution” analysis. Id. at 980. This inquiry requires us to identify what act or course of

conduct the legislature has defined as the punishable act. Id.

       In course of conduct offenses, a defendant cannot be convicted multiples times under the

same statute for acts that comprise a single course of conduct. State v. Diaz-Flores, 148 Wn.

App. 911, 915, 201 P.3d 1073 (2009). Assault is a course of conduct crime. Villanueva-

Gonzalez, 180 Wn.2d at 984-85. Whether multiple assaultive acts constitute one course of

conduct is a fact-based question that looks to factors like the length of time over which the acts

took place, the location of each act, the motivation for each act, any interruption or intervening

acts, and the defendant’s opportunity for reflection. Id. at 985.

       Here, Mortensen was charged twice with second degree assault against Burkett, once

under RCW 9A.36.021(1)(a) for inflicting substantial bodily harm when striking Burkett and

again under RCW 9A.36.021(1)(c) for assault with a deadly weapon for pointing a gun at

Burkett. These acts took place in quick succession and the same location. Mortensen’s

motivation did not change from one act to the other, there was no interruption between them, and

he had no opportunity for reflection. Therefore, these acts constitute a single course of conduct

that can be punished only once under the assault statute.

       Accordingly, we hold that Mortensen’s two assault convictions constitutes double

jeopardy. The remedy is to vacate the conviction that carries a lesser sentence. Here that

conviction is count one, which does not include the firearm enhancement.

F.     IMPOSITION OF CRIMINAL FILING FEE

       Mortensen argues that the trial court erred in imposing a criminal filing fee as an LFO

without conducting an adequate inquiry into his ability to pay. He claims that, contrary to this



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No. 48518-4-II


court’s decision in State v. Lundy, 176 Wn. App. 96, 308 P.3d 755 (2013), a criminal filing fee is

a discretionary rather than a mandatory LFO. We disagree.

       Former RCW 36.18.020(2)(h) (2013) provides that upon conviction in superior court, the

defendant “shall be liable” for a $200 fee for services of the court clerk. The word “shall”

presumptively creates an imperative duty rather than conferring discretion. State v. Blazina, 182

Wn.2d 827, 838, 344 P.3d 680 (2015).

       Mortensen argues that the phrase “shall be liable” in former RCW 36.18.020(2)(h) is

ambiguous as to whether the fee is mandatory. This court recently rejected an identical argument

in State v. Gonzales, holding that the language that the defendant “shall be liable” imposes a

mandatory requirement. 198 Wn. App. 151, 155, 392 P.3d 1158, review denied, 188 Wn.2d

1022 (2017) (emphasis added). The court confirmed the holding from Lundy that criminal filing

fees are mandatory and must be imposed regardless of ability to pay. id.; see Lundy, 176 Wn.

App. at 103.

       We hold that under Gonzales and Lundy, the trial court properly imposed a criminal filing

fee as a mandatory LFO without considering Mortensen’s ability to pay.

G.     MISTAKE IN JUDGMENT AND SENTENCE

       Mortensen points out, and the State agrees, that Mortensen’s judgment and sentence

includes a scrivener’s error stating that he pleaded guilty. We remand for the trial court to

correct this error. The judgment and sentence should reflect that Mortensen was found guilty by

jury verdict.




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No. 48518-4-II


H.     APPELLATE COSTS

       Mortensen asks that we refrain from awarding appellate costs if the State seeks them. We

decline to consider the issue. A court commissioner will determine whether to award costs under

RAP 14.2 if the State decides to file a cost bill and if Mortensen objects to that cost bill.

                                           CONCLUSION

       We affirm Mortensen’s conviction of second degree assault with a deadly weapon (count

two), vacate Mortensen’s other conviction for second degree assault (count one) and the sentence

relating to that conviction, and remand for correction of the scrivener’s error in the 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 pursuant to RCW 2.06.040, it is

so ordered.



                                                       MAXA, A.C.J.



 We concur:



 JOHANSON, J.




 LEE, J.




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