                                                                                          FILED
                                                                                  COURT OF APPEALS
                                                                                        DIVISION II
                                                                                 20I1 DEC 30 ' AM 9. 1+ 6

                                                                                 STATE OF WASHINGTON
                                                                                 BY
      IN THE COURT OF APPEALS OF THE STATE OF WASHH                                            TT 'ON

                                              DIVISION II

 STATE OF WASHINGTON,                                                     No. 44891 -2 -II


                                     Respondent,


         v.




 ERIC CHRISTOPHER MARTIN,                                          UNPUBLISHED OPINION


                                     Appellant.


         WoRSwIcK, P. J. —        Eric Martin appeals his convictions for one count each of first degree

burglary, felony harassment, fourth degree assault, and third degree malicious mischief, and two

counts of second degree assault. He argues that ( 1) his convictions violate the constitutional

prohibition against   double   jeopardy,' ( 2) the trial court' s limiting instruction constituted a

comment on    the   evidence, (   3) the prosecutor committed misconduct by accusing Martin of

having claimed the victim was a liar, and ( 4) Martin' s multiple convictions of second degree
assault and harassment constituted the same criminal conduct. The State concedes that Martin' s

two second degree assault convictions violate double jeopardy. Accepting the State' s

concession, we vacate of one of Martin' s second degree assault convictions, affirm his remaining

convictions, and remand for resentencing.




1
    U.S. CONST.   amend.   V; WASH. CONST.     art.   I, § 9.
No. 44891 -2 -II


                                                           FACTS


A.       Assault


         Eric Martin dated Malory Wilson for years, and the couple saw each other off and on

after their breakup in an attempt to reconcile. Martin had physically abused and made death

threats to Wilson    during   their relationship.      One night when the two were together at Wilson' s


house, Wilson woke up and discovered that Martin was in the bathroom, smoking what Wilson
believed to be crack cocaine. She yelled at him to leave her house, at which point Martin flew

into a rage.


         Martin grabbed Wilson by the neck and repeatedly slammed her against the shower door,

holding her off the ground with both of his hands. He dropped her, then " instantly" grabbed her
                                 hand. 2 Verbatim Report               of   Proceedings ( VRP)   at   221.   Eventually,
by the   neck again with one




Martin let go, and Wilson reached for her phone. Martin repeatedly blocked her from reaching

the phone, either knocking it out of her hand or restraining her by pulling on her hair. Martin

told Wilson, " I'   m gonna   kill   you   before I   go   to jail,"   and Wilson believed that Martin would kill

her. 2 VRP at 224 -25.


         Martin left the house       after   hiding   Wilson'   s cell phone,    her Mace,® and her keys, and


Wilson locked the door after him. Seconds later, Martin returned and broke down the door. He

grabbed Wilson in the kitchen and threw her to the ground, pinning her down with his legs on

her chest. He then took money out of Wilson' s purse and left the house again. While making

the 911 call, Wilson coughed repeatedly, apparently due to pains in her neck. She also bore red

 marks on her neck, scratch marks on her arm, and bruising on her arms and leg, photos of which

 were admitted into evidence.




                                                               2
No. 44891 -2 -II


        Martin was charged in an amended information with one count each of first degree


burglary, first degree robbery, felony harassment, fourth degree assault, third degree malicious

mischief, and two counts of second degree assault. All crimes charged involved domestic


violence sentencing aggravators.


B.      Limiting Instruction

           At a preliminary hearing, the trial court ruled that the State could introduce evidence of
past assault incidents between Martin and Wilson to help explain Wilson' s state of mind. Martin

presented a proposed         limiting     instruction, reading: " This evidence consists of prior allegations


that may be                                  for the                                             domestic   violence."   1
                 considered
                                  by   you             purpose of    understanding   potential




VRP   at   71.   Martin noted that if the State intended to expand the instruction, he would withdraw

his request for an instruction. The trial court agreed with the State that the instruction should be

expanded, so Martin stated that he no longer wanted the instruction. The issue was tabled.

           At the close of evidence, the parties again addressed the proposed limiting instruction

regarding past violent incidents between Martin and Wilson. The trial court explained why it
was prepared to use the State' s proposed expanded version and Martin appeared to agree to it.2

           The trial court discussed its concerns about potentially commenting on the evidence in

giving this instruction:

             I' m   having   troubles     with   the language "         explain why the victim had reason to
             fear " —it   almost sounds like I' m telling them that' s the right thing. And I' m not
             telling   them that.       That' s something they            can consider.   I don' t— it' s — be —it




2 Martin' s attorney, in response to the trial court' s discussion of the proposed expanded
instruction, said: " I also agree with thethe court following the potential domestic violence to
 add victim' s —     for the   purpose of      the   victim' s state of mind —     the reason to fear and the delay of
reporting. I think the court indicated language that it would accept. Could we impose on your
 JA [( judicial     assistant)]   to   prepare   that ...   for   us ?"   2 VRP at 323 -24.



                                                                    3
No. 44891 -2 -II



             almost   becomes       a comment on       the    So I' m just thinking maybe
                                                             evidence....

              potential domestic violence comma state of mind and untimely reporting."

2 VRP at 325. Martin assented to this language.


            The final instruction read:


             Certain evidence has been admitted in this case for only a limited purpose. This
             evidence consists of prior allegations and may be considered by you only for
             the purpose of understanding potential domestic violence and the victim' s state
             of mind. You may not consider it for any other purpose. Any discussion of the
             evidence during your deliberations must be consistent with this limitation.

CP at 78.


C.          Closing Argument

            In his closing   argument,       Martin' s attorney     said: "   We know what [ Wilson] says. But we


cannot rely upon [ Wilson] at all times to give us the same answersthe correct answers and

recall   exactly   what    happened."        3 VRP at 380.


            In rebuttal, the State said:


            Defense attorney comes up here and attacks the victim because that' s what he can
            do in this   case....     And he    says she' s a   liar —can' t believe her because she didn' t
            disclose to the    cops   that   she was   using   cocaine    the   day   before. That is ridiculous.
            It is ridiculous to think that she' s a liar ... .


3 VRP at 380, 382. Martin did not object to these statements. The State then rehabilitated


Wilson' s credibility by pointing out the fact that Wilson disclosed unflattering facts about herself

at trial.



D.          Sentencing

            A jury convicted Martin of first degree burglary, felony harassment, fourth degree

assault, third degree malicious mischief, and two counts of second degree assault, but acquitted

him of first degree robbery. The jury answered " no" to the special verdict form asking whether



                                                                4
No. 44891 -2 -II



Martin and Wilson were members of the same family or household, so the domestic violence

sentencing aggravators did not apply.

         Martin appeals.


                                                ANALYSIS


                                            I. DOUBLE JEOPARDY


         Martin argues, and the State concedes, that his two second degree assault convictions,


based on two events during one continuous attack, violate the prohibition against double

jeopardy. We agree, and we direct the trial court to vacate one of Martin' s second degree assault

convictions.




         Martin also argues that his fourth degree assault conviction violates double jeopardy

principles. We disagree and affirm the fourth degree assault conviction.

         Both the United States and Washington constitutions provide that a person may not be

twice   put   in jeopardy for the   same offense.   U. S. CONST.   amend.   V; WASH. CONST.   art.   I, § 9. A


claim of double jeopardy is a question of law reviewed de novo. State v. Hughes, 166 Wn.2d

675, 681, 212 P. 3d 558 ( 2009). If a defendant' s two convictions for the same offense violate


double jeopardy, we vacate one conviction and remand for resentencing. State v. Adel, 136

Wn.2d 629, 631, 965 P. 2d 1072 ( 1998).        When a defendant is convicted of multiple counts of the


same crime for the same conduct, we consider what unit of prosecution, or course of conduct, the


legislature intended as the punishable act under the specific criminal statute. State v. Sutherby,

165 Wn.2d 870, 878, 204 P. 3d 916 ( 2009). And when a defendant is convicted of second degree


assault and fourth degree assault, our Supreme Court applies the unit of prosecution test. State v.




                                                        5
No. 44891 -2 -I1



Villanueva -Gonzalez, 180 Wn.2d 975, 982, 329 P. 3d 78 ( 2014). Thus, we look to determine


whether Martin' s three convictions arise from the same unit of prosecution..


         Assault is a course of conduct crime, which " helps to avoid the risk of a defendant being

 convicted   for every    punch     thrown in a   fistfight. "' Villanueva -Gonzalez, 180 Wn.2d at 985.


Thus, if multiple assaultive acts constitute only one course of conduct, then double jeopardy

protects against multiple convictions.          Villanueva -Gonzalez, 180 Wn.2d at 985.


A.       Second Degree Assault Convictions Violate Double Jeopardy

         Martin was convicted of two counts of second degree assault by strangulation, one count

based on strangling Wilson in the bathroom with both hands, and the other count based on

immediately strangling her again with one hand. These acts constitute one course of conduct.

Martin' s two second degree assault convictions violate double jeopardy. Thus, we accept the

State' s concession that Martin' s two convictions for second degree assault violate the prohibition


against double jeopardy. We vacate one count of second degree assault.

B.       Fourth Degree Assault Conviction


         Martin also argues that his fourth degree assault conviction violates the prohibition


against double jeopardy because fourth degree assault is a lesser -included offense of second

degree assault. We disagree.


         When a defendant alleges that his convictions of second degree assault and fourth degree

assault violate double jeopardy, we consider whether the assaults constituted the same course of

conduct.     Villanueva -Gonzalez, 180 Wn.2d          at   985.   This is a fact -specific inquiry, taking into

                                                                                            took   place, ( 2)   whether
account    factors   including: ( 1)   the length of time    over which    the   assaults




the   assaults occurred    in the   same   location, ( 3) the defendant' s intent or motivation for the




                                                             6
No. 44891 -2 -II



assaults, (    4) whether any intervening acts or events interrupted the assaults, and ( 5) whether the

defendant had       an   opportunity to   reconsider   his   actions.   180 Wn.2d at 985.


             Here, the two assaults do not constitute the same course of conduct. The assaults


occurred in different locations: Martin assaulted Wilson in the bathroom, then later assaulted her


in the kitchen. There were also intervening events between the two assaults. After Martin

stopped strangling Wilson, he threatened her, stopped her from reaching her phone, hid some of

her belongings, and left the house. Then, he forced his way back into the house and threw her

down. These same facts demonstrate that Martin had the opportunity to reconsider his actions in

between the assaults. Therefore, the second degree and fourth degree assaults do not constitute


the same course of conduct and the convictions do not violate double jeopardy.

                                             II. LIMITING INSTRUCTION


             Martin argues that the trial court' s limiting instruction constituted a comment on the

evidence. He argues that the term " domestic violence" was used without expert testimony or

definition, leading the jury to speculate as to its meaning and making the pattern of domestic

violence part of the evidence. Because Martin invited the claimed error, he is precluded from

challenging it on review. 3

             The invited error doctrine precludes a party from creating an error at trial and then

complaining of it on appeal, such as by requesting language in an instruction and contesting it on

appeal. In the Matter ofthe Pers. Restraint of Griffith, 102 Wn.2d 100, 102, 683 P. 2d 194
    1984);    City ofSeattle v. Patu, 147 Wn.2d 717, 721, 58 P. 3d 273 ( 2002).



3
    By calling Martin' s conduct " invited error" we do not mean to imply that the trial court did, in
fact, err.



                                                              7
No. 44891 -2 -II



          Here, Martin initially offered a limiting instruction in response to the State' s plan to

introduce evidence of domestic violence. Martin wanted an instruction modeled after WPIC


5. 30 and proposed that the instruction address " prior allegations that may be considered by you

for the purpose of understanding potential domestic        violence."   1 VRP at 71.


          Martin requested the very language he now complains about. Martin invited the claimed

error and is now precluded from seeking review.

                                     III. PROSECUTORIAL MISCONDUCT


          Martin argues that the prosecutor committed misconduct by accusing Martin of claiming

Wilson was a liar. We hold that Martin failed to preserve this argument for review.

          The Sixth and Fourteenth Amendments to the United States Constitution and article I,

section 3 and article I, section 22 of the Washington Constitution guarantee the right to a fair

trial. State   v.   Finch, 137 Wn.2d 792, 843, 975 P. 2d 967 ( 1999) ( plurality   opinion).   Prosecutorial



misconduct may deprive a defendant of his constitutional right to a fair trial. State v. Davenport,

 100 Wn.2d 757, 762, 675 P. 2d 1213 ( 1984),


          Where, as here, a defendant fails to object to misconduct at trial, he waives the issue

unless he establishes that the misconduct was so flagrant and ill-intentioned that an instruction

would not have cured the prejudice. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P. 3d 43

 2011).    We focus less on whether the prosecutor' s misconduct was flagrant and ill -intentioned

 and more on whether the resulting prejudice could have been cured. State v. Emery, 174 Wn.2d

 741, 762, 278 P. 3d 653 ( 2012).      We consider the prosecutor' s alleged improper conduct in the

 context of the total argument, the issues in the case, the evidence addressed in the argument, and

 the jury instructions. State v. Anderson, 153 Wn. App. 417, 430, 220 P. 3d 1273 ( 2009).


                                                       8
No. 44891 -2 -II



       Here, Martin         argues   that the   prosecutor accused    him   of   calling the   victim a   liar: " And


 defense   counsel]   says she' s a    liar —can' t believe her because she didn' t disclose to the cops that


she was    using   cocaine   the   night   before."   3 VRP at 382. The prosecuting attorney has wide

latitude in closing argument to argue reasonable inferences from the evidence, including

evidence respecting the credibility of witnesses. Thorgerson, 172 Wn.2d at 448; see also State v.

Stenson, 132 Wn. 2d 668, 727, 940 P. 2d 1239 ( 1997).                However, a prosecutor may not

mischaracterize the defense' s argument by falsely accusing it of claiming the State' s witnesses

were lying. State v. Barrow, 60 Wn. App. 869, 875 -76, 809 P.2d 209 ( 1991).
          Here, the prosecutor' s statement constituted misconduct because she wrongfully accused

Martin of calling Wilson a liar. However, although the prosecutor' s statements accusing Martin

of calling Wilson a liar were misconduct, they were not so flagrant and ill-intentioned that an

instruction could not have cured any resulting prejudice.

          Considering the entire record and facts of the case, there was not a substantial likelihood
that the misconduct affected the verdict. In re the Pers. Restraint Petition of Glasmann, 175

Wn.2d 696, 704, 286 P. 3d 673 ( 2012) ( plurality              opinion).   The defendant bears the burden of


demonstrating that prejudice resulted, creating a substantial likelihood that the misconduct

affected   the   verdict.   Thorgerson, 172 Wn.2d         at   442 -43.   Where the State' s case turns almost


exclusively on the credibility of the complaining witness, a prosecutor' s improper remarks about

that witness' s credibility are more likely to affect the verdict. State v. Boehning, 127 Wn. App.
 511, 523, 111 P. 3d 899 ( 2005).           By contrast, here, the State presented physical evidence

 corroborating Wilson' s testimony, so Wilson' s credibility was not the exclusive factor upon
 which the verdict turned. The evidence included Wilson' s 911 call, during which Wilson



                                                               9
No. 44891 -2 -II



coughed repeatedly, supplementing her testimony at trial that her neck was hurting. The

evidence also demonstrated that Wilson bore physical marks of the attack: photographs of her

injuries, including red marks on her neck, scratch marks on her arm, and bruising on her arms

and leg, were admitted and shown to the jury. Therefore, a rational jury could have found that

Martin assaulted Wilson even if it questioned her credibility, so there was not a substantial

likelihood here that the prosecutor' s misconduct affected the verdict. Because Martin did not

object to the misconduct and because he cannot establish that the misconduct was so flagrant and

ill- intentioned that an instruction would not have cured the prejudice, he has failed to preserve

this issue for review.


                                         IV. SAME CRIMINAL CONDUCT


        Martin argues that his multiple convictions of second degree assault and harassment

constitute the same criminal conduct for sentencing purposes. Because we remand for

resentencing, we do not reach the merits of this challenge to Martin' s sentence. Martin is

entitled to a full resentencing on remand, at which time he may raise issues not raised at his
initial sentencing. State      v.   Tewee, 176 Wn.    App.   964, 971   n.   4, 309 P. 3d 791 ( 2013),   review




denied, 179 Wn.2d 1016 ( 2014). At resentencing, " the            parties shall have the opportunity to

present and the court to consider all relevant evidence regarding criminal history, including

criminal   history   not   previously   presented."   RCW 9. 94A.530( 2).


        We affirm all of Martin' s convictions except for one count of second degree assault. We

remand to the trial court to vacate one count of second degree assault and resentence Martin.




                                                         10
No. 44891 -2 -II



Martin should be allowed to argue whether his assault convictions constitute same criminal


conduct at his resentencing.

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

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

2. 06. 040, it is so ordered.




                                                                    Worswick, P. J.
 We concur:




 Lee, J.




                                                 11
