                                                                           FILED
                                                                        JULY 23, 2019
                                                                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. 36651-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
TROY MICHAEL FIX,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Troy Fix appeals after a Clark County jury found him guilty of

both felony stalking and the gross misdemeanor offense of violation of a civil

antiharassment protection order. We affirm the felony conviction and remand to strike

certain legal financial obligations (LFOs), while also permitting the court to clarify an

aspect of the judgment and sentence if necessary.

                                          FACTS

       The relevant facts governing this appeal are largely procedural in nature. Troy and

Lisa Fix were married for 18 years. The couple legally separated in 2013 and their

marriage was dissolved April 1, 2015. In 2014, Lisa obtained a no contact order in

Oregon and subsequently obtained one in Washington. The order prohibited Troy from

coming within 500 yards of Lisa or her residence.
No. 36651-1-III
State v. Fix


       Throughout and after the marriage, Lisa lived on a 10-acre farm in rural

Ridgefield. Troy had not lived on the property since 2013. Between March 16 and April

25, 2017, Troy was seen on numerous occasions driving around the area where Lisa took

her early morning walks with a friend and/or her residence. These incidents led the Clark

County Prosecuting Attorney’s Office to file the two noted charges, both of which were

alleged to be domestic violence offenses. The felony stalking was predicated on the

actions also constituting a violation of the protection order.

       The jury returned guilty verdicts on both charges and also determined that both

crimes were domestic violence offenses. The trial court ordered a standard range prison

sentence of 12 months and one day on the stalking conviction. Our record does not

reflect that any sentence was imposed on the gross misdemeanor offense.

       Mr. Fix timely appealed from the sentence. Division Two administratively

transferred this case to Division Three. A panel of this court considered the appeal

without hearing argument.

                                        ANALYSIS

       This appeal presents challenges to the lack of a unanimity instruction, the alleged

failure to merge offenses, and the imposition of certain LFOs. Mr. Fix also filed a

statement of additional grounds (SAG) raising six arguments. We address the issues

raised by appellate counsel first before briefly turning to some of the SAG claims.



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State v. Fix


       Unanimity Instruction

       Mr. Fix initially argues that it was error to fail to instruct the jury that it needed to

unanimously agree on the actions that constituted the crime. This argument fails due to

the nature of the crimes charged.

       Only a unanimous jury can return a “guilty” verdict in a criminal case. State v.

Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990). Where the evidence shows multiple

acts occurred that could constitute the charged offense, the State must either choose

which act it relies on or instruct the jury that it must unanimously agree on which act it

found. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). Constitutional error

occurs if there is no election and no unanimity instruction is given. State v. Bobenhouse,

166 Wn.2d 881, 893, 214 P.3d 907 (2009); State v. Kitchen, 110 Wn.2d 403, 411, 756

P.2d 105 (1988). This type of error requires a new trial unless shown to be harmless

beyond a reasonable doubt. Camarillo, 115 Wn.2d at 64.

       However, no election or unanimity instruction is needed if the defendant’s acts

were part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775

P.2d 453 (1989). Appellate courts must “review the facts in a commonsense manner to

decide whether criminal conduct constitutes one continuing act.” State v. Fiallo-Lopez,

78 Wn. App. 717, 724, 899 P.2d 1294 (1995). A continuing course of conduct exists

when actions promote one objective and occur at the same time and place. Petrich, 101

Wn.2d at 571; State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). A continuing

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State v. Fix


course of conduct also exists when the charged criminal behavior is an “ongoing

enterprise.” State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d 1000 (1988) (promoting

prostitution was ongoing enterprise). It is this latter definition that is at issue in this case.

       The crime of stalking requires intentional and repeated harassment. As charged

here, the crime is committed when one “intentionally and repeatedly harasses or

repeatedly follows another person.” RCW 9A.46.110(1)(a). Stalking is a crime that can

be committed by a combination of separate acts, in a course of conduct, intended to

harass, frighten, or intimidate a person. State v. Bradford, 175 Wn. App. 912, 924, 308

P.3d 736 (2013). In turn, “Harasses” means “unlawful harassment as defined in RCW

10.14.020.” RCW 9A.46.110(6)(c). Unlawful harassment, including in violation of an

antiharassment protection order, is defined as a:

       knowing and willful course of conduct directed at a specific person which
       seriously alarms, annoys, harasses, or is detrimental to such person, and
       which serves no legitimate or lawful purpose. The course of conduct shall
       be such as would cause a reasonable person to suffer substantial emotional
       distress, and shall actually cause substantial emotional distress to the
       petitioner, or, when the course of conduct would cause a reasonable parent
       to fear for the well-being of their child.

RCW 10.14.020(2).

       “Repeatedly” means two or more occasions. RCW 9A.46.110(6)(e). Finally,

“course of conduct” is defined as a:

       pattern of conduct composed of a series of acts over a period of time,
       however short, evidencing a continuity of purpose. “Course of conduct”
       includes, in addition to any other form of communication, contact, or

                                                4
No. 36651-1-III
State v. Fix


       conduct, the sending of an electronic communication, but does not include
       constitutionally protected free speech. Constitutionally protected activity is
       not included within the meaning of “course of conduct.”

RCW 10.14.020(1).

       The short answer to Mr. Fix’s argument is that this is not a multiple acts case that

could possibly require a unanimity instruction. Instead, the offense is defined in terms of

needing multiple instances of harassing conduct in order to constitute a single crime of

stalking. No single action could constitute the crime; it is only when harassing actions

are committed on a recurring basis that stalking is established.

       Applying the necessary “common sense” view of the statute, stalking is an

ongoing offense that is not subject to the requirement of a unanimity instruction. This

argument fails.

       Merger of Offenses

       Mr. Fix next argues that the trial court erred by failing to merge the protection

order violation into the stalking offense. The State responds by arguing that the trial

court did merge the offenses. Unable to discern if there is any error here, we leave this

issue to the trial court on remand.

       The parties agree on appeal, as they did in the trial court, that the two offenses

merge. The trial court did not expressly state at sentencing that it was merging the two

offenses, and the clerk’s papers forwarded to this court do not mention the possibility one

way or the other. However, the judgment and sentence form only addresses the felony

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No. 36651-1-III
State v. Fix


conviction and does not even mention the existence of the other offense as part of Mr.

Fix’s criminal history. On the face of that document, it appears likely that the court at

least treated the misdemeanor as if it had merged into the felony as recommended by the

parties.

       Because we are remanding to the trial court to address some LFO issues, we leave

the matter for the trial court. If there is not an order already on file that merges the

offenses, an order ought to be entered memorializing that fact for the record.

       Financial Obligations

       Mr. Fix next argues that the trial court erred by imposing LFOs without

conducting a sufficient inquiry into his ability to pay. The prosecutor agrees that the

discretionary LFOs were imposed without a proper basis and should be struck. We agree

and direct the trial court to strike the jury demand fee and the domestic violence

assessment.1

       The DNA collection fee need not be waived. Mr. Fix has no prior Washington

convictions that would have authorized the collection of his DNA on an earlier occasion.2

Accordingly, the trial court need not strike the DNA fee unless evidence is presented that




       1
        The trial court did not impose a filing fee.
       2
        Mr. Fix’s criminal history indicates a 2014 conviction in Oregon for fourth
degree assault and a Washington disorderly conduct conviction later that same year.
Clerk’s Papers at 199.

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No. 36651-1-III
State v. Fix


his DNA was collected on some prior occasion that is not reflected in his criminal

history. RCW 43.43.7541.

      We remand to strike the two noted fees from the judgment and sentence.

      Statement of Additional Grounds

      Mr. Fix filed a pro se SAG listing six arguments. We will briefly address two of

them. The others fail because they are either dependent on facts outside the record or are

insufficiently briefed. RAP 10.10(c).

      The SAG argues that the trial court erred in denying his last request for a

continuance in order to subpoena an alibi witness. The trial court had previously granted

him two continuances for the same purpose, but declined two last minute requests for an

additional continuance.

      A trial court’s decision to grant or deny a continuance of trial is reviewed for

manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984),

cert. denied, 471 U.S. 1094 (1985); State v. Early, 70 Wn. App. 452, 458, 853 P.2d 964

(1993). When a case has been previously continued, an even stronger showing in support

of the subsequent request is necessary. State v. Barnes, 58 Wn. App. 465, 471, 794 P.2d

52 (1990), aff’d, 117 Wn.2d 701, 818 P.2d 1088 (1991). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).



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State v. Fix


       The trial court had tenable grounds for denying a third continuance. Two previous

continuances had been granted and no showing was made that indicated the defense

would be more successful in finding the witness on the latest occasion. The court had

tenable grounds for rejecting the motion; there was no abuse of discretion.

      The SAG also argues that this court should reconsider the credibility of the

victim's testimony. However, this court defers to the credibility decisions made at trial.

Camarillo, 115 Wn.2d at 71. Appellate courts do not engage in fact-finding or

reweighing of evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 572,

575,343 P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710,

717, 225 P.3d 266 (2009). This argument, too, is without merit.

      The conviction is affirmed. The matter is remanded to the superior court to strike

the noted LFOs and, if necessary, enter an order reflecting that the two convictions were

merged.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



WE CONCUR:




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