                                                   "STaTE OF v;ASUir^,

                                                    2016SEP 26 Kiill:30



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 73755-4-1
                     Respondent,
                                                  DIVISION ONE
               v.



ROBERT L. KING,                                   UNPUBLISHED OPINION

                     Appellant.                   FILED: September 26, 2016


       Becker, J. — Appellant Robert King was convicted of one count of

threatening to bomb or injure property, one count of stalking, and three counts of

cyberstalking. We accept the State's concession of error and remand for further

proceedings.

       Two of the cyberstalking convictions were based on a single text message

threatening King's ex-girlfriend's two daughters. King argues the two convictions

violate double jeopardy because the unit of prosecution for cyberstalking is for

each electronic communication.


       "A person is guilty of cyberstalking if he or she, with intent to harass,

intimidate, torment, or embarrass any other person . . . makes an electronic

communication." RCW 9.61.260(1) (emphasis added). King compares this

cyberstalking statute to an arson statute that prohibits causing "a fire or

explosion," so the unit of prosecution is for each fire caused, State v. Westling,
No. 73755-4-1/2



145 Wn.2d 607, 611-12, 40 P.3d 669 (2002), and a statute that prohibits

possessing "a stolen access device," so the unit of prosecution is for each stolen

access device possessed, State v. Ose, 156 Wn.2d 140, 144-46, 124 P.3d 635

(2005).

       The State concedes the alleged double jeopardy violation and agrees that

one of the convictions for cyberstalking must be vacated and the case remanded

for resentencing. We accept the concession.

       King also contends all of his convictions constitute the same criminal

conduct for the purpose of calculating this offender score. Although King did not

raise this issue in the trial court, the State does not object to allowing him to

present the argument to the trial court on remand. We agree it is appropriate to

have the issue of same criminal conduct resolved by the trial court on remand.

       King asks that appellate costs not be awarded against him. The State is

not seeking an award of appellate costs in this appeal. Consequently, none will

be awarded.


       Remanded.




                                                      ^J^iPj \ •
WE CONCUR:



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