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

STATE OF WASHINGTON,                                    No. 72944-6-


                          Respondent,

                 v.                                     UNPUBLISHED OPINION

DENNIS WAYNE JACKSON,

                          Appellant.                    FILED: March 14, 2016

       Schindler, J. — Dennis Wayne Jackson seeks reversal of his jury conviction of

one count of unlawful possession of a controlled substance. Jackson asserts the failure

to give a Petrich1 jury instruction violated his constitutional right to a unanimous jury

verdict. We conclude the court erred in failing to give a Petrich instruction. However,

because no rational juror could have a reasonable doubt as to whether each act

established the crime beyond a reasonable doubt, the lack of a unanimity instruction

was harmless, and we affirm.

                                              FACTS

        On September 27, 2014, Everett Police Officer Stephen Ross pulled over a blue

Dodge Neon. Marcus Stoutenburg was driving the car and Dennis Wayne Jackson was




       1 State v. Petrich. 101 Wn.2d 566, 683 P.2d 173 (1984).
No. 72944-6-1/2


sitting in the front passenger seat. Officer Ross called for backup. Officer Timothy

O'Hara responded.

       Officer Ross arrested Stoutenburg for driving while license suspended. Officer

Ross frisked Stoutenburg and placed him in the back of his patrol car. Officer O'Hara

saw Jackson suspiciously moving his hands and suspected Jackson was attempting to

conceal something. Officer O'Hara asked Jackson to step out of the car. After

removing Jackson from the car, Officer O'Hara saw methamphetamine on the front

passenger seat and floorboard and a digital scale in the passenger door pocket. Officer

O'Hara frisked Jackson and arrested him on an outstanding warrant. Officer O'Hara

placed Jackson in the back of his patrol car.

       Officer Ross removed Stoutenburg from his patrol car and released him. Officer

Ross then searched the rear passenger area of his patrol car to ensure there was no

contraband. Officer Ross did not find any contraband. Officer O'Hara asked Officer

Ross to transport Jackson to the Snohomish County jail. Officer Ross placed Jackson

in the back of his patrol car.

       After arriving at the jail, Officer Ross removed Jackson from the back of his patrol

car. Officer Ross searched the rear passenger area of his patrol car again. This time

he found a small plastic bag on the floor. Officer Ross believed the bag contained

heroin and collected it as evidence.

       While Jackson was in a holding cell, Snohomish County Corrections Deputy

Shane Stevie saw him scratching underneath his left leg. Deputy Stevie asked to see

his hands. Jackson was holding a small plastic bag in his left hand. Jackson attempted
No. 72944-6-1/3


to put the bag into his mouth and swallow it. After a struggle, Deputy Stevie and Deputy

Keith Greely secured Jackson and seized the small plastic bag.

          The Washington State Patrol Crime Laboratory (WSPCL) tested the plastic bag

found in the patrol car and the plastic bag seized from Jackson. Both bags contained

heroin.


          The State charged Jackson with one count of unlawful possession of

methamphetamine, count I, and one count of unlawful possession of heroin, count II.

Jackson pleaded not guilty.

          The State called a number of witnesses to testify during the three-day jury trial

including Officer Ross, Officer O'Hara, Deputy Stevie, Deputy Greely, and a WSPCL

forensic scientist. Jackson did not testify and the defense did not call any witnesses.

          Over the defense objection, the court refused to give a Petrich unanimity

instruction. The jury acquitted Jackson of possession of methamphetamine, count I.

The jury convicted Jackson of possession of heroin, count II.

                                           ANALYSIS

          Jackson seeks reversal of his conviction for one count of possession of heroin,

arguing the court violated his constitutional right to a unanimous jury verdict by failing to

give a Petrich instruction. State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). The

State argues a Petrich instruction was not required because the evidence showed a

continuing course of conduct.

          A defendant has a right to a unanimous jury verdict under the Sixth Amendment

to the United States Constitution and article I, section 22 of the Washington

Constitution. State v. Fisher, 165 Wn.2d 727, 755, 202 P.3d 937 (2009) (citing State v.
No. 72944-6-1/4


Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988)). Where the evidence indicates that

more than one distinct criminal act has been committed but the defendant is charged

with only one count of criminal conduct, either (1) the State may elect the act upon

which it will rely for conviction, or (2) jurors must be instructed that they must agree that

the same underlying criminal act has been proved beyond a reasonable doubt. State v.

Bobenhouse. 166Wn.2d 881, 893, 214 P.3d 907 (2009) (citing Petrich, 101 Wn.2d at

572). However, no election or unanimity instruction is required if the evidence

establishes a "continuing course of conduct." Petrich, 101 Wn.2d at 571. We review

the facts in a commonsense manner to determine whether criminal acts consist of a

continuing course of conduct. Petrich, 101 Wn.2d at 571.

       The State relies on State v. Love, 80 Wn. App. 357, 908 P.2d 395 (1996), to

argue a continuing course of conduct. In Love, during a search of Love, police found 5

rocks of cocaine in a lip balm container that had been in Love's pocket. Love, 80 Wn.

App. at 359. The police then searched Love's house and found an additional 40 rocks

of cocaine. Love, 80 Wn. App. at 359. The State charged Love with one count of

possession of a controlled substance with an intent to deliver. Love, 80 Wn. App. at

362. The court did not give a Petrich instruction. Love, 80 Wn. App. at 360. On

appeal, this court concluded that because two acts of possession were part of a "single

objective to make money by trafficking cocaine," a Petrich instruction was not required.

Love. 80 Wn. App. at 362-63.

       Jackson argues State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994), controls.

In King, during a search of the car King was a passenger in, Seattle police officers

found cocaine in a Tylenol pill bottle. King, 75 Wn. App. at 901. The officers also found
No. 72944-6-1/5


cocaine in King's fanny pack. King, 75 Wn. App. at 901. The State charged King with

one count of possession of cocaine. King, 75 Wn. App. at 901.

      At trial, King testified the officers planted the cocaine on him. King, 75 Wn. App.

at 901-02. King requested a unanimity instruction. The prosecutor told the court the

State would elect which act of possession it would rely on to convict. King, 75 Wn. App.

at 903. However, the State did not do so. King, 75 Wn. App. at 903.

      On appeal, the State argued a continuing course of conduct rather than two

separate acts of possession. King, 75 Wn. App. at 902. Because the evidence

established two distinct acts of possession of cocaine, we rejected the State's

argument:

             The State's evidence tended to show two distinct instances of
      cocaine possession occurring at different times, in different places, and
      involving two different containers .... One alleged possession was
       constructive, the other actual.

King, 75 Wn. App. at 903. Because there was conflicting evidence regarding King's

possession, we concluded the failure to give a Petrich instruction was not harmless

error. King, 75 Wn. App. at 904.

             Sufficient conflicting evidence exists as to which one of the car's
       occupants constructively possessed the Tylenol bottle for us to conclude
       that a rational trier of fact could entertain reasonable doubt as to whether
       King was responsible for the Tylenol bottle. The evidence is also
       conflicting as to King's alleged possession of the cocaine in the fanny
       pack. King testified that he was unaware ofthe cocaine in his fanny pack
       and asserted that the officers must have planted it. King's testimony
       requires a determination of credibility that is uniquely the jury's to make.
       We cannot say that no rational trier of fact would entertain a reasonable
       doubt about King's responsibility for the cocaine in his fanny pack.
               Under these circumstances, the lack of a unanimity instruction to
       the jury was not harmless.

King, 75 Wn. App. at 903-04.
No. 72944-6-1/6


       We conclude this case is more like King than Love and the court erred in failing

to give a Petrich jury instruction. Unlike Love, the State did not charge Jackson with

possession with intent to deliver, and there is no evidence that his possession was part

of a "single objective."3 Here, as in King, the evidence showed Jackson possessed

heroin at two different times and in two different places.

       The State argues that even if a Petrich instruction was required, the error was

harmless.


       When a court fails to give a required Petrich instruction, we assume the error was

prejudicial. Kitchen, 110 Wn.2d at 411. This presumption can be overcome "only if no

rational juror could have a reasonable doubt as to any of the incidents alleged." State v.

Coleman, 159 Wn.2d 509, 512, 150P.3d 1126 (2007) (citing Kitchen, 110Wn.2dat

411-12).

       Here, unlike in King, the undisputed facts established Jackson's guilt. Officer

Ross testified that after removing Stoutenburg from his patrol car, he checked the rear

passenger compartment "very thoroughly" for weapons or contraband. Officer Ross

testified Stoutenburg did not leave anything in the patrol car. Officer Ross then put

Jackson in his patrol car and took him to the jail. After removing Jackson from his patrol

car, Officer Ross checked the backseat again. Officer Ross testified he found a small

plastic bag containing what he believed was heroin. Deputy Stevie and Deputy Greely

testified they saw Jackson holding a small bag in his hand while Jackson sat in a

holding cell. The WSPCL forensic scientist testified that he tested both bags and found

they contained heroin. Unlike King, Jackson did not assert a different defense to each

act of possession, did not testify, and did not present evidence of his possession.

       3 Love. 80 Wn. App. at 362.
No. 72944-6-1/7


Because no rational juror could have a reasonable doubt as to whether each act

established the crime beyond a reasonable doubt, the lack of a unanimity instruction

was harmless.

      We affirm.




WE CONCUR:
