                                                                                  1-ILED
                                                                          COURT OF APPEALS DIV         ~                  ~;..
                                                                           STATE OF WASHINGTON             ~ i’~ ~


                                                                            2OI8SEP—~ AN 9:30
  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  THE STATE OF WASHINGTON,                                                                    )
                                                                                                  No. 76575-2-I
                                           Appellant,                                         )
                                                                                              )   DIVISION ONE
                             v.                                                               )
                                                                                              )   UNPUBLISHED OPINION
  JOSEPH WILLIAM DAVENPORT,                                                                   )
                                                                                              )
                                           Respondent.                                        )   FILED: September 4, 2018
___________________________________________________________________________________________   )
             APPELWICK, C.J.                   —      Davenport was convicted of two counts of first degree


promoting prostitution, one count of first degree unlawful possession of a firearm,

one count of possession with intent to manufacture or deliver methamphetamine,

and one count of second degree assault                                              —   domestic violence. He contends that

(1) a police officer gave improper opinion testimony on his guilt, (2) there was

insufficient evidence to support one of his convictions for promoting prostitution,

(3) the trial court erred in failing to order a competency evaluation, (4) the jury

instructions failed to preserve jury unanimity and permitted a double jeopardy

violation, and (5) his dual convictions for assault and promoting prostitution violate

double jeopardy. We affirm.

                                                                           FACTS

              Kayla Snow first met Joseph Davenport while she was walking along the

highway, which she often did.                                        They exchanged phone numbers and Snow,

working as a prostitute, quickly started giving all her money to Davenport. Snow

testified that Davenport beat her and held a gun to her head on the third day that
No. 76575-2-1/2


she knew him.          After about a week, Davenport and Snow went to Eastern

Washington where Snow continued to work as a prostitute. When they returned

from Eastern Washington, after about two months, Davenportbrought another

woman, Jasmin McLain, into his ‘relationship” with Snow. McLain also worked as

a prostitute for Davenport.

         Snow testified about a specific time when Davenport hit her after she

expressed jealousy over his relationship with McLain. Davenport hit Snow twice

in her mouth with his gun. Afterward, he took her back to the hotel and punched

her in her eye. Snow asked Davenport for medical care, but he first took Jasmin

on a “call,” leaving Snow bleeding in the backseat of his car. Hours later, on April

15, Davenport took Snow to the hospital, where they put multiple stitches in her

mouth.

         McLain introduced Davenport as her boyfriend to her mother, Danielle

McLain.1 On another visit, Danielle went to the hotel where Davenport, Jasmin,

and Snow were staying. Weeks later, Jasmin asked Danielle for help to get away

from Davenport. After Jasmin stayed with her mother for about a week she went

back to Davenport. Jasmin also contacted her grandmother, Kristie Lund, for help.

Lund picked up Jasmin and took her to a “safe house” for a local outreach

organization. Lund noticed that Jasmin had bruising around her eye, lips, and

nose. Jasmin left the facility and eventually returned to Davenport. At some point,

Jasmin’s mother, Danielle, contacted the National Human Trafficking Resource

Center, which gave the tip to local police detectives.

         1   We use Danielle and Jasmin McLain’s first names hereafter for clarity.


                                                2
No. 76575-2-1/3


         Using Jasmin’s telephone number, Kent police officer Lovisa Dvorak found

her prostitution advertisements online. Posing undercover as a potential client or

buyer, Detective Brian Lewis contacted the number in the advertisement, and set

up a “date” with Jasmin. A team of undercover officers staked out the Tukwila

hotel where Detective Lewis arranged to meet Jasmin. While Detectives Dvorak

and Lewis went to meet Jasmin in the motel room, the other officers detained

Davenport in the parking lot. The officers obtained a search warrant to search

Davenport’s car. They found just over 20 grams of methamphetamine, a digital

scale, and a gun.

         Without knowing her identity or her connection to this case, police

subsequently detained Snow for prostitution loitering on Pacific Highway South.

Snow agreed to go to the police station, where she gave a recorded statement

about Davenport. Because Snow was a victim, police did not charge her with

prostitution loitering.

         The State charged Davenport with two counts of first degree promoting

prostitution, one count of first degree unlawful possession of a firearm, one count

of possession with intent to manufacture or deliver methamphetamine, and one

count of second degree assault     —   domestic violence. The jury found Davenport

guilty as charged. Davenport appeals.

                                    DISCUSSION

         Davenport makes five arguments. First, he argues that, in testifying, a

police officer gave an improper opinion on guilt, violating Davenport’s right to a jury

trial.   Second, he argues that the evidence was insufficient to prove count 4,


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No. 76575-2-1/4


promoting prostitution. Third, he argues that the trial court erred in failing to order

a competency evaluation for him. Fourth, he argues that the jury instructions failed

to preserve jury unanimity and permitted a double jeopardy violation. Fifth, he

argues that his dual convictions for assault and promoting prostitution violate

double jeopardy.

  I.   Opinion Testimony

       Davenport argues that Detective Michael Garske gave an improper opinion

by testifying that the idea of consensual prostitution is “‘unicorn land.” At trial,

Davenport objected to Garske’s comment on the grounds that it was improper

opinion testimony. The court overruled his objection and allowed the testimony.

Davenport argues that Garske’s opinion was improper, because (1) it was a

conclusive opinion on the only disputed element of the promoting prostitution

charge and (2) it was beyond his actual expertise.

       Before opinion testimony is offered, the trial court must determine

admissibilityofthetestimony. Statev. Quaale, 182 Wn.2d 191, 199, 340 P.3d213

(2014). In making this determination the court will consider the circumstances of

the case, including the following factors: (1) the type of witness involved, (2) the

specific nature of the testimony, (3) the nature of the charges, (4) the type of

defense, and (5) the other evidence before the trier of fact. ki. at 199-200. Opinion

testimony is not objectionable merely because it embraces an ultimate issue that

the jury must decide.    ki. at 197; ER 704. Some areas, however, are clearly

inappropriate for opinion testimony in criminal trials, including personal opinions,

particularly expressions of personal belief, as to the defendant’s guilt, the intent of


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No. 76575-2-1/5


the accused, or the veracity of witnesses.              Quaale, 182 Wn.2d at 200.

Impermissible opinion testimony regarding the defendant’s guilt may be reversible

error because such evidence violates the defendant’s constitutional right to a jury

trial, which includes the independent determination of the facts by the jury. j~ at

199.

       We review decisions to admit evidence for an abuse of discretion. ki. at

196. The trial court has abused its discretion on an evidentiary ruling if it is contrary

to law. ki. at 196-97. An abuse of discretion exists when a trial court’s exercise of

its discretion is manifestly unreasonable or based on untenable grounds or

reasons. kiat 197.

   A. Conclusive Opinion

       Davenport likens this case to State v. Montgomery, 163 Wn.2d 577, 183

P.3d 267 (2008). In Montgomery, the court held that the State’s witnesses gave

improper opinions when they testified about the defendants’ intent in purchasing

items used to manufacture methamphetamine. 163 Wn.2d at 594, 587-88. A

detective testified, “‘I felt very strongly that they were, in fact, buying ingredients to

manufacture methamphetamine based on what they had purchased.” j~ at 587-

88. And a chemist, after surveying the purchases of the defendants, testified,

“‘[T}hese are all what lead me toward this pseudoephedrine is possessed with

intent.” ki. at 588.

       Davenport argues that, like the opinion testimony in Montgomery, Garske’s

testimony that the idea of consensual prostitution is “unicorn land” foreclosed the

jury’s decision on whether Davenport compelled Snow and Jasmin to engage in


                                                5
No. 76575-2-1/6


prostitution. But, there are key differences. In Montgomery, the witnesses gave

opinions about the intent, and therefore the guilt, of the specific defendants in the

case. Id. at 587-88. While here, Garske did not comment on Davenport’s actions

or give opinions about the parties in the case. In fact, he explicitly said that he did

not review the police reports or transcripts of interviews associated with

Davenport’s investigation. And, Garske’s testimony that the idea of consensual

prostitution is “unicorn land” was a broad viewpoint on the nature of prostitution.

       During his testimony, the State asked Garske, “How long did it take you to

get comfortable with the subject matter and a working knowledge of like how the

pimping and prostitution works?” Garske answered,

       I think on a surface level where we see it on [television] or read about
       it our [sic] a YouTube video, that stuff is it’s right out there in the
                                                       —


       public; we all understand that. It’s what happens behind the scenes.
       It’s the exploitation. It’s the violence. It’s just the nature in where
       these girls are living on a day-to-day basis where at any given time,
       they’re [sic] life is in peril; if not, it’s a very abusive environment that
       they live it [sic], and, if not that, it’s just very dangerous. There isn’t
       anything safe about the stuff behind the curtain when it comes to
       prostitution. The argument of it’s consensual sex between two
       adults, that’s unicorn land.
       Davenport objected, on the basis of “improper opinion testimony.” The trial

court overruled the objection. The State continued:

                Q   .   .   .   Can you describe what you mean by, “it’s unicorn
       land”?
              A That’s just want [sic] people just want to believe that it is;
      when, in all actuality, it’s not. The exploitation part of it is always
      there. The girls do not get up out of bed and say, “I want to be a
      prostitute today.” The girls do not want to put themselves in the
      situation that they’ve probably already been in before, which is
      they’ve been assaulted, robbed, or raped, whether that be by a client
      or by a pimp; they don’t make that conscious decision without some
      sort of exploitation.

                                                   6
No. 76575-2-1/7


       Garske commented that women do not engage in prostitution “without some

sort of exploitation.” This is not the same as testifying that the women associated

with this case were compelled by Davenport to engage in prostitution through the

use of force or threats, the disputed element of Davenport’s promoting prostitution

charge. And, Garske testified that he does not agree with what he feels is a

general perception about prostitution, that it is “consensual sex between two

adults.” Stating that prostitution is not consensual sex is not the same as stating

that all prostitutes are compelled by pimps to engage in prostitution.

   B. Witness Expertise

       Davenport also argues that Garske’s opinion was improper because it

conveyed an aura of certainty beyond his expertise.

       Under ER 702, the court may permit “a witness qualified as an expert” to

provide an opinion regarding “‘scientific, technical, or other specialized

knowledge” if such testimony “will assist the trier of fact.” State v. Yates, 161

Wn.2d 714, 762, 168 P.3d 359 (2007). Practical experience is sufficient to qualify

a witness as an expert. Id. at 765. In Yates, the defendant argued that the trial

court erred in permitting Lynn Everson to testify as an expert on prostitution. ki. at

764. Everson worked for the Spokane Regional Health District and had 13 years

of experience providing outreach services to prostitutes. ~ The court found that

her practical experience qualified her as an expert. ~ at 765.

       Likewise in State v. Simon, this court found that a detective involved in

investigating street prostitution for over 6 years, and who had investigated over

400 prostitution related crimes, was qualified to testify as an expert. 64 Wn. App.


                                              7
No. 76575-2-1/8


948, 963-64, 831 P.2d 139 (1991), rev’d in part on other grounds, 120 Wn.2d 196,

840 P.2d 172 (1992). In Simon, the detective testified, “I would have to say that

my experience indicates that there are in fact two separate and distinct

relationships based essentially on the same premises. And that is the pimp’s

psychological manipulation of the prostitute.” j~ at 953.

       The detective elaborated on two types of pimps, stating,

       “Most prostitutes will encounter a “Soft Mack” before a “Hard Mack.”
       The “Soft Mack” will be what’s referred to as a boyfriend pimp. It will
       be somebody who butters her and tells her that she’s real good
       looking, and we can have our way with the world, babe. Just go out
       and get us some money. He’s the pimp that will convince her that
       he is in love with her, and this is their avenue to progress in the world.
       And then there’s the “Hard Mack.” And generally, when a gal
       encounters a “Hard Mack,” some[one] who is very forceful and
       psychologically dominating, they are already in the state of mind
       where they are amenable to that person’s suggestions or threats,
       even if the threats aren’t overt; they are in a frame of mind where
       they are amenable.”
~ (alteration in original).

       The examination of the detective continued,

       “Q: What sort of personalities do most of the prostitutes have that
           you have come in contact with?
       “A: Most of the prostitutes that I have come in contact with have had
           very little or no self-esteem.       They think very poorly of
           themselves. They are essentially, in their own minds, they are
           worthless.


       “Q: Do most of the prostitutes that you had contact with enjoy being
           prostitutes?
       “A: No, they don’t.
       “Q: Why do they continue doing it?



                                               8
No. 76575-2-1/9

       “A: They have no option.
       “Q: In their mind they have no option?
       “A: Correct.
       “Q: In terms of the financial relationship between a pimp and a
           prostitute, what would be a typical financial relationship?
       “A: The financial  —   The standard financial relationship is that the
           prostitute gives the pimp every penny that she earns.    .




       “Q: How is it that a pimp manages to keep control of or have access
           to prostitutes?


       “A: Okay. The prostitutes come from the ranks of the runaways.
           Essentially, by keeping in contact with the people that are on the
           street looking for something, looking for shelter, looking for
           something to eat, they will continually be in contact with new
           faces.


       “Q: Well, if a prostitute wants to switch and work for somebody else,
           are they typically deemed to be free agents, and they can moved
           around at will?
       “A: No, they are not.
       ‘Q: What impediments are there to doing that?
       “A: Well, a pimp doesn’t want to give up a girl. I mean, for obvious
           reasons, he gets an income from the girl, and the girl has value
           to him in that she is a steady source of income. And if she
           decides that she wants to be with a different pimp, it is the burden
           of that pimp to go to her former pimp and notify him that she
           won’t be bringing you money anymore, she’s now bringing her
           money to me.”
Id. at 953-55 (some alterations in original).

       This court held that the trial court did not abuse its discretion in admitting

the detective’s testimony, reasoning,


                                                9
No. 76575-2-1/10

               Detective Benson’s testimony regarding the pimp/prostitute
       relationship was helpful to the jury because the average juror would
       not likely know of the mores of the pimp/prostitute world.   .   [T]he
                                                                        .   .


       testimony did not constitute an opinion as to Simon’s guilt. Detective
       Benson did not testify that Simon did or did not threaten Bartall;
       rather, Detective Benson testified in general terms about the nature
       of the pimp/prostitute relationship.
Id. at 964.

       Here, Davenport argues that, because Garske testified in “absolute terms

about the issue of compulsion,” his testimony went beyond what the courts found

admissible in Yates and Simon. He also contends that Garske’s testimony invaded

the province of the jury because he discredited Snow’s testimony and assured

them that it was “categorically impossible” that she was telling the truth.

       Garske testified that, in his 29 years of law enforcement, he has been

involved in over 1,000 investigations involving “pimping and promoting

prostitution.” Garske described his experience interacting with prostitutes, both as

a patrol officer and as a detective. Based on his practical experience, Garske was

qualified to testify as an expert on the relationship between prostitutes and pimps.

Garske explained what he meant by “unicorn land,” stating, “The girls do not want

to put themselves in the situation that they’ve probably already been in before,

which is they’ve been assaulted, robbed, or raped, whether that be by a client or

by a pimp; they don’t make that conscious decision without some sort of

exploitation.”   Garske testified generally about the violence and exploitation

prostitutes face, in his experience. His testimony did not go beyond the expertise

gained from his practical experience. And, Garske did not impermissibly discredit




                                             10
No. 76575-2-I/Il


Snow’s testimony because he testified before her, and did not have any knowledge

of what she was going to tell the jury.

       The court did not abuse its discretion in allowing the testimony.

 II.   Sufficiency of Evidence

       Davenport asserts that there was insufficient evidence to convict him of one

of the counts of promoting prostitution.      He argues that reversal is required,

because the State failed to prove that he compelled Snow to engage in prostitution.

       The test for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the defendant guilty beyond a reasonable doubt. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences

from the evidence must be drawn in favor of the State and interpreted most strongly

against the defendant. j4 The elements of a crime may be established by either

direct or circumstantial evidence, and one type of evidence is no more valuable

than the other. State v. Wilson, 141 Wn. App. 597, 608, 171 P.3d 501 (2007). This

court defers to the jury on credibility determinations, assessing discrepancies in

the trial testimony, and weighing the evidence. ~ Id.

       A person commits first degree promoting prostitution when he or she

knowingly advances prostitution by compelling a person by threat or force to

engage in prostitution, or profits from prostitution which results from such threat or

force. RCW 9A.88.070(1)(a).

       Davenport argues that the evidence fails to show that he compelled Snow

to engage in prostitution. He contends that (1) she testified that she acted of her


                                             11
No. 76575-2-1112


own free will, (2) the fact that there was abuse does not prove the element of

compulsion, and (3) an officer’s opinion testimony that there is no prostitution that

is not coerced does not establish compulsion here.

       Davenport first points to Snow’s testimony as evidence that Davenport did

not compel her to engage in prostitution. On cross-examination counsel asked,

“Do you feel like Mr. Davenport used violence to make you prostitute yourself?”

Snow answered,

       No, that has never no, I don’t think that he forced that. I’ll stand by
                           --


       that. He’s never force[d] me to hoe [sic], or be a prostitute, or just
       sell sex for anything ever; that was always my hustle, what I did to
       make my way. I just left him in charge of the money.
But, evidence is not insufficient merely because there is testimony that conflicts

with other evidence. See Wilson, 141 Wn. App. at 608 (appellate court defers to

trier of fact on issues of conflicting testimony and the persuasiveness of the

evidence).

       Davenport argues that although the jury might disbelieve Snow’s testimony

that she voluntarily engaged in prostitution, this does not establish that Davenport

compelled her to do so. That is true, but Snow also testified about numerous times

Davenport abused her. She testified that the first time he beat her was on the third

day after they met, stating,

       I was sick, I didn’t feel good, and it wasn’t because of drugs or
       anything else about it; I just had a cold or something being out in rain,
       and he was trying to buy me soup and stuff. And sometimes I’m not
       like, you know, I don’t know. I’m now making excuses.
             I don’t know. We were in the bathroom, and I just remember
       my head flying into the mirror, and after a while him holding the gun
       to my head. I just told him to pull the trigger because I’m not afraid


                                             12
No. 76575-2-1/13

       to die, just pull it; and then I remember him just walking out, and I
       picked myself up and put myself back together.
Snow testified that Davenport hit her from behind, grabbing her neck, and her head

hitting the mirror. And, later in the first week they met, Snow testified, “[O]ne of my

exes had figured out I was still in Washington, the guy I started there with, and I

was out-of-pocket texting the guy back, and that’s the day he beat the ever-loving

shit out of me.” Snow also explained that by “out-of-pocket” she meant, “Out of

line. I was texting another man, which is disrespeciful because it shows that I

didn’t have respect for my daddy, or pimp, or source.”

       Additionally, Snow testified, “I used to get beat up every 30 days, if not

more.” She testified that Davenport beat her for “[e]verything; if he felt I was

breathing wrong. I was getting embarrassed, abused, and left out.” Even after

Snow felt like it was “over” with Davenport they were still in contact every day, and

after Davenport went to jail she continued to give him the money she made from

prostitution. Snow described a time when Davenport told her to assault Jasmin.

Davenport told Snow, “Beat her ass or I’m going to beat your ass.” Although

Snow initially complied, after Davenport began assaulting Jasmin, Snow tried to

guard Jasmin with her body. Snow testified that she “took a lot of the kicks; a

couple of the punches in the head because I know where he aims.”

       Davenport argues that this case is different from Simon. In Simon, this court

held that there was sufficient evidence to support the conviction of promoting

prostitution. 64 Wn. App. at 960. There, a witness who engaged in prostitution

“testified that when she suggested leaving, some degree of physical force was

applied by [the defendant].” ki. The court stated that from her testimony, along


                                             13
No. 76575-2-1/14


with testimony from an officer about the “unwritten rules” that govern the

relationship between pimps and prostitutes, the jury could find the defendant guilty

of promoting prostitution by use of threats or force. Id.

         Davenport argues that unlike in Simon, here there was no link between

Davenport’s violence and Snow’s decision to engage in prostitution. But, Snow

testified extensively about the abuse in her relationship with Davenport.         She

testified about her “codependency” and how she “wanted to be a good woman and

stand up for my man.” She testified that she gave all the money she made to

Davenport. Although Snow never explicitly stated that Davenport used threats or

violence to control her, she testified about leaving Davenport, “I had just got home

--   like I had just run away, and he just brought me back.” The jury could infer from

that testimony that Davenport used threats or force to do so.

         This court has recognized that victims of domestic violence often attempt to

placate their abusers in an effort to avoid repeated violence, and often minimize

the degree of violence when discussing it with others. State v. Grant, 83 Wn. App.

98, 107, 920 P.2d 609 (1996). As this court held in Grant, the jury is entitled to

evaluate a witness’s credibility with full knowledge of the dynamics of a relationship

marked by domestic violence and the effect such a relationship has on the victim.

ki. at 108. The evidence included Snow’s extensive testimony about Davenport’s

abuse and the injuries he gave her, and the nature of their relationship. Even

excluding Garske’s testimony about the relationship between pimps and

prostitutes, viewing the evidence in a light most favorable to the State, any rational




                                              14
No. 76575-2-1/15


trier of fact could have found beyond a reasonable doubt that Davenport compelled

Snow to engage in prostitution.

 Ill.   Comgetency Evaluation

        Davenport argues next that the trial court erred in failing to order a

competency evaluation after his counsel raised doubts as to his competency.

        The due process clause of the United States Constitution’s Fourteenth

Amendment prohibits the conviction of a person who is not competent to stand

trial. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001).

And, under Washington law, an incompetent person may not be tried, convicted,

or sentenced for committing an offense so long as the incapacity continues. j~ at

862; RCW 10.77.050.       “Incompetency” means a person lacks the capacity to

understand the nature of the proceedings against him or to assist in his own

defense as a result of mental disease or defect. RCW 10.77.010(15). Once there

is a reason to doubt a defendant’s competency, the court must follow the

competency statute to determine his or her competency to stand trial. Fleming,

142 Wn.2d at 863.       Failure to observe procedures adequate to protect an

accused’s right not to be tried while incompetent to stand trial is a denial of due

process. ki.

        The determination of whether a competency examination should be ordered

rests generally within the discretion of the trial court. jç~ The court must make the

threshold determination that there is a reason to doubt competency before a

hearing to determine competency is required. Seattle v. Gordon, 39 Wn. App. 437,

441, 693 P.2d 741 (1985).         To determine whether to order a competency


                                             15
No. 76575-2-1/16


evaluation, a trial court may consider the defendant’s appearance, demeanor,

conduct, personal and family history, past behavior, mental and psychiatric reports,

and statements from defense counsel. Fleming, 142 Wn.2d at 863. There must

be a factual basis to support a motion to determine competency. Gordon, 39 Wn.

App. at 441-42. In exercising its discretion in determining the threshold question,

the court should give considerable weight to the attorney’s opinion regarding a

client’s competency and ability to assist in the defense.      at 442.

       Davenport argues that defense counsel sufficiently raised doubts as to his

competency, requiring the court to order a competency evaluation.              Midway

through the State’s case, Davenport’s counsel told the court that he had “concerns

about Mr. Davenport’s ability to effectively assist Counsel; and I’m not certain what

the issue is, but I have a belief that it may be tied to Mr. Davenport’s administrative

segregation status.”

       Defense counsel continued,

               Mr. Davenport has some very important decisions that he has
       to make with regard to putting on a defense, and Mr. Davenport
       appeared to be unable to engage with Counsel about those decisions
       because he was so focused on his administrative segregation status,
       that [sic] fact that he is isolated. All he could really talk about was
       how that has been impacting him.     .




              Obviously, I’m not a mental health professional. I have not
       raised competency in this case previously. I will represent to the
       Court that during the time that Mr. Davenport has been in trial in the
       courtroom, he’s been able to answer questions for me, we’ve been
       able to communicate; however, this issue appears to be coming [sic]
       so pressing for Mr. Davenport that I’m starting to have concerns
       about Mr. Davenport’s ability to assist Counsel and make decisions
       that he is going to need to make very soon with regard to the defense
       that we’re about put [sic] on.



                                                16
No. 76575-2-1/17


       When the court inquired whether Davenport was “unable” or “unwilling” to

communicate with counsel, defense counsel responded, “I won’t be able to make

a better record of that.   .   .   because I am not a mental health professional.” Counsel

further stated, “Competency has never been an issue relative to my representation

of Mr. Davenport, and I don’t know that he has a history of mental health illness,

and we’ve never had a concern about competency; but [that’s] what I witnessed

yesterday evening, and Mr. Davenport’s perseveration on his administrative

segregation status.”

       The trial court stated,

       I candidly have observed him in any number of circumstances in front
       of the jury, as well as with Counsel and in his colloquy with the Court.


       Competency is not the question, the difference between right and
       wrong is not the question; the ability to work with Counsel in terms of
       ability to speak English, listen, take notes, offer information to
       Counsel in court suggests strongly that there is not a competency
       problem, in my view; but I haven’t seen anything, and the declaration
       or attestation you’re making now is insufficient, as far as I am
       concerned.
       Our Supreme Court has recognized that “a defendant must be ‘capable of

rationally assisting his legal counsel in the defense of his cause.” State v. Harris,

114 Wn.2d 419, 428, 789 P.2d 60 (1990) (quoting State v. Wicklund, 96 Wn.2d

798, 800, 638 P.2d 1241 (1982).                 But, the ability to assist is a “minimal

requirement.” Id. at 429. A defendant who is angry and not fully cooperative with

his counsel is not incompetent to stand trial. See State v. Hicks, 41 Wn. App. 303,

309, 704 P.2d 1206 (1985) (holding that the trial court did not abuse its discretion



                                                    17
No. 76575-2-1/18


in denying the competency hearing request, based on the record and a colloquy

with Hicks, even though defense counsel stated that it was “absolutely impossible

to with work with” Hicks.).

       Here, when counsel raised the competency concern, the trial court properly

considered its observations of Davenport’s past behavior, as well as statements

from defense counsel. See Fleming, 142 Wn.2d at 863. Counsel stated that he

had not had any competency concerns prior to his visit with Davenport the previous

evening.      The trial court remarked that it had seen Davenport communicate

effectively with his counsel “in any number of circumstances.” Davenport’s counsel

did not provide an adequate factual basis to support a competency evaluation.

The trial court did not abuse its discretion in declining to order a competency

evaluation.

IV.    Jury Instructions

       Davenport contends next that the jury instructions failed to preserve jury

unanimity and permitted a double jeopardy violation.

       The instructions to convict Davenport of the promoting prostitution charges,

counts one and four, were identical except count one named Jasmin while count

four named Snow, and they mentioned slightly different time periods.             The

instruction for count one stated in part,

            To convict the defendant of the crime of promoting prostitution in
       the first degree, as charged in Count I, each of the following elements
       of the crime must be proved beyond reasonable doubt:
           (1) That during the time intervening between February 1, 2016
       and June 1,2016, the defendant



                                             18
No. 76575-2-1119

             (a) knowingly advanced prostitution by compelling Jasmin
       McLain by threat or force to engage in prostitution, or
              (b) knowingly profited from prostitution that was compelled by
       threat or force; and
           (2) That any of these acts occurred in the State of Washington.
            If you find from the evidence that element (2) and either of
       alternative elements (1) (a) or (1) (b) have been proved beyond a
       reasonable doubt, then it will be your duty to return a verdict of guilty
       as to count I. To return a verdict of guilty, the jury need not be
       unanimous as to which of alternatives (1) (a) or (1) (b) has been
       proved beyond a reasonable doubt, as long as each juror finds that
       at least one alternative has been proved beyond a reasonable
       doubt.~2~
       Davenport argues that the instruction failed to preserve jury unanimity

because there is not a named person in option (1)(b). And, he contends that if the

jury chose to convict on the alternative means of profiting from compelled

prostitution, it could have relied on the same acts for both counts one and four,

violating double jeopardy.

       Double jeopardy is violated when a person is convicted multiple times for

the same offense. State v. Barbee, 187 Wn.2d 375, 382, 386 P.3d 729 (2017). A

double jeopardy claim such as this one may be addressed for the first time on

appeal. State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011). This court

reviews double jeopardy claims de novo. ki. at 661-62.

       Even jury instructions that permit a jury to convict a defendant of multiple

counts based on a single act do not necessarily mean that the defendant received

multiple punishments for the same offense. ki. at 663. In reviewing allegations of


      2 The to convict instruction for count four was nearly identical, but gave a
time period between January 15, 2016 and June 1, 2016 and named Snow in
(1)(a).

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No. 76575-2-1/20


double jeopardy, an appellate court may review the entire record to establish what

was before the court. ki. at 664. There is no double jeopardy violation when the

information, instructions, testimony, and argument clearly demonstrate that the

State was not seeking to impose multiple punishments for the same offense. j4,

       In Mutch, the “to convict” instructions for each rape count were nearly

identical, and they all indicated the same time of occurrence of the criminal

conduct. Id. at 662. There was no instruction that each count must be based on

a separate and distinct criminal act. Id. The court held that although the jury

instructions were deficient, it was manifestly apparently from the record that the

jury found the defendant guilty of five separate acts of rape. Id. at 665.

       Davenport argues this case is distinguishable from Mutch, because it is not

manifestly apparent from the record that the jury did not rely on the same act for

both counts of promoting prostitution. Mutch is distinguishable, but not for the

reason Davenport claims. While in Mutch the instructions themselves were not

sufficiently distinctive, here the to convict instructions for counts one and four

clearly indicated separate people, Snow and McLain. The instructions also had

slightly different time periods. Further, the State presented evidence in Snow’s

testimony that Davenport compelled and profited from Snow’s prostitution before

he brought in McLain. And, in closing the State made it clear that it charged

Davenport in “Count [one] with promoting prostitution in the first degree and as it

pertains to Jasmin McLain” and in “[c]ount [four], promoting prostitution in the first

degree with respect to Kayla Snow.” The State went on to discuss the evidence

for each count separately.


                                             20
No. 76575-2-1/2 1


       Citing State v. Kier, 164 Wn.2d 798, 813, 194 P.3d 212 (2008), Davenport

argues that the State does not avoid a double jeopardy problem by discussing the

counts separately in its closing argument. But, in Kier, the court distinguished that

case, where the State relied ~jjy on the prosecutor’s closing argument, from a

previous case in which “the evidence, jury instructions, and closing argument all

supported the election of a specific criminal act.” 164 Wn.2d at 813. Here, the jury

instructions, the State’s evidence specific to each count, and the closing argument

all made it clear that the State was not seeking multiple offenses for the same

criminal act.

       The jury instructions were not erroneous.

 V.    Double Jeopardy

       Finally, Davenport argues that his dual convictions for assault and first

degree promoting prostitution violate double jeopardy.

       Double jeopardy claims may be raised for the first time on appeal and are

reviewed de novo. Mutch, 171 Wn.2d at 661. When a single act violates multiple

criminal statutes, double jeopardy prevents multiple punishments if the legislature

did not intend the crimes to be treated as separate offenses. See State v. Calle,

125 Wn.2d 769, 776, 888 P.2d 155 (1995). The merger doctrine is one tool for

determining legislative intent. State v. Wade, 133 Wn. App. 855, 871, 138 P.3d

168 (2006). Under the merger doctrine, when the degree of one offense is raised

by conduct separately criminalized by the legislature, we presume the legislature

intended to punish both offenses through a greater sentence for the greater crime.

State v. Freeman, 153 Wn.2d 765, 772-73, 108 P.3d 753 (2005).


                                            21
No. 76575-2-1/22


       Davenport argues that the act of force used to elevate his promoting

prostitution charge to first degree was the same act of force that constituted the

second degree assault. He correctly identifies one of the differences between first

and second degree promoting prostitution—first degree requires proof that the

prostitution was compelled by threat or force, while second degree does not.3

RCW 9A.88.070(1); RCW 9A.88.080(1). Davenport contends that the jury might

have relied on the same incident, in which he assaulted Snow, to convict him of

second degree assault and as the act to elevate count four to first degree

promoting prostitution.

       Davenport’s argument fails. To convict on second degree assault, the jury

had to find that “on or about April 15, 2016, the defendant intentionally assaulted

Kayla Snow and thereby recklessly inflicted substantial bodily harm.” That was the

incident in which Snow testified that she had to get stitches after Davenport hit her

in the mouth with his gun for being jealous of Jasmin. The second degree assault

of Snow was not necessary to prove first degree promoting prostitution of Snow

and was not offered to do so. The State identified the basis for the second degree

assault charge to the jury in its closing statement as the time when Davenport hit

Snow because she expressed her jealousy of Jasmin, and referenced her hospital

visit to establish the date.    By contrast, the State presented the promoting


       ~ A person is also guilty of first degree promoting prostitution if he or she
knowingly advances prostitution “[b]y compelling a person with a mental incapacity
or developmental disability that renders the person incapable of consent to engage
in prostitution or profits from prostitution that results from such compulsion.” RCW
9A.88.070(1)(b). This is another difference between first and second degree
promoting prostitution.

                                            22
No. 76575-2-1/23


prostitution charge as a continuing course of conduct with evidence of a range of

force and threats throughout the charging period. ~ State v. Gooden, 51 Wn.

App. 615, 618, 754 P.2d 1000 (1988) (promoting prostitution may be charged

either as continuing course of conduct or based on a single incident, and jury

unanimity as to a single specific act is not required). Davenport was not punished

twice for the same offense. Davenport’s convictions did not violate his right against

double jeopardy.

       We affirm.




WE CONCUR:




                       /                                              a




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