       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                    )       No. 77150-7-1
                                            )
               Respondent,                  )       DIVISION ONE
                                            )
               v.                           )       UNPUBLISHED OPINION
                                            )
 EMERSON BALVINO BOLANOS,                   )
                                            )
               Appellant.                   )
                                            )       FILED: March 25, 2019

       HAZELRIGG-HERNANDEZ,      J. — Emerson Bolanos was convicted of three

counts of misdemeanor violation of a no-contact order, and one count of felony

assault in the third degree. Bolanos argues, and the State concedes, that his right

to a unanimous jury verdict was violated as to the first count when the State failed

to elect a specific act to convict Bolanos and the jury did not receive an instruction

requiring the jury to agree as to which act it relied upon to convict. Bolanos further

argues that his right to unanimity was also violated as to count five. However,

evidence was presented regarding only one act which would have supported that

conviction. Thus, no error is demonstrated.

       Bolanos finally argues that the trial court erroneously failed to exclude

evidence of his prior bad acts. Because Bolanos' proposed redactions would not

have prevented the jury from seeing his previous convictions for domestic violence,

we find the claimed error to be harmless.
No. 77150-1-1/2


       We reverse and remand as to count one for proceedings consistent with

this opinion. We otherwise affirm the judgment of the trial court.

                                      FACTS

       Bolanos and M.Y. began dating in 2010 and have a child in common. In

2014, King County Superior Court issued a no-contact order prohibiting Bolanos

from contacting M.Y. for two years. In 2015, Seattle Municipal Court issued two

orders prohibiting Bolanos from contacting M.Y. and their child, S.B., respectively,

for two years. In 2015 and 2016, M.Y. lived with her mother, F.Y., in her Seattle

apartment, though M.Y. and S.B. sometimes stayed with M.Y.'s father during that

time period.

       On two occasions, F.Y. called 911 after meeting Bolanos at or near her

apartment. On the December 28, 2015 call, F.Y. stated that M.Y. was not present

at the time, and was staying with her father. On the May 1, 2016 call, F.Y. stated

that M.Y. was not home at the time.

       On June 27, 2016, Bolanos called M.Y. and told her he was going to come

over to F.Y.'s apartment. M.Y. called 911. Police officers responded to the

apartment. Officer Jayme Beckon stayed in the apartment with M.Y., and two other

officers positioned themselves to contact Bolanos if he approached the apartment.

Bolanos arrived at the apartment and whistled. M.Y. identified Bolanos to Officer

Beckon. Bolanos threw a bottle at the door of the apartment. The bottle hit the

door as Officer Beckon opened the door. M.Y. and Officer Beckon received minor

injuries that did not require treatment. After Bolanos left the apartment, law

enforcement tracked and arrested him.

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No. 77150-1-1/3


       Bolanos was advised of his rights and provided a statement which was

admitted at trial. Bolanos stated he was aware of the no-contact orders protecting

M.Y. and S.B., he spoke and texted with M.Y. that day, he went to the apartment

to see S.B., and he threw the bottle.

       At trial, Bolanos moved to redact specific portions of both the municipal and

superior court no-contact orders that referenced prior domestic violence

convictions. His motion failed to address all such references in the orders,

however. The record contains no evidence that Bolanos moved to redact finding

of fact five in the superior court order or finding of fact two in the municipal court

orders. Those findings of fact are identical, and read as follows:

       Based upon the record both written and oral, the court finds that the
       defendant has been charged with, arrested for, or convicted of a
       domestic violence offense, and the court issues this Domestic
       Violence No-Contact Order under chapter 10.99 RCW to prevent
       possible recurrence of violence.

The court redacted the portion of the municipal court orders referring to

firearms, but otherwise denied the motion. The orders of protection were

admitted into evidence.

       At the close of trial, the to-convict instruction for count one alleged a

violation of a no-contact order protecting M.Y. between December 27, 2015 and

June 26, 2016. The to-convict instruction for count five alleged a violation of a no-

contact order protecting S.B. on June 27, 2016. A jury acquitted Bolanos of the

felony no-contact order violation charged in count seven. It found him guilty of

assault in the third degree as charged in count six, and guilty of misdemeanor

violation of a no-contact order as charged in counts one, five, and seven.

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                                       DISCUSSION

I.     Jury unanimity.

       Criminal defendants are entitled to a unanimous jury verdict. State v.

Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017)(citing CONST. art. 1, § 21;

State v. Whitney, 108 Wn.2d 506, 511,739 P.2d 1150(1987)). Courts will consider

claims of error for the first time on appeal "when 'giving or failure to give an

instruction invades a fundamental constitutional right of the accused, such as the

right to a jury trial." Armstrong, 188 Wn.2d at 339 (quoting State v. Green, 94

Wn.2d 216, 231, 616 P.2d 628 (1980) (plurality opinion)). This court reviews

constitutional errors de novo. Armstrong, 188 Wn.2d at 339 (citing State v.

Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013)). When a trial court error

abridges a constitutional right, we will only affirm "if that error was 'harmless

beyond a reasonable doubt." State v. Kitchen, 110 Wn.2d 403,409,756 P.2d 105

(1988)(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.

2d 705 (1967)).

       A Petrichl instruction, which instructs the jury that it must unanimously

agree that one particular act was proved beyond a reasonable doubt, "should be

used 'when the evidence indicates that several distinct criminal acts have been

committed, but the defendant is charged with only one count of criminal conduct."

State v. Carson, 184 Wn.2d 207, 217, 357 P.3d 1064(2015). When the State fails

to elect one of the distinct criminal acts for conviction, and no Petrich instruction is



1 State v. Petrich, 101 Wn.2d 566, 570, 683 P.2d 173(1984), abrogated in part on other grounds
by Kitchen, 110 Wn.2d at 405-06.
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provided, "the possibility that some jurors may have relied on one act or incident

and some another" results in a lack of unanimity on all of the elements necessary

for conviction and is constitutional error.    Kitchen, 110 Wn.2d at 411. The

appropriate remedy for a lack of unanimity in the verdict is to reverse the conviction

and remand for a new trial. Id. at 412

       An exception to the Petrich rule "exists when the acts constitute a continuing

course of conduct." State v. Brown, 159 Wn. App. 1, 14, 248 P.3d 518 (2010)

(quoting State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453(1989)). To determine

whether there was such a course of conduct, we evaluate the facts "in a

commonsense manner considering (1) the time separating the criminal acts and

(2) whether the criminal acts involved the same parties, location, and ultimate

purpose." Id. (citing State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996)).

       Here, the to-convict instruction for count one alleged a violation of a no-

contact order protecting M.Y. between December 27, 2015 and June 26, 2016.

The State introduced evidence that Bolanos visited the residence on at least two

separate occasions during that time period, December 28, 2015 and May 1,2016,

the dates of F.Y.'s 911 calls. While the incidents share the same parties (Bolanos

and F.Y), location (F.Y.'s apartment or nearby), and ultimate purpose (contacting

M.Y. and S.B.), a commonsense analysis reveals the five months between the

incidents is too great to consider them part of a continuing course of conduct. Cf.

Brown, 159 Wn. App. at 6-7, 14 (finding the continuing conduct exception applies

to charging periods of one or two days in length). The State did not elect one of

those acts to support a conviction. The jury did not receive a Petrich instruction.

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No. 77150-1-1/6


Therefore, the possibility that individual jurors relied on different incidents being

proved beyond a reasonable doubt exists in this case.

       We cannot find that the error was harmless beyond a reasonable doubt.

Bolanos elicited evidence from which a reasonable juror could have a reasonable

doubt that M.Y. lived at F.Y.'s apartment in December 2015, and a reasonable

juror could have a reasonable doubt that Bolanos was the person F.Y. saw in May

2016. Because the error was not harmless beyond a reasonable doubt, we

reverse the conviction on count one and remand for a new trial.

       Conversely, count five alleges a violation of a no-contact order protecting

S.B. that occurred on June 27, 2016. The State presented evidence of only one

act occurring on that date that would have violated the order protecting S.B.,

approaching within 500 feet of F.Y.'s apartment. Because there is evidence of

only one act that could support the conviction, a Petrich instruction was

unnecessary for count five.

II.    Prior bad acts.

       Bolanos argues that the trial court improperly admitted evidence of his prior

convictions in the no-contact orders and failed to apply the redactions he

requested, contrary to ER 404(b). "[E]rroneous admission of evidence in violation

of ER 404(b) is analyzed under the lesser standard for nonconstitutional error."

State v. Gresham, 173 Wn.2d 405,433,263 P.3d 207(2012)(citing State v. Smith,

106 Wn.2d 772, 780, 725 P.2d 951 (1986)). Courts must determine "whether,

'within reasonable probabilities, had the error not occurred, the outcome of the trial

would have been materially affected." Id. (quoting Smith, 106 Wn.2d at 780).

                                          6
No. 77150-1-1/7


       Bolanos objected to the admission of the no-contact orders without his

requested redactions, arguing that admission "runs into the Court's prior ruling

about prior bad acts." This argument made it clear that the court should consider

ER 404(b) when determining whether or not to admit the evidence, and preserves

that issue for appeal. However, Bolanos either failed to request redaction of the

findings of fact portion stating that the no-contact orders were the result of a

criminal conviction for domestic violence or failed to provide proof of such a request

in the record on appeal.      Admission of evidence contrary to ER 404(b) is

considered a nonconstitutional error, not a manifest constitutional error, and we

will not review it for the first time on appeal. RAP 2.5(a). Because the jury would

have been informed that Bolanos had been convicted of previous criminal

domestic violence charges even if the court had adopted Bolanos' proposed

redactions, this alleged error would be harmless.

       We review interpretation of evidentiary rules de novo. Id. at 419 (quoting

State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)). When the trial

court has interpreted the rule correctly, we review the "determination to admit or

exclude evidence for an abuse of discretion." Id. (citing Foxhoven, 161 Wn.2d at

174). "'ER 404(b) is a categorical bar to admission of evidence [of a prior bad act]

for the purpose of proving a person's character and showing that the person acted

in conformity with that character." State v. Gunderson, 181 Wn.2d 916, 922, 337

P.3d 1090(2014)(quoting Gresham, 173 Wn.2d at 420). "To admit evidence of a

person's prior misconduct, 'the trial court must(1)find by a preponderance of the

evidence that the misconduct occurred, (2) identify the purpose for which the

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No. 77150-1-1/8


evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative

value against the prejudicial effect." Gresham, 173 Wn.2d at 421 (quoting State

v. Vy Thanq, 145 Wn.2d 630, 642, 41 P.3d 1159(2002)).

      When a document contains both admissible and inadmissible portions,

"only the material and competent parts should be received and read in evidence."

Webb v. City of Seattle, 22 Wn.2d 596, 611, 157 P.2d 312 (1945) (discussing

irrelevant portions of a document used to impeach a witness). The document may

be admitted in evidence if the objectionable portions are deleted from the exhibit

or obscured in such a manner as not to be read by the jury. Id.

      ER 404(b) is designed to "prevent the State from suggesting that a

defendant is guilty because he or she is a criminal-type person who would be likely

to commit the crime charged." Foxhoven, 161 Wn.2d at 175 (citing State v. Lough,

125 Wn.2d 847, 859, 889 P.2d 487 (1995)). "[T]he more similar the prior crime to

the one presently charged, the greater the prejudice." State v. Saunders, 91 Wn.

App. 575, 580, 958 P.2d 364 (1998)(citing State v. Hardy, 133 Wn.2d 701, 711,

946 P.2d 1175 (1997)). The risk of unfair prejudice from prior acts in domestic

violence cases is very high. Gunderson, 181 Wn.2d at 925.

       Here, it appears that the trial court misinterpreted ER 404(b) when it

considered the no-contact order documents as a whole, rather than independently

considering each redaction Bolanos requested. The trial court correctly identified

that the misconduct likely occurred because the orders were certified copies issued

by courts of the state. Protection orders are presumed to be valid. City of Seattle

                                        8
No. 77150-1-1/9


v. May, 151 Wn. App. 694, 698 n.9, 213 P.3d 945 (2009).2 The court correctly

identified that the existence of the no-contact order and the findings that Bolanos

and the protected parties were members of a household were highly probative of

the elements of the charges, and were submitted to prove those elements. It was

reasonable for the court to determine that the probative value of the order and

those findings outweighed the prejudicial effect.

        Bolanos' proposed redactions regarding his status as a criminal defendant,

the postconviction box, and the findings of fact regarding firearms did not apply

directly to any element of the charges against him. The only relevance those

factors might have had to the charges was the suggestion that Bolanos was a

violent, criminal-type person, the exact type of evidence that ER 404(b) bars.

        Although this unfairly prejudicial evidence may have influenced the jury's

decision as to count one, our disposition of that charge does not require us to

examine it closely here. As to counts five, six, and seven, there is a reasonable

probability that the error did not affect the outcome of the trial. In regard to counts

five and seven, Bolanos admitted that he went to the apartment that night, and he

knew there were orders protecting M.Y. and S.B. As to count six, Bolanos admitted

that he threw the bottle at the door. We find the asserted error harmless as to

counts five, six, and seven.




2 Seealso Levinson v. Vanderveer, 169 Wash. 254, 256, 13 P.2d 448(1932)(judgments are
presumed to be valid).

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No. 77150-1-1/10


      We reverse the verdict as to count one and remand for further proceedings.

We affirm the judgment as to counts five, six, and seven.




WE CONCUR:




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