                                                                                    I

                                                             2019 FEB 5 AN 10: 36




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

THE STATE OF WASHINGTON,                  )      No. 75673-7-I

                          Respondent,
                                          )      ORDER DENYING MOTION
                  v.                      )      FOR RECONSIDERATION
                                                 AND WITHDRAWINGAND
MAURICIO GARCIA GOMEZ,                    )      SUBSTITUTING OPINION
                                          )
                         Appellant.       )
       Appellant Mauricio Garcia Gomez filed a motion for reconsideration of the opinion

filed on September 17, 2018. Respondent State of Washington filed an answer to the

motion. The panel has determined that the motion for reconsideration should be denied

but the opinion filed on September 17, 2018 withdrawn and a substitute opinion filed to

amend page 12 as follows:

       The first sentence of the last paragraph on page 12 states:

                        Even though this is an assault in the second degree
                alternative means case, the court decided and the defense agreed
                to give a Petrich instruction.

       The sentence of the last paragraph on page 12 shall be replaced and amended

as follows:

                       Here, the court decided and the defense agreed to give a
                Petrich instruction.

       Now, therefore, it is hereby
No. 75673-7-1/2

       ORDERED that appellant’s motion for reconsideration is denied and the opinion

filed on September 17, 2018 shall be withdrawn and a substitute opinion amending the

first sentence of the last paragraph on page 12 shall be filed.

       DATED this    ~ day oQ\~~J44~.UL4~.r2019.

                                                      r-~QS~a1
                                                         4~I-


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                                             2
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                                                                     r~
                                                                  2019pE8-5 AfllO:33




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

THE STATE OF WASHINGTON,                   )      No. 75673-7-I

                           Respondent,
                                           )
                v.                         )      PUBLISHED OPINION
                                           )
MAURICIO GARCIA GOMEZ,                     )
                                           )
                           Appellant.      )      FILED: February 5, 2019

       SCHINDLER, J.   —   Assault in the second degree is an alternative means crime.

The State charged Mauricio Garcia Gomez with two counts of assault in the second

degree committed by three alternative means: intentional assault inflicting substantial

bodily harm, or assault with a deadly weapon, or assault by strangulation. Consistent

with well established case law, the jury instructions state the jury must agree

unanimously on the crime of assault in the second degree but need not be unanimous

as to which of the alternative means has been proved beyond a reasonable doubt.

Garcia Gomez appeals the jury convictions on the two counts of assault in the second

degree. Garcia Gomez contends he was deprived of his constitutional right to a

unanimous jury verdict because sufficient evidence does not support each of the

charged alternative means to commit assault in the second degree. In the alternative,

Garcia Gomez argues that if the jury was not unanimous as to the alternative means,

the convictions violate his right to due process. In a supplemental assignment of error,
No. 75673-7-1/2

Garcia Gomez claims the statutory alternative means to commit assault in the second

degree are alternative crimes, not alternative means. Because overwhelming and

unrebutted evidence supports each of the charged means of committing assault in the

second degree and the assault statute lists alternative means of proving a single crime,

not alternative crimes, we affirm the jury convictions.

                                                     FACTS

       After interviewing 13-year-old I.G. at school on October 28, 2015, Kent Police

Detective Melanie Robinson went to the apartment complex where the family lived to

meet with his mother C.G. C.G. had black bruises under her eyes, an “obviously

disfigured” nose, and a “cauliflowered” ear. C.G. showed Detective Robinson a “long

scar” on her arm and “large bruises” on her legs. Detective Robinson took photographs

of the injuries to C.G. The police arrested Mauricio Garcia Gomez that day. After his

arrest, C.G. went to the Valley Medical Center emergency room.

       The State charged Garcia Gomez with two counts of assault in the second

degree. The information alleged as to each count that Garcia Gomez committed

domestic violence assault in the second degree “between September 1, 2015 and

October 30, 2015” by three alternative means: intentionally assaulting C.G. “with a

deadly weapon, to-wit: a knife,” or intentionally assaulting C.G. “thereby recklessly

inflicting substantial bodily harm,” or assaulting C.G. “by strangulation.” The information

alleged the aggravating factors of domestic violence; that the offense was a part of an

ongoing pattern of psychological, physical, or sexual abuse of the victim; multiple

incidents over a prolonged period of time; and that Garcia Gomez committed domestic

violence “within sight or sound of the   .   .   .   minor children” in violation of RCW

9.94A.535(3)(h)(i) and (ii).

                                                       2
No. 75673-7-1/3

       Garcia Gomez pleaded not guilty. The trial court agreed to bifurcate the trial on

the two counts of assault in the second degree and the aggravating factors.

       A number of witnesses testified during the trial on the two counts of assault in the

second degree, including C.G., 1G., the apartment manager, and Dr. Russell Spies.

The court admitted into evidence the photographs Detective Robinson took of C.G. on

October 28 and the whip Garcia Gomez used to hit C.G. on her legs. The defense did

not call any witnesses.

       C.G. testified that in the fall of 2015, she and Garcia Gomez lived in a two-

bedroom apartment in Kent with their five children, ranging from age 2 to 13. C.G.

testified the injuries inflicted by Garcia Gomez occurred at “different times” in

September and October 2015.

       C.G. testified that Garcia Gomez hit her “mainly at home.    .   .   .   [P]retty much

whenever he felt like it.” C.G. said that approximately two weeks before the police

arrested Garcia Gomez, he walked into the kitchen and punched her in the nose. C.G.

testified Garcia Gomez punched her so hard that her vision became “blurry” and her

nose was bleeding heavily. C.G. thought her nose was broken. Her nose had a

“[d]ifferent structure” after Garcia Gomez punched her and the swelling made it difficult

to breathe.

       C.G. testified that in September or October 2015, Garcia Gomez punched her in

her right ear. Because he would repeatedly slap and punch her on the right side of her

face and ear in the days that followed, the swelling never healed. C.G. testified the

swelling in her ear hurt, “[e]ven when he wasn’t hitting it.”

       C.G. testified that during the same time period, Garcia Gomez made a whip with

electrical cords. Although C.G. was wearing jeans, the injuries he inflicted using the

                                              3
No. 75673-7-1/4

whip “burned” for days and left marks on her legs.

          C.G. testified that another time in September or October, Garcia Gomez grabbed

her “around the neck” with both hands while she was in bed. Garcia Gomez stood over

her and tightened his grip so hard she was unable to breathe.

          On another occasion in September or October while C.G. was driving, Garcia

Gomez suddenly sliced her right arm with the blade of a pocketknife. The cut “burned”

and bled. C.G. did not know why Garcia Gomez cut her. “He just said it just felt right to

do it.” C.G. showed the jury the scar on her arm.

       C.G. testified that she did not report the abuse or seek treatment for her injuries

until after the police arrested Garcia Gomez. C.G. said she was “scared” the doctors

would “ask[] questions” about “how.                        .       .       those injuries happened.”

       Thirteen-year-old l.G. testified that in September and October 2015, his father

physically abused his mother usually “twice every day,” typically “in the bedroom and

sometimes in the living room” of the apartment. l.G. testified that a couple of times, he

heard his mother “screaming            .   .   .   painful sounds.” 1G. testified that his mother had

bruises on her “face,” “legs,” and “feet” and that her “nose got cracked.” l.G. testified he

did not “see those bruises before the fighting                                    .   .   .   ,   it happened after the fighting.” l.G.

testified that when he heard “fighting                 .       .       .   in their bedroom[,]              .   .   .   [m]y brothers and

sisters” were also in the apartment.

       l.G. saw Garcia Gomez use “his hands on my mom.” l.G. described a time in

September or October when he saw his father punch his mother “on the face” while she

was driving. l.G. testified that his father would climb on top of his mother on the sofa in

the living room and punch her. l.G. testified he “couldn’t” call the police because he was

“scared   .   .   .   [tb make things worse.”

                                                                              4
No. 75673-7-1/5

           The manager of the apartment complex testified that during September and

October 2015, she noticed C.G.’s “significant weight loss.” On more than one occasion

and at “different times,” the manager saw that C.G. had “black eyes” and bruises on her

face and arms.

           Dr. Spies examined C.G. on October 28. The severe pain in her neck and left

shoulder radiated down her arm and caused numbness in her hand for more than a

week. Dr. Spies testified C.G. suffered nerve damage between her neck and hand,

likely from a “disc injury.” Dr. Spies testified blunt force trauma to the right side of the

face can “impact the nerves on the left neck[.]         .   .   .   Like whiplash.”

           Dr. Spies testified that the area around C.G.’s right eye was “discolored” and

swollen. Breathing through her nose was difficult and painful. Dr. Spies testified her

nose was visibly misshapen from either a deviated septum or a fracture, “or both,” and

surgery was necessary to repair her nasal passages. Dr. Spies said C.G. suffered from

a “markedly” “large subchondral hematoma” in her right ear, a deformity known as

“cauliflower ear.”1 Because the injury to her ear was not treated right away, the

deformity was likely permanent. Dr. Spies testified the black eye, broken nose, and

deformed ear injuries were consistent with blunt force trauma.

       The court instructed the jury the State had the burden of proving each of the

elements of the crime of assault in the second degree beyond a reasonable doubt. Jury

instruction 7 states, “A separate crime is charged in each count. You must decide each

count separately. Your verdict on one count should not control your verdict on any

other count.” The court instructed the jury that “[a] person commits the crime of assault


       1    Cauliflower ear” is associated with “repeated blows in boxing:” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 355      (2002).


                                                    5
No. 75673-7-1/6

in the second degree when he or she intentionally assaults another and thereby

recklessly inflicts substantial bodily harm or assaults another with a deadly weapon or

assaults another by strangulation.”

              Because C.G. testified to three different acts of intentional assault (punching

C.G. in the nose, repeatedly hitting her in the ear, and using the whip to hit her), the

court proposed giving a Petrich2 unanimity instruction. The defense agreed the court

should give the instruction. Jury instruction 16 states:

                 The State alleges that the defendant committed acts of assault in
          the second degree on multiple occasions. To convict the defendant on
          any count of assault in the second degree, one particular act of assault in
          the second degree must be proved beyond a reasonable doubt, and you
          must unanimously agree as to which act has been proved. You need not
          unanimously agree that the defendant committed all the acts of assault in
          the second degree.

          The “[t]o convict” jury instruction states the jury must unanimously agree that

Garcia Gomez committed the crime of assault in the second degree but need not

unanimously agree on the alternative means. The to-convict jury instruction on count I

states:

                  To convict the defendant of the crime of assault in the second
          deciree, as charged in Count 1, separate and distinct from count 2, each of
          the following two elements of the crime must be proved beyond a
          reasonable doubt:
                       1) That on or about September 1, 2015 through October 30,
                             2015, the defendant:
                                  a) intentionally assaulted [C.G.] and thereby
                                      recklessly inflicted substantial bodily harm; or
                                  b) assaulted [C.G.] with a deadly weapon; or
                                  c) assaulted [C.G.] by strangulation; and
                       2) That this act occurred in the State of Washington.
                  If you find from the evidence that element (2) and either alternative
          element (1)(a) or (1)(b) or (1)(c) have been proved beyond a reasonable
          doubt, then it will be your duty to return a verdict of guilty. To return a
          verdict of guilty, the jury need not be unanimous as to which of

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


                                                       6
No. 75673-7-1/7

        alternatives (1)(a) or (1)(b) or (1)(c) has been proved beyond a reasonable
        doubt, as long as each juror finds that either (1 )(a) or (1 )(b) or (1 )(c) has
        been proved beyond a reasonable doubt.
               On the other hand, if, after weighing all of the evidence, you have a
        reasonable doubt as to either element (1) or (2), then it will be your duty to
        return a verdict of not guilty as to Count ~

The to-convict instruction on count 2 is the same except for the first paragraph that

states, “To convict the defendant of the crime of assault in the second degree, as

charged in Count 2, separate and distinct from count 1, each of the following two

elements of the crime must be proved beyond a reasonable doubt”; and the last

sentence that states, “[T]hen it will be your duty to return a verdict of not guilty as to

Count 2.”

        The jury found Garcia Gomez was guilty of the two counts of assault in the

second degree. After the jury returned the verdicts, the State presented evidence on

the aggravating factors.

        C.G. testified about verbal and emotional abuse that escalated to physical abuse

beginning in 2011. C.G. said Garcia Gomez forced her to have sex. If C.G. said “no,”

Garcia Gomez would “get angry” and yell at her or push her. C.G. testified that in 2011,

the police arrested Garcia Gomez for domestic violence assault against her. C.G. said

the physical abuse began “really increasing” in mid-2015. C.G. testified Garcia Gomez

physically assaulted her in 2015 “more than 100” times.

        C.G. said the children were often in the apartment or the car when Garcia Gomez

attacked her. C.G. testified that when Garcia Gomez used the whip to hit her, the

children “were all sitting in the living room” near her and screamed at Garcia Gomez “to

not do it.”


        ~ Emphasis added.


                                              7
No. 75673-7-1/8

        By special verdict, the jury found Garcia Gomez and C.G. were household

members, the two counts of assault in the second degree were part of an ongoing

pattern of abuse, and Garcia Gomez committed the crimes when the children were

present.

       At sentencing, the court described the domestic violence assaults against C.G.

as “horrific.”

       Mr. Garcia-Gomez, this    —   this Court, unfortunately, sees a lot of cases
       involving allegations of domestic violence and abuse. Your case was one
       of the most horrific that I’ve seen in almost 12 years on the bench. You
       treated your wife, the mother of your children, in a way that our society
       does not allow someone to treat their dog, and you did it in front of your
       children. And even to just now you don’t seem to have any
                                —


       comprehension of why what you did was so horrific and what effect it had
       on your family, the people who loved you and trusted you to protect them,
       to help take care of them, to comfort them when they were hurt. And
       instead you were the one inflicting the hurt.
               Every time you lost your temper, you lashed out physically. You
       broke bones. You made a whip.       .




                  [lit’s clear, Ms. Garcia is still terrified of you, and I suspect your
       children are frightened as well. They love you, but they’re scared of you
       too, and that’s a terrible place for a child to be.

       The court imposed an exceptional sentence of 96 months on each count to run

concurrently. The court entered findings of fact and conclusions of law on the

exceptional sentence. The court incorporated by reference its oral ruling.

       The findings state, “A unanimous jury found the defendant guilty of two counts of

Assault in the Second Degree Domestic Violence” and “the same jury unanimously
                                 -




found” the State proved the aggravating factors.

       The unrebutted testimony by [C.G.] was that the defendant had been
       physically and sexually abusive toward her in an escalating pattern since
       at least 2011-2015, a period of four or five years. She additionally testified
       that the physical and sexual abuse got much worse in the summer of
       2015.


                                               8
 No. 75673-7-1/9

         The conclusions of law state the record ‘contains substantial evidence to support

the imposition of an exceptional sentence under each of the aggravating factors found

by the jury.” But “[e]ither factor, standing alone, justifies an exceptional sentence above

the standard range.”

                                               ANALYSIS

Jury Unanimity

        Garcia Gomez seeks reversal of the convictions of assault in the second degree.

Garcia Gomez contends he was deprived of his constitutional right to a unanimous jury

verdict because insufficient evidence supports each of the charged means of

committing assault in the second degree. Under article I, section 21 of the Washington

Constitution, a criminal defendant has the right to a unanimous jury. State v.

Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017); State v. Owens, 180 Wn.2d 90,

95, 323 P.3d 1030 (2014).~

        “In enacting criminal statutes, the legislature may articulate a set of prohibited

behaviors as (1) a list of distinct offenses or (2) a single offense with one or more

alternative means.” State v. Woodlyn, 188 Wn.2d 157, 163, 392 P.3d 1062 (2017).

        Assault in the second degree is an alternative means crime. “The second degree

assault statute, RCW 9A.36.021, articulates a single criminal offense” with “seven

separate subsections defining how the offense may be committed.” State v. Fuller, 185

Wn.2d 30, 34, 367 P.3d 1057 (2016); see also State v. Smith, 159 Wn.2d 778, 784, 154

P.3d 873 (2007).




         ~ The Sixth Amendment to the United States Constitution does not require jury unanimity in state
criminal cases. Apodaca v. OreQon, 406 U.S. 404, 406, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972).


                                                    9
No. 75673-7-1/10

         RCW 9A.36.021(1) provides, in pertinent part:

        A person is guilty of assault in the second degree if he or she, under
        circumstances not amounting to assault in the first degree:
               (a) Intentionally assaults another and thereby recklessly inflicts
        substantial bodily harm; or
               (b) Intentionally and unlawfully causes substantial bodily harm to
        an unborn quick child by intentionally and unlawfully inflicting any injury
        upon the mother of such child; or
               (c) Assaults another with a deadly weapon; or
               (d) With intent to inflict bodily harm, administers to or causes to be
        taken by another, poison or any other destructive or noxious substance; or
               (e) With intent to commit a felony, assaults another; or
               (f) Knowingly inflicts bodily harm which by design causes such pain
        or agony as to be the equivalent of that produced by torture; or
               (g) Assaults another by strangulation or suffocation.[5]

        The State charged Garcia Gomez with two counts of assault in the second

degree committed by three alternative means in violation of RCW 9A.36.021(1)(a), (c),

and (g): intentional assault recklessly inflicting substantial bodily harm, or assault with a

deadly weapon, or strangulation.

        The Washington Supreme Court precedent “addressing alternative means crimes

requires unanimity as to means only when a general verdict raises due process

concerns, i.e., when one or more alternatives presented to the jury are not supported by

sufficient evidence.” Woodlyn, 188 Wn.2d at 162.

        In Woodlyn, the court rejected the argument that the ‘constitutional right to jury
                                                                        “




unanimity applies to alternative means of committing the crime.’” Woodlyn, 188 Wn.2d

at 163. The court held:

                We have never recognized a categorical right to express unanimity
        (i.e., unanimity as to means) in alternative means convictions. See [State
        v.]Arndt, 87 Wn.2d [374,] 377-78[, 553 P.2d 1328 (1976)]; [State v.]
        Franco, 96 Wn.2d [816,] 823[, 639 P.2d 1320 (1982), abrogated on other

         ~ In 2007, the legislature enacted subsection (g) to add “strangulation” as a means of committing
assault in the second degree. LAWS OF 2007, ch. 79, § 2. In 2011, the legislature amended subsection
(g) to include “suffocation.” LAWS OF 2011, ch. 166, § 1.

                                                    10
No. 75673-7-I/li

       c~rounds by State v. Sandholm, 184 Wn.2d 726, 736, 364 P.3d 87 (2015)];
       [Statev. ]Whitney, 108 Wn.2d [506,] 511[, 739 P.2d 1150 (1987)]. Rather,
       there are particular situations when express unanimity is required,
       specifically when at least one means lacks sufficient evidentiary support.
       See, ~ Owens, 180 Wn.2d at 95. Washington cases have adopted an
       analysis that turns on the sufficiency of evidence as a due process
       concern: if the jury is instructed on one or more alternative means that are
       not supported by sufficient evidence, a “particularized expression” of jury
       unanimity as to the supported means is required. [Owens, 180 Wn.2d at
       95.] The purpose of this requirement is to ensure that when a verdict
       might be based on more than one alternative, the verdict is adequately
       supported.

Woodlyn, 188 Wn.2d at 164.

       Accordingly, if sufficient evidence supports each alternative means, “Washington

defendants do not enjoy a recognized right to express unanimity.” Woodlyn, 188 Wn.2d

at 164; Armstroncj, 188 Wn.2d at 347 (“We have held for more than 75 years that jury

unanimity as to means is not required in alternative means cases where substantial

evidence supports both alternatives.”).

       Garcia Gomez contends sufficient evidence does not support the convictions

because the jury instructions state the jury must agree on a particular act of assault but

do not require the jury to unanimously agree on the charged means of committing the

crime of assault in the second degree. As an example, Garcia Gomez argues that if the

jury agreed he assaulted C.G. intentionally by either punching her in the nose,

repeatedly hitting her ear, or whipping her with electrical cords, insufficient evidence

supports the alternative means of committing assault with a deadly weapon or by

strangulation. The premise of his argument is contrary to well established Supreme

Court precedent.

       “In an alternative means case, where a single offense may be committed in more

than one way, there must be jury unanimity as to g.~jLt for the single crime charged.”


                                             ii
No. 75673-7-1112

State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1 988).6 But if “substantial

evidence supports each alternative means,” jury unanimity is not required “as to the

means by which the crime was committed.” Kitchen, 110 Wn.2d at 410;~ Armstrong,

188 Wn.2d at 339 (express jury unanimity is not required “so long as sufficient evidence

supports each charged means”). Evidence is sufficient if after viewing the evidence in a

light most favorable to the State, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Owens, 180 Wn.2d at 99.

        In Woodlyn and Armstrong, the Washington Supreme Court expressly rejected

the argument that jury unanimity was required as to the means of committing the crime.

Woodlyn, 188 Wn.2d at 163; Armstrong, 188 Wn.2d at 343 (rejecting claim that lack of

express unanimity is permissible only where the record allows the court to “infer”

unanimity).

        In contrast to an alternative means crime, in a multiple acts case, several acts

are alleged, any one of which could constitute the crime charged. Kitchen, 110 Wn.2d

at 411. Because “the jury must be unanimous as to which act or incident constitutes the

crime” in a multiple acts case, the court must give a Petrich unanimity jury instruction.

Kitchen, 110 Wn.2d at 411.

        Here, the court decided and the defense agreed to give a Petrich instruction.8

The jury unanimously agreed Garcia Gomez was guilty of two counts of assault in the

second degree. The overwhelming and unrebutted evidence supports the jury finding


        6  Emphasis in original.
         ~ Emphasis in original.
         8 We also note, “Under the invited error doctrine, a defendant may not request that instructions be

given to the jury” and then raise a constitutional challenge for the first time on appeal. State v. Aho, 137
Wn.2d 736, 744-45, 975 P.2d 512 (1999); State v. Hood, 196 Wn. App. 127, 131-32, 382 P.3d 710
(2016), review denied, 187 Wn,2d 1023, 390 P.3d 331 (2017).


                                                    12
No. 75673-7-1/13

guilt beyond a reasonable doubt not only as to each act of assault but also as to each of

the charged alternative means for the two counts of committing assault: intentional

assault recklessly inflicting substantial bodily harm, or assault with a deadly weapon, or

strangulation.

       In the alternative, Garcia Gomez contends that if the jury was not unanimous as

to the means, the convictions violate due process. Garcia Gomez claims that because

the alternative means of assault by reckless infliction of substantial bodily harm, assault

with a deadly weapon, and assault by strangulation are factually distinct, the jury had to

be unanimous as to the particular means.

       Garcia Gomez relies on the language in State v. Ortega-Martinez, 124 Wn.2d

702, 707, 881 P.2d 231 (1994), that states, “In certain situations, the right to a

unanimous jury trial also includes the right to express jury unanimity on the means by

which the defendant is found to have committed the crime.”9 In Armstrong, the

Washington Supreme Court rejected the language Garcia Gomez relies on as dicta that

is both “unnecessary to the holding in Ortega-Martinez and unsupported by the cases it

cited.” Armstrong, 188 Wn.2d at 342.

       Garcia Gomez cites Arndt and State v. Crane, 116 Wn.2d 315, 804 P.2d 10

(1991). Neither Arndt nor Crane supports his argument that the charged alternative

means of committing assault in the second degree are “repugnant to each other.”

Arndt, 87 Wn.2d at 383.10

       In Arndt, the court describes the analytical framework to determine whether a

statute creates separate crimes or identifies a single crime with more than one means of


      ~ Emphasis in original.
      10 Emphasis omitted.




                                             13
No. 75673-7-1/14

committing the crime. The court must determine legislative intent by considering ‘[1]
                                                                                    “




the title of the act; [2] whether there is a readily perceivable connection between the

various acts set forth; [3] whether the acts are consistent with and not repugnant to

each other; [4] and whether the acts may inhere in the same transaction.’” Arndt, 87

Wn.2d at   37911   (quoting State v. Kosanke, 23 Wn.2d 211, 213, 160 P.2d 541 (1945)).

The court held that where “there is substantial evidence presented to support each of

the alternative means, and the alternative means are not repugnant to one another,

unanimity of the jury as to the mode of commission is not required.” Arndt, 87 Wn.2d at

376.

       Arndt supports the conclusion that RCW 9A.36.021(1) sets forth alternative

means of committing a single crime, and it is therefore “unnecessary to a guilty verdict

that there be more than unanimity concerning guilt as to the single crime charged.”

Arndt, 87 Wn.2d at 377. Further, the alternative means of committing assault in the

second degree are not repugnant to each other. Proof of assault in the second degree

under one subsection does not disprove assault in the second degree under another

subsection. Arndt, 87 Wn.2d at 383.

       In Crane, the Washington Supreme Court draws the distinction between an

alternative means crime where “a single offense may be committed in more than one

way” and the jury must be unanimous “as to guilt for the single crime charged,” and a

multiple acts case where several acts are alleged, “any one of which could constitute

the crime charged.” Crane, 116 Wn.2d at 325. The court held an alternative means

crime “usually involve[s] a charge under a statute which contains several alternative



       ~ Alterations in original.


                                             14
No. 75673-7-1/15

ways of committing one crime, and the defendant has been charged with conduct which

may fulfill more than one alternative.” Crane, 116 Wn.2d at 326.

        In Crane, the State charged the defendant with one count of murder in the

second degree and two counts of assault in the second degree. Crane, 116 Wn.2d at

321. The evidence showed “the fatal assault could only have occurred during a 2-hour

span.” Crane, 116 Wn.2d at 330. On appeal, the defendant argued the trial court

violated his constitutional right to unanimity by refusing to instruct the jury on the need

to agree unanimously “to at least one particular assault” that caused the death of the

child. Crane, 116 Wn.2d at 324. Because the evidence showed the “continuous

conduct” exception to the Petrich rule applied, the court held a “unanimous jury verdict

would not be required as to each incident of assault during this short period of time;

instead, the jury would only need to be unanimous in its determination that the conduct

occurred.” Crane, 116 Wn.2d at 330 (citing Petrich, 101 Wn.2d at 571). “Petrich

requires an election or unanimity instruction in cases where evidence supports several

criminal acts which would support conviction of a criminal offense.” Crane, 116 Wn.2d

at 330.12

        In supplemental briefing, Garcia Gomez asserts his right to due process was

violated because the charged alternative means of committing assault in the second

degree constitute separate offenses. Due process requires the State to prove every

element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.


        12 (Emphasis in original.) Garcia Gomez also cites State v. Peterson, 168 Wn.2d 763, 230 P.3d
588 (2010). The statute in Peterson is not analogous to the second degree assault statute. In Peterson,
the Supreme court concluded failure to register under former RCW 9A.44.1 30 (2003) is not an alternative
means crime. Peterson, 168 Wn.2d at 770. The court held the statute prohibits the single act of moving
without providing notice to appropriate authorities. The different deadlines for the provision of notice
based on an offender’s residential status did not create alternative means. Peterson, 168 Wn.2d at 769-
70.

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Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245

(2002).

       We reject his argument on a number of grounds. Assault in the second degree is

an alternative means crime. The statute lists alternative ways of proving the single

offense of assault in the second degree, not separate crimes. Fuller, 185 Wn.2d at 34.

Although Garcia Gomez relies on the dissent in ArmstronQ, we are bound by the

majority opinion. State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984). The

other cases Gomez Garcia cites, Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115

L. Ed. 2d 555 (1991), and Richardson v. United States, 526 U.S. 813, 119 5. Ct. 1707,

143 L. Ed. 2d 985 (1999), do not support his argument.

       In Schad, a plurality of the United States Supreme Court concluded that when a

statute enumerates alternative means, whether jurors must be unanimous with respect

to a particular means depends on two questions. Schad, 501 U.S. at 630-32. The first

inquiry is legislative intent: Did the legislature intend to establish separate offenses for

which unanimity is required or different means of violating a single offense for which

unanimity is not required. Schad, 501 U.S. at 630-31; United States v. Edmonds, 80

F.3d 810, 815 (3d Cir. 1996). The second inquiry is constitutional: If the legislature

intended alternative means to violate a single crime, is the statute’s definition of the

crime unconstitutional under the due process clause. Schad, 501 U.S. at 632;

Edmonds, 80 F.3d at 815.

       Due process places some limits “on a State’s capacity to define different courses

of conduct, or states of mind, as merely alternative means of committing a single

offense.” Schad, 501 U.S. at 632. But the Court held the decision of the Arizona

Legislature to treat premeditated murder and felony murder as alternative means rather

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than different offenses did not exceed due process limits. Schad, 501 U.S. at 632. The

Court emphasized that it has “never suggested that in returning general verdicts.       .   .   the

jurors should be required to agree upon a single means of commission.” Schad, 501

U.S. at 631. Rather, ‘different jurors may be persuaded by different pieces of
                         “




evidence, even when they agree upon the bottom line. Plainly there is no general

requirement that the jury reach agreement on the preliminary factual issues which

underlie the verdict.’   “   Schad, 501 U.S. at 631-32 (quoting McKoy v. North Carolina,

494 U.S. 433, 449, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990) (Blackmun, J.,

concurring)).

       Richardson is a statutory interpretation case. In Richardson, the Supreme Court

addressed a federal statute that required proof of multiple crimes. Richardson, 526 U.S.

at 817-18. The Court held that to convict a defendant under the federal continuing

criminal enterprise drug statute, 21 U.S.C.     § 848(a),   a jury must agree unanimously on

the specific, underlying drug code violations that comprise the “continuing criminal

enterprise.” Richardson, 526 U.S. at 815. The Court interpreted 21 U.S.C.        § 848(a) to
mean Congress intended each violation to be treated as an element of the offense.

Richardson, 526 U.S. at 818-19. The Court noted potential unfairness of not requiring

suOh agreement because the term “violation” encompassed approximately 90 predicate

drug crimes involving “many different kinds of behavior of varying degrees of

seriousness.” Richardson, 526 U.S. at 819. But the Court emphasized that juries “need

not always decide unanimously which of several possible sets of underlying brute facts




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make up a particular element” or “which of several possible means the defendant used

to commit an element of the crime.” Richardson, 526 U.S. at 817.

       Where, for example, an element of robbery is force or the threat of force,
       some jurors might conclude that the defendant used a knife to create the
       threat; others might conclude he used a gun. But that disagreement—a
       disagreement about means—would not matter as long as all 12 jurors
       unanimously concluded that the Government had proved the necessary
       related element, namely, that the defendant had threatened force.

Richardson, 526 U.S. at 817.

      We hold RCW 9A.36.021 does not violate due process. RCW 9A.36.021 is a

single crime offense that defines different ways the offense may be committed.

Mandatory Legal Financial Obligations

      Garcia Gomez challenges imposition of the mandatory $500 victim penalty

assessment under RCW 7.68.035(1)(a) and the mandatory $100 DNA13 collection fee

under RCW 43.43.7541. Garcia Gomez claims imposition of the victim penalty

assessment and the DNA collection fee without consideration of his ability to pay

violates due process. We have previously considered and rejected the argument that

imposition of mandatory legal financial obligations violates due process. ~ State v.

Lundy, 176 Wn. App. 96, 103, 308 P.3d 755 (2013); State v. Mathers, 193 Wn. App.

913, 918-24, 376 P.3d 1163, review denied, 186 Wn.2d 1015, 380 P.3d 482 (2016);

State v. Seward, 196 Wn. App. 579, 585-86, 384 P.3d 620 (2016), review denied, 188

Wn.2d 1015, 396 P.3d 349 (2017).

Statement of Additional Grounds

      In his pro se statement of additional grounds, Garcia Gomez argues the court

ignored requests to discharge his attorney. The record does not support his argument.


      13   Deoxyribonucleic acid.

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Contrary to Garcia Gomez’s assertion, the trial court did not ignore his letters or

requests to discharge his attorney, plead guilty to lesser charges, or be released and

placed in drug treatment. The court did not abuse its discretion in denying his requests,

including the request to discharge counsel. See State v. Stenson, 132 Wn.2d 668, 733-

34, 940 P.2d 1239 (1997).

      We affirm the jury convictions of two counts of domestic violence assault of C.G.

in the second degree.




WE CONCUR:




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