                                                                                           COUNT
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                                                                                                    F APPEALS
                                                                                                            II
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          2015 FEB 18
                                                                                                      AH 9: 21
                                           DIVISION II
                                                                                          STATF
 STATE OF WASHINGTON,                                                   No. 45383- 5 -
                                                                                         IISy
                                Respondent,


        v.



 MICHAEL S. VAUGHN,                                              UNPUBLISHED OPINION


                                Appellant.


       MELNICK, J. —     Michael S. Vaughn appeals his convictions of malicious mischief in the


first degree, driving under the influence (DUI), and obstructing a law enforcement officer. Vaughn
argues that the evidence introduced at trial was insufficient to support his DUI and obstruction

convictions and that the trial court erred by failing to give the jury a unanimity instruction on the

obstruction charge.    We disagree.   In   a pro   se statement of additional grounds (   SAG), Vaughn


contends that he received ineffective assistance of counsel when his attorney failed to object to

cross -examination that harmed his defense to the malicious mischief charge. Again, we disagree.

       Relying on both circumstantial and direct evidence, we hold that when viewing the

evidence in the light most favorable to the State, sufficient evidence exists to prove the charges of

DUI and obstructing a police officer beyond a reasonable doubt. The trial court' s failure to instruct

the jury on the need for unanimity constituted harmless error because both acts of obstruction were

proved beyond a reasonable doubt. Finally, any failure to object to the cross -examination at issue

was not prejudicial   because any   such objection would    have been   pointless.   We affirm Vaughn' s


convictions.
45383 -5 -II



                                                         FACTS


        Vaughn drove away from Kenneth Raney' s house at about 10 P. M. on November 18, 2012,

when   Raney     called   911 to   report a " ruckus."    2 Report   of   Proceedings ( RP)   at   115.   Vaughn had


arrived the night before with a bottle of whiskey. When he drove away in his white Ford Fusion

which was registered to him, he was very intoxicated.

        Vaughn arrived at Sandy' s Deli in the white Ford approximately 20 minutes later.

Charlotte Beltran, the deli cashier, saw Vaughn' s car pull into the parking lot and saw Vaughn

immediately      enter    the    store.   She did   not    see   anybody    with   Vaughn.     Surveillance video


corroborated     Beltran' s     observations.   Vaughn caused a disturbance when Beltran refused to sell


him liquor, and she called 911.


        Deputy Erik Heilman arrived at 10: 30 P. M. and detained Vaughn, who smelled strongly of

intoxicants and had a cut lip. Trooper Adam Richardson arrived about 30 minutes later. Vaughn,

obviously intoxicated, could not explain how he got to the deli. He did admit to drinking alcohol

in his car. Vaughn refused to submit to either field sobriety or breath tests. A search of his person

produced keys to the Ford. The trooper saw several empty beer cans on the passenger floorboard

and   clothing   on   the front   passenger seat.   Two large objects filled the back seat so nobody could

sit there. Richardson took Vaughn to the hospital for treatment of his injury and for a blood draw.

         While in the patrol car, Vaughn slammed his head against the right rear passenger window,

which   broke the      window seal and caused        the   window    to pop    out of   its frame.   At the hospital,


Richardson explained that he had obtained a warrant for a blood draw to determine Vaughn' s blood

alcohol content. When the laboratory assistant attempted to take the blood sample, Vaughn




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45383 -5 -II




 basically curled up his left arm, the arm that was free that we were planning on drawing blood

from,   curled    it up to his face like this         and said no, you' re not         taking my blood."       2 RP at 144.


Richardson was forced to pull Vaughn' s arm to the gurney. While he and a nurse tried to hold the

arm   down, Vaughn began             kicking   and    flailing   his legs. It took three officers to hold him down


during the blood draw.

         The blood test revealed that Vaughn' s blood alcohol content was 0. 203 grams per 100

milliliters of blood. The blood was collected at 1: 30 A.M., approximately three and half hours after

Vaughn left the Raney home. The toxicologist determined that Vaughn' s blood alcohol level was

approximately 0. 23 two hours earlier.

         Vaughn       remained       belligerent     and uncooperative         while      being booked into jail.       When


officers tried to search him, he refused to place his hands against the wall, turning instead to

demand     a   cup   of water.      Officers had to remove him from the booking area and place him in a

separate isolated cell before they could search him.

         The State charged Vaughn by amended information with first degree malicious mischief,

DUI,    and    obstructing     a   law enforcement       officer.     Several prosecution witnesses testified to the


facts   cited above.     Vaughn testified        on   his   own     behalf   and   denied   driving   to the deli.   On cross -


examination, he said that he came to the deli with a man named Ted and that he did not see any

items stacked on his car seats. Vaughn added that Ted gave him the car keys and walked off after

they arrived at the deli. The court sustained defense counsel' s objection when the prosecutor asked

Vaughn on cross examination about breaking the window, but the court denied counsel' s objection

when    the    prosecutor   subsequently       asked, "[    Y] ou   were   simply   not   being   cooperative, right ?"   2 RP


at 158. The prosecutor then asked Vaughn to describe his behavior with Trooper Richardson, and

Vaughn     admitted     that   he   was " antagonistic and rather rude."            2 RP at 159.




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45383 -5 -II




           The prosecutor argued to the jury that Vaughn engaged in obstruction when he resisted the

blood draw     at   the hospital   and when       he   resisted   the   search at   the jail.   The jury found Vaughn

guilty as charged, and the trial court imposed a standard range sentence on the malicious mischief

concurrent with the DUI charge and suspended the 364 -day sentence on the obstruction count.

           Vaughn appeals his convictions.


                                                        ANALYSIS


I.         SUFFICIENCY OF THE EVIDENCE: OBSTRUCTING A LAW ENFORCEMENT OFFICER


           Vaughn argues initially that insufficient evidence exists to prove the obstruction charge

beyond a reasonable doubt. Evidence is sufficient to support a conviction if, viewed in the light

most favorable to the prosecution, it permits any rational trier of fact to find the essential elements

of   the   crime   beyond   a reasonable   doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068


 1992). "    A claim of insufficiency admits the truth of the State' s evidence and all inferences that

               can   be drawn therefrom."          Salinas, 119 Wn.2d         at    201.   Circumstantial evidence and
reasonably


direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 ( 1980).

We defer to the trier of fact on issues of conflicting testimony, witness credibility, and the

persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


            A person is guilty of obstructing a law enforcement officer if the person willfully hinders,

delays, or obstructs any law enforcement officer in the discharge of his or her official powers or

duties."     RCW 9A.76. 020( 1);     State   v.   Steen, 164 Wn.        App. 789,    798, 265 P. 3d 901 ( 2011),   review




denied, 173 Wn.2d 1024 ( 2012).            Vaughn contends that the hospital incident involving the blood

draw did not prove obstruction because he was resisting the efforts of a laboratory assistant rather

than the efforts of a law enforcement officer.




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45383 -5 -II




        The record shows that the laboratory assistant performed the blood draw pursuant to the

search warrant that Trooper Richardson obtained. Richardson and two other officers had to subdue

and restrain Vaughn so that the blood draw could be completed and so that Richardson could send

the blood   samples   to the state   crime   lab.   By resisting, Vaughn tried to prevent Richardson from

executing a search warrant. Vaughn' s actions thereby hindered or obstructed a law enforcement

officer from discharging his official duties.

        Vaughn argues further that simply requesting a cup of water while at the jail did not prove

obstruction. But that rendition does not take the evidence in the light most favorable to the State.

Trooper Richardson testified that Vaughn resisted the jail search and, instead of placing his hands

against the wall, turned and demanded water. He was eventually taken to a separate and isolated

cell so that the officers could complete their booking duties by conducting a search. This evidence

is sufficient to support the obstruction charge.


II.     RIGHT TO UNANIMOUS VERDICT


        Vaughn makes the related argument that the trial court' s failure to instruct the jury that it

had to unanimously agree on which act supported the obstruction charge was reversible error.

        Criminal defendants in Washington have               a right   to   a unanimous   jury     verdict.   State v.


Ortega- Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994).                   When the prosecution presents


evidence of multiple acts, any one of which could form the basis of a count charged, either the

State must elect the act relied upon for conviction or the court must instruct the jury to agree on a

specific    act.   State   v.   Coleman, 159 Wn.2d 509, 511,           150 P. 3d 1126 ( 2007).             Requiring a

unanimous verdict on one criminal act protects a criminal defendant' s right to a unanimous verdict

based   on an act proved        beyond   a reasonable   doubt. Coleman, 159 Wn.2d         at   511 - 12.
45383 -5 -II




         Where there is neither an election nor a unanimity instruction in a multiple acts case, the

omission of the unanimity instruction is presumed to be prejudicial. Coleman, 159 Wn.2d at 512.

 The omission is error because of the possibility that some jurors relied on one act or incident and

some relied on another, resulting in a lack of unanimity on all of the elements necessary for a valid

conviction."         Coleman, 159 Wn.2d        at   512.   A defendant may challenge the lack of a unanimity

instruction in a multiple acts case for the first time on appeal because it raises an issue of manifest

constitutional error. State v. Gooden, 51 Wn. App. 615, 617, 754 P. 2d 1000 ( 1988).

         The State      concedes   that this   was a multiple acts case.           The State also concedes that error


occurred when the prosecutor argued that either the jail incident or the hospital incident could

support an obstruction conviction and the court failed to instruct the jury on unanimity. The State

argues, however, that the error was harmless.


             The presumption of error resulting from the failure to give a unanimity instruction is

overcome only if no rational juror could have a reasonable doubt as to any of the incidents alleged.

State   v.   Kitchen, 110 Wn.2d 403, 411, 756 P. 2d 105 ( 1988), abrogated on other grounds, In re


Pers. Restraint of Stockwell, 179 Wn.2d 588, 316 P. 3d 1007 ( 2014). When separate instances of


criminal conduct are introduced in support of a single charge, and when conflicting testimony

could lead a reasonable juror to doubt whether one or more incidents actually occurred, there is no

                 of   harmless   error.   Kitchen,         110       Wn.2d   at   411 - 12.   But, if the   evidence is
possibility


uncontroverted, a unanimity instruction is not required. Coleman, 159 Wn.2d at 514.

             Here,    the jury received no evidence to contradict the descriptions of Vaughn' s

uncooperative conduct at           both the hospital       and   the jail.   Vaughn himself admitted that he was


antagonistic.         Because no conflicting evidence existed regarding either act of obstruction, the

absence of a unanimity instruction was harmless error and we affirm the conviction.



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45383 -5 -II



III.    SUFFICIENCY OF THE EVIDENCE: DUI


        Vaughn also argues that insufficient evidence existed to support his DUI conviction

because    of a   lack   of proof   that he drove his     car   to the deli.     We again review this issue using the

standard of review stated earlier, noting in particular the principle that circumstantial evidence is

as reliable as direct evidence.


        The crime of DUI is committed when a person drives anywhere in the State while impaired

or when the person has an alcohol concentration ( BAC) of 0. 08 or higher within two hours of

driving.    RCW 46. 61. 502( 1).         The evidence showed that Vaughn had a BAC of 0. 23 within two


hours of his arrival at the deli. There is also evidence that he drove impaired. Vaughn is correct in

arguing that there is no direct evidence to show he drove to the deli. However, the evidence

demonstrates that Vaughn drove away from the Raney residence while intoxicated, and that his

car arrived at the deli less than 20 minutes later. Nobody saw anyone else exit his vehicle. Vaughn

possessed      the   car   keys   and   the   passenger   seats     of   his   car   were   filled   with   items.   Vaughn' s


testimony that " Ted" drove him to the deli and that he did not see that his car seats were filled with

items is not sufficient to undermine the inference that Vaughn drove from Raney' s house to the

deli.   When viewed in the light most favorable to the State, sufficient evidence existed for a

reasonable fact finder to find that Vaughn committed the crime of DUI.

IV.        SAG


           Vaughn appears to argue in his SAG that he received ineffective assistance of counsel when


his attorney failed to object to one of the prosecutor' s questions during Vaughn' s cross-

examination.




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        To prove a claim of ineffective assistance of counsel, a defendant must show that his

attorney'   s performance was           deficient   and   that the   deficiency   was prejudicial.   State v. Thomas,


109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987).                Prejudice exists if there is a reasonable probability

that the result of the proceeding would have differed had the deficient performance not occurred.

Thomas, 109 Wn.2d           at   226.    When the ineffective assistance claim rests on defense counsel' s


failure to object, a defendant must show that an objection likely would have been sustained. State

v. Fortun- Cebada, 158 Wn. App. 158, 172, 241 P. 3d 800 ( 2010).

        When the prosecutor asked Vaughn to describe his behavior toward Trooper Richardson,

Vaughn      replied   that he   was " antagonistic and rather rude."         2 RP at 159. Vaughn now argues that


defense counsel should have objected because this question was beyond the scope of his direct

examination.          See ER 611 (       cross -examination should be limited to subject matter of direct

examination and matters           affecting .credibility      of witness).    He maintains that his answer to the


State' s question about his behavior damaged his defense to the malicious mischief charge.

        Vaughn overlooks the fact that defense counsel did object to the State' s previous question

about whether he was uncooperative. The court overruled the objection after the State explained

that its question was relevant to the issue of bias. Any objection to the State' s subsequent question

about Vaughn' s behavior would have been overruled as well, and we see no deficiency in this

regard. Consequently, we reject Vaughn' s claim of ineffective assistance of counsel.




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45383 -5 -II



        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




 ilisWorswick,        J.




                      4,
          jorgen, A...C. J.
                              4./




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