                                                                          FILED 

                                                                       AUGUST 22, 2013 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DNISION THREE 


STATE OF WASHINGTON,                           )
                                               )        No. 30198-2-111
                        Respondent,            )
                                               )
       v.                                      )
                                               )
URIEL ORTIZ,                                   )        UNPUBLISHED OPINION
                                               )
                        Appellant.             )


       KORSMO, C.J. -      Uriel Ortiz challenges his convictions for two counts of second

degree assault and two counts of felony harassment on the basis of evidentiary

sufficiency, evidentiary and instructional error, and prosecutorial misconduct. We find

no error, and affirm.

                                           FACTS

       Late in the evening of May 21,2011, Uriel Ortiz was atthe store with his teenage

son, Abraham Ortiz, when a friend informed him that Sarah Humphries had gone to Mr.

Ortiz's residence to speak with Mr. Ortiz's wife, Patricia Rivera. Mr. Ortiz, who was
No. 30 198-2-II1
State v. Ortiz


engaged in an extra marital affair with Ms. Humphries, became visibly upset and

declared he was going to find and kill Ms. Humphries.

       During this time, Ms. Humphries contacted Ms. Rivera at the family residence.

Ms. Humphries expressed concern that Mr. Ortiz would return, so the women walked

down the street. Mr. Ortiz, Abraham, and the friend returned to the family residence

where they searched for Ms. Rivera. Abraham noticed Mr. Ortiz was wearing a holster

with a handgun in it. The only weapon the family had in the house was a BB rifle.

       Mr. Ortiz spotted the women down the street, contacted them, and threatened Ms.

Humphries by pointing a gun toward her feet. Ms. Humphries stepped back and both

women appeared scared. Ms. Rivera stepped in front of Ms. Humphries and attempted to

push the gun away. Mr. Ortiz told Ms. Humphries she had better not come around and

threatened to kill her.

       After threatening Ms. Humphries, Mr. Ortiz returned to the family residence and

told Abraham to go get Ms. Rivera. Ms. Rivera returned to the residence and Ms.

Humphries left the area. According to Abraham, Mr. Ortiz told Ms. Rivera to avoid Ms.

Humphries and knocked Ms. Rivera down when she tried to leave the room, telling her

he was going to find and kill Ms. Humphries. According to Ms. Rivera, Mr. Ortiz pushed

her down and proceeded to hit and kick her before pulling out the gun and telling her he

would shoot her. He also told her that he was going to kill Ms. Humphries, and that he

would kill Ms. Rivera if she left the family residence.

                                             2

No. 30198-2-111
State v. Ortiz


       After Mr. Ortiz left, Ms. Rivera called the police. The police took Ms. Rivera and

her children to the police station, and attempted to locate Mr. Ortiz. They eventually

spoke with Mr. Ortiz on Abraham's cell phone and arranged to meet with him at the

family residence approximately 45 minutes after the 911 call.

       Mr. Ortiz immediately told the police the gun he used to threaten Ms. Humphries

was a toy gun and directed the officers to a revolver-type BB gun lying on the ground

outside the house. He was not wearing a holster. He also told the police he confronted

the women with the BB gun and acted like he was going to slap Ms. Humphries with it.

He denied hitting or threatening Ms. Rivera.

       Mr. Ortiz was charged with two counts of second degree assault with a deadly

weapon and two counts of felony harassment. Prior to trial, the State moved to admit

evidence of two prior incidents of domestic violence committed by Mr. Ortiz against Ms.

Rivera; one incident occurred in March 2011 and the other on May 20, 2011. Over

objection, the trial court ruled the evidence was admissible under ER 404(b) to prove Ms.

Rivera's reasonable fear and reasonable apprehension of bodily injury as well as to assist

the jury in assessing Ms. Rivera's credibility. The defense did not request a limiting

instruction.

       Neither Ms. Humphries nor Mr. Ortiz testified at trial. After the State presented

its case, Mr. Ortiz moved to dismiss all charges, arguing the State had failed to show he

used a deadly weapon to threaten the women and that there was insufficient evidence to

                                            3

No. 30 198-2-III
State v. Ortiz


prove he committed felony harassment of Ms. Humphries. The trial court denied the

motion and the jury subsequently found Mr. Ortiz guilty on all four counts.

       He timely appealed to this court.

                                        ANALYSIS

       Mr. Ortiz alleges the trial court erred by admitting evidence of Mr. Ortiz's prior

acts of domestic violence. He also claims the prosecutor committed misconduct,

challenges the sufficiency of the evidence, and contends the trial court violated his right

to a unanimous jury verdict. We address each argument in tum. l

ER 404(b) Evidence

       Mr. Ortiz first argues the trial court erred by admitting evidence of his prior acts of

domestic violence against Ms. Rivera under ER 404(b). He claims the prosecutor did not

establish the purpose for which the evidence was admitted and also that the trial court

failed to conduct the required ER 404(b) balancing test. We conclude that the prior acts

of domestic violence were properly admitted under ER 404(b) to assist the jury in

assessing Ms. Rivera's credibility and state of mind.

       A defendant's prior acts of domestic abuse against the alleged victim are

admissible under ER 404(b) to assist the jury in assessing the victim's credibility as a

witness and the victim's state ofmind. State v. Grant, 83 Wn. App. 98, 106-08,920 P.2d


       1 Mr.Ortiz also raises a cumulative error argument, but because we conclude there
were no errors, there is no basis for finding cumulative error.

                                             4

No.30198-2-II1
State v. Ortiz


609 (1996); State v. Barragan, 102 Wn. App. 754,9 P.3d 942 (2000). A victim's

knowledge ofthe defendant's past behavior is highly probative evidence that bears

directly on the reasonableness of the victim's fear. See, e.g., Barragan, 102 Wn. App. at

759; State v. Ragin, 94 Wn. App. 407,411,972 P.2d 519 (1999); State v. Binkin, 79 Wn.

App. 284, 291, 902 P.2d 673 (1995), abrogated by State v. Kilgore, 147 Wn.2d 288,53

P.3d 974 (2002).

       The decision to admit evidence under ER 404(b) is reviewed for an abuse of

discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court

abuses its discretion if it fails to abide by the rule's requirements. State v. Foxhoven, 161

Wn.2d 168, 174, 163 P.3d 786 (2007). Discretion is also abused ifit is exercised on

untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,

26,482 P.2d 775 (1971).

       The court held a pretrial hearing on July 26, 2011, to determine the admissibility

of prior incidences of domestic violence committed by Mr. Ortiz against his wife. The

first incident occurred in March 2011, and resulted in Ms. Rivera calling the police. The

second occurred on May 20, 2011.

       The trial court ruled that the evidence of Mr. Ortiz's prior assaultive conduct

toward Ms. Rivera was admissible under ER 404(b) for two reasons. The court noted:

       So in general there are two separate legal theories that require the
       admissibility of prior threats and acts of domestic violence. One, to assess
       the domestic violence situation dynamics of the relationship to determine

                                             5

No.30198-2-III
State v. Ortiz


      whether the victim should be granted credibility. And the other
      independent basis is that the defendant's charged with harassment and
      the-part of that charge, one of the elements is the establishment of a real
      threat and a reasonable apprehension of~that the harm-the threat will be
      carried out.

Report of Proceedings July 26, 2011 at 25.

       We agree that the evidence of Mr. Ortiz's prior assaultive conduct toward Ms.

Rivera was admissible under ER 404(b). To prove assault and harassment, the State had

to prove Ms. Rivera's state of mind: that she was placed in reasonable fear by the threat

to kill her, and she was placed in reasonable apprehension and fear of imminent bodily

injury when Mr. Ortiz pointed the gun at her. Mr. Ortiz's history of domestic violence

against Ms. Rivera was admissible to assess her state of mind. Barragan, 102 Wn. App.

at 759; Ragin, 94 Wn. App. at 411; Binkin, 79 Wn. App. at 291. Additionally, the

evidence was relevant in assessing Ms. Rivera's credibility as a witness. Grant, 83 Wn.

App. at 106-08. The prior acts of violence helped explain Ms. Rivera's inconsistent

action ofretuming to the residence after Mr. Ortiz's original threats. The prior acts were

admissible under ER 404(b).

      Mr. Ortiz also claims the trial court erred in admitting the evidence because it did

not balance all the necessary factors before admitting the evidence under ER 404(b). In

order to admit evidence of other bad acts under ER 404(b), the proponent of the evidence

must first convince a trial court by a preponderance of the evidence that the "misconduct"

actually occurred. State v. Lough, 125 Wn.2d 847,853,889 P.2d 487 (1995). A trial

                                             6

No. 30198-2-111
State v. Ortiz


court may conduct a hearing to take testimony, but is not required to do so. State v.

Kilgore, 147 Wn.2d at 294-95. If the court determines that the misconduct occurred, the

court then must identify the purpose for which the evidence is offered, determine whether

the evidence is relevant to prove an element of the offense, and weigh the probative value

of the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The failure to

balance the probative value versus the prejudicial effect on the record may not be fatal if

the trial court has established a sufficient record of the reasons for admitting the

evidence. State v. Jackson, 102 Wn.2d 689, 694, 689 P.2d 76 (1984).

       The trial court did not expressly state whether it found the prior acts of domestic

violence actually occurred, but the record reflects the court's belief that the prior

misconduct did occur as described by the State. The trial court identified the purpose for

which the evidence was offered and determined it was relevant to prove the reasonable

fear element of felony harassment and the reasonable apprehension element of second

degree assault, as well as assist the jury in assessing Ms. Rivera's credibility. The trial

court did not conduct the balancing on the record. However, the trial court established a

sufficient record identifying the purpose for which it believed the evidence was relevant

and admissible to allow review of its decision. See Jackson, 102 Wn.2d at 694.

       Applying the four-part test to this case, the record shows the trial court had tenable

reasons for admitting the prior acts of domestic violence. First, the State proved the

occurrence of the acts by a preponderance of the evidence. The State admitted a police

                                             7

No. 30 198-2-III
State v. Ortiz


incident report and Mr. Ortiz did not challenge the occurrence of the prior acts either at

trial or on appeal. When performing an ER 404(b) analysis, a trial court may rely on an

offer of proof by the lawyer offering the evidence. Kilgore, 147 Wn.2d at 294-95. After

both parties have argued the matter and the court clearly agrees with one side, this court

can excuse the trial court's lack of an explicit finding that the misconduct occurred. State

v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16 (2007).

       The evidence was introduced for the purpose of showing that Mr. Ortiz had a

history of committing violence against Ms. Rivera, and it was relevant to prove the

reasonable apprehension element of the second degree assault charge as well as the

reasonable fear element of the felony harassment charge. Although the trial court failed

to weigh the prejudice on the record, this was harmless error because the record is

sufficient for this court to determine that the trial court would still have admitted the

evidence. State v. Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996). While the

evidence certainly had a prejudicial effect by showing that Mr. Ortiz had a history of

committing domestic abuse against Ms. Rivera, the evidence was highly probative

because it demonstrated that Ms. Rivera's fear of substantial bodily harm or death was

reasonable in light of her history with Mr. Ortiz, and it explained her inconsistent action

of returning to the residence. Even though the trial court failed to articulate all four

factors of the ER 404(b) test on the record, this was not reversible error. The evidence

was properly admitted.

                                              8

No. 30 I 98-2-III
State v. Ortiz


Prosecutorial Misconduct

       Mr. Ortiz next claims the prosecutor committed misconduct during closing

argument by repeatedly urging the jury to consider his past acts of domestic violence for

the improper purpose of arguing that he was the type of person who threatened women

and he was not a credible witness. He also argues the prosecutor improperly emphasized

the prior bad acts evidence to gamer sympathy for Ms. Rivera and Ms. Humphries and

appeal to the jury's passions. No prosecutorial misconduct occurred.

       Counsel is allowed in closing argument to draw and express reasonable inferences

from the evidence produced at trial. State v. Hale, 26 Wn. App. 211, 216, 611 P.2d 1370

(1980) (quoting State v. Adams, 76 Wn.2d 650,660,458 P.2d 558 (1969), rev'd, 403

U.S. 947, 91 S. Ct. 2273, 29 L. Ed 855 (1971)). On the other hand, "[m]ere appeals to

jury passion and prejudice, as well as prejudicial allusions to matters outside the

evidence, are inappropriate." State v. Belgarde, 110 Wn.2d 504,507, 755 P.2d 174

(1988). When improper argument is alleged, the defense bears the burden of establishing

the impropriety of the prosecuting attorney's comments as well as their prejudicial effect.

State v. Hoffman, 116 Wn.2d 51,93,804 P.2d 577 (1991).

       In determining whether prosecutorial comments have denied the defendant a fair

trial, a reviewing court must decide whether the comments are improper and, if so,

whether there is a substantial likelihood that the comments affected the verdict. State v.

Reed, 102 Wn.2d 140, 145,684 P.2d 699 (1984). "Allegedly improper arguments should

                                             9

  No.30198-2-III 

  State v. Ortiz 



  be reviewed in the context of the total argument, the issues in the case, the evidence

. 	 addressed in the argument, and the instructions given." State v. Graham, 59 Wn. App.

  418,428, 798 P.2d 314 (1990). A failure to object to an improper remark constitutes a

  waiver unless the comment is flagrant and ill intentioned and the resulting prejudice so

  enduring that jury admonitions could not neutralize its effect. State v. Charlton, 90

  Wn.2d 657, 661,585 P.2d 142 (1978). Since Mr. Ortiz failed to object to any of the

  challenged statements, he may only prove misconduct if he shows the challenged

  statements were so flagrant they could not have been cured by an instruction.

         As discussed previously, evidence of prior domestic abuse is admissible to assess

  the victim's reasonable fear of the defendant and the victim's credibility. Grant, 83 Wn.

  App. at 105. Here, the prosecutor referred to the prior incidents to explain that Ms.

  Rivera was placed in reasonable fear and apprehension that Mr. Ortiz was going to kill

  her, and to rebut Mr. Ortiz's argument that the women would not have taken his threats

  seriously was not credible in light of his history. This was an argument the prosecutor

  could properly make based on the evidence presented at trial.

         Mr. Ortiz also takes issue with the prosecutor's comment that Ms. Rivera and Ms.

  Humphries "didn't deserve" the things Mr. Ortiz was accused of doing, arguing that this

  improper comment attempted to obtain a conviction based on the passions of the jury. He

  does not cite to any case law to support his argument that this was an improper comment.

  Furthermore, he has failed to demonstrate that any of the challenged comments were so

                                              10 

No.30198-2-III
State v. Ortiz


flagrant and ill-intentioned that they demonstrate an enduring and resulting prejudice that

could not have been neutralized by an admonition to the jury.

Sufficiency ofthe Evidence

       Mr. Ortiz also challenges the sufficiency of the evidence to support both second

degree assault convictions and the harassment conviction relating to Ms. Humphries. The

evidence supported the convictions.

       Evidence is sufficient to support a verdict if the trier of fact has a factual basis for

finding each element of the offense proved beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94

Wn.2d 216,221-22,616 P.2d 628 (1980). The reviewing court will consider the

evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221.

      Mr. Ortiz contends that the BB gun did not constitute a deadly weapon and

therefore all the elements of second degree assault were not proved beyond a reasonable

doubt. However, the State did not rely on the BB gun to prove a deadly weapon existed.

      Second degree assault was charged on the theory that Mr. Ortiz intentionally

assaulted both women with a deadly weapon. RCW 9A.36.021(l)(c). At trial, the State

introduced the BB gun police recovered from Mr. Ortiz. Abraham testified that the gun

he saw Mr. Ortiz carrying in a holster was not the family's BB rifle, and Ms. Rivera

testified that the revolver-type BB gun the police recovered was not the same gun Mr.

Ortiz used to threaten the women. Ms. Rivera also testified that to her knowledge the

                                              11 

No.30198-2-III
State v. Ortiz


only weapon the family had kept in the house was a BB rifle, but she had seen bullets for

a handgun in a kitchen drawer. According to Ms. Rivera, Mr. Ortiz pointed the gun in

the direction of Ms. Humphries' feet. When the defense moved to dismiss the second

degree assault charges, the trial court denied the motion on the basis that while the BB

gun was not a deadly weapon, there was ample evidence that a real firearm was used to

threaten the women.

       RCW 9A.04.110(6) defines a "deadly weapon" as: 


       [A]ny explosive or loaded or unloaded firearm, and shall include any other 

       weapon, device, instrument, article, or substance, including a "vehicle" as 

       defined in this section, which, under the circumstances in which it is used, 

       attempted to be used, or threatened to be used, is readily capable of causing 

       death or substantial bodily harm. 


       The statute creates two categories of deadly weapons: firearms and explosives 


which are deadly weapons per se, and any other weapon or instrument that is readily

capable of causing substantial bodily harm depending on the circumstances in which it is

used, or threatened to be used. State v. Car/son, 65 Wn. App. 153, 158-59,828 P.2d 30

(1992). The circumstances of a weapon's use may include the intent and present ability

of the use, the degree of force, the part of the body to which it is applied, and the physical

injuries inflicted. State v. Winings, 126 Wn. App. 75, 87, 107 P.3d 141 (2005). Whether

a BB gun is a deadly weapon is normally a question for the trier of fact. State v. Tay/or,

97 Wn. App. 123, 126, 982 P.2d 687 (1999).



                                             12
No.30198-2-II1
State v. Ortiz


       Here, the State presented testimony from both Abraham and Ms. Rivera asserting

that the gun Mr. Ortiz used to threaten the women was not the BB gun the police

recovered. Mr. Ortiz had time to dispose of a firearm between the time that he left the

house and he agreed to meet with police. Circumstantial evidence and direct evidence

carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). The

evidence allowed the jury to conclude that Mr. Ortiz used a real firearm. The evidence

thus was sufficient.

       Mr. Ortiz also challenges the sufficiency of the evidence supporting the conviction

for felony harassment of Ms. Humphries, arguing there was no evidence of her subjective

state of mind. This argument incorrectly assumes that the State cannot rely on

circumstantial evidence to prove a victim's state of mind.

       As charged here, felony harassment required proof that the offender, without

lawful authority, threatened to kill another and by his words or conduct placed the person

threatened in reasonable fear that the threat would be carried out. RCW

9A,46.020(1 )(a)(i), (2)(b)(ii). The harassment statute is construed in light of the First

Amendment to only reach true threats. State v. Kilburn, 151 Wn.2d 36,43,84 P.3d 1215

(2004). A true threat is "a statement made in a context or under such circumstances

wherein a reasonable person would foresee that the statement would be interpreted ...as

a serious expression of intention to inflict bodily harm upon or to take the life of [another




                                             13 

No.30198-2-III
State v. Ortiz


individual]." State v. Williams, 144 Wn.2d 197,207-08,26 P.3d 890 (2001) (internal

quotation marks omitted) (quoting State v. Knowles, 91 Wn. App. 367, 373,957 P.2d 797

(1998». the test is an objective one, based on the speaker. State v. Stephenson, 89 Wn.

App. 794, 801, 950 P .2d 38 (1998). The speaker of a true threat does not have to actually

intend to carry out the threat-it is enough that a reasonable speaker would foresee that

the threat would be considered serious. Kilburn, 151 Wn.2d at 46.

       Thus, the State not only had to show that Mr. Ortiz made a threat to kill Ms.

Humphries, but it also had to prove beyond a reasonable doubt that the threat placed Ms.

Humphries in reasonable fear of it being carried out. Ms. Humphries did not give a

statement to the police and she did not testify at trial. However, both Abraham and Ms.

Rivera testified that Ms. Humphries appeared scared when Mr. Ortiz pointed the gun at

her feet and she tried to back away from him. 2 Ms. Rivera also testified that Ms.

Humphries appeared scared of Mr. Ortiz when she first appeared at the residence and

requested to talk to Ms. Rivera somewhere away from the house because she was afraid

Mr. Ortiz would show up while they were talking. She also left the area once Mr. Ortiz

went inside the residence.

       Circumstantial evidence is as reliable as direct evidence, and the State may prove

its case with only circumstantial evidence. See, e.g., Goodman, 150 Wn.2d at 781; State


      2 As the trial judge noted, most if not all reasonable persons would be placed in
reasonable fear if a person threatened to kill them while pointing a gun in their direction.

                                            14 

 No.30198-2-II1
 State v. Ortiz


 v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). As the trial court noted, there is

 no rule that the victim's reasonable fear that the threat to kill will be carried out cannot be

 proved by circumstantial evidence alone. Normally the victim testifies because that is the

 simplest way to prove the victim was placed in reasonable fear. This case presents a

 unique situation in that the State did not present any testimony from Ms. Humphries.

        However, the previously noted evidence established her state of mind. The

 evidence of Ms. Humphries's evident fear and the circumstances surrounding the threat

 allowed the jury to conclude that a reasonable person in her position would likely be

 placed in reasonable fear. The evidence of felony harassment was sufficient.



 Right to Unanimous Jury Verdict

        Mr. Ortiz's final argument is that the court erred by not giving a unanimity

 instruction because the State presented evidence of three different acts that could have

 constituted the second degree assault against Ms. Rivera. A unanimity instruction was

 not necessary here because one of the three acts occurred on a different day and the

, remaining two acts were part of a continuing course of conduct.

        The question ofjury unanimity is an issue of constitutional magnitude that can be

 raised initially on appeaL CONST. art. I, § 21; RAP 2.5(a)(3); State v. Fiallo-Lopez, 78

 Wn. App. 717,725,899 P.2d 1294 (1995). This assignment of error is reviewed de novo.

State v. Bradshaw, 152 Wn.2d 528,531,98 P.3d 1190 (2004).

                                              15
No. 30 198-2-II1
State v. Ortiz


       Only a unanimous jury can return a "guilty" verdict in a criminal case. State v.

Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990). Where the evidence shows multiple

acts occurred that could constitute the charged offense, the State must either elect which

act it relies upon or the jury must be instructed that it must unanimously agree upon

which act it found. State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984).

Constitutional error occurs if there is no election and no unanimity instruction is given.

State v. Bobenhouse, 166 Wn.2d 881,893,214 P.3d 907 (2009); State v. Kitchen, 110

Wn.2d 403, 411, 756 P .2d 105 (1988). This type of error requires a new trial unless

shown to be harmless beyond a reasonable doubt. Camarillo, 115 Wn.2d at 64.

      No election or unanimity instruction is needed if the defendant's acts were part of

a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453

(1989). Appellate courts must "review the facts in a commonsense manner to decide

whether criminal conduct constitutes one continuing act." Fiallo-Lopez, 78 Wn. App. at

724. A continuing course of conduct exists when actions promote one objective and

occur at the same time and place. Petrich, 101 Wn.2d at 571; State v. Love, 80 Wn. App.

357,361,908 P.2d 395 (1996). A continuing course of conduct also exists when the

charged criminal behavior is an "ongoing enterprise." -State v. Gooden, 51 Wn. App. 615,

620, 754 P.2d 1000 (1988) (promoting prostitution was ongoing enterprise).

       The charging document alleged that on May 22, 2011, Mr. Ortiz intentionally

assaulted Ms. Rivera with a deadly weapon. The State presented evidence that when Mr.

                                            16 

No.30198-2-III
State v. Ortiz


Ortiz pointed the gun at Ms. Humphries's feet and threatened to kill her, Ms. Rivera

stepped between them and attempted to push the gun away. The State also presented

evidence that after Mr. Ortiz and Ms. Rivera returned to their residence, Mr. Ortiz pushed

Ms. Rivera to the ground, pointed the gun at her, and threatened to kill her. Additionally,

the State presented evidence of an assault against Ms. Rivera on May 20.

       The jury could not have considered the earlier incident because it occurred prior to

the charging date, and there was no evidence that Mr. Ortiz assaulted Ms. Rivera with a

deadly weapon during that incident. As to the two remaining acts involving the gun on

May 22, no unanimity instruction was necessary because those two acts were part of a

continuing course of conduct.

       In determining whether multiple acts were part of a continuing course of conduct,

the reviewing court considers (1) the time separating the acts, and (2) whether the acts

involved the same parties, location, and ultimate purpose. State v. Brown, 159 Wn. App.

1, 14, 248 P.3d 518 (2010). Here, the two acts were only separated by a short period of

time and they occurred in the same general location. Mr. Ortiz initially threatened both

women with the gun because he was angry that they had been talking and that his wife

was made aware of his extra marital affair with Ms. Humphries. After Ms. Humphries

escaped the situation and Ms. Rivera returned to the residence, he continued to make

threats against both women while pointing the gun at Ms. Rivera. Both acts were

motivated by the fact that Mr. Ortiz did not want the women to have any contact with

                                            17 

No. 30 198-2-II1
State v. Ortiz


each other. Since the two acts of assault against Ms. Rivera were part of a continuing

course of conduct, it was unnecessary for the trial court to give a Petrich instruction.

       The convictions are affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




                                                         Korsmo, C.J.

WE CONCUR:




       Brown,   1.




                                             18 

