                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            March 3, 2020




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 52369-8-II

                                 Respondent,

          v.

    TANNER LEE CORYELL,
                                                                UNPUBLISHED OPINION
                                 Appellant.

         WORSWICK, J. — A jury found Tanner L. Coryell guilty of one count of second degree

assault1 and one count of fourth degree assault.2 Coryell appeals his conviction and sentence.

         Coryell argues that, although the trial court applied the legal standard from settled case

law, that standard is incorrect and harmful; thus, the trial court erred by not instructing the jury

on a lesser included offense for the second degree assault charge. Coryell also argues that his

convictions for the second degree assault and fourth degree assault violate the prohibition against

double jeopardy. We adhere to our Supreme Court’s precedent and hold that the trial court did

not err by refusing to instruct the jury on a lesser included offense for the second degree assault

charge. We also hold that Coryell’s convictions do not violate the prohibition against double

jeopardy. Accordingly, we affirm.



1
    RCW 9A.36.021(1)(g).
2
    RCW 9A.36.041(1).
No. 52369-8-II


                                              FACTS

       Coryell and Autumn Hart’Lnenicka were in a dating relationship and lived in an

apartment together. One morning, an argument arose between the couple leading to a physical

altercation, the details of which were disputed. The State charged Coryell with one count of

second degree assault by strangulation and one count of fourth degree assault. The matter

proceeded to a jury trial. At trial, three witnesses testified: Hart’Lnenicka, Coryell, and Officer

Shon Malone of the Olympia Police Department.

       Hart’Lnenicka testified that Coryell was sitting on a couch and using a PlayStation video

game console in the living room. Hart’Lnenicka confronted Coryell about spending time with

his ex-girlfriend. She grabbed the PlayStation, unplugged it, and threatened to break it. Coryell

pulled the PlayStation out of her hands, set it down on the coffee table, and pushed

Hart’Lnenicka down. After Coryell pushed Hart’Lnenicka down, he stood over her and placed

both of his hands around her neck. Hart’Lnenicka testified that she could still talk and breathe

when Coryell’s hands were on her neck, and she did not feel like she was going to lose

consciousness. Coryell then grabbed Hart’Lnenicka by her ankles and pulled her across the

floor. Coryell then pulled Hart’Lnenicka out of the apartment and dragged her across the

concrete outside of the apartment. During the dragging, Hart’Lnenicka’s pants ripped from her

crotch to her knees. Coryell left Hart’Lnenicka outside and locked the door.

       Hart’Lnenicka testified that she was outside without her phone or keys, and her ripped

pants made her feel “halfway naked.” 1 Verbatim Report of Proceedings (VRP) at 45-46. She

banged on the apartment door, and when Coryell opened it, she ran back inside to the laundry

room and tried to hide. Coryell went over to Hart’Lnenicka, stood over her, and put his hands



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No. 52369-8-II


around her neck while she was on the ground. Hart’Lnenicka testified that it took about 15 to 20

seconds from the time she got back inside to the time Coryell assaulted her at the laundry room.

        At first, Hart’Lnenicka could still breathe. But Coryell then picked her up and, with his

hands around her neck, slammed her head against the laundry room doors five times.

Hart’Lnenicka testified that she could not breathe at all, she felt like she was going to lose

consciousness, and she thought she was going to die. Coryell yelled in her face that he was not

afraid to kill her.

        Hart’Lnenicka was able to grab Coryell’s glasses, scratching his face in the process.

Hart’Lnenicka threw Coryell’s glasses, causing Coryell to let go of her. Hart’Lnenicka fell to

the ground and tried to crawl away. Coryell kicked Hart’Lnenicka on her left side.

Hart’Lnenicka then ran to the bedroom and locked the door. Coryell was able to unlock the door

and began to throw Hart’Lnenicka’s clothes at her. Hart’Lnenicka grabbed her keys and phone,

ran out the front door, and called 911.

        Officer Malone, who responded to the scene, testified that he took photographs that

showed bruising on Hart’Lnenicka’s neck, a concrete burn on her back, and bruising on her left

side. Photographs showed bruising on Hart’Lnenicka’s neck in the shape of finger marks.

        Officer Malone testified that he was trained on the signs of strangulation. He testified

that, depending on the severity, strangulation can cause welts and bruising around the throat and

neck areas. He also testified, “Sometimes you’ll have broken blood vessels in the eyes or broken

blood vessels along the neck, sometimes somewhere in the face.” 1 VRP at 107. These injuries

are also known as petechial hemorrhaging. However, Officer Malone testified that every case of

strangulation presents different physical symptoms. On Hart’Lnenicka, Officer Malone observed



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No. 52369-8-II


welts on both sides of her neck consistent with finger marks. Officer Malone also observed and

photographed scratches on Coryell’s face, arm, and hand. He did not observe petechial

hemorrhaging on Hart’Lnenicka.

       Coryell testified that he was sitting on the couch in the living room when Hart’Lnenicka

came in and accused him of infidelity. Hart’Lnenicka went back into the bedroom, and Coryell

turned on a video game on the PlayStation. Hart’Lnenicka came back into the living room,

grabbed the PlayStation, unplugged it, and threatened to smash it. Coryell took the PlayStation

from Hart’Lnenicka and placed it on the coffee table. Hart’Lnenicka then smacked Coryell

across the face, causing his glasses to fly off his face. Hart’Lnenicka took Coryell’s glasses,

twisted the frames, popped out the lenses, and threw one of the lenses.

       Coryell picked up one lens and tried to fix his glasses. Hart’Lnenicka then started hitting

and scratching him, and he pushed her. Her heel hit the side of the wall, causing her to fall and

scrape her back on the door handle before reaching the floor. After pushing her, Coryell testified

he tried to repair his glasses. While doing this, Hart’Lnenicka ran into the bedroom, grabbed her

phone and keys, and ran outside. Coryell testified that this was the last time he saw

Hart’Lnenicka that day.

       Coryell testified that the only time he put his hands on Hart’Lnenicka was to push her off

while she was hitting him. When asked about the marks on Hart’Lnenicka’s neck in the

photographs, Coryell testified that he used his forearm to pin Hart’Lnenicka against a wall to get

her to stop hitting him. Coryell denied choking Hart’Lnenicka.

       In its closing argument, the State argued that a fourth degree assault occurred when

Coryell pushed Hart’Lnenicka in the living room, and that a second degree assault occurred



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No. 52369-8-II


when Coryell strangled Hart’Lnenicka at the laundry room. Regarding the second degree

assault, Coryell requested a jury instruction for a lesser included offense, fourth degree assault.3

Coryell argued that affirmative evidence supported an instruction for a lesser included fourth

degree assault instruction because Officer Malone testified regarding the potential signs of

strangulation and the lack of petechial hemorrhaging on Hart’Lnenicka.

       The trial court reviewed Coryell’s testimony. It noted that there was no evidence in the

record from either Coryell or Officer Malone regarding the second degree assault showing that

any events occurred other than the events as described by Hart’Lnenicka. The trial court stated

further that Officer Malone’s testimony regarding signs of strangulation did not rise to the level

required for a lesser included instruction. It ruled that

       the testimony in this case is either that Ms. Hart’Lnenicka was strangled or she
       wasn’t strangled. There’s no testimony from Mr. Coryell that he put his hands
       around her neck but did not strangle her as that term is defined by law. So a lesser
       included of assault 4 would be improper.

2 VRP at 214.

       The jury found Coryell guilty of both counts. At sentencing, Coryell argued that the two

counts of assault violated the prohibition against double jeopardy because the acts were one

continuous act of assault. The trial court ruled that the two convictions did not violate the

prohibition against double jeopardy. Coryell appeals his judgment and sentence.




3
  Although Coryell refers to fourth degree assault as a “lesser included” offense, it is more
accurately characterized as an “inferior degree” offense. RCW 10.61.003. We use the term
lesser included offense for consistency.




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No. 52369-8-II


                                             ANALYSIS

                             I. LESSER INCLUDED OFFENSE INSTRUCTION

        Coryell argues that the trial court applied the incorrect legal standard when it denied his

requested jury instruction for a lesser included offense. He argues that we should overturn

Supreme Court precedent requiring a defendant to show sufficient affirmative evidence that a

defendant is entitled to a jury instruction on a lesser included offense “to the exclusion of the

charged offense.” Br. of Appellant at 12 (quoting State v. Fernandez-Medina, 141 Wn.2d 448,

455, 6 P.3d 1150 (2000). Coryell then argues, applying what he contends is the proper standard

for a lesser included offense, that the trial court erred by not instructing the jury on the lesser

included offense of fourth degree assault on the second degree assault charge. We follow our

Supreme Court precedent and hold that the trial court did not err when denying Coryell’s

requested lesser included offense instruction.

        In Washington, a defendant is entitled to an instruction on a lesser included offense when

two conditions are met: (1) “each of the elements of the lesser offense must be a necessary

element of the offense charged” and (2) “the evidence in the case must support an inference that

the lesser crime was committed” (the Workman test). State v. Workman, 90 Wn.2d 443, 447-48,

584 P.2d 382 (1978). The first condition is known as the legal prong, and the second is the

factual prong. State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015). The legal prong is

not disputed in this case.

        For the factual prong, the rule employed in Washington is that a lesser included

instruction is appropriate when the evidence supports an inference that only the lesser offense

was committed, to the exclusion of the greater, charged offense. Condon, 182 Wn.2d at 316.



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No. 52369-8-II


When determining if the evidence was sufficient to support the lesser included offense

instruction, courts view the evidence in the light most favorable to the party requesting the

instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). A trial

court considers all evidence presented, and this evidence must affirmatively establish the

defendant’s theory of the case, and not merely allow the jury to disbelieve evidence of guilt.

Fernandez-Medina, 141 Wn.2d at 456. The affirmative evidence to support the lesser included

offense requires more than the mere possibility that the jury disbelieves some of the State’s

evidence. State v. Brown, 127 Wn.2d 749, 755, 903 P.2d 459 (1995). Stated another way, the

factual prong requires affirmative evidence which raises an inference that a defendant committed

only the lesser included offense “to the exclusion of the charged offense.” Fernandez-Medina,

141 Wn.2d at 455.

       We review a trial court’s decision regarding the factual prong for an abuse of discretion.

State v. Henderson, 182 Wn.2d 734, 743, 344 P.3d 1207 (2015). A trial court abuses its

discretion when its decision is based on an incorrect legal standard. Henderson, 182 Wn.2d at

743.

A.     We Are Bound To Follow Supreme Court Decisions

       Coryell argues that Washington courts recognize two inconsistent standards for

determining when an instruction for a lesser included offense is required. Specifically, Coryell

argues that courts have moved away from the “proper” Workman test by adding the “to the

exclusion of the charged offense” language. Br. of Appellant at 8. Coryell argues that the

exclusion language is incorrect and harmful, and urges this court to overrule it. We are bound by

the precedent of our Supreme Court.



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No. 52369-8-II


         Stare decisis is a fundamental principle that promotes predictable and consistent

development of legal doctrines, encourages reliance on judicial decisions, and furthers the actual

and perceived integrity of the judicial process. State v. Barber, 170 Wn.2d 854, 863, 248 P.3d

494 (2011). A court may depart from its own precedent. In re Pers. Restraint of Arnold, 198

Wn. App. 842, 846, 396 P.3d 375 (2017), rev’d on other grounds, 190 Wn.2d 136, 410 P.3d

1133 (2018). However, lower courts are bound to follow a higher court’s decisions. State v.

Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997); Arnold, 198 Wn. App. at 846.

Accordingly, we are bound to adhere to the decisions of our Supreme Court, regardless of the

merits of those decisions. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).

         As a result, Coryell’s request for this court to overrule the Supreme Court’s consistent

recitation of the exclusion rule is misguided. We are required to follow the exclusion rule of the

Workman test’s factual prong as set out in Workman’s progeny. Condon, 182 Wn.2d at 316;

Fernandez-Medina, 141 Wn.2d at 455-56. Accordingly, we do not decide whether the exclusion

rule is properly part of the Workman test. Rather, we apply the law as set forth by the Supreme

Court.

B.       Coryell Does Not Meet the Factual Prong of the Workman Test

         Coryell argues that under his interpretation of the Workman test’s factual prong, the trial

court erred by refusing to give his lesser included jury instruction. Applying the proper test, we

hold that the trial court did not abuse its discretion when denying Coryell’s requested jury

instruction.

         This court views the evidence in a light most favorable to Coryell regarding the lesser

included offense of fourth degree assault. Fernandez-Medina, 141 Wn.2d at 455-56. A trial



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No. 52369-8-II


court should consider all the evidence presented at trial when determining whether an instruction

should be given. Fernandez-Medina, 141 Wn.2d at 456. There must be some affirmative

evidence to support that Coryell committed only the lesser included offense. Brown, 127 Wn.2d

at 755.

          At trial, Coryell denied that the second assault occurred. Although he explained

Hart’Lnenicka’s neck injuries by testifying that he had used his forearm to prevent her from

hitting him, this testimony related only to the first event that was charged as fourth degree

assault. Accordingly, Coryell’s testimony did not provide any affirmative evidence regarding the

second assault that would infer the lesser crime of fourth degree assault occurred. And

Hart’Lnenicka’s testimony regarding the second assault supports only a charge of second degree

assault. Her testimony, if believed by the jury, was that Coryell strangled her. A review of

Coryell’s and Hart’Lnenicka’s testimonies shows that the second assault either occurred as

Hart’Lnenicka testified or did not occur at all.

          Coryell further argues that Officer Malone’s testimony that sometimes there is petechial

hemorrhaging on a victim of strangulation, and that Hart’Lnenicka did not present signs of

petechial hemorrhaging, is evidence to support that the strangulation did not occur during the

second assault. But Coryell’s argument is based on the absence of evidence, and as discussed

above, affirmative evidence is required for a jury instruction. Brown, 127 Wn.2d at 755. The

evidence did not support an instruction for fourth degree assault as a lesser included offense for

the second degree assault charge. We hold that the trial court did not abuse its discretion when it

ruled that Coryell was not entitled to a jury instruction on the lesser included offense.




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No. 52369-8-II


                                       II. DOUBLE JEOPARDY

       Coryell argues that his convictions for one count of second degree assault and one count

of fourth degree assault violated the prohibition against double jeopardy. Specifically, Coryell

argues that the two assaults were an uninterrupted series of events during a short period of time;

thus, he can be convicted only of one count of second degree assault. We disagree.

       We review double jeopardy claims de novo. State v. Mutch, 171 Wn.2d 646, 661-62, 254

P.3d 803 (2011). The constitutional guarantee against double jeopardy protects defendants from

being punished multiple times for the same offense. US CONST. amend. V; WASH CONST. art 1,

§ 9; Mutch, 171 Wn.2d at 661.

       When a defendant is convicted of two crimes under the same statute, we apply the unit of

prosecution test. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 980-81, 329 P.3d 78 (2014).

The unit of prosecution test examines the specific act or course of conduct the statute defines as

the punishable act. Villanueva-Gonzalez, 180 Wn.2d at 980-81. Although second degree assault

and fourth degree assault are set out in different statutes, the unit of prosecution test applies to

convictions for different degrees of assault. Villanueva-Gonzalez, 180 Wn.2d at 981-82.

       Assault is a course of conduct crime. Villanueva-Gonzalez, 180 Wn.2d at 984-85. Thus,

if multiple assaultive acts constitute only one course of conduct, then double jeopardy protects

against multiple convictions. Villanueva-Gonzalez, 180 Wn.2d at 985. There is no bright-line

rule for when multiple assaultive acts constitute one course of conduct. Villanueva-Gonzalez,

180 Wn.2d at 985. In determining whether multiple assault acts constitute one course of

conduct, we consider (1) the length of time over which the acts occurred, (2) the location of the

acts, (3) the defendant’s intent or motivation for the assaultive acts, (4) whether the acts were



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No. 52369-8-II


uninterrupted, and (5) whether there was an opportunity for the defendant to reconsider his acts.

Villanueva-Gonzalez, 180 Wn.2d at 985. No single “factor is dispositive, and the ultimate

determination should depend on the totality of the circumstances, not a mechanical balancing of

the various factors.” Villanueva-Gonzalez, 180 Wn.2d at 985.

       Coryell points to the facts of Villanueva-Gonzalez for support; however, the facts here are

distinguishable. In Villanueva-Gonzalez, the defendant told his girlfriend to get out of a

bedroom. 180 Wn.2d at 978. When she did not comply, the defendant pulled her out of the

room and head butted her, causing her nose to break and begin bleeding profusely. Villanueva-

Gonzalez, 180 Wn.2d at 978. He grabbed her by the neck and held her against a piece of

furniture so that the girlfriend had difficulty breathing. Villanueva-Gonzalez, 180 Wn.2d at 978.

A jury convicted Villanueva-Gonzales of second degree assault based on the head butt and fourth

degree assault based on strangulation. Villanueva-Gonzalez, 180 Wn.2d at 978-79. The

Supreme Court held that the defendant’s actions constituted one course of conduct because they

took place in the same location, over a short time period with no interruptions or intervening

events, and with no evidence suggesting a different motivation, intent, or opportunity to

reconsider his actions. Villanueva-Gonzalez, 180 Wn.2d at 985-86.

       Here, considering the totality of the circumstances and the Villanueva-Gonzalez factors,

we hold that Coryell’s course of conduct was two separate assaults. First, the evidence is unclear

regarding the length of time over which the acts occurred. Although Hart’Lnenicka testified that

the length of time between getting back inside and the assault at the laundry room was about 15

or 20 seconds, she did not testify regarding the length of time she was outside of the apartment




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No. 52369-8-II


after being drug out by Coryell. Second, the assaults occurred at two different locations, the first

in the living room and the second at the laundry room.

       Third, because his testimony did not acknowledge the second altercation near the laundry

room doors, Coryell’s express intent is unknown. However, regarding the first assault, Coryell’s

intent from his testimony seems to be that he wanted to prevent Hart’Lnenicka from destroying

the PlayStation, and he wanted her to stop hitting him. Regarding the second assault

Hart’Lnenicka testified that Coryell said, “I’m not afraid to kill you.” 1 VRP at 48. Based on

her testimony, Coryell’s initial intent was to prevent Hart’Lnenicka from destroying the

PlayStation. His intent at the laundry room appears simply to be an intent to cause harm to

Hart’Lnenicka.

       Fourth, the two assaults were interrupted by Coryell removing Hart’Lnenicka from the

apartment and locking her out. Hart’Lnenicka then reentered the apartment, ran to the laundry

room, and was assaulted by Coryell a second time. Hart’Lnenicka being locked out interrupted

the assaultive events. Fifth, while Hart’Lnenicka was locked out of the apartment, Coryell had

the opportunity to reconsider his acts. Despite this opportunity, Coryell assaulted Hart’Lnenicka

a second time after she reentered the apartment.

       Based on the totality of the circumstances surrounding Coryell’s conduct, we hold that

Coryell committed two separate assaults. Accordingly, we hold that double jeopardy is not

implicated because Coryell’s two assaults do not constitute a single course of conduct.

       We affirm.




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No. 52369-8-II


       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.




                                                                    Worswick, J.
 We concur:



 Lee, A.C.J.




 Cruser, J.




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