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

In the Matter of the Personal                     No. 74508-5-1
Restraint Petition of
                                                 PUBLISHED OPINION
WILLIAM NEAL FRANCE,

                            Petitioner.          FILED: July 24, 2017

       SCHINDLER, J. — A jury convicted William Neal France as charged of three

counts of felony harassment of his former attorney and two counts of felony harassment

of The Defender Association (TDA)deputy director in violation of RCW 9A.46.020. The

Washington Supreme Court affirmed the felony harassment convictions. State v.

France, 180 Wn.2d 809, 820, 329 P.3d 864(2014). On December 8, 2015, France filed

a personal restraint petition. France claims that because the course of conduct is

repeatedly threatening to cause bodily harm to the same victim, three of the five

convictions violate double jeopardy and the prohibition against multiple punishments for

the same offense. France argues the only case that has addressed the unit of

prosecution for felony harassment, State v. Vidales Morales, 174 Wn. App. 370, 298

P.3d 791 (2013), supports his argument. We disagree. In Vidales Morales, we

concluded that given the factual scenario in that case, the unit of prosecution was the

threat to cause bodily harm to a single identified victim at a particular time and place
No. 74508-5-1/2

regardless of how many times the threat was communicated. Unlike in Vidales Morales,

France made different types of threats to cause bodily harm to each of the two victims

at different times and places. We conclude under the facts in this case, the unit of

prosecution is each threat and each threat is a violation of the felony harassment

statute. We deny the personal restraint petition.

2009 Plea Agreement

       The State charged France with felony violation of a protection order in 2009.

TDA attorney Anita Paulsen represented France and negotiated a plea agreement with

the State. The State agreed to resolve a pending charge of misdemeanor assault in the

fourth degree and recommend a drug offender sentencing alternative (DOSA). The

court accepted the plea, finding France knowingly, intelligently, and voluntarily entered

into the plea. TDA social worker Nina Beach worked with France to obtain benefits after

release from custody.

      At the sentencing hearing on October 16, 2009, the court followed the

recommendation and imposed a DOSA sentence for felony violation of a protection

order and a concurrent sentence for misdemeanor assault.

2011 Plea Agreement

       Beginning in late 2010, France started leaving angry and "inappropriate" voice

mails for Paulsen and Beach. After receiving "at least a dozen, probably more" voice

mails, Paulsen met with TDA Deputy Director Lisa Daugaard.

       Daugaard called France in an effort to figure out why he was so "upset" and

"what was motivating such anger." When France returned the call, he was "quite upset"

Daugaard had called him.




                                            2
No. 74508-5-1/3

          Daugaard sent France a "cease and desist" letter. Daugaard told France not to

contact Paulsen or Beach. But Daugaard offered to talk to France about whether "he

was dissatisfied or had concerns about his representation . .. and, if there was follow-

up that needed to happen,[she] would make sure that that happened."

          France ignored the cease and desist letter and continued to contact Paulsen and

Beach. France also started leaving threatening voice mails for Daugaard.

          Paulsen said that after Daugaard sent the cease and desist letter, "it was like

putting gasoline on a fire." The voice mails "had a different character to them"—

"[t]hreats of sexual assault, threats of cutting us, shooting us, . . . and sexual assault in

the most vile language I think I've ever heard."

          Daugaard and Paulsen contacted the police. Paulsen said she "had never, ever

even contemplated reporting a client" to the police. Daugaard testified it was the first

time in her career as a public defense attorney that she contacted the police about a

client.

                 I've never participated in reporting any of our clients to law
          enforcement out of all those thousands and thousands and thousands of
          interactions and many whatever dozens or hundreds of complaints and
          unhappy people and sometimes irrational-sounding people.
                 None of those interactions have ever made me think it was
          appropriate to take that kind of step.

          On September 23, 2011, the State charged France with 16 counts of felony

harassment in violation of RCW 9A.46.020: 6 counts of felony harassment of Paulsen,

5 counts of felony harassment of Daugaard, and 5 counts of felony harassment of

Beach. The State alleged manifest deliberate cruelty and an offense against an officer

of the court as aggravating factors.




                                               3
No. 74508-5-1/4

        France pleaded guilty to nine counts of felony harassment and the aggravating

factor of committing an offense against an officer of the court "in support of an

exceptional sentence." In the "Statement of Defendant on Plea of Guilty," France

admits, "I placed the calls that are contained in pre-trial exhibit 1."1 France admits he

"knowingly threatened to cause bodily injury" to each of the victims "immediately or in

the future," he "threatened to maliciously do an act intended to substantially harm" each

victim, and "my words placed [each victim] in reasonable fear that the threat would be

carried out." The State agreed to dismiss the other seven counts of felony harassment

and the aggravating factor of deliberate cruelty.

        The court found there was a factual basis for the plea and France knowingly,

intelligently, and voluntarily entered the plea. The court found France guilty as charged

in the amended information.

        Paulsen and Daugaard attended the sentencing hearing on November 10, 2011

to address imposition of an exceptional sentence. Paulsen told the court France was a

"very dangerous" and "terrifying individual" who promised to "hunt us down like animals,

on the street in front of the courthouse or the jail as we went around about our work."

Paulsen "just wanted it to be over" and urged the court to impose an exceptional

sentence.

       [I]t [is] important for the Court to know how unusual this is, how dangerous
       I felt the situation was in that this was something for no apparent reason
       that I could understand, something that escalated in frequency over time,
       described time, place, manner of assault, history of violence towards
       others that had been acted upon, a history of gratuitous violence.




       1 Pre-trial exhibit 1 contains audio recordings and transcripts of the voice mails to Paulsen,
Daugaard, and Beach.


                                                     4
No. 74508-5-1/5

        Daugaard also asked the court to impose an exceptional sentence. Daugaard

told the court France "talked about how he would find where I live and hurt not only me

but whoever lived with me."

       The court imposed an exceptional sentence of 180 months. The court ordered

France to have no contact with the victims for the maximum term of 15 years.2

2011 Felony Harassment Charges

        Despite the court order to have no contact with Paulsen and Daugaard, France

started leaving voice mails for Paulsen and Daugaard almost immediately after the

sentencing hearing on November 10, 2011.

       On November 10, France left a voice mail for Daugaard threatening to harm her.

       Hey bitch. You fucked up by coming into the courtroom today. You think
       for one fucking minute nothing's going to happen to you? You worthless
       mother-fucking slut. ... Give a message to Rita, Anita Paulsen, same
       thing. 8 years. You'd better find a new job, bitch. You better find a new
       fucking job.

       Paulsen testified that France called and left a voice mail "within hours of the

sentencing" but she did not listen to the voice mail until November 11. In the voice mail,

France tells Paulsen that "a few of my friends ...[will] be paying you a visit."

       Hello honey. Glad to hear your voice. What you did in the courtroom was
       outstanding. That was a marvelous fucking act. I never heard [inaudible]
       in my whole life. I called up a friend, I called up a few of my friends. I told
       them about[you]. They'll be paying you a visit. Have a nice fucking life,
       you worthless fucking bitch.

Paulsen said the voice mail placed her in absolute fear.

       [I]t tells me he will not be dissuaded, he cannot be stopped, as soon as he
       has access to a phone, he will call and, as soon as he is out, he will try to



       2 France appealed. France argued the court abused its discretion by imposing an exceptional
sentence. We disagreed and affirmed. State v. France, 176 Wn. App. 463, 465, 308 P.3d 812(2013).


                                                 5
No. 74508-5-1/6

       implement his threat, or he will find quote some of his friends to do that for
       him.

Paulsen described most of the other voice mails she had received as "sexually explicit

with threats of anal rape and sodomy." Paulsen said the voice mail on November 11

was "different"—it was a threat that his friends would harm her.

       On November 17, France left another threatening voice mail for Paulsen.

       Hello Anita. That was spectacular you being in the courtroom. That was
       great. I like that, you was really concerned about my welfare. Just want
       to let you know there's a couple of, a couple of my buddies are coming to
       see ya. They'll take you out for lunch. You know. Show you, show you
       appreciation. Just to let you know. It's gonna be okay. I told them to take
       care of ya. You know to treat you really good.

Paulsen testified the statement "R]hey'll take you out for lunch" meant his "buddies"

would "take me out, period."

       Q.     Now, I don't know whether you would — this is a fair
              characterization or not, but do you detect some note of sarcasm in
              the voice or tone in terms of people showing their appreciation or
              taking you out to lunch, those sorts of things? The words seem to
              suggest one thing; how did you interpret that?
       A.     Mr. France has historically been fairly cagey with a lot of his cases.
              I interpret it as taking me out to lunch, meaning to take me out,
              period.
       Q.     Did you perceive it as a threat?
       A.     I did perceive it as a threat.
       Q.     Is there any doubt in your mind that it was intended as a threat?
       A.     No doubt at all.

       On December 5, France left a sexually explicit voice mail for Paulsen threatening

to "put a bullet" in her, sexually assault her, and anally penetrate her with a broom.

       Anita Paulsen, I don't have a phone number for you to call me back. The
       only way I can call you, the only way I can get a hold of you is if I called
       you. But I do want to say one thing. You were spectacular in that
       courtroom on the 10th of this last month. Goddamn you were good. But
       there's one thing I do want to do though, I want to put a bullet up your
       fucking ass. But before I do that, I'm gonna lick your pussy. Stick my dick



                                             6
No. 74508-5-1/7

      in your pussy, then I'm gonna stick a broom up your ass. How you gonna
      feel about that little girl?

       On December 14, France left a voice mail for Daugaard threatening that in 10

years, he would sexually assault her in the elevator.

      Lisa, this is your favorite fucking person in the whole world. I like how you,
      uh, expressed yourself in the courtroom on the 10th of last month. Yeah, I
      liked that. It's been a fucking month, little lady. It's been a month. But
      see in 10 years, I want you to understand something real fuckin quick, I'm
      still gonna get ya. What you said in the courtroom wasn't called for, you
      come to the courtroom, coming to court, wasn't called for. You
      understand? Now I'm gonna do, I'm gonna do 96 fuckin months because
      of you. All because of you. But when I get out, I'm gonna get you in the
      fuckin elevator. I'm gonna fuck you in your ass, bitch. I'm gonna pull your
      fuckin pants down right in the elevator and I'm gonna let it have it. All up
      in ya, up and in ya, you little slut bitch.

      The State charged France with three counts of felony harassment of Paulsen for

the voice mails on November 11, November 17, and December 5,2011 and two counts

of felony harassment of Daugaard for the voice mails on November 10 and December

14, 2011 in violation of RCW 9A.46.020. The State alleged France committed the

offenses against officers of the court as aggravating factors. France pleaded not guilty.

2012 Jury Trial

      The jury trial began on March 1, 2012. The court granted the motion to amend

the information to add a charge of intimidation of a witness in violation of RCW

9A.72.110. The State alleged that on December 27, 2011, France made a threat

against Daugaard in an attempt to prevent her from testifying. In the December 27,

2011 voice mail, France tells Daugaard,"Don't come to court girl. Don't come to court."

      The court admitted into evidence the audio recordings of the voice mails France

left for Paulsen and Daugaard in November and December 2011. The State played the

voice mail recordings for the jury. Paulsen and Daugaard were the only witnesses to


                                            7
No. 74508-5-1/8

testify at trial. France stipulated that he had been previously convicted of felony

harassment of Paulsen and Daugaard.

       The jury found France guilty as charged of three counts of felony harassment of

Paulsen, two counts of felony harassment of Daugaard, and intimidation of a witness.3

The court imposed an exceptional sentence of 120 months.

        France appealed. France argued insufficient evidence supported the

convictions. We accepted the State's concession that insufficient evidence supported

the witness intimidation conviction. We affirmed the jury convictions on the five counts

of felony harassment. State v. France, 175 Wn. App. 1024, 2013 WL 3130408, at *1.

              The State needed to prove, in relevant part, that France knowingly
       threatened to maliciously do an act intended to substantially harm the
       victim's physical health or safety. France told Daugaard,"You think for
       one fucking minute nothing's going to happen to you?.. . Anita Paulsen,
       same thing, eight years, you'd better find a new job." He said that in 10
       years he's "gonna get" her, and that he's going to sexually assault her in


        3 The court instructed the jury the State must prove beyond a reasonable doubt:
                (1) That... the defendant knowingly threatened:
                         (a) maliciously to do any act which was intended to substantially harm
       [the victim] with respect to her physical health or safety; and
                (2) That the words or conduct of the defendant placed [the victim] in reasonable
       fear that the threat would be carried out;
                (3) That the defendant acted without lawful authority;
                (4) That the defendant was previously convicted of the crimes of Felony
       Harassment against[the victim]; and
                (5) That the threat was made or received in the State of Washington.
The court instructed the jury on the definition of "harassment."
                A person commits the crime of harassment when he, without lawful authority,
       knowingly threatens maliciously to do any act which is intended to substantially harm
       another person with respect to his or her physical health or safety and when he or she by
       words or conduct places the person threatened in reasonable fear that the threat will be
       carried out.
The court instructed the jury on the definition of "threat."
                As used in these instructions, threat also means to communicate, directly or
       indirectly, the intent immediately to use force against any person who is present at the
       time.
                To be a threat, a statement or act must occur in a context or under such
       circumstances where a reasonable person would foresee that the statement or act would
        be interpreted as a serious expression of intention to carry out the threat.


                                                   8
No. 74508-5-1/9

       the elevator. He told Paulsen that he would "put a bullet" in her, sexually
       assault her, and anally penetrate her with a broom. He told Paulsen that
       his friends were going to pay her a visit. He also stated, "[A] couple of my
       buddies are coming to see ya. They're going to take you out for lunch."
       Paulsen testified that she interpreted these words as a threat,"meaning to
       take me out, period." A rational trier of fact could determine that in leaving
       these voice mails, France intended to substantially harm Paulsen and
       Daugaard with respect to their physical health or safety. We conclude that
       evidence was sufficient to support France's felony harassment
       convictions.

France, 2013 WL 3130408, at *5.4 The Supreme Court affirmed the felony harassment

convictions. State v. France, 180 Wn.2d 809, 820, 329 P.3d 864 (2014).

Personal Restraint Petition

       France filed a personal restraint petition on December 8, 2015. Under RCW

10.73.090, a personal restraint petitioner generally has one year from the time a

judgment becomes final to file a petition. There is no dispute France timely filed the

petition.

       A petitioner filing a personal restraint petition is entitled to relief if he is under

unlawful restraint as defined in RAP 16.4. A restraint is "unlawful" where "[t]he

conviction was obtained ... in violation of the Constitution of the United States or the

Constitution... of the State of Washington." RAP 16.4(c)(2). A petitioner raising

constitutional error must show the error caused actual and substantial prejudice. In re

Pers. Restraint of Davis, 152 Wn.2d 647,671-72, 101 P.3d 1(2004); In re Pers.

Restraint of Cook, 114 Wn.2d 802, 811-12, 792 P.2d 506(1990).

       France contends three of the five felony harassment convictions violate double

jeopardy and the prohibition against multiple punishments for the same offense.




       4 Alterations   in original.


                                                9
No. 74508-5-1/10

       Double jeopardy is a question of law that we review de novo. State v. Reeder,

184 Wn.2d 805, 825, 365 P.3d 1243(2015). The double jeopardy clause of the Fifth

Amendment to the United States Constitution and article 1, section 9 of the Washington

Constitution "protects a defendant from being punished multiple times for the same

offense." North Carolina v. Pearce, 395 U.S. 711, 717,89 S. Ct. 2072,23 L. Ed. 2d 656

(1969); State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072(1998); State v. Villanueva-

Gonzalez, 180 Wn.2d 975, 980, 329 P.3d 78(2014). Under the Fifth Amendment, Injo

person shall ... be subject for the same offense to be twice put in jeopardy of life or

limb." Under article 1, section 9, "[n]o person shall... be twice put in jeopardy for the

same offense."

       When a defendant is convicted of violating the same statute multiple times, we

must determine what "unit of prosecution" the legislature intended as "'the punishable

act under the specific criminal statute.'" Reeder, 184 Wn.2d at 825 (quoting Adel, 136

Wn.2d at 634). Double jeopardy protects a defendant from conviction more than once

under the same statute if the defendant commits only one unit of the crime. Reeder,

184 Wn.2d at 825; Adel, 136 Wn.2d at 634.

       The legislature has the power to define what conduct is punishable and the

prohibition on double jeopardy "imposes '[flew, if any, limitations' on that power."

Villanueva-Gonzalez, 180 Wn.2d at 9805 (quoting Sanabria v. United States, 437 U.S.

54,69, 98 S. Ct. 2170, 57 L. Ed. 2d 43(1978)). "The scope of the criminal act as

defined by the legislature is considered the unit of prosecution." Reeder, 184 Wn.2d at




       5 Alteration   in original.


                                            10
No. 74508-5-1/1 1

825; Adel, 136 Wn.2d at 634. The unit of prosecution for a crime can be either an act or

a course of conduct. State v. Hall, 168 Wn.2d 726, 730, 230 P.3d 1048 (2010).6

        The determination of the unit of prosecution "'ultimately revolves around a

question of statutory interpretation and legislative intent.'" State v. Barbee, 187 Wn.2d

375, 382, 386 P.3d 729(2017)(quoting Adel, 136 Wn.2d at 634). The goal of statutory

interpretation is to ascertain and carry out the intent of the legislature. Barbee, 187

Wn.2d at 382. The first step is to look to the plain meaning of the statute. Barbee, 187

Wn.2d at 383. If the plain meaning of the statute is ambiguous, we may determine

legislative intent by reviewing legislative history. Barbee, 187 Wn.2d at 383. Last, we

perform a factual analysis as to the unit of prosecution because "the facts in a particular

case may reveal more than one 'unit of prosecution' is present." State v. Varnell, 162

Wn.2d 165, 168, 170 P.3d 24 (2007). If there is still doubt, the rule of lenity applies and

requires any ambiguity be resolved against turning a single transaction into multiple

offenses. Reeder, 184 Wn.2d at 825.

        The question here is"'what act or course of conduct'"did the legislature define

as the punishable act under the harassment statute, RCW 9A.46.020. Villanueva-

Gonzalez, 180 Wn.2d at 980-81 (quoting Adel, 136 Wn.2d at 634).

        The legislature enacted the harassment statute in 1985 as "part of a multifaceted

remedial scheme.. . to protect citizens from harmful harassing behavior." State v.




        6 In Hall, the court held the unit of prosecution for witness tampering is "the ongoing attempt to
persuade a witness not to testify in a proceeding," not necessarily any single attempt to do so. Hall, 168
Wn.2d at 734. In direct response to Hall, in April 2011, the legislature amended the witness tampering
statute and added the following language to supersede Hall: "For purposes of this section, each instance
of an attempt to tamper with a witness constitutes a separate offense." LAWS OF 2011, ch. 165,§ 3; ROW
9A.72.120(3).


                                                   11
No. 74508-5-1/12

Smith, 111 Wn.2d 1, 3,759 P.2d 372(1988).

      The legislature finds that the prevention of serious, personal harassment
      is an important government objective. Toward that end, this chapter is
      aimed at making unlawful the repeated invasions of a person's privacy by
      acts and threats which show a pattern of harassment designed to coerce,
      intimidate, or humiliate the victim.
             The legislature further finds that the protection of such persons
      from harassment can be accomplished without infringing on
      constitutionally protected speech or activity.

RCW 9A.46.010.

       RCW 9A.46.020 defines the elements of the crime. A person is guilty of

harassment if, without lawful authority, he or she knowingly threatens to cause bodily

injury immediately or in the future and the words or conduct place the person threatened

in reasonable fear that the threat will be carried out. RCW 9A.46.020(1). RCW

9A.46.020(1) states:

      A person is guilty of harassment if:
             (a) Without lawful authority, the person knowingly threatens:
             (i) To cause bodily injury immediately or in the future to the person
      threatened or to any other person; or
             (ii) To cause physical damage to the property of a person other
      than the actor; or
             (iii) To subject the person threatened or any other person to
      physical confinement or restraint; or
             (iv) Maliciously to do any other act which is intended to
      substantially harm the person threatened or another with respect to his or
      her physical or mental health or safety; and
             (b) The person by words or conduct places the person threatened
      in reasonable fear that the threat will be carried out.

       The crime of harassment is a class C felony if the defendant has been previously

convicted of any crime of harassment of the same victim or any person named

specifically in a no-contact or no-harassment order, threatens to kill the person




                                            12
No. 74508-5-1/13

threatened or any other person, or harasses a criminal justice participant performing his

or her duties. RCW 9A.46.020(2)(b). RCW 9A.46.020(2) states:

      (a) Except as provided in (b) of this subsection, a person who harasses
      another is guilty of a gross misdemeanor.
               (b) A person who harasses another is guilty of a class C felony if
      any of the following apply: (i) The person has previously been convicted
      in this or any other state of any crime of harassment, as defined in RCW
      9A.46.060, of the same victim or members of the victim's family or
      household or any person specifically named in a no-contact or no-
      harassment order; (ii) the person harasses another person under
      subsection (1)(a)(i) of this section by threatening to kill the person
      threatened or any other person; (iii) the person harasses a criminal justice
      participant who is performing his or her official duties at the time the threat
      is made; or (iv) the person harasses a criminal justice participant because
      of an action taken or decision made by the criminal justice participant
      during the performance of his or her official duties. For the purposes of
      (b)(iii) and (iv) of this subsection, the fear from the threat must be a fear
      that a reasonable criminal justice participant would have under all the
      circumstances. Threatening words do not constitute harassment if it is
      apparent to the criminal justice participant that the person does not have
      the present and future ability to carry out the threat.

       Because the legislature does not define the unit of prosecution, France contends

it is the course of conduct of repeatedly threatening the same victim. France asserts

the only case to address the unit of prosecution for felony harassment, State v. Vidales

Morales, 174 Wn. App. 370, 298 P.3d 791 (2013), supports his argument. We disagree.

       In State v. Alvarez, 74 Wn. App. 250, 252, 872 P.2d 1123(1994), we addressed

whether the harassment statute punished only repeated threats. In Alvarez, the

defendant argued the criminal antiharassment act of 1985 required more than one act of

harassment against a single victim. Alvarez, 74 Wn. App. at 252. The defendant

asserted the legislative findings established the intent to criminalize only "'repeated

invasions. .. by acts and threats which show a pattern of harassment.'" Alvarez, 74




                                            13
No. 74508-5-1/14

Wn. App. at 256 (quoting RCW 9A.46.010).

       We concluded that although the legislative intent and findings in RCW 9A.46.010

"speak[]in the plural, declaring the aim of'making unlawful the repeated invasions of a

person's privacy by acts and threats' showing a 'pattern of harassment,'"the statute

defining the crime, RCW 9A.46.020,"unambiguously describes what is necessary for

conviction." Alvarez, 74 Wn. App. at 257. Because the elements section is

unambiguous and requires "only one act or threat rather than multiple acts or threats to

support a conviction," we held the statement of legislative intent did not "override the

unambiguous elements section of[the] penal statute." Alvarez, 74 Wn. App. at 258.

       We will not substitute the intent section's reference to plural "acts and
       threats" for the straightforward definition of the crime found in RCW
       9A.46.020, on the basis of a perceived inconsistency between that section
       and the preamble in RCW 9A.46.010.

Alvarez, 74 Wn. App. at 258 (quoting RCW 9A.46.010).

       In State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754(1995), the Washington

Supreme Court affirmed. The Supreme Court held that although the legislative intent

and findings indicate the legislature "intended to make criminal 'repeated invasions of a

person's privacy' by acts and threats showing a 'pattern of harassment,'"the

unambiguous language of the statute defining the crime does not require repeated

invasions or a pattern of harassment. Alvarez, 128 Wn.2d at 12(quoting RCW

9A.46.010).

       Harassment is defined under RCW 9A.46.020. Nothing in that section
       indicates a legislative intent to criminalize only invasion of privacy by
       repeated acts and threats showing a pattern of harassment.

Alvarez, 128 Wn.2d at 12. The Supreme Court held RCW 9A.46.020 is the operative


       7 Alteration   in original.


                                            14
No. 74508-5-1/15

and controlling statute that defines the elements and prescribes the penalties, and the

court of appeals correctly concluded ROW 9A.46.020 requires only one act of

harassment against a victim. Alvarez, 128 Wn.2d at 12-13.

       Vidales Morales is the only case that has addressed the unit of prosecution for

felony harassment. In Vidales Morales, Jesus Vidales Morales threatened to kill the

mother of his three children, Yanett Farias. Vidales Morales, 174 Wn. App. 374. On

February 14, 2011, Morales went to the house of her sister. Morales told the sister's

spouse Trinidad Diaz that when Farias dropped the children off at day care the next

morning,"he would be waiting for her and kill her." Vidales Morales, 174 Wn. App. at

374. Diaz feared Morales would carry out the threat. Farias's sister called Farias to tell

her that Morales threatened to kill her when she took the children to day care the next

morning. Farias contacted the police. Vidales Morales, 174 Wn. App. at 374.

       The next morning on February 15, Farias saw Morales parked across the street

from the house of the day care provider. Vidales Morales, 174 Wn. App. at 375. Farias

told the children to run inside the house. The day care provider helped the 11-year-old

call the police. Vidales Morales, 174 Wn. App. at 375. Meanwhile, Morales blocked

Farias from driving away with his truck. Morales yelled at Farias, "'This is as far as

you've gone, you fucking bitch, because I'm going to kill you here.'" Vidales Morales,

174 Wn. App. at 375. After the day care provider intervened and yelled at Morales, he

left. Vidales Morales, 174 Wn. App. at 375.

       The State charged Morales with two counts of felony harassment in violation of

RCW 9A.46.020. Vidales Morales, 174 Wn. App. at 375. The State alleged Morales

threatened to kill Farias on February 14, 2011, count 1; and he threatened to kill Farias



                                            15
No. 74508-5-1/16

on February 15, 2011, count 2. Vidales Morales, 174 Wn. App. at 375-76. A jury

convicted Morales as charged of two counts of felony harassment. Vidales Morales,

174 Wn. App. at 376.

       On appeal, we addressed "whether, if a person threatens a single harm, placing

the person threatened in fear, the unit of prosecution is then that threat of harm, or is

instead each time and place he or she repeats it to the victim or third parties." Vidales

Morales, 174 Wn. App. at 386. We held one of the two convictions for threatening to

cause bodily harm to a single person at the same time and place violated double

jeopardy. Vidales Morales, 174 Wn. App. at 387-88.8 We concluded that given the

particular factual scenario, a threat to cause bodily harm to a single identified person at

a particular time and place was "only one unit of prosecution," regardless of how many

times the threat was communicated to others. Vidales Morales, 174 Wn. App. at 387-

88.

              We need not determine the unit of prosecution for all harassment
       scenarios to conclude that where, as here, a perpetrator(1)threatens to
       cause bodily harm to a single identified person at a particular time and
       place and (2) places a single victim of the harassment in reasonable fear
       that the threat will be carried out, the conduct constitutes a single offense.
       The harassment statute focuses on a perpetrator's coercing, intimidating,
       or harassing the victim by a threat or threats that place her in reasonable
       fear. The number of persons who might learn of the threat and
       communicate with the victim about it and the number of times it might be
       communicated are secondary.

Vidales Morales, 174 Wn. App. at 387.

       Here, because the facts establish France made different types of threats to

cause bodily harm to Paulsen and Daugaard at different times and places, the unit of


        8 We vacated one of the convictions and remanded for resentencing. Vidales Morales, 174 Wn.
App. at 388. See State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167(2008)(The proper remedy is to
vacate a conviction that violates double jeopardy.).


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No. 74508-5-1/17

prosecution in this case is each threat.

       In the November 10, 2011 voice mail to Daugaard, France threatened to harm

Daugaard when he got out of prison in eight years. France tells Daugaard,"You fucked

up. . . . You think for one fucking minute nothing's going to happen to you? ... Give a

message to ... Anita Paulsen, same thing. [Eight] years. You'd better find a new job,

bitch. You better find a new fucking job."

       In the November 11 voice mail, France tells Paulsen that he "called up a few of

my friends" and they would "be paying you a visit." Paulsen testified that France

threatened to "recruit other individuals to... hurt me."

      [W]hat struck me is, despite all attempts, when he's in custody, to limit his
      access to a telephone, he still manages to call, and I believe that he would
      attempt to recruit other individuals to — to hurt me.

       In the November 17 voice mail, France told Paulsen, "[M]y buddies are coming to

see ya. They'll take you out for lunch. . . . I told them to take care of ya." Paulsen

testified the November 17 voice mail meant France planned to recruit others to kill her.

Paulsen testified she was "[a]bsolutely" afraid after receiving the voice mail and believed

France "will not be dissuaded, he cannot be stopped" from "implement[ing] his threat" to

harm her.

       In the December 5 voice mail, France told Paulsen he wanted "to put a bullet up

your fucking ass," "I'm gonna lick your pussy" and "[s]tick my dick in your pussy," and

"then I'm gonna stick a broom up your ass." Paulsen testified that after she received the

December 5 voice mail, she believed it was only "a question of time" before France

would try to carry out his threats.

       Q.     What effect or impact do you recall did that[December 5] call have
              on you, Miss Paulsen?


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No. 74508-5-1/18

       A.     Again, he will not be stopped; he does everything he can to
              circumvent the security at the jail. He still manages to make calls.
              It essentially is a question of time.

       Q.    ... Reflecting back on those calls, considering how you thought
             about them over that time, do you have any changed opinion about
             your sense of safety or the threats that are a part of those. . . three
             calls you've identified?
       A.    No, I think it's a question of time before Mr. France comes after me.

       In the December 14 voice mail to Daugaard, France states that "in 10 years, . . .

I'm gonna get you in the fuckin elevator" and "fuck you in your ass, bitch." Daugaard

testified that she felt "extreme apprehension that Mr. France might do the things that he

said" in his voice mails. Specifically, in the November 10 voice mail, threatening to

harm her in "8 years," and in the December 14 voice mail, threatening to sexually

assault her. Daugaard testified, "[N]o one has ever made me feel afraid in the way that

these calls made me afraid because they are so specific, and because they are so

reasonable, honestly, in the plan that is being expressed." Daugaard testified that she

took France's threats seriously because he was very specific about the timing, location,

and types of harms he threatened.

       Q.    You took the threats seriously, and why is that?
       A.    Because it was very evident that Mr. France wanted us to take
             them very seriously.
                     They were very — they kept coming. They were very
             explicit. They were very specific. They were very mean. What
             was being threatened was awful.
       Q.    Disturbing?
       A.    Yes, and he also was making an effort to — seemed to be making
             an effort to make clear, you know, he was explaining exactly how
             he was going to do these things, and exactly where he was going
             [to] do these things, and exactly how he was going to get away with
             doing these things.

       Because the facts establish France made different threats to cause bodily harm

to Paulsen and Daugaard at different times and places, the jury convictions for five


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No. 74508-5-1/19

counts of felony harassment do not violate double jeopardy. We deny the personal

restraint petition.




WE CONCUR:




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