### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OFWASHINGTON, 

### ) No. 78961-9-I

Respondent, v. 

### )

) UNPUBLISHED OPINION CRAIG ALEXANDER HALL, 

### ) ) FILED: November 18, 2019 Appellant.
__________________________________________________________________________________) VERELLEN, J.

— Craig Hall was found guilty on a single charge ofsecond degree assaultwith a deadlyweapon after he punched Ian Smith in the face and later advanced on him with a knife. Because the State made a clear and explicit election to rely solely on Hall advancing on Smith with the knife as the basis forthe charge against him, the courtwas not required to give a Petrich1 unanimity instruction. Therefore, we affirm. FACTS Hall was drinking atthe Thunderbird Tavern in Ballard when he began accusing a group of“Mexican” people in the barofstealing from him.2 The

1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), abrociated on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).

2 Report of Proceedings (RP) (Aug. 1, 2018) at 314, 357. Hall called the other patrons “Mexican,” butthe record is unclearabouttheir nationality.No. 78961-9-1/2

bartender made him leave. Outside the bar, Hall flung several ofthe bar’s small potted trees atthe building. Smith, Thunderbird’s owner, tried to deescalate Hall and convince him to leave the area. Hall appeared to calm down until he suddenly delivered “a full on punch directlyto the head

. . . a sucker punch” and ran down the street.3 Smith followed Hall and called the police. While Smith spoke with the 911 dispatcher, Hall turned to face Smith and was holding a knife. Hall advanced on Smith while displaying the knife and making profane threats. Smith retreated to the middle ofthe street, and Hall fled to a nearbyyard as the police arrived. The State charged Hall with second degree assaultwith a deadlyweapon. Ajuryfound Hall guilty ofsecond degree assaultwhile armed with a deadly weapon. Hall appeals. ANALYSIS Hall argues the courtfailed to give a Petrich unanimity instruction, a manifest constitutional error he may raise forthe firsttime on appeal.4 We review the adequacy ofjury instructions de novo.5 A Petrich instruction is appropriate when the evidence in a criminal case “‘indicates that several distinct criminal acts have been committed, but [the]

~ RP (July 31, 2018) at 236, 238.

~ RAP 2.5(a).

~ State v. Boyd, 137 Wn. App. 910, 922, 155 P.3d 188 (2007).

2No. 78961-9-1/3

defendant is charged with only one count ofcriminal conduct.”6 The instruction preserves the constitutional right to a unanimousjuryverdict bytelling thejurythat the State must prove a particular criminal act beyond a reasonable doubt and that alljurors must unanimously agree on which act it proved.7 The instruction is unnecessarywhere the State “‘elect[s] the act upon which itwill relyforconviction.”8 An effective election must “‘clearly identif[y] the act upon which the charge in question is based”9 and “disclaim its intention to rely on otheracts” forconviction by doing so.1° In State v. Carson, our Supreme Court held the State made an effective election and no Petrich instruction was required because the prosecutor “clearly and explicitly” told thejury during closing argumentwhich acts the State was relying on forconviction.11 Hall contends he was convicted with a non-unanimous verdict because the State failed to electwhetherthe punch oradvancing with the knife gave rise to the single charge ofassaultwith a deadlyweapon. The record does not support Hall’s argument.

6 State v. Carson, 184 Wn.2d 207, 217, 357 P.3d 1064 (2015) (quoting Petrich, 101 Wn.2d at 572).

~ ki. at 217 n.5 (quoting 11 WASHINGTON P~cTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL4.25, at 110-12 (3d ed. 2008)).

8j4~ at 227 (quoting Petrich, 101 Wn.2d at 572). hi (internal quotation marks omitted) (quoting State v. Thompson, 169 Wn. App. 436, 474-75, 290 P.3d 996 (2012)). ~°ld. at 228 n.15. ki. at 228-29.

3No. 78961-9-1/4 During closing argument, the prosecutor explained the elements ofsecond degree assaultwith a deadlyweapon. [W]e’ll go to the assaulted and with a deadlyweapon part [ofthe elementsthe State must prove to convict].
Can you have an assault ifsomeone doesn’ttouch the person, doesn’t harm the person? Well, just highlight some ofthe parts ofthejury instructions. Done with the intent to create in anotherapprehension and fearof bodily injury and, which, in fact, creates in anothera reasonable apprehension and imminentfearof bodily injury even though the actordid not actually intend to inflict bodily injury. Reasonable apprehension. Doesn’t have to intend to inflict bodily injury.

.
It doesn’t have to be an injuryforan assaultto occur. But it’s notjustthat Mr. Hall assaulted lan Michael Smith. It’s that it’s with a deadlyweapon.
In this case, that’s the knife. The knife is the deadly weapon.~121 [T]he State has met its burden beyond a reasonable doubtthat on January 3, 2018, that Mr. Craig Hall assaulted Ian Michael Smith with a deadlyweapon, the knife, in the [s]tate ofWashington.[13]

12 RP (Aug. 1,2018) at442-44. Id. at451.

4No. 78961-9-115
As in Carson, the State made a clear and explicit election to rely only on Hall wielding a knife while advancing on Smith as the basis forthe single charge of second degree assaultwith a deadlyweapon. On this record, no Petrich instruction was required. Therefore, we affirm.

, 

# 1.41 ~ WE CONCUR:

~d

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