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

v. ANDREA LYNN LISTER, Appellant. No. 71818-5-1

UNPUBLISHED OPINION FILED: August 24, 2015 ro

Verellen, J. — The State charged Andrea Lister with one count offelony 

### stalking, one countof fourthdegree domestic violence assault, one count of fourth degree assault, and one count of violation of a court order. At trial, the State presented evidence that Lister violated the terms ofseveral protective orders issued against her. 

### The jury found Lister not guilty of fourthdegree assault but guilty on the remaining

counts.

### On appeal, Listercontends thatthe informationwas constitutionally defective for failing to identify the specific order she violated, that a unanimity instructionwas 

### required to ensurethat the juryagreed on the particular protective order and the particularconductthat violated the protective order; and that her convictions forviolation of a protective order and felony stalking violated doublejeopardy becausethey were based on the same conduct.No. 71818-5-1/2 We conclude that the charging document included sufficientfacts to apprise Lister ofthe felony stalking charge. No election or unanimity instruction were required because the continuing course of conduct exception applies. And because her convictions for violation of a protective orderand felony stalking are not based on the
same conduct, they do not violate doublejeopardy.
We affirm. FACTS Lister met Daniel Wiseman when she picked up recycling at his store in 2008. Wiseman befriended Lister. InJuly 2010, they started an intimate relationship. For about two months, Lister stayed atWiseman's home. On one occasion, Wiseman returned from a business trip to discoverthat Lister had moved her belongings into his home and changed the locks. Wiseman asked Lister to leave, and she did. Soon after Lister moved out ofWiseman's home, her behavior turned erratic. 

### Listerbegan incessantly calling Wiseman at hiswork "fourorfive nights a week."1 Even afterWiseman told Lister to stop coming into his store, Lister showed up several nights
a week. Wiseman attended three business conferences each year. He did not tell Lister aboutthese conferences or where they were held, but Lister stillcalled his hotel 

### many times. Hewould "hang up and she'd call right back."2 Listerbroke the receiver on the intercom system at Wiseman's home. On another occasion, Wiseman picked up his friend Shirley Honey at the airport. When they arrived at the condominium building 

### where they separately lived, Listerconfronted Wiseman and Honey inthe lobby. Lister

1Report ofProceedings (RP) (Mar. 27, 2014) at 63. 2 Id. at 65.No. 71818-5-1/3 screamed at them. Lister blocked the elevator doors from closing and pushed Honey's hand away from the elevator buttons. Lister screamed atWiseman and slapped him multiple times. Honey and Wiseman both called 911. Lister also grabbed Wiseman's cell phone and ran away. Several protective orders were issued against Lister by both the superior court and municipal court prohibiting herfrom contacting Wiseman and from coming near his home or workplace. Despite the protective orders, Lister repeatedly called Wiseman at his home and workplace and sent him several letters. In May 2012, Wiseman was admitted into Swedish Hospital for a medical procedure. Lister entered his room multiple times. For several months in mid-2012, Lister called Wiseman on his cell phone and at work, sometimes "five, six, seven [times]


### a day."3 Wiseman changed his home phone number, but Lister "had the [new]phone numberwithin three days."4 Listercontinued to frequentWiseman's business and send mail to his home. InAugust 2012, Lister approached Wiseman as he picked up a
woman to go out for dinner. Lister confronted the woman and yelled at her. The State charged Listerwith one count offelony stalking. Forthe stalking 

### charge, the charging period was between "November 10, 2011 and June 1, 2013."5 The State charged one count of violation of a protective order, alleging that between 

### "September 10, 2011 and October 13, 2011," Lister violated the terms of an August 25, 

### 2011 protective order issued by the municipal court.6 The State also charged Listerwith
3jd, at 133. 4id, at 136. 5CPat1. 6CPat2.No. 71818-5-1/4



### one count of fourth degree domestic violence assault and one count of fourth degree
assault. 

### Forthe stalking charge, Lister did not request and the trial court did not issue a 

### unanimity instruction requiring thejury to agree on the particularprotective order she 

### violated and the particular conductthat violated the order. Nor did the State make an 

### election. The jury acquitted on the fourthdegree assault charge, but found Listerguilty on all other charges. Lister appeals. ANALYSIS SufficiencyofCharging Document 

### Listercontends the information charging her with felony stalking is inadequate for failure to identify the particular protective orderthat she violated. We disagree. 

### Wereview a challengeto the sufficiency of a charging documentde novo.7 Because Listerchallenges the sufficiency of the charging documentfor the first time on 

### appeal, weliberally construe theinformation in favor ofvalidity.8 Aslong as the necessaryfacts appear "in any form, or by fair construction can they be found" in the information, and the defendant suffers no actual prejudice, the information is 

### constitutionally sufficient.9

7State v. Williams. 162 Wn.2d 177, 182, 170 P.3d 30 (2007). 8State v. Kiorsvik. 117Wn.2d93, 102, 105, 812 P.2d 86 (1991). 9 Id. at 105-06.No. 71818-5-1/5 The charging document must include all of a crime's essential elements.10 

### "Essential elements" are "'thosefacts that must be proved beyond a reasonable doubt to convict a defendant of the charged crime.'"11 "The charging document need not list 

### every element of a crime."12 Butthe charging document mustidentifythe crime charged and sufficientfacts supporting each element ofthe offense.13 There is no additional 

### requirementthatthe State allege facts beyond those that supportthe elements of the crime charged or thatthe State describe the facts withgreat specificity.14 The "essential elements rule" is grounded in a constitutional due process 

### requirementthat "criminal defendants be informed of the accusations againstthem."15 

### "Notice is provided through the information."16 The rule's purpose is to sufficiently apprise the defendant ofthe charges so that he or she may prepare a defense.17 Listerwas charged with and convicted offelony stalking. The information stated [t]hat the defendantANDREA L[.] LISTER in King County, Washington, between or about November 10, 2011 and June 1, 2013, did, without lawfulauthority, intentionally and repeatedly harass or follow Daniel Calvin Wiseman; and Daniel Calvin Wiseman was reasonably placed infear that the defendant intended to injure Daniel Calvin Wiseman, or another person, or property of Daniel Calvin Wiseman, or property ofanother person; and the defendant either (i) intended to frighten, intimidate, or 

### 10 State v. Borrero, 147 Wn.2d 353, 359, 58 P.3d 245 (2002) (quoting State v. Taylor. 140 Wn.2d 229, 236, 996 P.2d 571 (2000)). 

### 11 State v. Zillvette. 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (quoting State v. Powell, 167 Wn.2d 672, 683, 223 P.3d 493 (2009)). 

### 12 City of Bothell v. Kaiser. 152 Wn. App. 466, 474, 217 P.3d 339 (2009). 13 Kiorsvik, 117 Wn.2d at 98; State v. Leach. 113 Wn.2d 679, 689, 782 P.2d 552 (1989).

### 14 State v. Wininqs. 126 Wn. App. 75, 85, 107 P.3d 141 (2005). 15 Borrero, 147 Wn.2d at 359. 16 State v. Kosewicz, 174 Wn.2d 683, 691, 278 P.3d 184 (2012). 17 Id.No. 71818-5-1/6 harass Daniel Calvin Wiseman, or (ii) knew or reasonably should have known that he was afraid, intimidated, or harassed even ifthe defendant did not intend to place Daniel Calvin Wiseman infear or intimidate or harass Daniel Calvin Wiseman; and the stalking violates anyprotective 

### orderprotecting DanielCalvin Wiseman.[18] RCW 9A.46.110 defines the essential elements of stalking. A person commits the crime ofstalking ifwithout lawful authority if 

### (a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and 

### (b) The person being harassed or followed is placed infear that the stalker intends to injure the person, another person, or property ofthe person or ofanother person. The feeling offear must be one that a reasonable person inthe same situation would experience under allthe circumstances; and (c) The stalker either: (i) Intends to frighten, intimidate, or harass the person; or 

### (ii) Knows or reasonably should know thatthe person is afraid, intimidated, or harassed even ifthe stalker did not intend to place the 

### person in fear orintimidate orharass the person.[19] Stalking becomes a felony offense if"the stalking violates any protective order 

### protecting the person being stalked."20 The information expressly recites that Lister's 

### stalking violated "any protective orderprotecting Daniel CalvinWiseman."21 Lister relies heavily upon cases applying the essential elements rule to the crime 

### ofviolation of a protective order, notfelony stalking.22 Unlike a violation of a protective

18 CP at 1 (emphasis added). 19RCW9A.46.110(1). 20 RCW 9A.46.110(5)(b)(ii) (emphasis added). 21CPat1. 

### 22 See Kaiser, 152 Wn. App. at 476; City ofSeattle v. Termain, 124 Wn. App. 798, 799-800, 103 P.3d 209 (2004).No. 71818-5-1/7 order, felony stalking requires a "course ofconduct" by the defendant. The two crimes


### are not equivalent. Buteven ignoring those differences, the violation of a protective order cases do not support Lister's contentions. In City of Seattle v. Termain, this court addressed which facts the State must 

### include in an information charging a violation of a protective order.23 This court held that
a "charging document alleging a violation of a domestic violence order must identifythe orderthe defendant is alleged to have violated, orat least include sufficientfacts to 

### apprise the defendantof his or her actions giving rise to the charge(s)."24 Confirming Termain, this court in City of Bothell v. Kaiser concluded thatthe document charging 

### violation of a protective orderwas deficient because it "did not identifythe specific order thatwas allegedly violated orthe scope of that order," did not recite "any additional information aboutthe facts underlying the charge," and did not identifythe protected 

### person.25 The use ofthe disjunctive conjunction "or" inTermain reveals that a charging 

### document need not identify the specific protective orderviolated as long as it includes sufficient facts apprising the defendant ofthe charge. Under a liberal construction standard, the information here included sufficient 

### facts to apprise Lister of the felony stalking charge. The information identified Wiseman as the victim, the chargethat Listerfaced, the elements of felony stalking, the relevant statutory reference for felony stalking, and the charging period. The

23 124 Wn. App. 798, 103 P.3d 209 (2004). 

### 24 Id, at 799-800 (emphasis added). 25 152 Wn. App. 466, 476, 217 P.3d 339 (2009).No. 71818-5-1/8 

### information parrots specific provisions of the felony stalking statute.26 The information apprised Listerthat her conduct violated "any protective order" protecting Wiseman, consistentwith RCW 9A.46.110. Although the information did not include the specific protective orderthat she allegedly violated, it did include the victim's identity and sufficientfacts apprising Lister ofthe crime. Additionally, underthe applicable liberal standard, Listerfails to argue or 

### establish how she was "actually prejudiced by the inartful language" in the information.27 The information put Lister on notice ofthe elements offelony stalking and allowed herto prepare an adequate defense. Therefore, we conclude the information is constitutionally sufficient. Jury Unanimity Lister contends a unanimity instruction was required to ensure that thejury 

### agreed on the particular protective order she violated and her particularconductthat violated the order. We disagree. Lister did not raise the unanimity instruction issue below. But she "may raise it 

### for the first time on appeal, as it concerns an alleged manifestconstitutional error."28 In Washington, a criminaldefendant may be convicted only ifthe jury unanimously concludes the defendant committed the criminal actwith which she was 

### charged.29 When the evidence indicates that several distinctcriminal acts have been committed but the defendant is charged with only one count of criminal conduct, thejury

26Leach, 113 Wn.2d at 686. 27 Kiorsvik, 117 Wn.2d at 105-06. 28 State v. Furseth, 156 Wn. App. 516, 519 n.3, 233 P.3d 902 (2010). 

### 29 id, at 519 (citing State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984)).No. 71818-5-1/9 

### must be unanimous as to which act constitutes the charged crime.30 Butwhere the 

### evidence consists of"multiple acts which indicate a 'continuingcourse ofconduct,"'31 or "ifthe evidence shows only that the defendant committed a single continuing offense,"32 the State need not elect and a unanimity instruction is not required. "Acontinuing course ofconduct requires an ongoing enterprise with a single 

### objective."33 "Todetermine whetherthere is a continuing course of conduct, we evaluate the facts in a commonsense manner, considering (1) the time separating the criminal acts and (2) whetherthe criminal acts involved the same parties, location, and 

### ultimate purpose."34 "'[Evidence that a defendantengages in a series ofactions intended to secure the same objective supports the characterization ofthose actions as 

### a continuingcourse ofconduct.'"35 Aseries of incidents involving the same victim and
same objective that spans a long period of time may satisfy the course ofconduct 

### exception.36 Lister's challenge here is limited to unanimity as to the particular protective order she violated and the acts that constitute the violation. The relevantjury instruction 

### required proof that Lister "violated a protective orderprotecting Daniel Calvin
30 Id, at 519-20. 31 State v. Love. 80 Wn. App. 357, 361, 908 P.2d 395 (1996). 

### 32 State v. Simonson, 91 Wn. App. 874, 883-84, 960 P.2d 955 (1998) (emphasis omitted). 

### 33 Love, 80 Wn. App. at 361. 34 State v. Brown, 159 Wn. App. 1, 14, 248 P.3d 518 (2010). 

### 35 id, (quoting State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995)). 

### 36 State v. Garman, 100 Wn. App. 307, 317, 984 P.2d 453 (1999) (multiple incidents of theft from same victimovertime aggregated as a common scheme or plan does not trigger a unanimity requirement).No. 71818-5-1/10 

### Wiseman."37 The State presented evidence of several allegedviolations. Butbecause the violations all involve the same victim and the same objective, the continuing course ofconduct exception applies. Further, Lister's course ofconduct directed atWiseman 

### supported the common objective of intentionally and repeatedly harassing him. Lister repeatedly called Wiseman's workplace, repeatedly showed up at his workplace, broke the intercom at Wiseman's home, repeatedly called Wiseman's hotels when he traveled

on business, and sent mail to Wiseman's home. There is no need for an election or 

### unanimity instruction as to which conduct constituted a violation of a protective order,
nor which protective orderwas violated. Therefore, we conclude Lister's constitutional right to jury unanimity was not violated. Double Jeopardy 

### Lister contends her convictions for violation of a protective order and felony stalking violate doublejeopardy because they were based on the same conduct. We disagree. The doublejeopardy clauses ofboth the federal and state constitutions protect against multiple prosecutions for the same conduct and multiple punishments for the


### same offense.38 The prohibitionagainstdoublejeopardy is violated when "'the evidence required to support a conviction [ofone crime] would have been sufficientto warrant a 

### conviction upon the other.'"39

37 CP at 197 (emphasis added). 38 State v. Kier, 164 Wn.2d 798, 803, 194 P.3d 212 (2008). 39 State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005) (alteration in original) (quoting Moreyv. Commonwealth, 108 Mass. 433, 434 (1871)).

10No. 71818-5-1/11 The State here charged Lister with one count of violation of a protective order and one count offelony stalking. The trial court'sjury instructions for violation of a protective order stated: To convict the defendant ofthe crime ofviolation of a court order as charged in Count IV, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) Thatbetween September 10, 2011 and October 13, 2011, there existed a no-contact order applicable to the defendant; (2) Thatthe defendant knew ofthe existence of this order; (3) That on or about said date, the defendant knowingly violated a provision of this orderwhich was a restraint provision prohibiting contact with a protected party; and 

### (4) That the defendant's act occurred in Washington.[40] The State based this charge on the August 25, 2011 courtorder issued bythe municipal

court. 

### The trialcourt's limiting instruction regarding the felony stalking charge stated: Certain evidence has been admitted inthis case for only a limited 

### purpose. This evidence consists of court orders other than the courtorder issuedby the Seattle Municipal Courton August 25, 2011. Thisevidence 

### may be consideredby you only forthe purpose of evaluating the State's charge ofstalking, as charged in CountI. You may not consider itforany otherpurpose. Anydiscussion of the evidence during yourdeliberations must be consistent with this limitation.1411 

### The State argued in closing that "Lister's action in this case violated a number of 

### protection orders," butdid notspecifically mention theAugust25, 2011 courtorder.42

40 CP at 214 (emphasis added). 41 id, at 195 (emphasis added). 

### 42RP(Apr. 2, 2014) at 34.

11No. 71818-5-1/12 

### Contrary to Lister's contentions, she was not punished twice for the same conduct. The felony stalking relates to incidents charged between November 10, 2011 and June 1, 2013. The trial court properly instructed thejury that it could not base its felony stalking conviction on the August 25, 2011 court order. The misdemeanor violation of a protective order relates to incidents between September 10, 2011 and October 13, 2011. The two counts involve completely separate time periods. Unlike State v. Parmelee, the two convictions are not based on the same conduct.43 

### Therefore, we conclude that Lister's convictions for felony stalking and violation of a court order do not violate doublejeopardy. Statement ofAdditional Grounds Listerfiled what she characterizes as a partial but incomplete statement of additional grounds. But she fails to identify any meritorious issues. Lister contends the record for this appeal is incomplete and inadequate because itlacks transcription of other proceedings. But she makes only general suggestions thatWiseman was not candid in such otherproceedings. The record on appeal is limited to the proceedings and documents that were before the trial court. Lister makes no showing thatthe records from other proceedings are material to this appeal. Inaddition, Listervaguely contends the trial court violated her confrontation clause rights by admitting the recording of a 911 call. But the record on this appeal does not include any proceedings regarding the admission ofthe 911 call. We therefore decline to review it. Other general suggestions of inadequate representation on appeal do not support an ineffective assistance of counsel claim.


### 43 108 Wn. App. 702, 32 P.3d 1029 (2001).

12No. 71818-5-1/13
We affirm.

WE CONCUR:



# p/Jl^/V^^C ,J, cU-6*s^ .

# /

13