C7~.7,) o CO .—; IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON CD CO rt*i ^ '
STATE OF WASHINGTON, ) No. 71967-0-1 O Respondent, ) DIVISION ONE 9?
-c- q£ O! «TM «C v. ) JENNIFER L. MARKWITH, ) UNPUBLISHED Aooellant. ) FILED: October 20, 2014
Cox, J. - Jennifer Markwith appeals herjudgment and sentence for her 

### convictions ofresidential burglary, second degree assault, and reckless endangerment. The giving ofthe court's instruction on reasonable doubtwas harmless error. Markwith failed to preserve below the challenge to alleged 

### propensity evidence that she nowmakes on appeal. Likewise, she failed to preserve below her challenge on appeal to the admission ofevidence of uncharged conduct. Shefails in her burden to showthat trialcounsel was ineffective. The record does not show any violation ofher FifthAmendment 

### rights. The convictions forsecond degree assault and reckless endangerment do not violate doublejeopardy underthe circumstances of this case. We affirm. In early 2012, Markwith lived withYvonne Bell inShelton, Washington. The two had been dating forabout 10 years. They lived inthe loft of a barn that 

### they rented from Bell's friend, Angela Tecpile, and Tecpile's husband. Another tenant, Daniel Irwin, lived inthe barn below the loft.No. 71967-0-1/2 

### On the night ofApril 23, Bellwentto Tecpile's house to sleep forthe night because she and Markwith were having a disagreement. Markwith had accused Bell ofsleeping with Tecpile. After a confrontation, Tecpile told Markwith that she
was no longerwelcome on the property. The next morning, Markwith went to the house to talk to Bell. Another confrontation broke out between Markwith and Tecpile. The police arrested Tecpile, and released her about an hour later. Tecpile's husband picked Tecpile up and told her that he learned that Markwith had taken herWiigaming system. Tecpile called 911 and upon returning home, she noticed that other items were missing. After she finished checking her house, Tecpile, her husband, and Irwin left 

### the house to go to the store. When they returned, they saw Markwith and Bell by 

### the loft. Tecpile's husband positioned his car insuch a way so as to block their exit. Tecpile called 911. Tecpiletold Markwith to stay put and thatthe police
were on their way. 

### Markwith got in her car. According to Irwin'stestimony at trial, Markwith 

### "stomped on the gas" and "flooredit." Markwith drove straighttoward the 

### group—Tecpile, Bell, Irwin, and Tecpile's husband. Tecpile jumped out of the way. Markwith drove through a barbed wirefence. Apiece ofbarbed wire and a fence post caught underneath the car. The wire caughtthe front wheel of Irwin's walker and knocked him over. He sustained minor injuries.No. 71967-0-1/3 Markwith testified attrial that she ran through the fence to avoid hitting Tecpile's car, Tecpile, and Bell. She testified that itwas her only way off ofthe property. Based on these events, the State charged Markwith with residential 

### burglary, second degree assault, and reckless endangerment. The case proceeded to a jury trial in late 2012. Thejury returned guiltyverdicts foreach of the three charges. Markwith appeals. JURY INSTRUCTION 

### Markwith argues thatthe trial court committed reversible errorwhen it used a modified version ofthe standardjury instruction on reasonable doubt. She contends the instruction relieved the State of its burden of proof. We disagree. 

### "Instructions must convey to thejurythatthe State bears the burden of 

### provingevery essential elementof a criminaloffense beyond a reasonable 

### doubt."1 "Although no specificwording is required, jury instructions must define reasonable doubt and clearly communicate thatthe State carries the burden of 

### proof."2 It is reversible error to instruct the juryin a mannerrelieving the State of 

### its burden toprove every element of acrime beyond a reasonabledoubt.3 A

1 State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).

3 Id.No. 71967-0-1/4 challengedjury instruction is reviewed de novo, inthe context ofthe instructions

as a whole.4 In State v. Bennett, the supreme court instructed trial courts to use the approved Washington Pattern Jury Instruction, WPIC 4.01, to instructjuries on the State's burden to prove beyond a reasonable doubt each element ofthe crime.5Eight months after Bennett, this court, in State v. Castillo, reversed a 

### convictionwhere the trial court gave a completely nonstandard instruction.6 There, the defendant proposed WPIC 4.01, but the trial court refused to provide 

### it, stating that "the WPIC is goobley-gook[sic] in mymind."7 But erroneous modification ofWPIC 4.01 does not automatically constitute reversible error.8 Rather, this type oferroneousjury instruction is subjectto a 

### constitutional harmless error analysis.9 Thus, a court may holdthe error 

### harmless ifit is satisfied "'beyond a reasonable doubt that the jury verdict would

414 5161 Wn.2d 303, 306, 165 P.3d 1241 (2007) (citing 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 79 (2d ed. Supp. 2005) (WPIC)). 6 150 Wn. App. 466, 208 P.3d 1201 (2009). 

### 7jd. at 470 (alteration in original) (internal quotation marks omitted). 8State v. Lundv, 162 Wn. App. 865, 871-73, 256 P.3d 466 (2011). 9 Id. at 871-72.No. 71967-0-1/5 

### have been the same absentthe error.'"10 "Even misleading instructions do not require reversal unless the complaining party can show prejudice."11 Here, unlike Castillo, the trial court did not give a completely nonstandard instruction. Rather, itprovided an instruction that deviated slightly from WPIC 4.01. This WPIC provides: [The] [Each] defendant has entered a plea ofnot guilty. That plea puts in issue every element of [the] [each] crime charged. The [State] [City] [County] is the plaintiffand has the burden of proving each element of [the] [each] crime beyond a reasonable doubt. The defendanthas no burden of proving thata reasonable doubtexists[as to these elements], A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find ithas been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and 

### may arise from the evidence or lack ofevidence. It is such a doubt as would exist inthe mind of a reasonable person afterfully, fairly, 

### and carefullyconsidering all of the evidence or lack ofevidence. [If, from such consideration, you have an abiding belief inthe truth of 

### the charge, you are satisfied beyond a reasonable doubt.][12] Instruction 3 conformed to WPIC 4.01 exceptthat itlacked the 

### emphasized language above. Instruction 3 stated: The defendant has entered a plea of not guilty. That plea 

### puts inissue every element of the crimecharged. The State of Washington is the plaintiffand has the burden of provingeach element ofthe crime beyond a reasonable doubt.


### 10 la\ at 872 (internal quotation marks omitted) (quoting Statev. Bashaw, 169 Wn.2d 133, 147, 234 P.3d 195 (2010)). 

### 11 Id, 12 WPIC 4.01 (emphasis added).No. 71967-0-1/6
A defendant is presumed innocent. This presumption continues throughoutthe entire trial unless during your deliberations you find ithas been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack ofevidence. It is such a doubt as would exist inthe mind of a reasonable person afterfully, fairly and carefully considering all ofthe evidence or lack ofevidence. If, after such consideration, you have an abiding beliefinthe truth of 

### the charge, you are satisfied beyond a reasonable doubt.[131 No one objected to this incomplete instruction and, presumably, no one
even noticed the discrepancy during the proceedings. We conclude that Instruction 3's slight deviation from WPIC 4.01 was harmless error. Instruction 3 unequivocally stated thatthe State had the burden 

### of proving each element ofthe crimes beyond a reasonable doubt. Additionally, itcommunicated the fundamental conceptthat Markwith was presumed innocent. Moreover, Markwith does not explain how the omission ofthe emphasized 

### language in the WPIC instruction caused her prejudice. This record does not show that the State ever attempted to shift the burden ofproofby its arguments
or otherwise. And Instruction 3 made itclearto thejury thatthe State had the burden of proof. 

### In sum, we are satisfied beyond a reasonable doubtthatthejury verdict would have been the same absent the error. 

### Markwith argues that Instruction 3 "did not make the relevant standard 

### manifestlyapparentto the averagejuror" and "leftopen the possibility" that she

13 Clerk's Papers at 27.No. 71967-0-1/7 

### had the burden of raising a reasonable doubt.14 Butfor the reasonsjust discussed, we disagree. Markwith relies on Castillo to assert that this deviation from WPIC 4.01 

### requires reversal.15 But this court reversed in Castillo because the trial court provided a completely nonstandard instruction that suffered from several 

### problems.16 Additionally, inCastillo, the omission of the "defendanthas no burden" sentence was significant because the State attempted to shift its burden 

### of proof to the defendant.17 Here, Markwith does not show any instance where the State engaged in such conduct. Her reliance on this case is not persuasive. DUE PROCESS Markwith argues that her convictions were based in part on propensity evidence inviolation ofher Fourteenth Amendment right to due process. She contends that admission of such evidence was a manifest error affecting a 

### constitutional rightthat she may raise the first time on appeal under RAP 2.5(a)(3). We disagree. 

### Generally, appellate courts will not review issues raised forthe first time 

### on appeal.18 RAP 2.5(a)(3) permits a party to raise such a claim ifitamounts to
a "manifesterror affecting a constitutional right." To determine the applicability of
14Appellant's Opening Brief at 12. 15 Id, (citing Castillo. 150Wn. App. at 473). 16 See Castillo. 150 Wn. App. at 470-75. 17 id, at473. 18 Smith v. Shannon. 100 Wn.2d 26, 37, 666 P.2d 351 (1983).No. 71967-0-1/8
RAP 2.5(a)(3), we mustfirst determine whetherthe alleged error is constitutional.19 "Issues of constitutional interpretation and waiver are questions of law, which courts review de novo."20 Markwith asserts that her due process rights were violated because the admission oftestimony that she broke the rear window of Bell's carthe night before the incident, along with the absence of a limiting instruction, allowed the 

### jury to convict her based in part on propensity evidence.21 Butsuch an assertion is based on ER 404(b), an evidentiary rule. And our supreme court has held that 

### evidentiary errors under ER 404 are not of constitutionalmagnitude.22 To support her argument, Markwith relies on Garceau v. Woodford, a 

### Ninth Circuit case.23 But we are bound only bythe decisions of our state supreme court and nonsupervisory decisions ofthe United States Supreme Court.24

19 State v. Powell. 166 Wn.2d 73, 84, 206 P.3d 321 (2009). 20 State v. Robinson. 171 Wn.2d 292, 301, 253 P.3d 84 (2011). 

### 21 Appellant's Opening Brief at 15-16. 22 State v. Smith. 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (citing State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984)). 

### 23 Appellant's Opening Brief at 14-16 (citingGarceau v. Woodford. 275 F.3d 769, 775 (9th Cir. 2001), reversed on othergrounds. 538 U.S. 202, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003)). 24 In re Pers. Restraint of Crace. 157 Wn. App. 81, 98 n.7, 236 P.3d 914 (2010V reversed on other grounds. 174Wn.2d 835, 280 P.3d 1102(2012).

8No. 71967-0-1/9
Inany event, Markwith's reliance on Garceau is entirely unpersuasive. In that case, the court instructed thejury that evidence that Robert Garceau committed othercrimes may be considered "foranypurpose, including butnot 

### limitedto . . . [Garceau's] conducton a specific occasion."25 The trial court rejected Garceau's objection to this instruction.26 On appeal, the Ninth Circuit concluded thatthisjury instruction violated due process because it"rendered Garceau's trial so fundamentally unfair as to constitute a violation ofthe Due Process Clause."27 Here, in contrast, the instruction identified by Markwith, Instruction 1, did not specifically reference the evidence of Markwith's prior misconduct. Nor did it 

### expressly instructthejurythatthis evidence could be used to prove her conduct
on a specific occasion. The court's instructions did not "'so infect[] the entire trial 

### that the resulting convictionviolate[d] due process.'"28 Insum, RAP 2.5(a)(3) does not apply and we decline to review Markwith's claim any further. 

### The State argues that even ifthis is constitutional error, it is not manifest and its admission was harmless error. Italso argues thatthe evidence was not 

### propensity evidence because itshowed a continuing course of action by

25Garceau. 275 F.3d at 773. 26 Id, 27 \± at 776. 

### 28 Id, at 775 (quoting Estelle v. McGuire. 502 U.S. 62, 72, 112 S. Ct. 475, 116 L.Ed. 2d 385 (1991)).

9No. 71967-0-1/10
Markwith. Because we hold that RAP 2.5(a)(3) does not apply, we need not address these arguments. EVIDENTIARY RULING Markwith contends that the court erred when it denied her motion to exclude evidence that Markwith had intimidated Bell the night before the incident. She argues that admission ofthis evidence violated ER 404(b). We hold that Markwith failed to preserve this claim for review. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in orderto show action in conformity therewith. Itmay, however, be admissible for other purposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident."29 An appellate court reviews a trial court's evidentiary rulings for abuse of 

### discretion.30 An appellate courtwill overturn the trial court's rulings on the admissibility ofevidence only if its decision was manifestly unreasonable, 

### exercised on untenable grounds, orbased on untenable reasons.31 "A party may only assign error inthe appellate courton the specific ground 

### of the evidentiary objection made at trial."32 "An objection which does not specify
29 ER 404(b). 30 Cole v. Harvevland LLC, 163 Wn. App. 199, 213, 258 P.3d 70 (2011). 31 Gorman v. Pierce County. 176 Wn. App. 63, 84, 307 P.3d 795 (2013), review denied, 179 Wn.2d 1010 (2014). 32 State v. Gulov. 104Wn.2d 412, 422, 705 P.2d 1182(1985).

10No. 71967-0-1/11
the particular ground upon which it is based is insufficientto preserve the 

### question forappellate review."33 This issue was not preserved for review. When Markwith asked the court to exclude any testimony from Bell about the preceding night and Bell's resulting intimidation and fear, defense counsel did not specify any evidentiary rule or basis for the request. Further, any basis for the objection based on ER 404(b) was not apparent from the context. The prosecutor responded to Markwith's request by arguing that the evidence was relevant. And the court, after clarifying the request, concluded that the testimony was admissible. Itstated, "I think itgoes to—it 

### goes, actually, one, to Ms. Bell's state of mind and also as to why she was inthe 

### home."34 At no point in this exchange did defense counsel ever reference ER 404(b), the basis now asserted on appeal. The record reflects that allparties
were focused on the issue of relevance, and a different basis for the objection
was never clarified by defense counsel. 

### Because Markwith failed to object on the basis of ER404(b) at trial, we do
not review this claim. INEFFECTIVE ASSISTANCE OF COUNSEL Markwith asserts that she received ineffective assistance ofcounsel when 

### defense counsel elicited testimony from Bellthat Markwithhad smashed the rear window of Bell's car. We disagree. 33ig\ 

### 34 Report ofProceedings (November27, 2012) at 113.

11No. 71967-0-1/12 

### The right to counsel includes the right to effective assistance of counsel.35 In orderto prevail on an ineffectiveness claim, the defendant must prove that (1) counsel's performance was deficient and (2) the defendant was prejudiced by the 

### deficient performance.36 Counsel's performance was deficient if itfell below "an objective standard ofreasonableness."37 The defendantwas prejudiced ifthere is "a reasonable probability that, butfor counsel's unprofessional errors, the 

### result ofthe proceeding would have been different."38 "A reasonable probability 

### is a probability sufficient to undermine confidence in the outcome."39 "Deficient performance is not shown by matters that go to trial strategy or 

### tactics."40 Reviewing courts make "every effort to eliminate the distorting effects ofhindsight and must strongly presume that counsel's conduct constituted sound 

### trialstrategy."41 When the defendant claims ineffective assistance based on counsel's failure to challenge the admission ofevidence, the defendant must show (1) an 

### absence oflegitimate strategic or tactical reasons supporting the challenged 35 Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 36jd, at 687. 

### 37 ]d, at 688. 38 id, at 694. 39 id, 40 State v. Saunders. 91 Wn. App. 575, 578, 958 P.2d 364 (1998). 41 In re Pers. Restraint ofRice. 118 Wn.2d 876, 888-89, 828 P.2d 1086 (1992).

12No. 71967-0-1/13 

### conduct; (2) that an objection to the evidence would likelyhave been sustained; and (3) that the result ofthe trial would have been different ifthe evidence had not been admitted.42 Markwith fails to show that defense counsel's performance was deficient. 

### While Belltestified about Markwithsmashing hercarwindow, itdoes not appear that Markwith's attorney intended to elicit this testimony. Thus, this case is unlike 

### State v. Saunders, upon which Markwith relies.43 There, Lee Saunders' attorney elicited evidence of Saunders' prior conviction by directly asking Saunders if he 

### had any prior convictions.44 Further, as the State points out, "accepting the testimony and moving past 

### it had the tactical effect ofdeemphasizing itand diminishing its effect."45 Additionally, the trial court here had already ruled that this evidence was admissible. Thus, it is unlikely that any objection to Bell's response, or a motion to strike, would have been sustained. Moreover, Markwith also fails to show prejudice by her counsel's performance. Thejury heard ample evidence in support ofMarkwith's convictions, and Markwith cannot show a reasonable probability that the outcome
at trial would have been different.

42 Saunders. 91 Wn. App. at 578. 

### 43 91 Wn. App. 575, 958 P.2d 364 (1998). 44 id, at 578. 45 Brief ofRespondent at 28.

13No. 71967-0-1/14 

### Markwith also argues that defense counsel failed to propose a limiting instruction. Butshe does not cite authority or make argument specific to this claim. Thus, we do not consider itfurther. FIFTH AMENDMENT 

### Markwithargues that, at trial, a deputy made an improper commenton her post-arrest exercise of her privilege against self-incrimination during his 

### testimony and thatthis comment violated due process. We disagree. The State may not comment on a defendant's FifthAmendment right to 

### remain silent.46 An impermissible commenton silence occurs when the State
uses the defendant's silence "as substantive evidence of guilt or to suggestto the 

### jurythatthe silence was an admission ofguilt."47 "A mere reference to silence, however, is not necessarily an impermissible comment and, therefore, not 

### reversible constitutional error, absent a showing ofprejudice."48 A direct comment, such as when a witness or state agent refers to the defendant's invocation of his or her right to remain silent, is reviewed for 

### prejudice using a harmless error beyond a reasonable doubt standard.49 An indirect comment, such as when a witness or state agent references a comment
or action by the defendant which could be inferred as an attemptto exercise the right to remain silent, is reviewed using the lower, nonconstitutional harmless
46 State v. Lewis. 130 Wn.2d 700, 705, 927 P.2d 235 (1996). 47 id, at 707. 48 State v. Slone. 133 Wn. App. 120, 127, 134 P.3d 1217 (2006). 49 State v. Pottorff. 138 Wn. App. 343, 346-47, 156 P.3d 955 (2007).

14No. 71967-0-1/15



### error standard to determine whether no reasonable probability exists thatthe

error affected the outcome.50 

### Markwith challenges the following portion of the responding deputy's testimony: [PROSECUTOR]: Did—afterthis conversation, did Ms. Markwith say anything to you—regarding, you know, use of obscenities? [DEPUTY]: She gottired of my asking her questions real quick, started yelling obscenities at me, saying that Iwas a liar, and then she accused me for some reason of having drugs with the victim. [PROSECUTOR]: Ofusing drugs with the victim? [DEPUTY]: Right, and at that time Icould not get anything 

### out of her, so Ijust stopped any questioning.[51] Assuming she can raise this issue for the first time on appeal, Markwith does not show thatthe deputy's testimony amounted to an impermissible comment on her silence. Viewing the testimony as a whole, the deputy did not directly reference Markwith's invocation ofthe right to remain silent, and the State did not elicit such testimony or use itas substantive evidence of guilt. At most, this testimony amounts to an indirect comment on Markwith's right to remain silent. But even ifthe deputy's testimony could be characterized inthis manner, itwas not prejudicial. The State did not invite thejury to infer guilt from Markwith's response, and the State's closing argument did not focus on this portion ofthe testimony. Further, there was significant evidence ofMarkwith's 

### 50 Id, at 347. 51 Report ofProceedings (November27, 2012) at 141-42.

15No. 71967-0-1/16 guilt presented attrial. Insum, Markwith fails to showthatthe alleged error affected the outcome at trial. For the same reasons, we also reject Markwith's argumentthat hertrial counsel was ineffective for failing to objectto this testimony. Markwith cannot show eitherthat her counsel was deficientfor failing to objectto this testimony, or thatfailure to objectto this testimony was prejudicial. The State contends that Markwith did not assert her right to remain silent. 

### But we need not address this argument, given our previous discussion. DOUBLE JEOPARDY 

### Markwith argues that her convictions for second degree assault and reckless endangermentviolated the constitutional protection against double 

### jeopardy. Specifically, she contends both convictionsstemmed from the same conduct. We hold thatthere was no doublejeopardy violation. 

### "TheWashington State Constitution, article I, section 9 provides the same 

### protection against double jeopardy as thefifth amendment to the federal constitution."52 The state and federal doublejeopardy clauses protect against 

### multiple punishments for the same offense, as well as against a subsequent 

### prosecutionforthe sameoffense afteracquittal orconviction.53 "Where a defendant's act supports charges under twocriminal statutes, a courtweighing a

52 In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).53 id,
16No. 71967-0-1/17 doublejeopardy challenge must determine whether, in light oflegislative intent, 

### the charged crimes constitute the same offense."54 When legislative intent is unclear, Washington follows the rule referred to


### as the "same evidence" rule or "same elements" rule.55 This test is very similar to that setforth inBlockburgerv. United States.56 "'[T]hedefendant's double jeopardy rights are violated if he or she is convicted ofoffenses that are identical 

### both in fact and inlaw."'57 "The applicable rule is thatwhere the same act or transaction constitutes a violation oftwo distinct statutory provisions, the test to 

### be applied to determine whetherthere are two offenses or only one, is whether 

### each provision requires proof of a factwhich the otherdoes not."58 "Under Blockburger. we presume thatthe legislature did not intend to 

### punish criminal conducttwice when 'the evidence required to support a conviction upon one of [the charged crimes] would have been sufficient to 

### warrant a conviction upon the other."59 "Accordingly, ifthe crimes, as charged

54 id, 55 State v. Womac, 160 Wn.2d 643, 652, 160 P.3d 40 (2007). 

### 56 id, (citing Blockburgerv. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L Ed. 306(1932)). 

### 57 Jd, (alteration inoriginal) (quoting State v. Calle, 125 Wn.2d 769, 777, 888P.2d 155(1995)). 58 Orange. 152 Wn.2d at 817 (emphasis omitted). 59 State v. Freeman, 153 Wn.2d 765, 776-77, 108 P.3d 753 (2005) 

### (emphasis omitted) (alteration in original) (internal quotation marksomitted) (quoting Orange. 152 Wn.2d at 820).
17No. 71967-0-1/18
and proved, are the same in law and infact, they may not be punished 

### separately absent clear legislative intent to the contrary."60 "[Ojffenses are not constitutionally the same ifthere is any element inone offense not included inthe other and proofof one offense would not necessarily 

### prove the other."61 "Washington courts, however, have occasionallyfound a violation ofdoublejeopardydespite a determination thatthe offenses involved 

### clearly contained different legal elements."62 

### Doublejeopardy violations are constitutional issues reviewed de novo.63 Here, the State charged Markwith with second degree assault and reckless endangerment. 

### As forthe assault charge, the State alleged incounttwo ofthe third amended information that Markwith "did intentionally assault another person, to 

### wit: Angela Tecpile, with a deadly weapon to wit: a vehicle; contraryto RCW 9A.36.021(1)(c)." 

### The State also charged Markwith with reckless endangerment pursuantto 

### RCW 9A.36.050(1). Countthree ofthe third amended information alleges that 

### Markwith "didrecklessly engage inconductwhich didcreate a substantial risk of death or serious physical injury to another person."

60 id, at 777. 61 State v. Truiillo, 112 Wn. App. 390, 410, 49 P.3d 935 (2002). 62Womac. 160 Wn.2d at 652. 63 Id. at 649.

18No. 71967-0-1/19 

### A mere comparison of the legalelements ofsecond degree assault and reckless endangerment shows that such elements are not the same.64 Second 

### degree assault brought under RCW 9A.36.021(1)(c) requires proof of an assault with a deadly weapon. The assault in this case required proof of "an act done 

### with the intent to create inanotherapprehension and fear of bodilyinjury, and which infact creates in another a reasonable apprehension and imminentfear of 

### bodilyinjury even though the actordid not actually intend to inflict bodilyinjury."65 On the otherhand, reckless endangerment requires proofthat a person "recklessly engages inconduct not amounting to drive-by shooting butthat creates a substantial risk ofdeath or serious physical injury to another person."66 But a mere comparison ofthe legal elements of separate charges does not satisfy the controlling testfor doublejeopardy. As the supreme court clearly stated in State v. Freeman. "When applying the Blockburgertest, we do not considerthe elements ofthe crime on an abstract level."67 Rather, we consider 

### the elements as charged and proved.68 Thus, the question in this case is

64 See State v. Rivera. 85 Wn. App. 296, 299-300, 932 P.2d 701 (1997) (comparing the legal elements of a former version of first degree assault with the legal elements of a former version of reckless endangermentfor doublejeopardy purposes). 

### 65 Clerk's Papers at 40 (Court's Instruction 16). 66 RCW 9A.36.050. 

### 67 153 Wn.2d 765, 772, 108 P.3d 753 (2005). 68 Id. at 777.

19No. 71967-0-1/20 whetherthe elements ofthese two crimes, as charged and proved, violate double jeopardy. The essence of Markwith's argument is that her reckless endangerment conviction was based on the same actof allegedly driving toward Tecpile that supported the second degree assault charge. In her reply, she further argues thatthe State misreads the record by claiming that itproved separate acts for the two separate charges. In herwords, "both convictions may have been based on her assaulting and endangering Tecpile." The chiefproblem with this argument is that even assuming thatthese charges were based on the same act or transaction, these crimes, as charged and proved, are not the same in law and fact. As stated above, "The applicable rule is thatwhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to 

### be applied to determine whetherthere are two offenses or only one, iswhether 

### each provision requires proofof a factwhich the other does not."69 "[0]ffenses
are not constitutionallythe same ifthere is any element inone offense not included inthe other and proof ofone offense would not necessarily prove the other."70 

### Here, these offenses are not constitutionally the same because they each 

### require proof of a different mens rea. And proof of this elementforone offense does not necessarily prove the other.
69 Orange. 152 Wn.2d at 817 (emphasis omitted). 70 Truiillo. 112 Wn. App. at 410.
20No. 71967-0-1/21 

### As charged and proved in this case, the assault charge required proof that Markwith "inten[ded] to create inanother apprehension and fear of bodilyinjury." Incontrast, the reckless endangerment charge required proofthat Markwith "recklessly engagefd] inconductthat create[d] a substantial risk of 

### death or serious physical injury to another person." Thejury was instructed that
a person "is reckless or acts recklessly" when she "knows ofand disregards a substantial riskthat a wrongful act may occur and this disregard is a gross deviation from conductthat a reasonable person would exercise inthe same 

### situation."71 Itwas also instructed, "Whenrecklessness as to a particular result
or fact is required to establish an element of a crime, the element is also 

### established ifa person acts intentionally or knowinglyas to that result orfact."72 Proofthat Markwith "inten[ded] to create apprehension and fear ofbodily injury," which is necessary to supportthe assault charge, does not necessarily prove that Markwith "[knew] of and disregarded]" a substantial risk that a wrongful act may occur or that she acted intentionally as to that result or fact. And proofthat Markwith knew of and disregarded a substantial risk that a wrongful act would occur or acted intentionally as to that result, which is necessary to sustain the reckless endangerment charge, does not necessarily prove that Markwith intended to create apprehension and fear of bodily injury. Accordingly, because the proofnecessary to establish the mens rea required for each ofthese crimes does not necessarily prove the other, these


### 71 Clerk's Papers at 44 (Court's Instruction 20). 72 id,
21No. 71967-0-1/22 charges are not the same in law and fact. Thus, even assuming the charges
were based on the same act or transaction, there is no doublejeopardy violation. Given this analysis, we need not address Markwith's arguments thatthese two charges were based on the same act or transaction. We also need not address the State's arguments that these were based on separate and distinct
acts. Markwith argues in her opening brief, "Thejury was instructed that an act is reckless if it is also intentional. Thus, the mens rea element necessary to convict on the assault charge was also sufficientto convict on the reckless endangerment charge." But this is incorrect. Thejury was instructed that 

### recklessness as to aparticularresultorfact may be established "ifa person 

### acts intentionally orknowingly as to that result orfact."73 Further, this does not address the fact that assault requires intentto cause apprehension or fear, while 

### reckless endangerment requires knowledge or intent of a substantial risk of harm. Thus, this argument is not persuasive. In her reply brief, Markwith argues, "When attacked with a car, a person 

### who reasonably fears imminent bodilyinjury necessarily suffers a substantial risk ofserious physical injury, if not ofdeath." Accordingly, she argues thatthe evidence in this case establishing Tecpile's reasonable apprehension and imminentfear of bodily injury also proves substantial risk ofdeath or serious 

### physical injury. But this argumentdoes notaddress the mens rea required to establish these crimes. This is also not persuasive. 

### 73 id, (Court's Instruction 20) (emphasis added).

22No. 71967-0-1/23 Markwith fails in her burden to show an actual doublejeopardy violation. We affirm thejudgment and sentence. 

# £m,T.

WE CONCUR: 

# T/"> okq\j /-4 ^=^L

# T7

23