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

v. DENNIS WAYNE JACKSON, Appellant. No. 72944-6-

UNPUBLISHED OPINION

FILED: March 14, 2016 Schindler, J. — Dennis Wayne Jackson seeks reversal of his jury conviction of

one count of unlawful possession of a controlled substance. Jackson asserts the failure 

### to give a Petrich1 jury instruction violated his constitutional right to a unanimousjury verdict. We conclude the court erred in failing to give a Petrich instruction. However, because no rationaljuror could have a reasonable doubt as to whether each act established the crime beyond a reasonable doubt, the lack of a unanimity instruction

was harmless, and we affirm. FACTS On September27, 2014, Everett Police Officer Stephen Ross pulled over a blue 

### Dodge Neon. Marcus Stoutenburg was driving the carand Dennis Wayne Jackson was

1 State v. Petrich. 101 Wn.2d 566, 683 P.2d 173 (1984).No. 72944-6-1/2 

### sitting in the frontpassenger seat. OfficerRoss called for backup. OfficerTimothy O'Hara responded. Officer Ross arrested Stoutenburg for driving while license suspended. Officer Ross frisked Stoutenburg and placed him inthe back of his patrol car. Officer O'Hara
saw Jackson suspiciously moving his hands and suspected Jackson was attempting to conceal something. Officer O'Hara asked Jackson to step out ofthe car. After removing Jackson from the car, Officer O'Hara saw methamphetamine on the front passenger seat and floorboard and a digital scale inthe passengerdoor pocket. Officer O'Hara frisked Jackson and arrested him on an outstanding warrant. Officer O'Hara placed Jackson inthe back of his patrol car. Officer Ross removed Stoutenburg from his patrol car and released him. Officer Ross then searched the rear passenger area of his patrol carto ensure there was no contraband. Officer Ross did not find any contraband. Officer O'Hara asked Officer Ross to transport Jackson to the Snohomish Countyjail. Officer Ross placed Jackson in the back of his patrol car. 

### After arriving at thejail, Officer Ross removed Jackson from the back of his patrol car. Officer Ross searched the rear passengerarea of his patrol car again. This time he found a small plastic bag on the floor. Officer Ross believed the bag contained heroin and collected it as evidence. While Jackson was in a holding cell, Snohomish County Corrections Deputy Shane Stevie saw him scratching underneath his left leg. Deputy Stevie asked to see 

### his hands. Jackson was holding a small plastic bag in his lefthand. Jackson attemptedNo. 72944-6-1/3 

### to put the bag into his mouth and swallowit. After a struggle, Deputy Stevie and Deputy KeithGreely secured Jackson and seized the small plastic bag. 

### The Washington State Patrol Crime Laboratory (WSPCL) tested the plastic bag found inthe patrol carand the plastic bag seized from Jackson. Both bags contained heroin.The State charged Jackson with one count ofunlawful possession of methamphetamine, count I, and one count ofunlawful possession of heroin, count II. Jackson pleaded not guilty. The State called a number ofwitnesses to testify during the three-dayjury trial including Officer Ross, Officer O'Hara, Deputy Stevie, Deputy Greely, and a WSPCL forensic scientist. Jackson did not testify and the defense did not call any witnesses. Over the defense objection, the court refused to give a Petrich unanimity instruction. Thejury acquitted Jackson ofpossession ofmethamphetamine, count I. Thejury convicted Jackson ofpossession of heroin, count II. ANALYSIS Jackson seeks reversal of his conviction for one count of possession of heroin, arguing the court violated his constitutional right to a unanimousjury verdict by failing to 

### give a Petrich instruction. State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). The State argues a Petrich instruction was not required because the evidence showed a continuing course of conduct. 

### Adefendant has a right to a unanimousjury verdict underthe Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington Constitution. State v. Fisher, 165 Wn.2d 727, 755, 202 P.3d 937 (2009) (citing State v.No. 72944-6-1/4 

### Kitchen, 110Wn.2d 403, 409, 756 P.2d 105 (1988)). Where the evidence indicates that more than one distinct criminal act has been committed but the defendant ischarged with only one count of criminal conduct, either (1)the State may electthe act upon 

### which itwill rely for conviction, or (2) jurors must be instructed thatthey must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Bobenhouse. 166Wn.2d 881, 893, 214 P.3d 907 (2009) (citing Petrich, 101 Wn.2d at 572). However, no election or unanimity instruction is required ifthe evidence establishes a "continuing course ofconduct." Petrich, 101 Wn.2d at 571. We review the facts in a commonsense manner to determine whether criminal acts consist ofa continuing course of conduct. Petrich, 101 Wn.2d at 571. The State relies on State v. Love, 80 Wn. App. 357, 908 P.2d 395 (1996), to argue a continuing course ofconduct. In Love, during a search of Love, police found 5 rocks ofcocaine in a lipbalm containerthat had been in Love's pocket. Love, 80 Wn. App. at 359. The police then searched Love's house and found an additional 40 rocks ofcocaine. Love, 80 Wn. App. at 359. The State charged Love with one count of possession of a controlled substance with an intentto deliver. Love, 80 Wn. App. at 362. The court did not give a Petrich instruction. Love, 80 Wn. App. at 360. On 

### appeal, this court concluded that because two acts ofpossession were part of a "single 

### objective to make money by traffickingcocaine," a Petrich instruction was not required. Love. 80 Wn. App. at 362-63. 

### Jackson argues State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994), controls. 

### InKing, during a search ofthe car King was a passengerin, Seattle police officers 

### found cocaine in a Tylenol pill bottle. King, 75 Wn. App. at 901. The officers also foundNo. 72944-6-1/5 

### cocaine in King's fanny pack. King, 75 Wn. App. at 901. The State charged King with
one count ofpossession ofcocaine. King, 75 Wn. App. at 901. 

### At trial, King testified the officers planted the cocaine on him. King, 75 Wn. App. at 901-02. Kingrequested a unanimity instruction. The prosecutortold the courtthe State would electwhich act ofpossession it would rely on to convict. King, 75 Wn. App. at 903. However, the State did not do so. King, 75 Wn. App. at 903. 

### On appeal, the State argued a continuing course ofconduct ratherthan two 

### separate acts ofpossession. King, 75 Wn. App. at 902. Because the evidence established two distinct acts ofpossession ofcocaine, we rejected the State's argument: The State's evidence tended to show two distinct instances of 

### cocaine possession occurring at different times, in different places, and 

### involving two differentcontainers
.... One alleged possession was constructive, the other actual. 

### King, 75 Wn. App. at 903. Becausethere was conflicting evidence regarding King's 

### possession, weconcludedthefailure togive a Petrich instruction was not harmless

error. King, 75 Wn. App. at 904. 

### Sufficientconflicting evidence exists as to which one of the car's 

### occupants constructively possessed theTylenol bottlefor us to conclude that a rational trier offact could entertain reasonable doubt as to whether 

### King was responsible for the Tylenol bottle. The evidence is also conflicting as to King's allegedpossession of the cocaine inthe fanny 

### pack. King testified that he wasunaware ofthecocaine in his fanny pack and asserted thatthe officers must have planted it. King's testimony 

### requires a determination ofcredibilitythat isuniquelythejury's tomake. We cannot say that norational trier of factwould entertain a reasonable doubt about King'sresponsibility for the cocaine in his fanny pack. Underthese circumstances, the lack of a unanimity instruction to 

### thejury was not harmless. King, 75 Wn. App. at 903-04.No. 72944-6-1/6 

### We conclude this case is more like King than Love and the court erred infailing to give a Petrich jury instruction. Unlike Love, the State did notcharge Jackson with possession with intentto deliver, and there is no evidence that his possession was part 

### of a "singleobjective."3 Here, as in King, the evidence showed Jackson possessed heroin at two differenttimes and in two different places. The State argues that even if a Petrich instruction was required, the errorwas harmless. When a courtfails to give a required Petrich instruction, we assume the errorwas prejudicial. Kitchen, 110Wn.2d at 411. This presumption can be overcome "only if no rationaljurorcould have a reasonable doubt as to any ofthe incidents alleged." State v. Coleman, 159 Wn.2d 509, 512, 150P.3d 1126 (2007) (citing Kitchen, 110Wn.2dat 411-12). Here, unlike in King, the undisputed facts established Jackson's guilt. Officer Ross testified that after removing Stoutenburg from his patrol car, he checked the rear 

### passenger compartment "verythoroughly" forweapons or contraband. Officer Ross testified Stoutenburg did not leave anything inthe patrol car. Officer Ross then put 

### Jackson in his patrol carand took him to thejail. Afterremoving Jackson from his patrol car, Officer Ross checked the backseat again. Officer Ross testified he found a small 

### plastic bag containing what he believed was heroin. Deputy Stevie and Deputy Greely testified they saw Jackson holding a small bag in his hand whileJackson sat in a 

### holding cell. The WSPCL forensic scientisttestified that he tested bothbags and found they contained heroin. Unlike King, Jackson did notassert a differentdefense to each act ofpossession, did not testify, and did notpresentevidence of his possession. 3 Love. 80 Wn. App. at 362.No. 72944-6-1/7 

### Because no rational juror could have a reasonable doubt as to whethereach act 

### established the crime beyond a reasonable doubt, the lack of a unanimity instruction

was harmless. We affirm.

WE CONCUR: