t/i-UA i or ;-.;•'i ..ms-^ L.> r i 201^ APR 28 AH 9=59

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. MELINA K. HARRIS, Appellant. NO. 69648-3-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 28, 2014


### LAUij. —a criminal defendant is entitled to aunanimous verdict. When the State 

## presents evidence ofseveral distinctacts, any one ofwhich could form the basis ofa criminal charge, the trial courtmustinstructthejurythatitmustreach aunanimous 

## verdict on one particularincident asthe basis forthe conviction. Multiple acts that amountto acontinuing course ofconduct, however, do not require aunanimity instruction. BecauseMelina Harris's assault on a police officer constitutes a continuous 

### course ofconduct, the trial court properly refused to give aunanimity instruction. And 

## because thethird degree assaultand obstruction ofapolice officeroffenses do not69648-3-1/2 

### contain the same elements, the doublejeopardy clause does not prevent convictions for both offenses. We affirm. FACTS On October 29, 2011, the Saturday before Halloween, Kent police officers were responding to a number ofnoise complaints, including a Halloween party at Melina Harris's house at approximately 11:20 pm. Detective Jonathan Thompson and Officer Eric Doherty responded to the call. Both officers heard loud music coming from the house as they approached on foot. Harris came to the front door dressed in a long dress and high heels. Harris removed her shoes and walked to the middle ofthe cul de sac, stating repeatedly that she could not hear anything, the party was not very loud, and she wanted to know who had complained. While Officer Doherty was attempting to speak with Harris about the noise, Harris pointed at Detective Thompson, whom she thought she recognized and said, "He's been doing this for a while. I'm talking to him instead." Report of Proceedings (RP) 

### (Oct. 16, 2012) at 124). Thompson suggested how the noise could be controlled. Harris started to walk back toward her house. Officer Doherty followed Harris 

### asking again for her name. Harris refused. Officer Doherty continued to follow Harris back to the house. Harris retrieved her shoes and turned to face Officer Doherty. Because ofthe darkness, Officer Doherty shined his flash light at Harris. When Harris 

### complained about the flashlight, Officer Doherty lowered itand asked whether itwas 

### any better. Harris hit Officer Doherty with her shoes. Officer Doherty raised his hands to block her and pushed her hands away with his forearm. Harris grabbed Officer

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### Doherty's collar whilestill holding on to one of her shoes. Officer Dohertymaneuvered Harris to the ground. Atthat point, Officer Doherty noticed that Harris's lip was bleeding. Officer Doherty tried to control herflailing arms and legs to get Harris in a face down position. Harris bit Officer Doherty's hand. Officer Doherty pushed Harris's head away and moved his hand. Thompson helped to subdue Harris. This entire confrontation occurred quickly. After aid personnel treated Harris, she was booked into Kent city jail. The State charged Harris with third degree assault and obstructing a law enforcement officer. A jury found Harris guilty of both charges. Harris appeals. ANALYSIS Harris argues that the court erred in refusing to instruct thejury that itmust be unanimous as to which act constituted the third degree assault. She argues that the 

### jury could have found separate acts ofassault based on hitting Officer Doherty with her shoes and then biting him while she was on the ground. Unanimity Instruction The standard of review depends on whether the trial court's refusal to grant the 

### juryinstruction was based on a matter of law or facts. State v. Walker. 136Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trialcourt's refusal to give instructions to a jury, if based on a factual dispute, is reviewable only for abuse of discretion. Walker. 136 Wn.2d at 771-72. The trial court's refusal to give an instruction based upon a ruling of law is reviewed de novo.1 Walker. 136 Wn.2d at 772. Here, we review the trial court's 

### refusal to give a jury instruction for abuse of discretion.

1 We reach the same result under either standard of review. -3-69648-3-1/4 

### Criminal defendants inWashington are entitled to a unanimous jury verdict. State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the State 

### presentsevidence ofmultiple acts thatcould eachform the basisfor onecharged crime, the State must choose which of the acts it relied on or the court must give a Petrich2 

### instruction to thejury requiring them to agree on a specific criminal act. State v. Coleman. 159 Wn.2d 509, 511, 150 P.3d 1126 (2007). 

### The necessityfor a unanimity instruction arises only in multiple acts cases, not where the evidence indicates a continuing course of conduct. State v. Handran, 113 

### Wn.2d 11, 17, 775 P 2d 453 (1989V overruled on other grounds by State v. Kitchen. 110Wn.2d403, 756 P.2d 105(1998). Todetermine whetherthere is a continuing course ofconduct, we evaluate the facts in a commonsense mannerconsidering the 

### time separating the criminal acts and whetherthe criminal actsinvolved the same 

## parties, location, and ultimate purpose. Statev. Brown. 159Wn. App 1,14, 248 P.3d 518 (2010). Evidencethat adefendantengaged in aseries ofactions intended to secure the same objective supports thecharacterization ofthoseactions as a 

## continuing course ofconductratherthan as several distinct acts. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). 

## Here, Harris's actions ofhitting OfficerDohertywith her shoes, wrestling with him as she wastaken down, andbiting him as hetried torestrain herall constituted a 

## continuing course ofconduct. The conductinvolved one location, the samevictim, and abrieftime period. Accordingly, thetrial courtproperly refused to give aPetrich

instruction. 

### 2State v. Petrich. 101 Wn.2d 566, 683 P.2d 173 (1984), overruled on other 

### grounds by State v. Kitchen. 110Wn.2d 403, 405-06, 756 P.2d 105 (1988). -4-69648-3-1/5 Double Jeopardy Harris also argues that her convictions for third degree assault and obstructing a law enforcement officer violate doublejeopardy. The guaranty against doublejeopardy in the United States and Washington Constitutions protects against multiple punishments for the same offense. State v. Calle. 125 Wn.2d 769, 776, 888 P.2d 155 (1995). The State is permitted to file and prosecute multiple counts where the evidence supports the charges, as long as convictions are not entered in violation ofdouble 

### jeopardy protections. Calle. 125 Wn.2d at 777 n.3. Harris contends that thejury should have been instructed that itwas required to find "separate and distinct acts" as the basis 

### for the third degree assault and obstruction convictions. 

### In analyzing whether a crime fallswithin the prohibition against double jeopardy, Calle sets forth a three-part test to determine whether multiple punishments were 

### intended by the legislature. Calle. 125Wn.2d at 776. First, the court examines the 

### statutory language to determineifthe applicable statutes expresslypermitpunishment for the same act or transaction. State v. Smith. 177 Wn.2d 533, 545, 303 P.3d 1047 

### (2013) (quoting State v. Hughes, 166Wn.2d 675, 681, 212 P.3d 558 (2009)); Calle. 125 Wn.2d at 776; State v. Martin. 149 Wn. App. 689, 698, 205 P.3d 931 (2009). Second, ifthe relevant statutes do not reveal an express intent to impose 

### multiple punishments, Washington courts apply a "sameevidence test" that issimilarto the rule set forth in Blockburger v. United States. 284 U.S 299, 304, 52 S. Ct. 180, 6 L. 

### Ed. 306(1932), i.e., offenses are the "sameoffense" for purposes ofdoublejeopardy when the crimes are the same in fact and in law. State v. Vladovic. 99 Wn.2d 413, 423, 

### 662P.2d 853 (1983). "Offenses are the same in fact when they arisefrom the same act69648-3-1/6 

### ortransition. Theyare the same in law whenproofof one offensewould also prove the other." Martin. 149Wn. App. at 699 (citing Calle 125Wn.2d at 777-78.) Third, when two offenses satisfy the Blockburger"same evidence" test, courts 

### look for any evidence ofcontrary legislative intentthatwould rebutthe presumption that multiple convictions are appropriate. In instances where the degree of one offense is 

### elevated by conductconstituting a separate offence, "the merger doctrine may help determine legislative intent " State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008) (citing Vladovic. 99 Wn.2d at 419). 

### At issue here is the second prong, the same evidence test. As charged and proved in this case, the jury found that Harris committed the crime ofthird degree assault because she assaulted a lawenforcement officer who was performing his officialduties at the time ofthe assault. RCW 9A.36.031(1)(g). An assault is an unlawful touching that is harmful or offensive. State v. Jarvis. 160 Wn. App. 111, 117- 

### 18, 246 P.3d 1280 (2011). Incontrast, a person commits the crime ofobstructing a law enforcement officer ifthat person "willfully hinders, delays or obstructs any law enforcement officer in the discharge of his or her official powers or duties." RCW 9A.76.020(1). These two offenses are not the same in law or in fact. State v. Nystra. 168 Wn. App. 30, 275 P.3d 1162 (2012). Third degree assault contains an assault element, while obstructing contains a hinder, obstruct, or delay element. Because each offense contains an essential element the other does not, they are not the same in law for doublejeopardy purposes. Nor are they the same in fact. To prove third degree assault, the State must prove a harmful or offensive touching against a law enforcement69648-3-1/7 

### officerwho was performing his or her duties. No proof of hindrance or delay ofthose duties is required. But to prove obstructing, the State must prove that the defendant willfully engaged in conduct that hindered, delayed, or obstructed the officer inthe discharge of his or her duties. No proofoftouching is required. That each offense requires proofoffacts that the other does not, demonstrates they are not the same in 

### fact. Harris establishes no doublejeopardy violation.3
Statement ofAdditional Grounds In a statement of additional grounds, Harris challenges the sufficiency of the evidence. The test for reviewing a defendant's challenge to the sufficiency of evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the State, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable double. State v. Montgomery. 163 Wn.2d 577, 586, 183 P.3d 267 (2008). Issues of conflicting testimony, witness credibility, and persuasiveness ofthe evidence are matters within the province ofthe trier of fact. State v. Truong. 168 Wn. App. 529, 534-35, 277 P.3d 74 (2012). We do not disturb credibility determinations on appeal. State v. Camarillo. 155 Wn.2d 60, 71, 794 P.2d 850 (1990).

3We note Harris provides no evidence that the legislature did not intend to 

### punish these two offenses separately. And her reliance on State v Borsheim, 140 Wn. App. 357, 165 P.3d 417 (2007). and State v. Noltie. 116 Wn.2d 831, 809 P.2d 190 (1991), is not persuasive. Unlike here, the defendants there were charged with multiple counts ofthe same crime based on multiple separate acts. See Borsheim. 140 Wn. 

### App. at 366-67 (separate and distinct language necessary where defendant charged with four counts of first degree rape of a child to ensure thatjury did not convict defendant ofmore than one count based on a single act); Noltie. 116 Wn.2d at 843 

### (instruction that jury must "'unanimously agree that at least one separate act of sexual intercourse pertaining to each count has been proved . . .'"was appropriate where defendant was charged with two identical counts ofstatutory rape).69648-3-1/8 To prove third degree assault, the State had to prove that Harris assaulted a law enforcement officer who was performing his or her official duties at the time ofthe assault. RCW 9A.36.031(1)(g). Assault is an unlawful touching that is harmful and offensive. Jarvis. 160 Wn. App. at 117-18. To prove obstruction, the State had to prove that Harris "willfully hinders, delays or obstructs any law enforcement officer inthe 

### discharge of his or her official powers or duties." RCW 9A.76.020(1). Officer Doherty testified that Harris swung her shoes at him, grabbed him, and bit him in the webbing of his hand. Harris testified that she did not recall what happened but remembered 

### struggling on the ground with Officer Doherty. When viewed in a light most favorable to the State, sufficient evidence supports the third degree assault and obstruction
convictions. 

### Harris's challenges are reallychallenges to the credibility of the witnesses and
thus not reviewable. CONCLUSION For the reasons discussed above, we affirm.

WE CONCUR: 

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