FILED 

### COURT OF APPEALS DIVISION I 20I5 

### FEB 24 

### AM 9: 32 STATE OF WASHINGTON BY 

### IN THE COURT OF APPEALS OF THE STATE OF WAS

STATE OF WASHINGTON, DIVISION II
Respondent,

v. CODY HOWARD JOHNSON, App. ellant. t' 

## igbYrON

No. 45393 -

2 -II

UNPUBLISHED OPINION

MAxA, J. — 

### Cody Johnson appeals his convictions and sentence fortwo counts offelony harassment and two counts ofmisdemeanor harassment. Johnson argues that his four harassment 

### convictions were based on one unit ofprosecution, and therefore violated doublejeopardy. He 

### also challenges the calculation ofhis offender score, arguing thatfive 1990 Oregon convictions included in the offender score were not comparable to Washington felonies and also should have
washed out. The State concedes that Johnson' s four harassment convictions were based on only one unit ofprosecution, and that three ofthe convictions must be vacated. We accept the State' s 

### concession. However, the State argues that on resentencing Johnson cannot challenge his 

### offender score because he waived any challenge in the original sentencing process. We disagree and hold that Johnson can challenge his offender score on remand. 

### Accordingly,we affirm one ofthe felony harassment convictions, vacate the otherthree harassment convictions, and remand for resentencing. We also hold that on remand Johnson will45393 - 2 -II 

### be allowed to challenge his offender score. Because we remand for resentencing, we need not address the merits ofJohnson' s offender score arguments. FACTS 

### Johnson lived nearJustin Bingley in rural Thurston County. On the evening ofFebruary 12, 2013, Bingley heard Johnson yelling across the street and called the police. The police told 

### Bingleythatthey were unable to help him because Johnson was not on Bingley's property. 

### When Bingleywent outside afew minutes later,Johnson continued to yell at him. 

### Johnson stated that he would meet Bingley in front ofhis housewith his guns and knives. Bingley called the police again and went outside to watch Johnson. At or around this time, 

### Johnson came onto Bingley's property. Johnson angrilyyelled at Bingleythat he was going to break Bingley' s neck and kill Bingley' s family. Bingley was scared and felt that the situation was getting out ofcontrol. The police advised Bingleyto move inside, so he stepped inside and locked his glass storm door, which allowed him to continue watching Johnson. 

### Johnson yelled that Bingley had killed his (Bingley's) daughter and buried her in his yard. Johnson stated that he would be coming to dig up Bingley's daughter. And Johnson 

### warned Bingleyto be careful because he could easily get into an accident with his truck. At 

### some period during this altercation,Johnson accused Bingley ofbeing a pedophile or a rapist. 

### Johnson also intermittently reached into his pants pockets and Bingleywas concerned that he had a knife or gun. This incident,which involved Johnson yelling threats at Bingley, continued for 30 to 45 minutes. 

### The State charged Johnson with two counts offelony harassment and two counts of 

### misdemeanor harassment. Following ajury trial,Johnson was found guilty on all four counts. 245393 -2 -II



### At sentencing, Johnson's counsel agreed thatthe State's listed criminal history form was correct. There is no evidence in the record that either the State or Johnson addressed whether Johnson' s prior criminal convictions were comparable to Washington convictions, and the trial 

### court apparently did not engage in a comparability analysis. The sentencing court calculated Johnson' s offender score at 12, and sentenced him to 60 months in prison.

Johnson appeals. ANALYSIS A. DOUBLE JEOPARDY

Johnson argues that his four counts of harassment were based on one unit of prosecution, and therefore his convictions violate his right against doublejeopardy. The State concedes that 

### the four convictions did violate doublejeopardy, and we accept the State' s concession. The Fifth Amendment to the United States Constitution provides that no " person be subject for the same offense to be twice put injeopardy of life or limb." Mirroring this federal
constitutional guarantee, article I, section 9 of the Washington Constitution provides, " No person
shall ... be twice put in

### jeopardy for the same offense." Under these provisions, a defendant can 

### be charged with multiple charges arising from the same conduct, but doublejeopardy prohibits multiple convictions for the same conduct. State v. Hall, 168 Wn.2d 726, 729 - 30, 230 P.3d 1048 2010). 

### We review doublejeopardy claims de novo. State v. Villanueva - Gonzalez, 180 Wn.2d 975, 979 -80, 329 P.3d 78 ( 2014). 

### Whetheror nota defendant is facingmultiple convictions forthe same conductdepends on the unit ofprosecution. Hall, 168 Wn.2d at 730. A unit ofprosecution may either be an act

345393 -2 -II

or a course of conduct. Id. at 731. 

### Our approach to analyzing a unit ofprosecution involves three steps: 

### T]he first step is to analyze the statute in question. Next, we review the statute' s 

### history. Finally,we perform afactual analysis astothe unit ofprosecution because even where the legislature has expressed its view on the unit of prosecution, the 

### facts in aparticular case may reveal more than one " unit ofprosecution" is present. State v. Varnell, 162 Wn.2d 165, 168, 170 P. 3d 24 (2007) (

### quoting State v. Bobic, 140 Wn.2d 250, 263, 996 P.2d 610 (2000)). Ifthe legislature fails to define the unit ofprosecution or its 

### intent is unclear, underthe rule oflenity any ambiguity must be resolved against allowing a single incident to support multiple convictions. State v. Tvedt, 153 Wn.2d 705, 711, 107 P.3d 728 (2005).

Washington' s harassment statute provides: A person is guilty of harassment if: ( a) [ w]ithout lawful authority, the person 

### knowingly threatens: ( i) [

### t]o cause bodily injury immediately or in the future tothe person threatened or to any other person ... [ and] ( b) [ t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020( 1)( a) -(b). The statute does not define the unit ofprosecution. At best, the 

### legislature' s intent regarding the unit ofprosecution is unclear. However, . the language used to define the operative criminal conduct in RCW 9A.46.020 —to " knowingly threaten" —is not 

### inherently a single act. State v. Vidales Morales, 174 Wn. App. 370, 386 -87, 298 P.3d 791 2013). As a result, the unit ofprosecution for harassment can be a course of conduct rather than a single act. See id.

445393 -2 -II Here, Johnson communicated multiple threats to cause bodily harm, butthey were directed to a single identified person at a single time and place. Under these circumstances, we hold that this incident gave rise to a single unit ofprosecution. Because the State concedes, and we agree, that the evidence supports only one offense, we must reverse three ofJohnson' s harassment convictions. Where two or more convictions for 

### the same offense constitute doublejeopardy,the trial court should enterjudgment on the greater offense and vacate the lesser offenses. See State v. Turner, 169 Wn.2d 448, 459, 238 P.3d 461 2010). 

### We affirm Johnson's conviction for one count offelony harassment, but reverse 

### Johnson' s conviction forthe second count offelony harassment and both counts ofmisdemeanor harassment and remand for resentencing.' B. CALCULATION OF OFFENDER SCORE 

### Johnson argues thatthe trial court erred in calculating his offender score because ( 1) his five .1990 Oregon convictions were not comparable to Washington felonies and should not have been included in his offender score, and (2) the five 1990 Oregon convictions should have been washed out. The State argues that Johnson waived his right to challenge the comparability or 

### washout status ofthose convictions on remand by stipulating to his Oregon convictions at 

### sentencing. We disagree. And because we remand for resentencing on a single felony harassment conviction based on doublejeopardy,we need not address the merits ofJohnson's comparability and washout arguments.

1 Johnson argues in the alternative that he was denied his right to a unanimous verdict because 

### the trial court failed to give a unanimity instruction as to the separate acts alleged. Because we reverse on doublejeopardy grounds, we do not address this issue. 545393 - 2 -II A defendant' s offender score, together with the seriousness level ofhis current offense, dictates the standard sentencing range used in determining his sentence. RCW 9.94A.530( 1). A 

### prior conviction from another state is included in a defendant' s offender score only ifthe foreign
crime is comparable to a Washington 

### felony. See id.; RCW 9. 94A.525( 3). The State bears the 

### burden ofproving by a preponderance ofthe evidence the existence and comparability ofthe out - of - state offenses. State v. Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187 (2014). 

### Notwithstanding the State' s usual burden ofproof,atrial court can include adefendant's out - of - state convictions in his offender score where the defendant affirmatively acknowledges 

### the existence and comparability ofthe prior convictions. State v. Mendoza, 165 Wn.2d 913, 927, 205 P. 3d 113 ( 2009), overruled on other grounds, State v. Jones, Wn.2d , 338 P. 3d 278 2014); see also State v. Ross, 152 Wn.2d 220, 233, 95 P. 3d 1225 ( 2004). The State argues that such an acknowledgement also constitutes a waiver ofthe right to challenge the inclusion of those convictions at resentencing. The State' s argument is inconsistent with the general rule allowing both the defendant and the State to present additional evidence and argument regarding prior convictions at resentencing. " 

### On remand for resentencing following appeal or collateral attack,the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, :including criminal history not previously presented." RCW 9. 94A.530(2); see also Jones, 338 P. 3d at 283. Further,the " mere failure to object to a prosecutor' s assertions ofcriminal history does

not constitute such an acknowledgement." Mendoza, 165 Wn.2d at 928. Here, Johnson agreed 

### to the State' s articulation ofhis criminal history. However, he did not state eitherwaywhether 645393 -2 -II



### his Oregon convictions had been properly included in his offender score. Therefore, Johnson did 

### not affirmatively acknowledge that his five Oregon convictions were comparable, did notwash . out, orwere correctly included in his offender score. We hold that Johnson did not waive his arguments regarding the inclusion ofhis five 1990 Oregon convictions in his offender score, and that he will be able to raise his comparability and washout arguments on remand.2 The State also will be allowed to present additional evidence regarding Johnson' s prior convictions on remand. 

### We affirm one ofthe felony harassment convictions, vacate the otherthree harassment convictions, and remand for resentencing. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
HANSON, C.J.

LEE, J.


### 2 Johnson argues in the alternative that ifhis comparability argument was waived, his defense counsel rendered ineffective assistance ofcounsel by not challenging the inclusion ofhis Oregon convictions in his offender score. Br. ofAppellant at 27 - 29. Because we hold that Johnson did not waive this argument, we need not address this claim. 7