### FILED May 6, 2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) 

### No. 31053-1-111 Respondent, ) ) 

### v. ) ) 

### MELINDA R. BARRERA, ) 

### UNPUBLISHED OPINION ) 

### Appellant. ) 

### FEARING, J.

- RobertNelson died on December 7,2011 from a gunshot wound to his chest and stomach. The State charged Melinda Barrera and David McLaughlin with second degree murder for causing Nelson's death. Ajury found only Barrera guilty. The trial court sentenced Barrerato 224 months' confinement, including consecutive sentence enhancements; 60 months for using a firearm; and 24 months for using a deadly weapon. On appeal, Barrera contends: the trial court erred by notproviding aPetrich 

### instruction
on unanimity; by imposing a deadly weapon sentence enhancementthat exceeded the jury's special verdict findings; and by instructing thejury that "deadly weapon" includes
a firearm.No. 31053-1-III State v. Barrera
FACTS Some background ofRobert Nelson and his living situation is helpful. Athis death, Robert Nelson was 46 years old, stood 6 foot 2 inches, and weighed 312 pounds. Nelson injured his back during his youth rendering it difficult for himto walk. He usually hobbled, and sometimes used a wheelchair. Nelson spent most ofhis time in his Spokane apartment and generally allowed anyone to pass time there. MelindaBarrera and David McLaughlin were Robert Nelson's neighbors inthe apartment complex. Barrera oftenprovided RobertNelson assistance, and, at Nelson's request, she occasionally asked people to leave Nelson's apartment. Fighting and yelling were
common inNelson's apartment. Multiple people witnessed the events leading to Robert Nelson's death. Attrial, A.B.,I M.C., Misty Warden and appellant Barreratestified to their observations. David McLaughlin did not testifY. Barrera, A.B. and M.e. agreed, during testimony, to not having respectively initially reported the truth to law enforcement. Misty Warden sometimes assisted Robert Nelson. She met him years earlier because her uncle and Nelson were best friends. Warden sometimes slept onNelson's bedroom floor. Warden sat in Nelson's living room during the evening ofDecember 7, 2011.
IA.B. and M.C. are both teenagers. Pursuantto the June 18,2012 general order of this court, we refer to them only by their initials. 2

### No. 31053-I-III State 

### v. Barrera


### On December 7,2011, 

### teenage female A.B. lived with Melinda Barrera and David McLaughlin in their apartment. That evening Barrera asked A.B. to leavethe apartment
so that McLaughlin and Barrera could spend some time alone. A.B. did notknow Robert Nelson well, but occasionally spent time in his apartment. A.B. went to Nelson's apartment where she found Nelson and his roommate, Michael Dennis, arguing. A.B. yelled at Nelson and Dennis to stop arguing. Dennis leftthe apartment. While in his apartment bedroom but nearthe living room, Robert Nelson yelled at A.B., called her a bitch, and instructed herto shutup. A.B. responded by yelling at Nelsonto shutup. Nelson approached close to A.B., who was inthe living room. A.B. backed towards the apartment's kitchen. A.B. later told a police officer that she entered Nelson's kitchen in orderto find a weapon. Nelson asked A.B. to leave his apartment. Earlier on December 7,2011, the male teenagerM.e. visited Melinda Barrera and DavidMcLaughlin's apartment. M.e. then went to Robert Nelson's apartmentto visit Michael Dennis and because Barrera and McLaughlin asked for privacy. When M.e. entered Nelson's apartment, Nelson was yelling at A.B. A.B. told M.e. to run and get McLaughlin from the apartment next door. DavidMcLaughlin and Melinda Barrera, from their next door apartment, heard Nelson yelling with A.B. Barrerawentto Nelson's apartment and entered the apartment's back door. According to A.B., Barrerawas empty handed. Accordingto

3No.31053-I-III State v. Barrera M.e., Barrera entered with a silver gun. Melinda Barreratestified she enteredthe apartment with a hammer. Upon entering the apartment, Barrera demanded Nelson to stop yelling at A.B. and to move from A.B.'s person. M.e. observed Barrerapointthe gun atNelson and demanded he shut up or she would shoot him. David McLaughlin promptly also entered Nelson's apartment and, with a baseball bat, clubbed Nelson, who was by then inside his bedroom but with the bedroom doorpartially open. Yelling and shoving ensuedbetween Robert Nelson, onthe one hand, and Melinda Barrera and DavidMcLaughlin, on the other hand. A.B. retreated to a backroom in Nelson's apartment. Nelson moved further into his apartment bedroom, while Barrera stood in the bedroom doorway. Nelson continued to yell and Barrera told him she was calling for help. Nelson grabbed a phone from his bedroom and struckBarrera inthe head with it several times. In tum, according to Barrera, she hit Nelson in his face with the hammer. M.e. saw Nelson strike Barrera in the head with a phone and saw Barrera strikeNelson in the face with a gun, not a hammer. RobertNelson flipped a table, threw items, and, according to witnesses, slammed his bedroom door shut. Melinda Barreratestified Nelson continued to yell and threw
screws and nails ather. Barrera fell. According to Barrera, before the bedroom door closed, she saw a gun on a chair, grabbed it, and loaded a bullet into it. Barrera again told Nelson to calm down. Barreratestified she, ratherthan Nelson, pulledthe bedroom 4No.31053-1-III State 

### v. Barrera
door closed. As Barreraturned away from**Nelson~s** bedroom door, the gun fired. She thoughtthe gun fired in the direction ofa closet, not Nelson's bedroom. Immediately after the bedroom door shut, Misty Warden, A.B., andM.C. heard a gun fired, while MelindaBarrera and David McLaughlin stood outside the door. M.C.
saw McLaughlin take the gun from Barrera immediately before he heard the gun fire. Warden did not see the shot fired, but saw McLaughlin with a gun. No one was aware of the bullet striking anyone. Melinda Barrera, David McLaughlin and A.B. exitedNelson's apartment. A.B. then saw McLaughlin with a gun in hand. While alone in his bedroom with the door shut, Robert Nelson called 911. Police arrived at Nelson's apartment and were met by Misty Warden and Michael Dennis. Neither Warden nor Dennis realized Nelson was injured. An officerkicked open Nelson's bedroom doorto find him, phone in hand, lying on his bed dead. The medical examinerconcluded that Nelson suffered blunt force traumato his left cheek, left arm, left hand, and chest, butthe cause ofdeath was a gunshot wound to the chest and abdomen. Melinda Barrera initially toldpolice she workedthat evening and was notpresent in Nelson's apartment. As police began to question DavidMcLaughlin, Barrera confessedto shooting Nelson. Barreratoldpolice she hidthe gun under a floorboard in a neighbor's apartment. Police removedthat floorboard and found a gun and a plastic

5No.31053-I-III 

### State v. 

### Barrera baggie with eight .22 caliberbullets. InNelson's apartment, police found a hammer and
a baseball bat. PROCEDURE The State charged Melinda Barrera and David McLaughlin with second degree murder, under RCW 9A.32.050(1), for the death ofRobertNelson. Second degree murder may be proved by one oftwo alternate means. The State chargedboth Barrera and McLaughlin, under subsection (a) ofthe statute, with intentionally causing Nelson's death and, in the alternative, under subsection (b) ofthe statute, with causing Nelson's death in furtherance ofa felony, orin immediate flight from the felony_ Subsection (a) is intentional, nonpremeditated murder. Subsection (b) constitutes felony murder. The alleged felony committedby Barrera and McLaughlin was second degree assault. Barrera and McLaughlin were tried together andthe State alleged, in the alternative, that each defendant was an accomplice ofthe other defendant. The State charged intentional murderand felony murder as separate counts, despite each being the crime ofsecond degree murder. Thus, the trial court gave separate jury instructions for the two alternate means ofsecond degree murder and thejurywas respectively requiredto find eachmeans proved beyond a reasonable doubtto reach a guilty verdict onthat count. No one proposed, and the trial court did not give, ajury instruction directingthejurythat, ifit finds one ofthe defendants guilty offelony murder, it must decide unanimously which ofmany acts performed by the guilty 6No. 31053-1-111 State v. Barrera
defendant orthe accomplice constituted assault. In other words, thejury need not have decided unanimously which assaultive act caused thedeath ofRobert Nelson. Thejury acquitted DavidMcLaughlin ofall charges and found Barreranot guilty ofintentional second degree murder under subsection (a) ofRCW 9A.32.050(1). The jury found Barrera guilty, however, ofsecond degree murderunder subsection (b) ofthe statute, for assaulting Nelson and causing his death. Sincethe State sought sentence enhancements for use ofa deadly weapon and use ofa firearm, thetrial court gave twojury instructions addressing the enhancements. Jury instruction 37 read, in relevantpart: Forpurposes ofa special verdictthe State mustprove beyond a reasonable doubtthatthe defendant was armed with a deadly weapon at the time ofthe commission ofthe crime. A deadly weapon is an implement orinstrumentthathas the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples ofdeadly weapons: blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver orany other firearm, any knife having a blade longerthan three,inches, any razor with

an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containingpoisonous or injurious gas. Clerk's Papers (CP) at 110 (emphasis added). Jury instruction 38 read, in relevant part: Forpurposes ofa special verdict, the State mustprove beyond a reasonable doubt that the defendant was armed with afirearm at the time of the commission ofthe crime.



### 7No. 31053-1-111 State v. Barrera
A "firearm" is a weapon or device from which a projectile may be fired by an explosive such as gunpowder. CP at III (emphasis added). Jury instruction 31 expressly stated, "A firearm, whether loaded orunloaded, is a deadly weapon." CP at 103. The trial court gave two special verdict forms asking thejuryto answer further questions ifMelindaBarrera was found guilty ofsecond degree murder. The first verdict form asked ifBarrera was armed with a deadly weapon when she committed the murder. The second asked ifshewas armed with a firearm when she committed the murder. The jury answered yes to both questions. Thejurywas not asked to identify the deadly weapon with which Barrera was armed. The trial court sentenced Barrerato 224 months' confinement, including consecutive sentence enhancements of60 months for using a firearm and 24 months for using a deadly weapon. LAWAND ANALYSIS Waiver ofArgument The State asks us to ignore Melinda Barrera's argument that the court failed to deliver an unanimityjury instruction, because Barrera did not propose such an instruction below. Such an unanimity instruction is known as aPetrich instruction because ofa rule announced in State 

### v. Petrich, 101 Wn.2d 566,683 P.2d 173 (1984). The State contends that a criminal appellant may not assign error to the failure to give ajury instruction


### 8No. 31053-1-111 State v. Barrera

never requested unless the appellant contends the failure was "manifest error." In her opening brief, Barrera argues manifest error. Under RAP 2.5(a), an appellate court may decline to hear assignments oferror not raised before the trial court. One exception to this declination rule is aparty's assertion of"manifest error affecting a constitutional right." RAP 2.5(a)(3). Under this exception,
an appellant must demonstrate (1) the error is manifest and (2) the error is truly of constitutional dimension. State v. O'Hara, 167 Wn.2d 91, 98,101,217 P.3d 756 (2009). Melinda Barrera assigns a constitutional error. Ofcourse, we cannot determine if the trial court committed manifest error without first reviewing the substance ofthe claimed error. For this reason, our state high court agreed to hear an appellant's argument for the first time on appeal for the need for an unanimity instruction. State v. Bobenhouse, 166 Wn.2d 881, 892,214 P.3d 907 (2009). Our court has often ruled that, because the test for determining whether an alleged error is "manifest" is closely related to the test for the substantive issue ofwhether an unanimity instruction was required, we conflate the two analyses. State v. Knutz, 161 Wn. App. 395,407,253 P.3d 437 (2011); State v. Love, 80 Wn. App. 357, 908 P.2d 395 (1996); State v. Fiallo-Lopez, 78 Wn. App. 717,899 P.2d 1294 (1995). We thus agree to hear Melinda Barrera's assignment of error, although this victory is pyrrhic in nature. Unanimity Jury Instruction Melinda Barrera and her codefendantwere charged with second degree murder. 9No. 31053-1-111 State 

### v. Barrera
The controlling statute is RCW 9A.32.050, which reads in pertinentpart: (l)A person is guilty ofmurder in the second degree when: (a) With intentto cause the death ofanotherperson but without premeditation, he or she causes the death ofsuchperson orofa third person; or (b) He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030(l)(c), and, in the course ofand in furtherance ofsuch crime or in immediate flight therefrom, he or she, or anotherparticipant, causes the death ofa person otherthan one oftheparticipants. The appeal concerns only subsection (b) ofthe statute. Barrera complains that many ofher acts could constitute the predicate assaultto form the basis for her felony murder conviction but thejury was not instructed to find that the State mustprove beyond a reasonable doubtthe discrete act she committed that sustained the conviction. Barrera accurately notes that thejury could have found (1) Barrera came to the apartment unarmed, (2) Barreracame to the apartment with a gun butdid not use it, (3) Barrera
came to the apartment with a hammer and struck Nelson with it, (4) Barrera cameto the apartment armed with a gun and struck Nelson with that, (4) Barrera grabbed Nelson's gun and struck him with it, or (5) Barrera deliberately shotNelson through the doorbut did not intend to kill him. Many broadprinciples tangentially substantiate Melinda Barrera's argument that thejury shouldhave been instructed itmustunanimously agree as to which act was felonious and caused death. The United States Constitution FourteenthAmendment due process clause entitles a criminal defendant to ajurydetermination that she is guilty of 10No. 31053-1-111 State 

### v. Barrera
every element ofthe crime with which she is charged, beyond a reasonable doubt. Apprendiv. New Jersey, 530 U.S. 466, 476-77,120 S. Ct. 2348,147 L. Ed. 2d 435 (2000). The due process clause protects the accused against conviction exceptupon proofbeyond a reasonable doubt ofevery fact necessary to constitute the crime with whichhe is charged. Apprendi, 530 U.S. at477. In compliance withthese principles, Washington courts recognize that, to convict a person ofa criminal charge, thejurymust beunanimous that the defendant committedthe criminal act. State v. Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990); Bobenhouse, 166 Wn.2d at 892. The standard for whetherthe failure to provide a unanimity instruction was error hinges on whether we address an alternative means case or a multiple acts case. Bobenhouse, 166 Wn.2d at 892. When the legislature intended to define but one crime that could be committed in different ways, we deal with a multiple acts case. Id. In contrast, "alternative means" cases occurwhenthe legislature enacted separate and distinct offenses thatwhen committed constitute another crime. Id. We need not determine whether intentional second degree murder is a distinct crime from felony second degree murder, since Barrera does not assign error onthis ground and the Supreme Courtpreviously decided that second degree murder is only one crime regardless ofwhich subsection ofthe statute is charged. State v. Cadena, 74 Wn.2d 185, 443 P.2d 826 (1968). Barrera complainsthatthejury heard evidence ofmany assaultive acts committedby her, butthejurydid not need to specify which act constituted the 11No. 31053-1-111 State 

### v. Barrera predicate felony for purposes ofmurder. Thus, this is a multiple acts case. In "multiple acts" cases, thejury must unanimously agree as to which incident constituted the crime charged. Bobenhouse, 166 Wn.2d at 893. Where multiple acts relate to one charge, the State must elect the act on which it relies to convict the defendant, orthe trial court mustprovide a unanimity instruction-aPetrich instruction. Petrich, 101 Wn.2d at 572. The failure to do so in multiple acts cases is constitutional
error. Bobenhouse, 166 Wn.2d at 893. The error stems from thepossibility that some jurors may have relied on one act orincident and somejurors a different act, resulting in
a lack ofunanimity on all ofthe elements necessary for a valid conviction. State v. Kitchen, 110 Wn.2d 403,411, 756 P.2d 105 (1988). Under such circumstances, the State must electthe specific criminal act on which itis relying for conviction, orthe trial court must instruct thejurythat all thejurors must agree that the same underlying criminal act
wasproven beyond a reasonable doubt. Kitchen, 110 Wn.2d at 411. An exception, which applies here, dilutes the multiple acts rule. The State need not make an election and the trial court need not give a unanimity instruction ifthe evidence showsthe defendant was engaged in a "continuing course ofconduct." State 

### v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989); Fiallo-Lopez, 78 Wn. App. at 724. We review the facts in a commonsense mannerto decide whether criminal conduct constitutes one continuing act. Handran, 113 Wn.2d at 17. Courts have considered various factors in determining whether a continuing course ofconduct exists in a 12No. 

### 31053-1-111 State 

### v. Barrera particular case. Generally, evidence that the charged conduct occurred at different times and places tends to showthat several distinct acts occurred rather than a continuing
course ofconduct. Handran, 

### 113 Wn.2d at 17. Evidence ofa single victim likewise is not enough in itselfto demonstrate that the offense was one continuing offense. Petrich, 

### 101 Wn.2d at 571. In contrast, evidence that a defendant engages in a series ofactions intendedto secure the same objective supports the characterization ofthose actions as a continuing course ofconductrather than several distinct acts. Handran, 113 Wn.2d at 17. Several cases illustrate the application ofthe continuing conduct exception. In Handran, 113Wn.2d 

### 11, two alleged assaults did notrequire a unanimity instruction because the defendant's actions showed a continuing course ofconduct intended to
secure sexual relations with the victimratherthan several distinct acts. Near midnight, Daniel Handran climbed in the window to his ex-wife Jill's apartment. Jill awoke to find Handran leaning overher, nude and kissing her. She demanded that he leave immediately. Instead, he pinnedher, hit her in the face, and offered her money. Handran
was charged with burglary in the first degree, which requiredproofofentering or remaining inthe apartmentwith intentto commit a crime against a person therein. Handran argued that the trial court erred in failing to instructthejury that it must be unanimous as to which act alleged constituted the crime he intended to commit inside the apartment. He contended thatthejury could have found an assault in his kissing Jill orin 13

# I I No. 31053-1-II1 State v. Barrera
his hitting her, but that thejury should have been instructed to reach a unanimous decision that one orthe other ofthose acts constituted the underlying assault. This argument failed, however, because the two acts ofassault were part ofa continuing
course ofconduct. Handran's criminal conduct occurred in oneplace during a short period oftime between the same aggressor and victim. Another controlling decision is Fiallo-Lopez, 78 Wn. App. 717. Fiallo-Lopez sought anunanimity instruction on the charge ofdelivery ofcocaine. The evidence showedtwo discrete acts ofdelivering cocaine, a sample at a restaurant and baggies of cocaine at Safeway. The court disagreed that an instruction was needed since the two deliveries ofcocaine were a continuing course ofconduct. Thepurchaser ofeach sale
was the same and the purchases were near in time. Comparing the eponymous decision, Petrich, 101 Wn.2d 566, to Fiallo-Lopez and Handran helps explainthe continuing conduct exception. The State charged Petrich with
one count ofindecent liberties and one count ofsecond degree statutory rape. The victim, Petrich's granddaughter, testified to at least4 episodes ofsexual contact during a 22-month period oftime. The court held that the trial court committed errorbynot giving ajury instruction demanding that thejury find beyond a reasonable doubt the specific acts orincidents uponwhich a conviction was based. Each incident occurred in
a separate time frame and identifyingplace. The only connection betweenthe incidents
was thevictim. 14 

# I

,No. 31053-1-111 State v. Barrera
Barrera's conduct throughout the incident resulting in Nelson's death constitutes
one continuing course ofconduct. No matter the nature ofthe assault, be it striking Nelson with a gun, hammer, orboth, or ifBarrera only shot without intentto kill, all the actions were immediate in time, close in space, and directed at the same victim as part of
a single argument. These actions were all part ofthe same event. The trial court did not
errby withholding a Petrich instruction on unanimity. Deadly Weapon Enhancement The State pled deadly weapon and firearm enhancements to increase any sentencing ofMelinda Barrera. Thejury found thatboth enhancements applied and those findings impacted Melinda Barrera's sentence. A conundrum arises with the findings in that ajury instruction defined a deadly weapon as including a firearm. Thus, thejury could have based each enhancement on the same weapon, the silver gun. RCW 9.94A.533(4) authorizes courts to impose an additional 24 months' confinement "ifthe offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010." RCW 9.41.010(9), in tum, defines "firearm" as "aweapon or device from which a projectile orprojectiles may be fired by
an explosive such as gunpowder." Thus a second problem arises in that ajuryinstruction wrongfully included, rather than excluded, a firearm as a deadly weapon. MelindaBarrera argues that thejury's finding that she used a deadly weapon does not supportthe finding thatBarrera used a "deadly weapon other than a firearm." 15No. 31053-l-II1 State v. Barrera
Without such a finding, the trial court cannot impose a deadly weapon sentence enhancement under RCW 9.94A.533(4), which excludes firearms. We agree. The State argues thatthe medical examiner testified that Nelson suffered blunt force traumas to his head and body. This blunt force trauma corresponds with Barrera's confession that she struck Nelson in the face with a hammer and then shot him with a firearm. Thus, the State contends, assuming that thejury followed the court's instructions, thejuryproperly found that Barreraused both a deadly weapon and a firearm. Contrary to the argument, ifthejury followed the court's instructions, it had to
answer yes for each enhancement even ifthe deadly weapon was a gun. This court presumes thejury followed these instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). When a trial court imposes an enhanced sentence not supported by facts found by thejurywith its special verdict, the resulting error can never be harmless. State v. ReyesBrooks, 165 Wn. App. 193,202,267P.3d 465 (2011). Thus, we hold the trial court committed errorto the detriment ofMelindaBarrera. FirearmEnhancement MelindaBarrera seeks to vacate the firearm enhancementbecause ofthe inconsistency and unfairness ofan enhancement for use ofa firearm as a firearm and a deadly weapon. Because we rule that the trial court exceeded the authority afforded by thejury's special verdict findings when it imposed a deadly weapon sentence 16

# I I No. 31053-1-111 State 

### v. Barrera 

# I 

# I enhancement, we will not address this companion assignment oferror. CONCLUSION We affirm MelindaBarrera's conviction for second degree murder. We hold the trial court erredwhen it instructed thejury that a "deadlyweapon" includes a "firearm/' andthen imposed both deadly weapon and firearm sentence enhancements. We remand for resentencing, during which the trial court may impose an enhancement for a firearm, but not a deadly weapon. A majority ofthe panel has determined this opinion will notbeprinted in the WashingtonAppellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Brown, J. 

# i 

# I

17