### FILED April 9, 2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 30235-1-111 Respondent, ) ) v. ) ) JESUS VIDALES MORALES, ) PUBLISHED OPINION ) Appellant. ) SIDDOWAY, J.

- The meaning ofthe harassment statute, RCW 9A.46.020, is centralto Jesus Morales's appeal ofhis conviction oftwo counts offelony harassment. He was convicted on one count for a harassment offense against the mother ofhis children, from whomhe was estranged. His conviction onthe other countmighthave been for a second harassment offense against herormight have been for a harassment offense againstthethirdparty to whom itwas communicated. We agree with Mr. Morales thatthe criminal information did not puthim on notice ofone means advanced at trial bythe State. We also agree thatprosecuting him for a second count, withthe mother ofhis children as the asserted victim, wouldviolate doublejeopardy. Wereverse his conviction ontheproblematic count andremand for resentencing.No.30235-I-II1 State 

### v. Morales
FACTS AND PROCEDURAL BACKGROUND Jesus Morales and YanettFarias have three children in common but had not lived together for a year and a halfas ofFebruary 2011. On February 14, Mr. Morales stopped at the home ofMs. Farias's sister and the sister's husband, Trinidad Diaz, where he spoke to Mr. Diaz, venting his anger at Ms. Farias. Mr. Morales believed thatMs. Farias had taken $4,000 belonging to him. He had stopped at herhome earlierthat day to speak with her and, although she was home, she refused to open the door. According to Mr. Diaz, Mr. Morales was so angry in speaking about Ms. Farias that he was trembling. Hetold Mr. Diaz that whenMs. Farias dropped herchildren offat day care the next morning, he would be waiting for her and kill her. Mr. Morales's conversation with Mr. Diaz lasted about three minutes. When it was over, Mr. Diaz, who feared that Mr. Morales would follow through with his threats, told his wife to call her sister and relate what

### Mr. Morales had said. Ms. Farias's sister called Ms. Farias, Ms. Farias contacted the police, and laterthat nightpolice spoke with Ms. Farias and Mr. Diaz about the threats. The nextmorning, Ms. Farias took her children to day care at the home ofthe baby-sitter, Araceli Castel, as usual, although with a plan for avoiding Mr. Morales ifhe was there when she arrived. She told the children towatch for their father and tell her if they saw him. The children knew why she was concerned, because her ll-year-old



### 2No.30235-I-II1 State 

### v. Morales daughter had acted as interpreter when Ms. Farias was contacted by police the night before. As soon as Ms. Farias pulled up to Ms. Castel's home, the childrenpointed out Mr. Morales's truck across the street. Hepulled out and drove his truck toward hers. Ms. Farias told the children to run inside; they quickly got out ofthe truck and ran into Ms. Castel'shome. The children told Ms. Castel thattheir father was threatening their mother. Ms. Castel helped the I1-year-old call the police and then watchedthe altercation between Mr. Morales and Ms. Farias from her front door. Bythen, Mr. Morales and Ms. Farias were still in theirrespective trucks, with Mr. Morales's truck alongside Ms. Farias's, preventing her'from leaving. As Ms. Farias tried unsuccessfully topull out from behind or in front ofMr. Morales's truck, he moved to block her and Ms. Castel heard him yell, "'This is as far as you've gone, you fucking bitch, because I'mgoingtokill youhere.'" Report,ofProceedings (Aug. 11,2011) (RP) at267. Mr. Morales, whose driver's side windowwas partly down, was leaningtoward Ms. Farias's truck and pointingtoward her-perhaps with something in his hand, although no witness claimed to have seen a weapon. Ms. Farias was cowering. Ms. Castel then began yelling at Mr. Morales and he left. After that Ms. Farias came into the house, shaken and crying, andtold Ms. Castel, 

### "'Ithoughtthey wouldbe killing me today'" and "'[i]fit wouldn'thave been for you, he could've killed me.'" RP at 274.

3No. 30235-1-II1 State v. Morales
The State charged Mr. Morales with two counts offelony harassment underRCW 9A.46.020. The amended information stated, as to the first count: On or about February 14,2011, in the State ofWashington, without lawful authority, you knowingly threatened to cause bodily injury immediately orin the future to Yanett Farias and the threat to cause bodily injury consisted ofa threat to kill YanettFarias or another person, and did by words or conductplace the person threatened in reasonable fear that the threat would be carried out. Clerk's Papers (CP) at 2. Count two contained identical language, but substituted the date ofFebruary 15. At trial, the elements instructionthat the State originally proposedto address count
one (the February 14 threat) originally read, in part, as follows: To convict the defendant ofthe crime ofHarassment ofAnother in Count 1, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about February 14, 2011, the defendant knowingly threatened to kill YanettFarias immediately or in the future; (2) Thatthe words or conduct ofthe defendantplaced YanettFarias in reasonable fear thatthe threat to kill would be carried out. CP at 20. Before the instruction was read andprovided to thejurythe secondnumbered element in the instruction was revised to read, "(2) Thatthe words or conduct ofthe defendantplaced TrinidadDiaz &/or Yanett Farias in reasonable fear thatthe threat to kill would be carried out" (the revision being indicated by italics). CP at 39 (Instruction

4No. 30235·1-111 State 

### v. Morales 7). The modification was discussed by counsel and was clearly intentional. Mr. Morales did not object to the instruction. Thejury found 

### Mr. Morales guilty on both counts. At sentencing, defense counsel argued the two threats constituted a single course ofconduct and that the unit ofprosecution should be the number ofvictims rather than the number ofthreatening statements. The court rejected the argument, treated the two counts as separate convictions for purposes of

### Mr. Morales's offender score, and imposed
a standard-range IO-month sentence for each count, to run concurrently. 

### Mr. Morales appeals. ANALYSIS Two of

### Mr. Morales's arguments on appeal are based on an asserted inconsistency between count one as it was charged and as tried. The parties' disagreement about the asserted inconsistency largely arises from the several actors contemplatedby subsection (a)(i) ofRCW 9A.46.020(l}-one ofthe four alternative means ofcommitting harassment-and which role Mr. Diaz played in the State's theory ofcount one. In addition to the perpetrator, subsection (a)(i) contemplates (A) a person to whom a threat is communicated, (B) an intended victim ofbodily harm, and (C) a target ofthe perpetrator's harassment (the individual the perpetratorhopes to coerce, intimidate, or humiliate). For clarity, we will sometimes refer to the person to whom the threat is



### 5No. 30235-1-111

. State 

### v. Morales

communicated as A, the intended victim ofbodily harm as B, and the target ofthe harassment as C. The A, B, and C roles can be filled by one, two, or three persons. The relevant provisions ofthe harassment statute state: (I) A person is guilty ofharassment if: (a) Without lawful authority, theperson knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened orto any otherperson [and] (b) The person bywords or conductplaces the person threatened in reasonable fear thatthe threat will be carried out. RCW 9A.46.020. "Threat" is defined elsewhere as including "to communicate, directly
or indirectly the intent
... [t]o cause bodily injury in the future to the person threatened
or to any otherperson." Former RCW 9A.04.l10(27)(a) (2007) (emphasis added). Two cases are key in sorting out the parties' conflicting views ofMr. Diaz'srole in the State'stheory ofcount one. In State v. 

# as., 104 Wn. App. 643, 17 P.3d 1221 (iOO 1), Division One ofthis court examined whether the definition ofharassment in RCW 9A.46.020(1)(a) created alternative means ofcommitting the crime oronly a single
means. In that case, ajuvenilemade statements to Tina Myrick, a school bus driver, threatening students at his school. She became concerned, reported the threats to school administrators, and G.S. was charged injuvenile court with felony harassment. The information alleged that he '''knowingly and without lawful authority, did threaten to
cause bodily injury immediately or in the future to Tina Myrick, by threatening to kill students ofWestside Place Alternative School, and the words orconduct did place said 

### 6No.30235-1-III State v. Morales
person in reasonable fear that the threat would be carried out.'" 

### ld. at 647-48. G.S. was found gUilty. On appeal, he argued thatthe definition ofthe first element ofthe crime in RCW 9A.46.020(1)(a)(i) created two alternative means. One was to communicateto A a threat to cause bodily injury to A, and the otherwas to communicate to A a threat to cause bodily injury to B. He maintainedthat the information chargedhim with a "communicate to Albodily injury to A" alternative (relying on "did threaten to cause bodily injury immediately orin the future to TinaMyrick")·butthe State's only evidence was evidence ofa "communicate to Albodily injury to 

### B" alternative 

### (B being his fellow students)-ati uncharged offense. Division One concludedthatthe definition created only a single
means ofcommitting the crime: communicating to A a threat to cause bodily injury to A orB. A second issue raised by 

## G.s. was whether, whenthe threat is to cause bodily injury not to the person to whom the threat is communicated, but to anotherperson, the second element (provided at RCW 9A.46.020(1)(b)) requiredproofby the State that the person to whom the threat was communicated (A) wasplaced in reasonable fear that the threat will be carried out, orproofthat the intended victim ofbodily injury (B) was placed in such fear. The court concludedthat under a plain reading ofthe statute, the "personthreatened" who must beplaced in reasonable fear is the person to whom the threat was communicated. 

### ld. at 652. Itbased its decision primarily on its construction 

### 7No.30235-1-II1 State v. Morales
of"theperson threatened" in both RCW 9A.46.020(1)(a)(i) and in the definition ofthreat at former RCW 9A.04.11O(27)(a) as meaning A, the person to whomthe threat is communicated. Laterthe sameyear, the statute was examined by our Supreme Court in State v. J.M, 144 Wn.2d 472, 482, 28 P.3d 720 (2001), in which the principal issue presented for decision was the properconstruction ofthe requirement thatthe threat be made "knowingly." The parties disputed whether the crime is committed ifa perpetrator communicates toA a threat to harm B, with no knowledge that A will tell B about the threat. The courtconcludedthattheperpetrator commits the crime offelony harassment by communicating to A the threattoharm B, even without knowing that A will then communicate the threat to 

### B. Butit held that the statute as a wholerequires that the perpetratorknowingly threatento inflictbodily injury by communicating directly orindirectly the intentto inflict bodily injury; theperson threatened must find out about the threat although the perpetrator need not know nor shouldknow thatthe threat will be communicatedto the victim; and words or conduct ofthe perpetrator must place the person threatened in reasonable fear that the threat will be carried out. 

### Id. at 482. The then-recent decision in

# as. hadbeen broUght to the court's attention, and it addressed it briefly in the conclusion ofJ.M, stating: The issues in 

### G.S. andthose in this case are not the same, andthus the propriety ofthe holdings in that case is not before us. Nonetheless, lest confusion ensue, we do note thatthe court in 

### G.S. appears tohave equated 8No. 30235-1-III State 

### v. Morales
theperson threatenedwith the person to whom the communication ofthe threat is made. That conclusion is, ofcourse, at odds with our decision here. Under RCW 9A.46.020(l)(a)(i), theperson threatenedis generally the victim o/the threat, i.e., theperson against whom the threat to inflict bodily injury is made. Theperson to whom the threat is communicated mayormay not be the victim ofthe threat.
... The statute also contemplates that aperson may be threatened by harm to another. An examplethat comes readily to mind is a communication ofintent to harm the child oftheperson threatened. Again, however, the person to whom the perpetrator communicates the threat may be someone other than the person threatened. Jd. at 488 (emphasis added). In other words, the Supreme Court did not construe "theperson threatened" as used in the statute to mean the person to whom the threat was communicated, as the Court ofAppeals had in G.S. Rather, it construed "theperson threatened" to be the person whom the harassment statute is intended to protect. It noted that the act was aimed at making unlawful acts and threats "'which show a pattern ofharassment designedto coerce, intimidate, orhumiliate the victim,'" and construed "theperson threatened" to mean the target ofcoercion, intimidation or humiliation. Jd. at 485 (quoting RCW9A.46.010). As the court's hypothetical points out, the target ofcoercion
or intimidation when a parent is threatened with bodily injury to a child can clearly be the parent. Ifso, the second element ofthe State's case would require proofthat the parent, not the child, was reasonably placed in fear. Thus construed, and ifwe identify the target ofcoercion or intimidation as C, the first element ofthe State'sproofwhen chargingharassment under RCW 9A.46.020(l)(a) 9No. 30235-1-111 State 

### v. Morales
is thatthe perpetratorthreatens to cause bodily injury to the target ofharassment (C) ·or to any otherperson (B). The second element requires that the State prove thatthe. perpetrator by words or conductplaces the target ofharassment (C) in reasonable fear that the threat will be carried out. The person to whomthe threat is communicated does not enter into the elements at all, norneed they; the definition of"threat" at former RCW 9A.04.110(27)(a) includes direct orindirect communications ofintent. Mr. Morales makes three arguments on appeal, two ofwhich tum on a proper construction ofthe elements as they relate to theperson to whom a threat is communicated and the personreasonablyplaced in fear. He argues first, thatthe information was insufficient to informMr. Morales thathe was charged with harassing 

### Mr. Diaz; second, thatthe trial court unconstitutionally charged Mr. Morales with an uncharged crime; and third, that because the properunit ofprosecution is placing the victim ofharassment in fear, conviction ofMr. Morales for his actions onboth February 14 and 15 constitutes doublejeopardy. 1 

### Mr. Morales's first two arguments are two sides ofthe same coin. He argues, first, that the amended information did not identify Mr. Diaz as a victim ofcount onebutthat he was laterpresented as one; the amended informationtherefore failed to include a necessary element ofthe crime. Second, he argues that where the State presentedMr. Diaz as a potential victim to thejurythrough evidence and instruction, thejury was 10No.30235-I-III State 

### v. Morales permitted to convict him ofan uncharged crime. The second statement ofthe error is the
more apt. The State charged Mr. Morales in count one with violatingRCW 9A.46.020(1)(a), (b), which define harassment as requiring that the victim ofthe harassment-the "person threatened"-be placed in reasonable fear that the threat will be carried out. Ms. Farias
was identified in the information as the victim. Yet at trial, the elements instruction informedthejury that it could convict Mr. Morales on count one ifit found that Mr. Diaz
was reasonably placed in fear that Mr. Morales's February 14 threat against Ms. Farias would be carried out. A defendant has a constitutional right to be informed ofthe nature and cause ofthe charges against him. WASH. CONST. art. I, § 22; U.S. CONST. amend. VI. Because ofthe centrality ofthis notice to the ability to defend, it is error to instruct thejury on uncharged offenses or uncharged alternative theories. State v. Kirwin, 166 Wn. App. 659, 676, 271 P.3d 310 (2012) (Korsmo, A.C.J., dissenting) (citing, e.g., State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003)). The error canbe harmless ifother instructions define the crime in a manner that leaves only the charged alternative beforethejury. 

### ld. The State argues that it did not intendto portray Mr. Diaz as a victim but only as a person to whom the threat was communicated. But thejury clearly could have concluded otherwise. Tobeginwith, the record demonstrates why the State might want to present IINo. 30235-1-III State v. Morales
Mr. Diaz as an alternative victim. Mr. Morales's defense at trial was thathe and Ms. Farias had been combative for months over custody and other issues; most recently, over his $4,000 thathad gone missing. Their 11-year-old daughter, who testified at the trial, agreed on cross-examination that she knewher mother was asking the court in custody proceedings to prohibit her father from seeing her, that she thought it would make her father mad, that herparents always seemedto find things to fight about, that her father frequently gotupset with her mother, and that his voice outside Ms. Castel's house on February 15 was notthat different from other times herparents had argued. 

### Mr. Morales argued to thejury thatthe State had not met its burden ofproving a true threat, orthat Ms. Farias was reasonably placed in fear. He pointed to the fact that Ms. Farias drove her children to day care as usual on February 15 despite knowing ofthe prior day's threat and withoutpoliceprotection-evidence that mighthave been particularly persuasive as to count one. By offering Mr. Diaz as a second victim, the State provided an alternative basis for conviction ifthejury was persuaded by 

### Mr. Morales that after their long-term relationship Ms. Farias knew Mr. Morales betterthan to take his threat seriously. The State's examination, instruction, and argument support Mr. Morales's claim that it pursued a theory ofMr. Diaz as an alternative victim. During the State's direct examination of

### Mr. Diaz, he testified that the sheriff's office "cameto my house and asked me whathad happened. They also asked me ifI thoughthe would follow through, 12No.30235-1-III State v. Morales
and I told them yes." RP at 250. The State's redirect examination elicited Mr. Diaz's testimony that the reason he told his wife to call Ms. Farias was "[b]ecause the way I saw him I thought he would, would do that, what he had told me." RP at 258. The State proposed (or, in any event, did not abject to) the trial court's instruction 7, which stated the second element ofcount one as being "[t]hat the words or conduct of the defendant placed Trinidad Diaz &/or YanettFarias in reasonable fear that the threatto kill would be carried out." In closing argument, the State referred to the instruction and to its reference to Trinidad Diaz. It reminded thejury, twice, ofMr. Diaz's testimony that he was fearful and concerned that Mr. Morales's threat would be carried out. Mr. Diaz's being placed in reasonable fear would satisfy the State's burden ofprovingthe elements ofharassment only ifhewas the "personthreatened." The State argues that statements made during the sentencing hearing by Mr. Morales's lawyer suggest thatthe lawyer, at least, was always clear about the State's intended theory and proof. We do not attach the same significance to the lawyer's statements as does the State, but what the lawyer believed about the prosecutor's intended theory is irrelevant. What matters is what thejuryknew aboutthe State's theory. In light ofwhat was presentedto thejury, it could have convicted Mr. Morales ofan uncharged alternative. Mr. Morales was, then, tried for count one on an uncharged alternative theory. Because the elements instruction supportedthe new theory, the error was not harmless. 

### 13No. 30235-1-111 State 

### v. Morales Kirwin, 166 Wn. App. at 677. 

### Mr. Morales would be entitled to a new trial on count one. Also germane to any newtrial, though, is his doublejeopardy challenge, which we address next. II 

### Mr. Morales argues thatthe February 14 and 15 communications ofthe same threat, in each case placingMs. Farias in fear, is a course ofconduct that is the proper unit ofprosecution for harassment. As a result, he argues, charging himwith two counts violates the doublejeopardyprovisions ofthe United States and Washington Constitutions. U.S. CONST. amend. V; WASH. CONST. art. I, § 9. No Washington decision addresses the unit ofprosecution for harassment. A defendant may face multiple charges arising from the same conduct but the principle ofdoublejeopardyprecludes multiple punishments for the same offense. State


### v. Hall, 168 Wn.2d 726, 729-30, 230 P.3d 1048 (2010) (citing State 

### v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005); State 

### v. Vladovic, 99 Wn.2d 413,422,662 P.2d 853 (1983)). The determination ofwhether ornot a defendant faces multiple convictions for the same crime depends on the unit ofprosecution. 

### ld. at 730 (citing State 

### v. Westling, 145 Wn.2d 607,610,40 P.3d 669 (2002)). "The unit ofprosecution for
a crime may be an act or a course ofconduct." State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005) (citing UnitedStates 

### v. Universal 

### c.l.T. Credit Corp., 344 U.S. 218, 225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). "Theproper question is to determine what 14No. 30235-1-111 State 

### v. Morales

act orcourse ofconduct the legislature has defined as the punishable act." State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007).' The approach to analyzing the unit ofprosecution is well settled: [T]he first step is to analyze the statute in question. Next, we review the statute's history. Finally, we perform a factual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit ofprosecution, the facts in a particular case may reveal more than one "unit ofprosecution" is present. Varnell, 162 Wn.2d at 168 (citing State 

### v. Bobic, 140 Wn.2d 250,263-66,996 P.2d 610 (2000)). Ifthe statute is ambiguous as to the unit ofprosecution, the rule oflenity applies and the ambiguity is "'resolved against turning a single transaction into mUltiple offenses.'" Tvedt, 153 Wn.2d at 711 (internal quotation marks omitted) (quoting State 

### v. Adel, 136 Wn.2d 629,635,965 P.2d 1072 (1998)). Looking first at the harassment statute, RCW 9A.46.01O codifies the legislative finding in enacting the statute, including that "[the] chapter is aimed at making unlawful the repeated invasions ofa person's privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, orhumiliate the victim." In State 

### v. Alvarez, 74 Wn. App. 250,257, 872 P.2d 1123 (1994), Division One ofourcourt rejected that statement ofintent as a basis for concluding that the statute requires more than one

1The fact that a series ofarguably distinct criminal acts, evaluated in a commonsense manner, may be prosecuted as a "continuing course ofconduct"­ discussed at length bythe dissent-is unrelated, in our view, to the threshold issue ofthe proper unit ofprosecution. 15No.30235-I-II1 State 

### v. Morales
communication ofa threat. The Washington Supreme Court affirmed, stating that "[a]lthough the legislative finding in RCW 9A.46.010 indicates the Legislature intended to make criminal 'repeated invasions ofa person'sprivacy' by acts and threats showing a 'pattern ofharassment: this does not leadto a conclusion that a single act o/harassment maynotbe chargedunderthe act. ... Nothing in [the section defining harassment] indicates a legislative intent to criminalize only invasion 

## 0/ privacy by repeatedacts and threats showing a pattern ofharassment." State v. Alvarez, 128 Wn.2d I, 12,904 P.2d 754 (1995) (emphasis added). Neither Division One nor the Supreme Court explicitly addressed the different question presented here: whether, ifa person threatens a single harm, placing the person threatened in fear, the unit ofprosecution is then that threat of harm, or is instead each time and place he or she repeats it to the victim or third parties. As recognized inAlvarez, the venueprovision ofthe harassment statute sheds
some light on the unit ofprosecution by discussing possible components ofa harassment offense. Itprovides: Any harassment offense committed as set forth in RCW 9A.46.020
... may be deemed to have been committed where the conduct occurred or at the place from which the threat or threats were made or at the place where the threats were received. RCW 9A.46.030, quoted in 74 Wn. App. at 259. Alvarez focused on the fact that the
venue provision treats a "harassment offense" as including a single threat. Forpresent

16No.30235-I-III State v. Morales
purposes, theprovision is illuminating in treating a "harassment offense" as also including multiple threats. The State argues that the most important indication ofthe proper unit of prosecution in the harassment statute is the stalking provision at RCW 9A.46.llO, which criminalizes "repeatedly harass[ing] orrepeatedly follow[ing] another person," defining "repeatedly" to mean "on two or more separate occasions." RCW 9A.46.l10(1)(a), 6(e). The State argues thatthe same language is "glaringly absent" from RCW 9A.46.020. Br. ofResp'tat 17. In Hall, the Supreme Court was notpersuaded by an argument that ifthe legislature intended a single unit ofprosecution based on a course ofconduct, itcould have said so plainly. 168 Wn.2d at 733. What matters is not what it did not say, but what it did say. The language it used to define the operative criminal conduct in RCW 9A.46.020-to "knowingly threaten"-is not inherently a single act. Where the language ofa statute does not directly suggest the unit ofprosecution,
our Supreme Court has examined the language for the focus ofthe statute, seekingto determine the statutory aim and whether some variables by which the unit ofprosecution might be measured are secondary. Thus, in Varnell, in which the Supreme Court determined the unit ofprosecution for criminal solicitation, it found the statute to focus
on a perpetrator's "'intentto promote orfacilitate'" a crime rather than the crime to be committed; it also found the number ofvictims to be secondary. 162 Wn.2d at 169. In 17NO.30235·1·III State 

### v. Morales Tvedt, in which the court determinedthe unit ofprosecution for robbery, it found indications that the legislature intended the unit ofprosecution to include a forcible taking ofproperty from a person having an ownership, representative, orpossessory interest in the property, against the person's will. It found that other variables ofa robbery-the number ofitems taken and the number ofpersonspresent--didnot bear on the unit ofprosecution. We need not determine the unit ofprosecution for all harassment scenarios to conclude that where, as here, (1) a perpetrator threatens to cause bodily harm to a single identifiedperson at a particulartime andplace and (2) places a single victim ofthe harassment in reasonable fear thatthe threat will be carried out, the conduct constitutes a single offense. The harassment statute focuses on a perpetrator's coercing, intimidating,
orharassing the victim by a threat orthreats thatplaceher in reasonable fear. The number ofpersons who might learn ofthe threat and communicate with the victim about it and the number oftimes it mightbe communicated are secondary. As discussed in Tvedt, a unit ofprosecution thatresults in additional charges based
on variables that are secondary canresult in convictions that are disproportionate to an offender's conduct. See 153 Wn.2d at 716 n.4. Suppose Mr. Morales had stopped at the homes ofother relatives orfriends onFebruary 14 and repeatedthe same conversation he had with

### Mr. Diaz. Assumethat the State did not contend thatthese third partieswere additional victims ofharassment butrelied upon the conversations as additional acts of 18

## •

No.30235-1-II1 State v. Morales
harassment toward Ms. Farias-as it now says was its intention with the conversation with 

### Mr. Diaz. There would be no meaningful difference in Mr. Morales's conduct but considerable disparity in the sentence he would face. 2 Once the unit ofprosecution is determined, a factual analysis is necessary to decide ifmore than one unit ofprosecution is present. Id. at 717. Doublejeopardy is avoided'only where the facts ofthe case support mUltiple units ofprosecution. 

### Id. The facts ofthis case present only one unit ofprosecution for charging Mr. Morales with harassing Ms. Farias. The parties have not briefed, and we do not reach, whether the facts would support two units ofprosecution ifone ofthe State's counts had identified Mr. Diaz as the victim.

2 Or, to adopt the dissent's illustration ofa threat on March I to kill a victim on March 31 at high noon, is the unit ofprosecution the threat, or every one ofdozens of times that theperpetrator repeats his threat to his companions in the saloon? Particularly where the threat is addressed to the person threatened, we will agree with the dissent that with repetition ofthe threat, there is a prospect ofincrementally increased harm. But the question is whether that difference is the key to the legislature's intended unit of prosecution. The unit ofprosecution for robbery, for instance, is notthe number of persons placed in fear. Tvedt, 153 Wn.2d at 714. The unit ofprosecution for second degree arson damaging automobiles is not the number ofautomobiles damaged. Westling, 145 Wn.2d at 611. Again, while the Supreme Court inAlvarez agreed that a single act ofharassment may be charged under RCW 9A.46.020, it also recognized that "the Legislature intendedtomake criminal 'repeated invasions ofaperson'sprivacy' by acts and threats showing a 'pattern ofharassment.'" 128 Wn.2d at 12. 19

### No.30235-1-III State v. Morales
We reverse Mr. Morales's conviction ofcount one and remand for resentencing.

# Sidd~~' I CONCUR:



### 20No.30235-1-III KORSMO, C.J. (dissenting)

- Communicating a threat to the intended victim the day after making the same threat to another person is not a continuing course ofconduct. I dissent from thatportion ofthe court's opinion. l Theunit ofprosecution here is the number ofthreats rather than the victim ofthose threats. Precedent, the statutory language, and prior case law establish that there was no continuing course ofconduct here. The majority's result flies inthe face oflegislative intent. This court has already decided that a single threat constitutes the unit of prosecution for harassment. State v. Alvarez, 74 Wn. App. 250, 257, 872 P.2d 1123 (1994), aff'd, 128 Wn.2d 1,904P.2d754 (1995). SinceAlvarez has already decided the issue, there is no reason to reconsider that ruling, let alone to vary from it. State v. Bobie, 140 Wn.2d 250,996 P.2d 610 (2000), does not support the majority's position. Bobie holds that even where the legislature has defined a crime as a single offense, there still
can be multiple crimes ifthe facts support them. Id. at 266. Itdoes not support the
conversepropositionthat a crime that canbe committed by a single act necessarily prohibits prosecution for multiple violations ofthe same offense.

1The instructional error identified by the majority requires a new trial on that count. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 PJd 256 (2003).No.30235-1-II1 State v. Morales
Even when the offense is defined in the singular, multiple counts ofthe crime are still subjectto a continuing conduct analysis. Id. at 266-67. In applying unit of prosecution analysis, courts look to discern "'the evil the legislature has criminalized.'" State v. Hall, 168 Wn.2d 726, 731, 230 P.3d 1048 (2010) (quoting State v. Varnell, 162 Wn.2d 165, 169, 170 P.3d 24 (2007)). The continuing conduct analysis isa factual inquiry applying the unit ofprosecution tothe charged behavior. E.g., Bobie, 140 Wn.2d at 266.The language ofthe statute does not supportthe continuing conduct conclusion. Paraphrased, the harassment statute defines a crime where a person "knowingly threatens" harm to another with the result that the person threatened (the victim) reasonably fears that thethreat will be carried out. RCW 9A.46.020. The only r.:nental state is to "knowingly" threaten; there is no requirementthatthe defendant intendthatthe threat be conveyed to the victim. State v. J.M, 101 Wn. App. 716, 730,6 P.3d 607 (2000), ajJ'd, 144 Wn.2d 472,28 P.3d 720 (2001). This latter point is one reasonthe majority's approach does notwork underthe facts ofthis case. Objectively viewed, a threat about a victim made to a thirdparty does not share the same purpose as a threat made directly to the victim. The objective purpose ofa threatto the thirdperson is unclear; the objective purpose ofthe threat to the victim is to place her in fear. Thetwo threats cannot have the samepurpose because the personto whom they were directed was 2No.30235-1-III State v. Morales
different. The first threat also did not further the second threat or appear related to it other than boththreats ultimately placedthe victim in reasonable fear ofdeath. Case law does not support the majority's approach. The object ofa conspiracy is not the unit ofprosecution for conspiracy. Bobic, 140 Wn.2d at 265-66. Instead, the unit ofprosecution is the agreement to engage in criminal conduct without regard to how many criminal objectives the agreement contains. Id. Similarly, the object ofa harasser's threats should not be the unit ofprosecution for harassment. Aspreviously noted, the unit ofprosecution is to knowingly threaten harm to anotherperson; one threat is sufficient. Alvarez, 74 Wn. App. at 257. That unit ofprosecution does not suggest any continuing course ofconduct. Each discrete threat is its own crime withoutregard to any similarity in the wording ofthe threats. Presumably, ifJesus Morales had run into the victim in the grocery store before they met at the day-care facility, the majority would conclude that a threat to kill her at the store would not be the same course ofconduct as the threat he had conveyed the day beforeto kill her at the day care. Butthe unit of prosecution should not depend upon the specific language ofthe threat conveyed. Nothing in RCW 

### 9A,46.020 suggests that the legislature intended the specific threat language to be an important factor in defining the offense. There is a difference between one threat communicated to 20 people on one occasion and same threat individually communicatedto those same 20 people on 20 

### 3No. 30235-1-111 State v. Morales
occasions. The no-contact order violation cases provide the best analogy. There our courts have repeatedly concludedthat each violation ofthe no-contact orderprovision is properly punished separately rather than constituting a continuing course ofconduct. E.g., State v. Brown, 159 Wn. App. 1,248P.3d 518 (2010) (five violations based on contacts on five different days); State v. Allen, 150 Wn. App. 300, 207 P.3d 483 (2009) (two violations based on two separate e-mails opened on same day); State v. Parmelee, 108 Wn. App. 702, 32 P.3d 1029 (2001) (three letters to victim constituted three violations). Where the continuing course ofconduct analysis results in a single prosecution, it frequently has been because the crime was legislatively defined as one offense having either multiple objectives ormultiple methods ofachieving a single objective. E.g., Hall, 168 Wn.2d 726 (witness tampering); Varnell, 162 Wn.2d 165 (unit ofprosecution for solicitation was each person solicited to commit crime rather than the objective ofthe solicitation); Bobie, 140 Wn.2d 250 (conspiracy). Those cases are not this one. This court should hold that athreat conveyed to two differentpeople at two different locations ontwo different days is not a continuing course ofconduct merely because the same victim is reasonably placed in fear by the threats. The unit of prosecution is each threat. There is no evidence that these threats were part ofthe same

4

### No.30235-I-II1 State v. Morales
scheme to harass the victim. Rather, they merely reflected that 

### Mr. Morales claimed he intended to perform the same act ofviolence against the victim. Finally, the majority's approach flies in the face ofthe legislative intent to prevent multiple acts ofharassment. RCW 9A.46.01O. Knowing that one threat was the same as
one thousand threats, an offender has no reason to stop a campaign ofharassment. A threat on March I to kill the victim on March 31 at high noon constitutes a violation of the statute. Repeating the same threat daily for the rest ofthe month would constitute a continuing course ofconduct according to the majority's construction ofthe statute. We should not adopt that interpretation since thatresult is the exact opposite ofwhatthe legislature expressly says it intended. The unit ofprosecution here is the knowing threat, not the victim ofthe threat.2 The trial court properly rejected Mr. Morales's argument. 1would reverse count one due to the instructional error and remand it for a new trial.

# ~, Korsmo, C,J.

2 Underthe majority's analysis, a single threat directed at a group of people ("I will kill everyone in this room") apparently could result in a multitude ofconvictions depending upon how many victims took the threat to heart. 

### 5