FILED 


April 9, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


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 

central to Jesus Morales's appeal ofhis conviction oftwo counts of felony harassment. 

He was convicted on one count for a harassment offense against the mother of his 

children, from whom he was estranged. His conviction on the other count might have 

been for a second harassment offense against her or might have been for a harassment 

offense against the third party to whom it was communicated. We agree with Mr. 

Morales that the criminal information did not put him on notice of one means advanced at 

trial by the State. We also agree that prosecuting him for a second count, with the mother 

ofhis children as the asserted victim, would violate double jeopardy. We reverse his 

conviction on the problematic count and remand for resentencing. 
No.30235-I-II1 

State v. Morales 

FACTS AND PROCEDURAL BACKGROUND 

Jesus Morales and Yanett Farias have three children in common but had not lived 

together for a year and a half as 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 that Ms. Farias had 

taken $4,000 belonging to him. He had stopped at her home earlier that 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. He told Mr. Diaz that when Ms. Farias dropped her children off at 

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 later that night police spoke with Ms. Farias and Mr. 

Diaz about the threats. 

The next morning, 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 to watch for their father and tell her if 

they saw him. The children knew why she was concerned, because her ll-year-old 

2 

No.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 children pointed out 

Mr. Morales's truck across the street. He pulled out and drove his truck toward hers. 

Ms. Farias told the children to run inside; they quickly got out of the truck and ran into 

Ms. Castel's home. The children told Ms. Castel that their father was threatening their 

mother. Ms. Castel helped the I1-year-old call the police and then watched the 

altercation between Mr. Morales and Ms. Farias from her front door. 

By then, Mr. Morales and Ms. Farias were still in their respective trucks, with Mr. 

Morales's truck alongside Ms. Farias's, preventing her 'from leaving. As Ms. Farias tried 

unsuccessfully to pull 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'm going to kill you here.'" Report, ofProceedings (Aug. 11,2011) (RP) 

at 267. Mr. Morales, whose driver's side window was partly down, was leaning toward 

Ms. Farias's truck and pointing toward 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, and told Ms. Castel, "'I thought they would be killing me 

today'" and "'[i]f it wouldn't have been for you, he could've killed me.'" RP at 274. 

3 

No. 30235-1-II1 

State v. Morales 

The State charged Mr. Morales with two counts of felony harassment under RCW 

9A.46.020. The amended information stated, as to the first count: 

On or about February 14,2011, in the State of Washington, without 

lawful authority, you knowingly threatened to cause bodily injury 

immediately or in the future to Yanett Farias and the threat to cause bodily 

injury consisted of a threat to kill Yanett Farias or another person, and did 

by words or conduct place 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 instruction that the State originally proposed to 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 Yanett Farias immediately or in the future; 

(2) That the words or conduct of the defendant placed Yanett Farias 

in reasonable fear that the threat to kill would be carried out. 

CP at 20. 

Before the instruction was read and provided to the jury the second numbered 

element in the instruction was revised to read, "(2) That the words or conduct ofthe 

defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to 

kill would be carried out" (the revision being indicated by italics). CP at 39 (Instruction 

4 

No. 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. 

The jury found Mr. Morales guilty on both counts. 

At sentencing, defense counsel argued the two threats constituted a single course 

of conduct and that the unit ofprosecution should be the number of victims rather than 

the number of threatening 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 ofMr. 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 contemplated by subsection 

(a)(i) ofRCW 9A.46.020(l}-one of the four alternative means of committing 

harassment-and which role Mr. Diaz played in the State's theory of count 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 of the 

perpetrator's harassment (the individual the perpetrator hopes to coerce, intimidate, or 

humiliate). For clarity, we will sometimes refer to the person to whom the threat is 

5 

No. 30235-1-111 

. State v. Morales 

communicated as A, the intended victim of bodily harm as B, and the target of the 

harassment as C. The A, B, and C roles can be filled by one, two, or three persons. 

The relevant provisions of the harassment statute state: 

( I) A person is guilty of harassment if: 

(a) Without lawful authority, the person knowingly threatens: 

(i) To cause bodily injury immediately or in the future to the person 

threatened or to any other person [and] 

(b) The person by words or conduct places the person threatened in 

reasonable fear that the 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 other person." Former RCW 9A.04.l10(27)(a) (2007) (emphasis added). 

Two cases are key in sorting out the parties' conflicting views of Mr. Diaz's role 

in the State's theory of count one. In State v. as., 104 Wn. App. 643, 17 P.3d 1221 

(iOO 1), Division One of this court examined whether the definition of harassment in 

RCW 9A.46.020(1)(a) created alternative means of committing the crime or only a single 

means. In that case, a juvenile made 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 in juvenile 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 of Westside Place Alternative School, and the words or conduct did place said 


6 

No.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 that the definition of the first element ofthe crime in RCW 

9A.46.020(1)(a)(i) created two alternative means. One was to communicate to A a threat 

to cause bodily injury to A, and the other was to communicate to A a threat to cause 

bodily injury to B. He maintained that the information charged him with a "communicate 

to Albodily injury to A" alternative (relying on "did threaten to cause bodily injury 

immediately or in the future to Tina Myrick")·but the State's only evidence was evidence 

of a "communicate to Albodily injury to B" alternative (B being his fellow students)-ati 

uncharged offense. Division One concluded that the definition created only a single 

means of committing the crime: communicating to A a threat to cause bodily injury to A 

orB. 

A second issue raised by G.s. was whether, when the threat is to cause bodily 

injury not to the person to whom the threat is communicated, but to another person, the 

second element (provided at RCW 9A.46.020(1)(b)) required proof by the State that the 

person to whom the threat was communicated (A) was placed in reasonable fear that the 

threat will be carried out, or proof that the intended victim of bodily injury (B) was 

placed in such fear. The court concluded that under a plain reading of the statute, the 

"person threatened" who must be placed in reasonable fear is the person to whom the 

threat was communicated. ld. at 652. It based its decision primarily on its construction 

7 

No.30235-1-II1 

State v. Morales 

of "the person threatened" in both RCW 9A.46.020(1)(a)(i) and in the definition of threat 

at former RCW 9A.04.11O(27)(a) as meaning A, the person to whom the threat is 

communicated. 

Later the same year, 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 proper construction ofthe requirement that the threat be made 

"knowingly." The parties disputed whether the crime is committed if a perpetrator 

communicates to A a threat to harm B, with no knowledge that A will tell B about the 

threat. The court concluded that the perpetrator commits the crime of felony harassment 

by communicating to A the threat to harm B, even without knowing that A will then 

communicate the threat to B. But it held that 

the statute as a whole requires that the perpetrator knowingly threaten to 

inflict bodily injury by communicating directly or indirectly the intent to 

inflict bodily injury; the person threatened must find out about the threat 

although the perpetrator need not know nor should know that the threat will 

be communicated to 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. had been broUght to the court's attention, and it 

addressed it briefly in the conclusion ofJ.M, stating: 

The issues in G.S. and those in this case are not the same, and thus the 

propriety of the holdings in that case is not before us. Nonetheless, lest 

confusion ensue, we do note that the court in G.S. appears to have equated 

8 

No. 30235-1-III 

State v. Morales 

the person threatened with the person to whom the communication of the 

threat is made. That conclusion is, of course, at odds with our decision 

here. Under RCW 9A.46.020(l)(a)(i), the person threatened is generally 

the victim o/the threat, i.e., the person against whom the threat to inflict 

bodily injury is made. The person to whom the threat is communicated 

mayor may not be the victim ofthe threat. ... The statute also 

contemplates that a person may be threatened by harm to another. An 

example that comes readily to mind is a communication of intent to harm 

the child of the person 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 "the person 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 "the person 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 of harassment 

designed to coerce, intimidate, or humiliate the victim,'" and construed "the person 

threatened" to mean the target of coercion, intimidation or humiliation. Jd. at 485 

(quoting RCW 9A.46.010). As the court's hypothetical points out, the target of coercion 

or intimidation when a parent is threatened with bodily injury to a child can clearly be the 

parent. If so, the second element of the State's case would require proof that the parent, 

not the child, was reasonably placed in fear. 

Thus construed, and ifwe identify the target of coercion or intimidation as C, the 

first element of the State's proof when charging harassment under RCW 9A.46.020(l)(a) 

9 

No. 30235-1-111 

State v. Morales 

is that the perpetrator threatens to cause bodily injury to the target of harassment (C) ·or to 

any other person (B). The second element requires that the State prove that the. 

perpetrator by words or conduct places the target of harassment (C) in reasonable fear 

that the threat will be carried out. The person to whom the threat is communicated does 

not enter into the elements at all, nor need they; the definition of "threat" at former RCW 

9A.04.110(27)(a) includes direct or indirect communications of intent. 

Mr. Morales makes three arguments on appeal, two of which tum on a proper 

construction ofthe elements as they relate to the person to whom a threat is 

communicated and the person reasonably placed in fear. He argues first, that the 

information was insufficient to inform Mr. Morales that he was charged with harassing 

Mr. Diaz; second, that the trial court unconstitutionally charged Mr. Morales with an 

uncharged crime; and third, that because the proper unit of prosecution is placing the 

victim of harassment in fear, conviction ofMr. Morales for his actions on both 

February 14 and 15 constitutes double jeopardy. 

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 of count one but that 

he was later presented as one; the amended information therefore failed to include a 

necessary element ofthe crime. Second, he argues that where the State presented Mr. 

Diaz as a potential victim to the jury through evidence and instruction, the jury was 

10 

No.30235-I-III 

State v. Morales 

permitted to convict him of an uncharged crime. The second statement ofthe error is the 

more apt. 

The State charged Mr. Morales in count one with violating RCW 9A.46.020(1)(a), 

(b), which define harassment as requiring that the victim of the 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 

informed the jury that it could convict Mr. Morales on count one if it 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 of this notice to the ability to defend, it is error to instruct the jury 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 can be harmless if other instructions define the crime in a manner that 

leaves only the charged alternative before the jury. ld. 

The State argues that it did not intend to portray Mr. Diaz as a victim but only as a 

person to whom the threat was communicated. But the jury clearly could have concluded 

otherwise. To begin with, the record demonstrates why the State might want to present 

II 

No. 30235-1-III 

State v. Morales 

Mr. Diaz as an alternative victim. Mr. Morales's defense at trial was that he and Ms. 

Farias had been combative for months over custody and other issues; most recently, over 

his $4,000 that had gone missing. Their 11-year-old daughter, who testified at the trial, 

agreed on cross-examination that she knew her 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 her parents always seemed to find things to fight about, that her father 

frequently got upset with her mother, and that his voice outside Ms. Castel's house on 

February 15 was not that different from other times her parents had argued. 

Mr. Morales argued to the jury that the State had not met its burden ofproving a 

true threat, or that 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 without police protection-evidence that might have been 

particularly persuasive as to count one. By offering Mr. Diaz as a second victim, the 

State provided an alternative basis for conviction ifthe jury was persuaded by Mr. 

Morales that after their long-term relationship Ms. Farias knew Mr. Morales better than 

to take his threat seriously. 

The State's examination, instruction, and argument support Mr. Morales's claim 

that it pursued a theory of Mr. Diaz as an alternative victim. During the State's direct 

examination of Mr. Diaz, he testified that the sheriff's office "came to my house and 

asked me what had happened. They also asked me ifI thought he would follow through, 

12 

No.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 of count one as being "[t]hat the words or conduct of 

the defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to 

kill would be carried out." In closing argument, the State referred to the instruction and 

to its reference to Trinidad Diaz. It reminded the jury, 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 ofproving the 

elements of harassment only ifhe was the "person threatened." 

The State argues that statements made during the sentencing hearing by Mr. 

Morales's lawyer suggest that the 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 the jury knew about the State's theory. In light 

ofwhat was presented to the jury, it could have convicted Mr. Morales of an uncharged 

alternative. 

Mr. Morales was, then, tried for count one on an uncharged alternative theory. 

Because the elements instruction supported the new theory, the error was not harmless. 

13 

No. 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 new trial, though, is his double jeopardy challenge, which we 

address next. 

II 

Mr. Morales argues that the February 14 and 15 communications ofthe same 

threat, in each case placing Ms. Farias in fear, is a course of conduct that is the proper 

unit ofprosecution for harassment. As a result, he argues, charging him with two counts 

violates the double jeopardy provisions 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 of double jeopardy precludes 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 or not 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 of conduct." State v. Tvedt, 153 Wn.2d 705, 710, 107 

P.3d 728 (2005) (citing United States v. Universal c.l.T. Credit Corp., 344 U.S. 218, 

225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). "The proper question is to determine what 

14 

No. 30235-1-111 

State v. Morales 

act or course of conduct 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 of prosecution 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 of prosecution, the facts in a particular case may reveal more than 

one "unit of prosecution" is present. 

Varnell, 162 Wn.2d at 168 (citing State v. Bobic, 140 Wn.2d 250,263-66,996 P.2d 610 

(2000)). If the 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 of a person's privacy by acts and threats which show a pattern of 

harassment designed to coerce, intimidate, or humiliate the victim." In State v. Alvarez, 

74 Wn. App. 250,257, 872 P.2d 1123 (1994), Division One of our court rejected that 

statement of intent as a basis for concluding that the statute requires more than one 

1 The fact that a series of arguably distinct criminal acts, evaluated in a 

commonsense manner, may be prosecuted as a "continuing course of conduct"­

discussed at length by the dissent-is unrelated, in our view, to the threshold issue ofthe 

proper unit of prosecution. 

15 

No.30235-I-II1 

State v. Morales 

communication of a 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 of a person's privacy' by acts and threats showing a 

'pattern of harassment: this does not lead to a conclusion that a single act o/harassment 

may not be charged under the act. ... Nothing in [the section defining harassment] 

indicates a legislative intent to criminalize only invasion 0/privacy by repeated acts and 

threats showing a pattern of harassment." 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, if a person threatens a single 

harm, placing the person threatened in fear, the unit of prosecution 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 in Alvarez, the venue provision of the harassment statute sheds 

some light on the unit of prosecution by discussing possible components of a harassment 

offense. It provides: 

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. For present 

16 

No.30235-I-III 

State v. Morales 

purposes, the provision is illuminating in treating a "harassment offense" as also 

including multiple threats. 

The State argues that the most important indication of the proper unit of 

prosecution in the harassment statute is the stalking provision at RCW 9A.46.llO, which 

criminalizes "repeatedly harass[ing] or repeatedly 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 that the same language is "glaringly absent" from RCW 9A.46.020. Br. 

ofResp't at 17. 

In Hall, the Supreme Court was not persuaded by an argument that if the 

legislature intended a single unit of prosecution based on a course of conduct, it could 

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 of a statute does not directly suggest the unit of prosecution, 

our Supreme Court has examined the language for the focus of the statute, seeking to 

determine the statutory aim and whether some variables by which the unit of prosecution 

might be measured are secondary. Thus, in Varnell, in which the Supreme Court 

determined the unit of prosecution for criminal solicitation, it found the statute to focus 

on a perpetrator's "'intent to promote or facilitate'" a crime rather than the crime to be 

committed; it also found the number of victims to be secondary. 162 Wn.2d at 169. In 

17 

NO.30235·1·III 

State v. Morales 

Tvedt, in which the court determined the 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, or possessory 

interest in the property, against the person's will. It found that other variables ofa 

robbery-the number of items taken and the number ofpersons present--did not bear on 

the unit of prosecution. 

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 

identified person at a particular time and place and (2) places a single victim of the 

harassment in reasonable fear that the threat will be carried out, the conduct constitutes a 

single offense. The harassment statute focuses on a perpetrator's coercing, intimidating, 

or harassing the victim by a threat or threats that place her in reasonable fear. The 

number ofpersons who might learn ofthe threat and communicate with the victim about 

it and the number oftimes it might be communicated are secondary. 

As discussed in Tvedt, a unit ofprosecution that results in additional charges based 

on variables that are secondary can result 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 of other relatives or friends on February 14 and repeated the same conversation he 

had with Mr. Diaz. Assume that the State did not contend that these third parties were 

additional victims ofharassment but relied 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 of prosecution is determined, a factual analysis is necessary to 

decide if more than one unit of prosecution is present. Id. at 717. Double jeopardy is 

avoided 'only where the facts of the case support mUltiple units of prosecution. 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 of prosecution if one ofthe State's counts had identified 

Mr. Diaz as the victim. 

2 Or, to adopt the dissent's illustration of a threat on March I to kill a victim on 

March 31 at high noon, is the unit of prosecution the threat, or every one of dozens of 

times that the perpetrator 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 of the threat, there is a prospect of incrementally 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 not the number of 

persons placed in fear. Tvedt, 153 Wn.2d at 714. The unit of prosecution for second 

degree arson damaging automobiles is not the number of automobiles damaged. 

Westling, 145 Wn.2d at 611. Again, while the Supreme Court in Alvarez agreed that a 

single act of harassment may be charged under RCW 9A.46.020, it also recognized that 

"the Legislature intended to make criminal 'repeated invasions of a person's privacy' 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 of count one and remand for resentencing. 

Sidd~~' I CONCUR: 

20 

No.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 of conduct. 

I dissent from that portion ofthe court's opinion. l The unit ofprosecution here is the 

number of threats rather than the victim ofthose threats. Precedent, the statutory 

language, and prior case law establish that there was no continuing course of conduct 

here. The majority's result flies in the face of legislative 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 1,904 P.2d754 (1995). Since Alvarez 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 if the facts support them. Id. at 266. It does not support the 

converse proposition that a crime that can be committed by a single act necessarily 

prohibits prosecution for multiple violations ofthe same offense. 

1 The 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 subject to 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 of prosecution to the charged behavior. E.g., Bobie, 140 Wn.2d 

at 266. 

The language of the statute does not support the 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 the threat will be carried out. RCW 9A.46.020. The only r.:nental 

state is to "knowingly" threaten; there is no requirement that the defendant intend that the 

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 reason the 

majority's approach does not work under the facts ofthis case. Objectively viewed, a 

threat about a victim made to a third party does not share the same purpose as a threat 

made directly to the victim. The objective purpose of a threat to the third person is 

unclear; the objective purpose of the threat to the victim is to place her in fear. The two 

threats cannot have the same purpose because the person to whom they were directed was 

2 

No.30235-1-III 

State v. Morales 

different. The first threat also did not further the second threat or appear related to it 

other than both threats ultimately placed the victim in reasonable fear of death. 

Case law does not support the majority's approach. The object of a conspiracy is 

not the unit ofprosecution for conspiracy. Bobic, 140 Wn.2d at 265-66. Instead, the unit 

of prosecution is the agreement to engage in criminal conduct without regard to how 

many criminal objectives the agreement contains. Id. Similarly, the object of a 

harasser's threats should not be the unit of prosecution for harassment. As previously 

noted, the unit ofprosecution is to knowingly threaten harm to another person; one threat 

is sufficient. Alvarez, 74 Wn. App. at 257. That unit of prosecution does not suggest any 

continuing course of conduct. Each discrete threat is its own crime without regard to any 

similarity in the wording of the threats. Presumably, if Jesus 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 of conduct as 

the threat he had conveyed the day before to kill her at the day care. But the unit of 

prosecution should not depend upon the specific language of the 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 communicated to those same 20 people on 20 

3 
No. 30235-1-111 

State v. Morales 

occasions. The no-contact order violation cases provide the best analogy. There our 

courts have repeatedly concluded that each violation of the no-contact order provision is 

properly punished separately rather than constituting a continuing course of conduct. 

E.g., State v. Brown, 159 Wn. App. 1,248 P.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 of conduct analysis results in a single 

prosecution, it frequently has been because the crime was legislatively defined as one 

offense having either multiple objectives or multiple methods of achieving 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 of the solicitation); Bobie, 140 Wn.2d 250 (conspiracy). Those cases are not 

this one. 

This court should hold that a threat conveyed to two different people at two 

different locations on two different days is not a continuing course of conduct 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 of the 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 of violence against the victim. 

Finally, the majority's approach flies in the face of the legislative intent to prevent 

multiple acts of harassment. 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 of the month would constitute a 

continuing course of conduct according to the majority's construction of the statute. We 

should not adopt that interpretation since that result is the exact opposite ofwhat the 

legislature expressly says it intended. 

The unit ofprosecution here is the knowing threat, not the victim of the threat. 2 

The trial court properly rejected Mr. Morales's argument. 1 would reverse count one due 

to the instructional error and remand it for a new trial. 

~, Korsmo, C,J. 

2 Under the majority's analysis, a single threat directed at a group ofpeople ("I 

will kill everyone in this room") apparently could result in a multitude of convictions 

depending upon how many victims took the threat to heart. 

5