Opinion
No. 51811-9-I.
Filed: March 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-03535-0. Judgment or order under review. Date filed: 01/10/2003.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David F. Bryson (Appearing Pro Se), D.O.C. #850745, Wash. State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Lee Davis Yates, Pros Atty Offc/Appellate Unit, 700 5th Ave Ste 1850, Seattle, WA 98104.
David Bryson was charged with second degree assault. Bryson contends he was deprived of his constitutional right to a unanimous jury because the court gave no Petrich instruction and there were two distinct acts that could have supported a finding of guilt. But the assault was a continuing course of conduct with one purpose of frightening the victim, Bryson's wife. Bryson's pro se supplemental grounds for review are without merit. We affirm.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
Bryson's wife Sharnel told him she wanted a divorce. Bryson wanted to preserve the marriage. After an argument at their home, Bryson armed himself with a rifle and confronted Sharnel. Bryson told Sharnel that when he had promised he would never hurt her, he lied. He fired three rounds into the wall a few feet away from her and briefly pointed the rifle at her before she got it away from him. The couple's 16-year-old daughter was also present at the home.
Bryson was charged with second degree assault and felony harassment as to Sharnel, and reckless endangerment as to their daughter. At trial, the State's theory was Bryson had acted intentionally to frighten Sharnel with the rifle. Bryson testified that he had only intended to kill himself with the rifle and meant only by his comment about hurting Sharnel that she would be emotionally hurt by having to step over his dead body. He had no intent to frighten her either by firing the rifle or by momentarily pointing it at her. Bryson was convicted of second degree assault and reckless endangerment.
On appeal, Bryson contends the failure to give a unanimity instruction was a violation of his constitutional right to a unanimous jury verdict on the assault charge because firing the rifle and pointing it at Sharnel constituted distinct acts. Thus, he contends, the State was required to elect which it was relying on for the conviction, or the trial court was required to instruct the jurors that they must agree on a single underlying criminal act. This argument fails.
In Washington, a conviction may stand only when a unanimous jury concludes that the defendant committed the criminal act charged in the information. To ensure jury unanimity when there is evidence of multiple acts, the State must elect a single act upon which it will rely for a conviction, or the court must instruct the jury that all must agree on a specific criminal act.
State v. Crane, 116 Wn.2d 315, 324-25, 804 P.2d 10 (1991); State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988).
Petrich, 101 Wn.2d at 572.
But the above rule applies only when the State presents evidence of "several distinct acts." It does not apply when the evidence indicates a "continuous course of conduct." To determine whether criminal conduct constitutes one continuing act, the facts must be evaluated in a commonsense manner. When the evidence involves conduct at different times and places, it tends to show several distinct acts. In contrast, when the evidence shows that a defendant engaged in a series of actions intended to achieve the same objective, it supports the characterization of those actions as a continuing course of conduct rather than several distinct acts.
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 253 (1989) (quoting Petrich, 101 Wn.2d at 571).
Handran, 113 Wn.2d at 17 (quoting Petrich, 101 Wn.2d at 571).
Handran, 113 Wn.2d at 17; State v. Doogan, 82 Wn. App. 185, 191, 917 P.2d 155 (1996).
Handran, 113 Wn.2d at 17 (citing Petrich, 101 Wn.2d at 571); State v. Workman, 66 Wn. 292, 294-95, 119 P. 751 (1911).
State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
It was undisputed that the events constituting the assault took place in a matter of seconds. Viewed in a commonsense manner, the evidence in this case shows a continuing course of conduct a very brief series of actions intended to achieve the one objective of frightening Sharnel with the rifle. The Petrich rule does not apply.
Cf. Kitchen, 110 Wn.2d 403 (in charge of one count of statutory rape, evidence of several different acts over time, in different places, required either election or unanimity instruction).
Bryson's contention that the State argued in closing that the jury could convict him on the basis of either the action of firing the weapon or pointing it at Sharnel does not alter the analysis. The record shows the prosecutor did not suggest that the jury consider the events as anything other than one intentional and successful attempt to intimidate Sharnel. Moreover, Bryson cites no authority that a prosecutor's argument can create the need for a unanimity instruction when the evidence does not.
Finally, Bryson has filed pro se a statement of additional grounds for review. His first complaint, about the numbers of firearms introduced into evidence, was raised during trial. The court did not abuse its discretion in concluding that their potential prejudice did not outweigh their relevance to the assault and harassment charges in proving the fear and intimidation Sharnel felt during the incident. Bryson's claim of a speedy trial violation was not raised at trial and the record is insufficient for us to review it here. His claim about the similarity of the harassment and assault charges fails because he was convicted only of the assault, and his complaint that the verdicts are inconsistent does not require further review because the assault conviction was clearly supported by sufficient evidence.
State v. Hancock, 109 Wn.2d 760, 767-69, 748 P.2d 611 (1988).
RAP 2.5(a).
State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988) ('Where a jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt, we will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on another count.')
Affirmed.
KENNEDY and COX, JJ., concur.