Opinion
No. 53612-5-I
Filed: January 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 03-1-00863-2. Judgment or order under review. Date filed: 12/18/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Peterson — Informational Only (Appearing Pro Se), P.O. Box 1093, Bellingham, WA 98227.
Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Michael Peterson appeals his conviction of four counts of second degree assault with a motor vehicle, arguing that the State proved multiple acts and the trial court failed to give a jury instruction requiring unanimity as to the act establishing each count. But Peterson's multiple acts of assault over a brief period of time constituted continuing offenses against the four occupants of the car he ultimately rammed. Accordingly, no unanimity instruction was required. We affirm.
On June 24, 2003, Keri Thomason was driving her Honda Civic with her friends Sarah Rathbone and Jason Barnes as passengers. They encountered the defendant, Michael Peterson, who was driving his Suburban with his friend Austin Hoffman. The occupants of the two vehicles knew each other and Barnes wanted to talk to Hoffman, so he had Thomason follow the Suburban.
Peterson saw the Honda following him. He pulled over, got out of the Suburban and walked up to the Honda, excitedly saying that his mother and sister were being held hostage. Barnes said he just wanted to talk to Hoffman. Peterson returned to the Suburban and told Hoffman that Barnes wanted to talk to him, but added that he thought something was fishy and Hoffman should not go. Hoffman went anyway, however, because he had seen Peterson use methamphetamine earlier and was concerned about Peterson's hostility and erratic driving. Hoffman climbed into the Honda through a window. Thomason drove away. Peterson immediately pulled in behind them, driving in a way that led the Honda's occupants to believe he was trying to hit them.
Thomason tried to run a red light to escape Peterson, but Peterson pulled right up behind her. Depending on which witness was testifying, Peterson then either bumped or just missed the back of the Honda. Thomason continued through the red light and turned into a nearby gas station, where Peterson's Suburban rammed the side of the Honda, pushing the Honda up onto the curb. The Suburban pushed the Honda's door in against Rathbone's leg and embedded its front tire in the Honda's bumper. Peterson leaped out of the Suburban and shouted that the others had kidnapped Hoffman, which Hoffman denied. Thomason began shouting at Peterson and tried to hit him. Peterson then ran into the gas station.
Police arrived and arrested Peterson. In the police car, while talking in a rambling fashion about many subjects, Peterson said that the Honda's occupants had kidnapped his mother, his sister and Hoffman.
Peterson was charged with four counts of second degree assault against the occupants of the Honda. At trial, the State presented evidence of the entire encounter and did not elect to rely on any specific part of the incident to prove the charges. Neither party proposed an instruction requiring the jury to be unanimous about which incident of contact or near contact between the Suburban and the Honda constituted the assault and the court gave no such instruction. The jury rejected Peterson's argument that the incident was merely an accident caused by youthful immaturity and found him guilty of all counts.
On appeal, Peterson argues the trial court erred by failing to give a jury instruction requiring jury unanimity as to which act established the basis for the charged assaults. Peterson may raise this issue for the first time here because the failure to give a required unanimity instruction raises an issue of constitutional magnitude. State v. Camarillo, 115 Wn.2d 60, 63 n. 4, 794 P.2d 850 (1990).
A jury unanimity instruction is required where the evidence indicates several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct and the State fails to elect to rely on a specific act. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). A unanimity instruction is not required, however, where the defendant's acts form a continuing course of criminal conduct. State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991). The court evaluates a defendant's acts in a common sense manner to determine whether they form one continuing offense. Petrich, 101 Wn.2d at 571. Important factors to consider are whether the charged conduct occurred at different times and places or against different victims. Petrich, 101 Wn.2d at 571. Evidence that a defendant engaged in a series of acts intended to secure the same objective supports a finding that the defendant's conduct was a continuing course of conduct rather than several distinct acts. See State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (forcefully kissing and hitting the victim constituted a continuous offense because both were aimed at the single purpose of having sex with her).
Viewed in a common sense manner, the facts of this case clearly presented a continuing offense. The four victims were the same, the various acts occurred only seconds apart and Peterson possessed the single objective of foiling what, in his impaired state, he apparently believed was a kidnapping in progress. A Petrich instruction was not required and Peterson's right to a unanimous jury was not violated. Accordingly, we do not address the State's alternative argument that any error was harmless beyond a reasonable doubt.
Affirmed.
BECKER, ELLINGTON and BAKER, JJ., Concur.