Opinion
No. 33735-5-II.
October 31, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02154-5, Linda CJ Lee, J., entered August 19, 2005.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St Box 135, Seattle, WA, 98115-6655.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, JJ.
Sung Do Go appeals his conviction of second degree assault and felony harassment, raising instructional error and double jeopardy arguments. Because we agree with the State's concession that instructional error occurred, we reverse the felony harassment conviction and remand for entry of a judgment and sentence on misdemeanor harassment. We affirm the second degree assault conviction.
FACTS
In May 2005, Go worked as a cook at a teriyaki restaurant owned by Eui Jae Hwang. Finding Go a troublesome employee, Hwang told him that he had a month to find another job. When Go told Hwang that he would leave in two weeks, an argument ensued.
Go threatened to kill Hwang and grabbed a knife from the sink. Hwang knocked the knife out of Go's hand, but Go recovered it. A second employee, Sung Joung Shin, shouted at the men to stop and Go turned and pointed the knife at her, telling her to shut up.
Go continued to advance on Hwang with the knife, holding the knife to Hwang's throat and stomach. Hwang pretended to call the police, and Go put down the knife and went outside. Later, Hwang called the police, who arrested Go.
The State charged Go with two counts of second degree assault and two counts of felony harassment arising out of his actions toward Hwang and Shin. All counts carried deadly weapon enhancements and the harassment charges were elevated to felonies based on Go making threats to kill.
At the close of the State's case in chief, Go moved to dismiss either the assault or the felony harassment charges on the grounds that double jeopardy barred him from being convicted of both assault and harassment based on the same conduct. The trial court denied the motion.
The court instructed the jury that felony harassment occurs when a person "knowingly threatens to cause bodily injury immediately or in the future to another person, and when he or she by words or conduct places the person threatened in reasonable fear that the threat will be carried out." 2 Clerk's Papers at 126. The court also provided the jury with a special interrogatory requiring it to find whether the threat referenced in the harassment charges was a threat to kill. But the instructions failed to clarify that felony harassment requires that the victim be placed in reasonable fear that the threat to kill would be carried out.
The jury convicted Go of one count of assault and one count of felony harassment of Hwang. It acquitted him of the two counts pertaining to Shin. The jury also returned special verdicts finding that Go was armed with a deadly weapon during the commission of both crimes and that he made a threat to kill. At sentencing, Go repeated his double jeopardy claim, arguing that the felony harassment charge and the deadly weapon enhancement should be dismissed. The trial court denied the motion. Go appeals.
ANALYSIS Instructional error
Go first contends that the trial court failed to instruct the jury on an element of felony harassment. He asserts that the jury received no instruction that to convict it must find that he placed the victim in a reasonable fear that the threat to kill would be carried out.
Go did not except to the instructions but he may assert a manifest error of constitutional magnitude, such as omitting an element, for the first time on appeal. RAP 2.5(a)(3); State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
We review jury instructions de novo. State v. Woods, 143 Wn.2d 561, 590, 23 P.3d 1046 (2001). We consider instructions sufficient if, when read as a whole, they properly inform the jury of the applicable law. State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). When the trial court defines the offense for the jury, the trial court must instruct the jury "as to each and every essential element of the offense charged." State v. Emmanuel, 42 Wn.2d 799, 820-21, 259 P.2d 845 (1953).
Although a "to convict" instruction must contain all the elements of the crime, additional elements elevating a base misdemeanor crime to a felony should be set forth in a special verdict form if the jury is instructed that it must unanimously find the additional elements beyond a reasonable doubt. State v. Mills, 154 Wn.2d 1, 10, 109 P.3d 415 (2005). But the instructions must clearly set forth all essential elements of the charge and they did not do so here. Mills, 154 Wn.2d at 15.
The State concedes prejudicial error requiring reversal of Go's felony harassment conviction. We agree and accept the State's concession. Go argues that the remedy is dismissal. The State counters that the remedy is to remand the case either for entry of judgment and sentence of misdemeanor harassment or for retrial on the felony harassment charge.
In cases where the trial court instructed the jury on the elements of a lesser offense, and the jury necessarily found all the elements of the lesser offense beyond a reasonable doubt, we may remand for entry of judgment and sentencing on the lesser offense if the error does not affect those findings. See State v. Thomas, 150 Wn.2d 821, 849-50, 83 P.3d 970 (2004); State v. Green, 94 Wn.2d 216, 234-35, 616 P.2d 628 (1980).
Here, the trial court fully and properly instructed the jury on the elements of misdemeanor harassment as the base crime. RCW 9A.46.020(1). The felony harassment statute incorporates all elements of misdemeanor harassment by reference but adds that the threat to kill places the victim in reasonable fear that the threat to kill will be carried out. RCW 9A.46.020(2)(b)(ii); State v. C.G., 150 Wn.2d 604, 612, 80 P.3d 594 (2003). Thus, in convicting Go of felony harassment, the jury necessarily found all the elements of misdemeanor harassment when it convicted Go of felony harassment. The instructional error as to felony harassment does not affect a conviction of misdemeanor harassment. Accordingly, we remand the case for entry of judgment and sentencing on that base crime.
Double Jeopardy
Go further contends that his convictions of second degree assault and harassment violate the constitutional prohibition against placing a criminal defendant in double jeopardy. Go asserts that proof of the harassment charge amounted to proof of the assault charge under the same facts. We disagree.
The fifth amendment of the United States Constitution and article I, section 9 of the Washington State Constitution prohibit multiple punishments for the same offense. Whether a proceeding violates double jeopardy is a question of law that we review de novo. State ex rel. Eikenberry v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996).
At issue in any double jeopardy analysis is whether the legislature intended to impose multiple punishments for the same offense. In the Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). Courts may discern the legislature's purpose by applying the tests set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) ("same elements test") and State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896) ("same evidence test"). Calle, 125 Wn.2d at 777-78. Under Blockburger, "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. Under the Washington rule, double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when "the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other." Reiff, 14 Wash. at 667. The "same elements" and "same evidence" tests are largely indistinguishable. Orange, 152 Wn.2d at 816.
Second degree assault and harassment have different elements. The elements of second degree assault are (1) an assault and (2) use of a deadly weapon. RCW 9A.36.021(1)(c). An assault may consist of an intentional touching that is harmful or offensive; an act performed with the intent to inflict bodily injury but failing, coupled with the apparent present ability to inflict the injury if not prevented; or an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50 (Supp. 2005) (WPIC); see also Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 505, 125 P.2d 681 (1942); State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978); State v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276 (1972). A deadly weapon is any device, which under the circumstances in which it is used is readily capable of causing death or substantial bodily injury. RCW 9A.04.110(6). Thus, to convict Go of second degree assault, the State had to present evidence that he, using an instrument capable of causing serious injury under the circumstances, intentionally touched Hwang in an offensive manner, intentionally attempted to injure Hwang and failed, or intentionally acted in a way to cause Hwang to fear imminent bodily injury.
Harsment, by contrast, consists of (1) a knowing threat, (2) to cause bodily injury immediately or in the future, and (3) words or conduct placing the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020(1). A threat is a direct or indirect communication of the intent to cause bodily injury in the future. WPIC 2.24; RCW 9A.04.110(26)(a) (formerly (25)(a)). A defendant acts knowingly when he or she is aware of a fact, circumstance, or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime. A defendant also acts knowingly if he or she acts intentionally. WPIC 10.02; see also RCW 9A.08.010(1)(b), (2). Accordingly, to convict Go of harassment, the State had to present evidence that he knowingly communicated to Hwang an intent to cause him bodily injury immediately or in the future and that Hwang was placed in reasonable fear that Go would carry out the threat.
Thus, a plain language reading of the statutes at issue indicates that the legislature intended to distinguish harassment and second degree assault as distinct offenses. Threats to injure or kill another, which are insufficient to establish an assault, are specifically criminalized in the harassment statute. Both offenses are set forth in different chapters of the Washington Criminal Code, Title 9A RCW, and address different social concerns. Although assault addresses concerns about physical harm, criminal harassment is aimed at preventing invasion of individual privacy. See RCW 9A.46.010. These differences in aim and purpose, demonstrated in the legislature's establishment of different essential elements, indicate that harassment and second degree assault do not constitute the same offense for purposes of double jeopardy.
Go points to the recent decision of our Supreme Court in Orange, arguing that in conducting double jeopardy analysis, we should not merely consider the elements of the crimes in the abstract but rather must look to the relevant facts of each case. 152 Wn.2d at 818. In Orange, the defendant was charged with both first degree attempted murder and first degree assault for a single gunshot fired at a single victim. 152 Wn.2d at 814-15. In that case, our Supreme Court concluded that Orange could not be convicted of both charges consistent with double jeopardy because the "substantial step" element of the attempted murder charge required the same factual proof as the assault charge. Orange, 152 Wn.2d at 820. Thus, the evidence sufficient to sustain the attempted murder conviction was the same evidence that was necessary to prove assault. Orange, 152 Wn.2d at 820.
But here the convictions required proof of different facts. To prove second degree assault, the State had to show that Go used a deadly weapon to place Hwang in fear of bodily injury. Evidence that Go used a weapon is unnecessary to prove harassment. Similarly, when Go told Hwang, "I'm going to kill you," the communicated threat was necessary to sustain the conviction for harassment. 3 Report of Proceedings at 173. The communication was not necessary to prove the second degree assault charge. Thus, the same facts do not support both convictions; a distinct fact must be proven to sustain each conviction, both in the abstract and under the facts of this case. Because the evidence required to sustain a conviction on one charge would not have been sufficient to sustain the other, the crimes are not the same offense.
Although it is true, as Go contends, that the jury might have relied on the same facts to convict him of both crimes, in Washington it does not violate double jeopardy to convict a defendant for multiple offenses arising out of the same criminal act. See Calle, 125 Wn.2d at 782 (upholding convictions for second degree rape and first degree incest arising from a single act of sexual intercourse). What is at issue for purposes of double jeopardy analysis is whether the two charges amount to the same offense. Reiff, 14 Wash. at 667-68. Because the crimes of second degree assault and harassment differ in law, they are not the same offense for purposes of double jeopardy. Thus, Go's convictions for both second degree assault and harassment do not violate the constitutional prohibition against double jeopardy.
Pointing to State v. Garcia, 65 Wn. App. 681, 829 P.2d 241 (1992), Go also argues that the trial court should have instructed the jury to rely on separate acts for the assault and harassment convictions. This argument lacks merit. Double jeopardy does not preclude the jury from using the same facts to support two separate convictions; rather, double jeopardy precludes convictions for multiple offenses that are identical in fact and in law. Reiff, 14 Wash. at 667. Accordingly, Go's instructional argument fails.
Moreover, Go misplaces his reliance on Garcia, 65 Wn. App. 681, because that case involved the merger doctrine, which does not apply in this context.
We affirm the assault conviction. We reverse the felony harassment conviction and remand for the trial court to enter a judgment and sentence for misdemeanor harassment.
Affirmed.
A majorityofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and DEREN, J., concur.