State v. King

• Decision Date: 04 March 2013
• Docket Number: No. 67413-7-I,67413-7-I
• Parties: STATE OF WASHINGTON, Respondent, v. MARCELIS CHRISTOPHER KING, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. MARCELIS CHRISTOPHER KING, Appellant.

No. 67413-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: March 4, 2013

UNPUBLISHED OPINION

VERELLEN, J. — Marcelis King appeals his convictions for two counts of second degree assault and two counts of felony harassment. King contends the assault and harassment convictions violate double jeopardy. He challenges the sufficiency of the evidence of one of the assault and one of the harassment convictions. King further contends the Information and the to-convict instruction did not include the definition of "true threat" as an element of felony harassment. Finally, King argues that prosecutorial misconduct deprived him of a fair trial. We disagree and affirm King's convictions for assault and felony harassment.

King also appeals the firearm enhancements imposed for each of his convictions. He challenges the lack of a unanimity instruction for the firearm enhancement special verdict forms. Because the general instructions on unanimity did not adequately inform the jury of the proper deliberative process for imposing the enhancements, we vacate the firearm enhancements and remand for further proceedings consistent with this opinion.

BACKGROUND

In the early morning of May 22, 2010, Michael Rosier and Ronny Johnson went out dancing in Renton, Washington. They ran into an acquaintance, Makel Andrews, who invited them back to her apartment. Soon after they arrived at Andrews' apartment, Christopher King and Kurtis Walker entered the apartment.¹ Rosier did not know either of them. Walker snorted cocaine, and appeared upset that Rosier was in the apartment. King began pacing back and forth behind Walker. King said he was going to "pop" someone and told Walker he would "pop him [Rosier] right now."²

As Andrews attempted to remove Walker from the room, Rosier and Johnson left the apartment quickly. Rosier remotely unlocked his car. He did not realize Walker and King had followed them down to the car.

As Rosier got in the driver's seat and Johnson in the passenger seat, Walker jumped in the rear passenger door behind Johnson. Walker said to Rosier and Johnson, "Where [do] you think you're all going?"³ King pulled a sports utility vehicle behind Rosier's car, preventing Rosier and Johnson from leaving. King walked to the driver's side window, pulled out a pistol, and motioned for Rosier to roll down the window.

Andrews intervened, and as she led Walker away, Walker instructed King to keep Rosier and Johnson where they were. Rosier testified that King then threatened to kill him and Johnson. Rosier was afraid that King would shoot him or Johnson if they tried to drive away. Johnson, in tears, asked King why he wanted to kill them. King continued to point the gun at Rosier and Johnson. Rosier specifically testified that at times, King pointed thegun directly at the side of Rosier's head and directly at Johnson. Rosier and Johnson both believed they were going to die.

Johnson managed to dial 911 with her cell phone hidden in the space between the driver's seat and the passenger seat. She could not speak to the emergency operator, however, for fear that King would hear her and retaliate. Using Johnson's 911 call, police determined her location.

When the officers arrived, King was still standing at the driver's side window. King dropped the gun onto Rosier's lap, told Rosier not to say anything about the gun, and ran. The gun fell between Rosier's feet. Police arrested King near the scene.

The State charged King with second degree assault and felony harassment as to both Rosier (count land count 3) and Johnson (count 2 and count 4). The State also charged King with first degree unlawful possession of a firearm.⁴ The jury convicted King of all five counts.

The State also sought firearm enhancements on counts 1 through 4. The court read jury instruction 49,⁵ the special verdict instruction, to the jury:

For purposes of a special verdict, the State must prove, beyond a reasonable doubt, that the defendant was armed with a firearm at the time of the commission of the crime in counts 1, 2, 3, and 4.

A person is armed with a firearm if at the time of the commission of the crime the firearm is easily accessible and readily available for offensive or defensive use.

The State must prove, beyond a reasonable doubt, that there was a connection between the firearm and the defendant, or an accomplice.

The State must also prove, beyond a reasonable doubt, that there was a connection between the firearm and the crime.

If one participant in a crime is armed with a firearm, all accomplices to that participant are deemed to be so armed, even if only one firearm is involved.

A firearm is a weapon or device from which a projectile may be fired from an explosive such as gunpowder.⁶

Jury instruction 49 did not instruct the jury it had to be unanimous to impose the firearm enhancement.⁷

The jury signed special verdict forms finding that King was armed with a firearm at the time of the commission of both assault and both felony harassment charges, resulting in firearm enhancements for counts 1 through 4.

DISCUSSION

Double Jeopardy

King first contends that second degree assault with a deadly weapon and felony harassment—as charged here, where King was not accused of assault for striking or hitting anyone—are the same offense for double jeopardy purposes. The State relies on this court's decision in State v. Mandanas,⁸ in which we held that convictions for felony harassment and second degree assault with a deadly weapon do not violate doublejeopardy because the two offenses have different elements and are therefore not the same in law.

Whether King's convictions violate double jeopardy is a question of law we review de novo.⁹ The double jeopardy clause of the Fifth Amendment of the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant against multiple punishments for the same offense.¹⁰ However, the Washington Supreme Court has consistently rejected the notion that "offenses committed during a 'single transaction' are necessarily the 'same offense'" for purposes of double jeopardy.¹¹The State may therefore charge a defendant with multiple crimes arising from the same criminal conduct.¹²

"Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense."¹³ The dispositive question in analyzing whether two convictions violate double jeopardy is whether the legislature authorized multiple punishments.¹⁴ In determining whether the legislature intended to punish two separate offenses, courts first look to the language of the statutes.¹⁵

If the language of the statutes does not expressly authorize cumulative punishment, courts apply the Blockburqer or "same evidence" test to determine legislative intent.¹⁶ The Blockburger test examines the evidence required to prove each offense:

[W]here 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.¹⁷

If one offense includes an element not included in the other, we presume the crimes are not the same for double jeopardy purposes.¹⁸

Although there may be a substantial overlap in the evidence that establishes the two crimes, "'[i]f each requires proof of a fact that the other does not, the Blockburqer test is satisfied"' and there is no double jeopardy violation.¹⁹ The test requires courts to consider the offenses as charged.²⁰

The State charged King with second degree assault under RCW 9A.36.021(1)(c), alleging he "assaulted] another with a deadly weapon." The State's burden was to proveKing used an instrument capable of causing serious injury under the circumstances to intentionally act in a way to cause Rosier and Johnson to fear imminent bodily injury.²¹

The State also charged King with felony harassment for threatening to kill Rosier and Johnson. The State's burden was to prove King "knowingly threatened]" to "cause bodily injury immediately or in the future" to Rosier and Johnson,²² and specifically that King "harass[ed]" Rosier and Johnson "by threatening to kill" them.²³

In Mandanas, we held that the plain language of the two statutes indicates the legislature "intended to distinguish felony harassment and second degree assault [with a deadly weapon] as distinct offenses."²⁴ The harassment statute "specifically criminalizes threats to injure or kill another, which, standing alone, are insufficient to establish an assault."²⁵ Because the two crimes have distinct elements, they "do not constitute the same offense for purposes of double jeopardy."²⁶

Notwithstanding the holding in Mandanas, King contends his convictions violate double jeopardy under the analysis set forth in In re Personal Restraint of Orange.²⁷ As we explained in Mandanas, "Orange did not modify the test used by Washington courts to determine whether the defendant was placed in double jeopardy."²⁸ Orange stands for the proposition that where the same exact action proves both crimes, without one crimerequiring proof of a fact that the other does not, a double jeopardy violation is present.²⁹ Here, King's verbal threat to kill Rosier and Johnson is the act supporting the felony harassment charge. King's pointing of the gun through the car window at Rosier and Johnson is a distinct act supporting the second degree assault with a deadly weapon charge.³⁰ King's convictions for second degree assault with a deadly weapon and felony harassment do not violate double jeopardy.

Sufficiency of the Evidence

King contends the State presented insufficient evidence to support his convictions for felony harassment and second degree assault against Johnson. In analyzing a challenge to the...