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State v. Joseph

Court of Appeals of Washington, Division 1

April 30, 2018

THE STATE OF WASHINGTON, Respondent,
v.
JOE JOSEPH, Appellant.

          OPINION

          Mann, A.C.J.

         Joe Joseph appeals his conviction for one count of felony violation of a court order and one count of felony harassment for assaulting his partner Nita Katlong.[1] Joseph contends that (1) his conviction for felony violation of court order should be reversed because there was insufficient evidence of one of the charged alternative means of committing the crime, (2) his prior conviction for third degree assault was not a crime of harassment, and thus does not qualify as a predicate offense supporting a conviction for felony harassment, and (3) the trial court erred by failing to instruct the jury that the domestic violence aggravator for both offenses required proof beyond a reasonable doubt and a unanimous verdict.

         Because assault in the third degree is a qualifying predicate crime, we affirm Joseph's conviction for felony harassment. We agree, however, that there was insufficient evidence to support the alternative means and reverse Joseph's conviction for felony violation of a court order. We also agree that the trial court erred by failing to instruct the jury that the domestic violence aggravator required proof beyond a reasonable doubt and unanimity.

         We affirm Joseph's conviction for felony harassment, but reverse for resentencing with a lesser offender score.

         FACTS

         Joseph and Katlong temporarily lived together at a friend's home despite a no-contact order prohibiting Joseph from contact with Katlong. On August 30, 2016, Joseph accused Katlong of infidelity and threatened to kill her. Joseph pushed Katlong to the couch, picked up a hammer, waived it around, and tapped Katlong's forehead with the flat end. Joseph's niece, Nekky, was present and watching. Nekky asked Joseph to stop because he was scaring her and then left the room.

         Joseph was charged by amended information with domestic violence felony violation of a court order (count one), felony harassment (count two), and misdemeanor harassment (count three). All charges stemmed from the August 30, 2016, incident.

         Joseph had previously pleaded guilty to a charge of assault in the third degree, domestic violence, for a separate assault of Katlong. The parties stipulated at trial that this charge had been proven beyond a reasonable doubt. The State relied on this prior conviction of assaulting Katlong to elevate the harassment allegation to a class C felony under RCW 9A.46.O2O(2)(b)(i).

         The jury found Joseph guilty on all charges. The jury was then reconvened to consider special verdict forms that asked whether Joseph and Katlong were members of the same household for purposes of elevating Joseph's offender score. The special verdict form was answered "yes."

         Based on a joint motion by Joseph and the State, the trial court agreed that the convictions for misdemeanor harassment (count 3) and felony harassment (count 2) violated double jeopardy. The court vacated the conviction on count 3.

         For the purposes of sentencing, the parties and court agreed to treat the convictions for felony violation of a no-contact order (count one) and felony harassment (count two) as the same criminal conduct.

         Joseph appeals.

         ANALYSIS

         Alternative Means for Conviction of Felony Violation of a Court Order

         Joseph argues first that his conviction for felony violation of court order (count 1) should be reversed because there was insufficient evidence of one of the charged alternative means of committing the crime. The State concedes this issue and we agree.

          Article I, section 21 of the Washington State Constitution guarantees criminal defendants the right to a unanimous jury verdict. See State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). In alternative means cases, where the criminal offense can be committed in more than one way, an expression of jury unanimity is not required if each alternative means is supported by sufficient evidence. State v. Sandholm. 184 Wn.2d 726, 732, 364 P.3d 87 (2015) (citing Ortega-Martinez. 124 Wn.2d at 707-08). "But when insufficient evidence supports one or more of the ...


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