Personal Restraint Petition Of William Neal France , 199 Wash. App. 822 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal No. 74508-5-1
Restraint Petition of
PUBLISHED OPINION
WILLIAM NEAL FRANCE,
Petitioner. FILED: July 24, 2017
SCHINDLER, J. — A jury convicted William Neal France as charged of three
counts of felony harassment of his former attorney and two counts of felony harassment
of The Defender Association (TDA)deputy director in violation of RCW 9A.46.020. The
Washington Supreme Court affirmed the felony harassment convictions. State v.
France, 180 Wash. 2d 809, 820, 329 P.3d 864(2014). On December 8, 2015, France filed
a personal restraint petition. France claims that because the course of conduct is
repeatedly threatening to cause bodily harm to the same victim, three of the five
convictions violate double jeopardy and the prohibition against multiple punishments for
the same offense. France argues the only case that has addressed the unit of
prosecution for felony harassment, State v. Vidales Morales, 174 Wash. App. 370, 298
P.3d 791 (2013), supports his argument. We disagree. In Vidales Morales, we
concluded that given the factual scenario in that case, the unit of prosecution was the
threat to cause bodily harm to a single identified victim at a particular time and place
No. 74508-5-1/2
regardless of how many times the threat was communicated. Unlike in Vidales Morales,
France made different types of threats to cause bodily harm to each of the two victims
at different times and places. We conclude under the facts in this case, the unit of
prosecution is each threat and each threat is a violation of the felony harassment
statute. We deny the personal restraint petition.
2009 Plea Agreement
The State charged France with felony violation of a protection order in 2009.
TDA attorney Anita Paulsen represented France and negotiated a plea agreement with
the State. The State agreed to resolve a pending charge of misdemeanor assault in the
fourth degree and recommend a drug offender sentencing alternative (DOSA). The
court accepted the plea, finding France knowingly, intelligently, and voluntarily entered
into the plea. TDA social worker Nina Beach worked with France to obtain benefits after
release from custody.
At the sentencing hearing on October 16, 2009, the court followed the
recommendation and imposed a DOSA sentence for felony violation of a protection
order and a concurrent sentence for misdemeanor assault.
2011 Plea Agreement
Beginning in late 2010, France started leaving angry and "inappropriate" voice
mails for Paulsen and Beach. After receiving "at least a dozen, probably more" voice
mails, Paulsen met with TDA Deputy Director Lisa Daugaard.
Daugaard called France in an effort to figure out why he was so "upset" and
"what was motivating such anger." When France returned the call, he was "quite upset"
Daugaard had called him.
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Daugaard sent France a "cease and desist" letter. Daugaard told France not to
contact Paulsen or Beach. But Daugaard offered to talk to France about whether "he
was dissatisfied or had concerns about his representation . .. and, if there was follow-
up that needed to happen,[she] would make sure that that happened."
France ignored the cease and desist letter and continued to contact Paulsen and
Beach. France also started leaving threatening voice mails for Daugaard.
Paulsen said that after Daugaard sent the cease and desist letter, "it was like
putting gasoline on a fire." The voice mails "had a different character to them"—
"[t]hreats of sexual assault, threats of cutting us, shooting us, . . . and sexual assault in
the most vile language I think I've ever heard."
Daugaard and Paulsen contacted the police. Paulsen said she "had never, ever
even contemplated reporting a client" to the police. Daugaard testified it was the first
time in her career as a public defense attorney that she contacted the police about a
client.
I've never participated in reporting any of our clients to law
enforcement out of all those thousands and thousands and thousands of
interactions and many whatever dozens or hundreds of complaints and
unhappy people and sometimes irrational-sounding people.
None of those interactions have ever made me think it was
appropriate to take that kind of step.
On September 23, 2011, the State charged France with 16 counts of felony
harassment in violation of RCW 9A.46.020: 6 counts of felony harassment of Paulsen,
5 counts of felony harassment of Daugaard, and 5 counts of felony harassment of
Beach. The State alleged manifest deliberate cruelty and an offense against an officer
of the court as aggravating factors.
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France pleaded guilty to nine counts of felony harassment and the aggravating
factor of committing an offense against an officer of the court "in support of an
exceptional sentence." In the "Statement of Defendant on Plea of Guilty," France
admits, "I placed the calls that are contained in pre-trial exhibit 1."1 France admits he
"knowingly threatened to cause bodily injury" to each of the victims "immediately or in
the future," he "threatened to maliciously do an act intended to substantially harm" each
victim, and "my words placed [each victim] in reasonable fear that the threat would be
carried out." The State agreed to dismiss the other seven counts of felony harassment
and the aggravating factor of deliberate cruelty.
The court found there was a factual basis for the plea and France knowingly,
intelligently, and voluntarily entered the plea. The court found France guilty as charged
in the amended information.
Paulsen and Daugaard attended the sentencing hearing on November 10, 2011
to address imposition of an exceptional sentence. Paulsen told the court France was a
"very dangerous" and "terrifying individual" who promised to "hunt us down like animals,
on the street in front of the courthouse or the jail as we went around about our work."
Paulsen "just wanted it to be over" and urged the court to impose an exceptional
sentence.
[I]t [is] important for the Court to know how unusual this is, how dangerous
I felt the situation was in that this was something for no apparent reason
that I could understand, something that escalated in frequency over time,
described time, place, manner of assault, history of violence towards
others that had been acted upon, a history of gratuitous violence.
1 Pre-trial exhibit 1 contains audio recordings and transcripts of the voice mails to Paulsen,
Daugaard, and Beach.
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Daugaard also asked the court to impose an exceptional sentence. Daugaard
told the court France "talked about how he would find where I live and hurt not only me
but whoever lived with me."
The court imposed an exceptional sentence of 180 months. The court ordered
France to have no contact with the victims for the maximum term of 15 years.2
2011 Felony Harassment Charges
Despite the court order to have no contact with Paulsen and Daugaard, France
started leaving voice mails for Paulsen and Daugaard almost immediately after the
sentencing hearing on November 10, 2011.
On November 10, France left a voice mail for Daugaard threatening to harm her.
Hey bitch. You fucked up by coming into the courtroom today. You think
for one fucking minute nothing's going to happen to you? You worthless
mother-fucking slut. ... Give a message to Rita, Anita Paulsen, same
thing. 8 years. You'd better find a new job, bitch. You better find a new
fucking job.
Paulsen testified that France called and left a voice mail "within hours of the
sentencing" but she did not listen to the voice mail until November 11. In the voice mail,
France tells Paulsen that "a few of my friends ...[will] be paying you a visit."
Hello honey. Glad to hear your voice. What you did in the courtroom was
outstanding. That was a marvelous fucking act. I never heard [inaudible]
in my whole life. I called up a friend, I called up a few of my friends. I told
them about[you]. They'll be paying you a visit. Have a nice fucking life,
you worthless fucking bitch.
Paulsen said the voice mail placed her in absolute fear.
[I]t tells me he will not be dissuaded, he cannot be stopped, as soon as he
has access to a phone, he will call and, as soon as he is out, he will try to
2 France appealed. France argued the court abused its discretion by imposing an exceptional
sentence. We disagreed and affirmed. State v. France, 176 Wash. App. 463, 465, 308 P.3d 812(2013).
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No. 74508-5-1/6
implement his threat, or he will find quote some of his friends to do that for
him.
Paulsen described most of the other voice mails she had received as "sexually explicit
with threats of anal rape and sodomy." Paulsen said the voice mail on November 11
was "different"—it was a threat that his friends would harm her.
On November 17, France left another threatening voice mail for Paulsen.
Hello Anita. That was spectacular you being in the courtroom. That was
great. I like that, you was really concerned about my welfare. Just want
to let you know there's a couple of, a couple of my buddies are coming to
see ya. They'll take you out for lunch. You know. Show you, show you
appreciation. Just to let you know. It's gonna be okay. I told them to take
care of ya. You know to treat you really good.
Paulsen testified the statement "R]hey'll take you out for lunch" meant his "buddies"
would "take me out, period."
Q. Now, I don't know whether you would — this is a fair
characterization or not, but do you detect some note of sarcasm in
the voice or tone in terms of people showing their appreciation or
taking you out to lunch, those sorts of things? The words seem to
suggest one thing; how did you interpret that?
A. Mr. France has historically been fairly cagey with a lot of his cases.
I interpret it as taking me out to lunch, meaning to take me out,
period.
Q. Did you perceive it as a threat?
A. I did perceive it as a threat.
Q. Is there any doubt in your mind that it was intended as a threat?
A. No doubt at all.
On December 5, France left a sexually explicit voice mail for Paulsen threatening
to "put a bullet" in her, sexually assault her, and anally penetrate her with a broom.
Anita Paulsen, I don't have a phone number for you to call me back. The
only way I can call you, the only way I can get a hold of you is if I called
you. But I do want to say one thing. You were spectacular in that
courtroom on the 10th of this last month. Goddamn you were good. But
there's one thing I do want to do though, I want to put a bullet up your
fucking ass. But before I do that, I'm gonna lick your pussy. Stick my dick
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in your pussy, then I'm gonna stick a broom up your ass. How you gonna
feel about that little girl?
On December 14, France left a voice mail for Daugaard threatening that in 10
years, he would sexually assault her in the elevator.
Lisa, this is your favorite fucking person in the whole world. I like how you,
uh, expressed yourself in the courtroom on the 10th of last month. Yeah, I
liked that. It's been a fucking month, little lady. It's been a month. But
see in 10 years, I want you to understand something real fuckin quick, I'm
still gonna get ya. What you said in the courtroom wasn't called for, you
come to the courtroom, coming to court, wasn't called for. You
understand? Now I'm gonna do, I'm gonna do 96 fuckin months because
of you. All because of you. But when I get out, I'm gonna get you in the
fuckin elevator. I'm gonna fuck you in your ass, bitch. I'm gonna pull your
fuckin pants down right in the elevator and I'm gonna let it have it. All up
in ya, up and in ya, you little slut bitch.
The State charged France with three counts of felony harassment of Paulsen for
the voice mails on November 11, November 17, and December 5,2011 and two counts
of felony harassment of Daugaard for the voice mails on November 10 and December
14, 2011 in violation of RCW 9A.46.020. The State alleged France committed the
offenses against officers of the court as aggravating factors. France pleaded not guilty.
2012 Jury Trial
The jury trial began on March 1, 2012. The court granted the motion to amend
the information to add a charge of intimidation of a witness in violation of RCW
9A.72.110. The State alleged that on December 27, 2011, France made a threat
against Daugaard in an attempt to prevent her from testifying. In the December 27,
2011 voice mail, France tells Daugaard,"Don't come to court girl. Don't come to court."
The court admitted into evidence the audio recordings of the voice mails France
left for Paulsen and Daugaard in November and December 2011. The State played the
voice mail recordings for the jury. Paulsen and Daugaard were the only witnesses to
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testify at trial. France stipulated that he had been previously convicted of felony
harassment of Paulsen and Daugaard.
The jury found France guilty as charged of three counts of felony harassment of
Paulsen, two counts of felony harassment of Daugaard, and intimidation of a witness.3
The court imposed an exceptional sentence of 120 months.
France appealed. France argued insufficient evidence supported the
convictions. We accepted the State's concession that insufficient evidence supported
the witness intimidation conviction. We affirmed the jury convictions on the five counts
of felony harassment. State v. France, 175 Wash. App. 1024, 2013 WL 3130408, at *1.
The State needed to prove, in relevant part, that France knowingly
threatened to maliciously do an act intended to substantially harm the
victim's physical health or safety. France told Daugaard,"You think for
one fucking minute nothing's going to happen to you?.. . Anita Paulsen,
same thing, eight years, you'd better find a new job." He said that in 10
years he's "gonna get" her, and that he's going to sexually assault her in
3 The court instructed the jury the State must prove beyond a reasonable doubt:
(1) That... the defendant knowingly threatened:
(a) maliciously to do any act which was intended to substantially harm
[the victim] with respect to her physical health or safety; and
(2) That the words or conduct of the defendant placed [the victim] in reasonable
fear that the threat would be carried out;
(3) That the defendant acted without lawful authority;
(4) That the defendant was previously convicted of the crimes of Felony
Harassment against[the victim]; and
(5) That the threat was made or received in the State of Washington.
The court instructed the jury on the definition of "harassment."
A person commits the crime of harassment when he, without lawful authority,
knowingly threatens maliciously to do any act which is intended to substantially harm
another person with respect to his or her physical health or safety and when he or she by
words or conduct places the person threatened in reasonable fear that the threat will be
carried out.
The court instructed the jury on the definition of "threat."
As used in these instructions, threat also means to communicate, directly or
indirectly, the intent immediately to use force against any person who is present at the
time.
To be a threat, a statement or act must occur in a context or under such
circumstances where a reasonable person would foresee that the statement or act would
be interpreted as a serious expression of intention to carry out the threat.
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No. 74508-5-1/9
the elevator. He told Paulsen that he would "put a bullet" in her, sexually
assault her, and anally penetrate her with a broom. He told Paulsen that
his friends were going to pay her a visit. He also stated, "[A] couple of my
buddies are coming to see ya. They're going to take you out for lunch."
Paulsen testified that she interpreted these words as a threat,"meaning to
take me out, period." A rational trier of fact could determine that in leaving
these voice mails, France intended to substantially harm Paulsen and
Daugaard with respect to their physical health or safety. We conclude that
evidence was sufficient to support France's felony harassment
convictions.
France, 2013 WL 3130408, at *5.4 The Supreme Court affirmed the felony harassment
convictions. State v. France, 180 Wash. 2d 809, 820, 329 P.3d 864 (2014).
Personal Restraint Petition
France filed a personal restraint petition on December 8, 2015. Under RCW
10.73.090, a personal restraint petitioner generally has one year from the time a
judgment becomes final to file a petition. There is no dispute France timely filed the
petition.
A petitioner filing a personal restraint petition is entitled to relief if he is under
unlawful restraint as defined in RAP 16.4. A restraint is "unlawful" where "[t]he
conviction was obtained ... in violation of the Constitution of the United States or the
Constitution... of the State of Washington." RAP 16.4(c)(2). A petitioner raising
constitutional error must show the error caused actual and substantial prejudice. In re
Pers. Restraint of Davis, 152 Wn.2d 647,671-72, 101 P.3d 1(2004); In re Pers.
Restraint of Cook, 114 Wash. 2d 802, 811-12, 792 P.2d 506(1990).
France contends three of the five felony harassment convictions violate double
jeopardy and the prohibition against multiple punishments for the same offense.
4 Alterations in original.
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Double jeopardy is a question of law that we review de novo. State v. Reeder,
184 Wash. 2d 805, 825, 365 P.3d 1243(2015). The double jeopardy clause of the Fifth
Amendment to the United States Constitution and article 1, section 9 of the Washington
Constitution "protects a defendant from being punished multiple times for the same
offense." North Carolina v. Pearce, 395 U.S. 711, 717,89 S. Ct. 2072,23 L. Ed. 2d 656
(1969); State v. Adel, 136 Wash. 2d 629, 632, 965 P.2d 1072(1998); State v. Villanueva-
Gonzalez, 180 Wash. 2d 975, 980, 329 P.3d 78(2014). Under the Fifth Amendment, Injo
person shall ... be subject for the same offense to be twice put in jeopardy of life or
limb." Under article 1, section 9, "[n]o person shall... be twice put in jeopardy for the
same offense."
When a defendant is convicted of violating the same statute multiple times, we
must determine what "unit of prosecution" the legislature intended as "'the punishable
act under the specific criminal statute.'" Reeder, 184 Wash. 2d at 825 (quoting Adel, 136
Wash. 2d at 634). Double jeopardy protects a defendant from conviction more than once
under the same statute if the defendant commits only one unit of the crime. Reeder,
184 Wash. 2d at 825; Adel, 136 Wash. 2d at 634.
The legislature has the power to define what conduct is punishable and the
prohibition on double jeopardy "imposes '[flew, if any, limitations' on that power."
Villanueva-Gonzalez, 180 Wash. 2d at 9805 (quoting Sanabria v. United States, 437 U.S.
54,69, 98 S. Ct. 2170, 57 L. Ed. 2d 43(1978)). "The scope of the criminal act as
defined by the legislature is considered the unit of prosecution." Reeder, 184 Wash. 2d at
5 Alteration in original.
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No. 74508-5-1/1 1
825; Adel, 136 Wash. 2d at 634. The unit of prosecution for a crime can be either an act or
a course of conduct. State v. Hall, 168 Wash. 2d 726, 730, 230 P.3d 1048 (2010).6
The determination of the unit of prosecution "'ultimately revolves around a
question of statutory interpretation and legislative intent.'" State v. Barbee, 187 Wash. 2d
375, 382, 386 P.3d 729(2017)(quoting Adel, 136 Wash. 2d at 634). The goal of statutory
interpretation is to ascertain and carry out the intent of the legislature. Barbee, 187
Wash. 2d at 382. The first step is to look to the plain meaning of the statute. Barbee, 187
Wash. 2d at 383. If the plain meaning of the statute is ambiguous, we may determine
legislative intent by reviewing legislative history. Barbee, 187 Wash. 2d at 383. Last, we
perform a factual analysis as to the unit of prosecution because "the facts in a particular
case may reveal more than one 'unit of prosecution' is present." State v. Varnell, 162
Wash. 2d 165, 168, 170 P.3d 24 (2007). If there is still doubt, the rule of lenity applies and
requires any ambiguity be resolved against turning a single transaction into multiple
offenses. Reeder, 184 Wash. 2d at 825.
The question here is"'what act or course of conduct'"did the legislature define
as the punishable act under the harassment statute, RCW 9A.46.020. Villanueva-
Gonzalez, 180 Wash. 2d at 980-81 (quoting Adel, 136 Wash. 2d at 634).
The legislature enacted the harassment statute in 1985 as "part of a multifaceted
remedial scheme.. . to protect citizens from harmful harassing behavior." State v.
6 In Hall, the court held the unit of prosecution for witness tampering is "the ongoing attempt to
persuade a witness not to testify in a proceeding," not necessarily any single attempt to do so. Hall, 168
Wash. 2d at 734. In direct response to Hall, in April 2011, the legislature amended the witness tampering
statute and added the following language to supersede Hall: "For purposes of this section, each instance
of an attempt to tamper with a witness constitutes a separate offense." LAWS OF 2011, ch. 165,§ 3; ROW
9A.72.120(3).
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No. 74508-5-1/12
Smith, 111 Wash. 2d 1, 3,759 P.2d 372(1988).
The legislature finds that the prevention of serious, personal harassment
is an important government objective. Toward that end, this chapter is
aimed at making unlawful the repeated invasions of a person's privacy by
acts and threats which show a pattern of harassment designed to coerce,
intimidate, or humiliate the victim.
The legislature further finds that the protection of such persons
from harassment can be accomplished without infringing on
constitutionally protected speech or activity.
RCW 9A.46.010.
RCW 9A.46.020 defines the elements of the crime. A person is guilty of
harassment if, without lawful authority, he or she knowingly threatens to cause bodily
injury immediately or in the future and the words or conduct place the person threatened
in reasonable fear that the threat will be carried out. RCW 9A.46.020(1). RCW
9A.46.020(1) states:
A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person
threatened or to any other person; or
(ii) To cause physical damage to the property of a person other
than the actor; or
(iii) To subject the person threatened or any other person to
physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to
substantially harm the person threatened or another with respect to his or
her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened
in reasonable fear that the threat will be carried out.
The crime of harassment is a class C felony if the defendant has been previously
convicted of any crime of harassment of the same victim or any person named
specifically in a no-contact or no-harassment order, threatens to kill the person
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No. 74508-5-1/13
threatened or any other person, or harasses a criminal justice participant performing his
or her duties. RCW 9A.46.020(2)(b). RCW 9A.46.020(2) states:
(a) Except as provided in (b) of this subsection, a person who harasses
another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if
any of the following apply: (i) The person has previously been convicted
in this or any other state of any crime of harassment, as defined in RCW
9A.46.060, of the same victim or members of the victim's family or
household or any person specifically named in a no-contact or no-
harassment order; (ii) the person harasses another person under
subsection (1)(a)(i) of this section by threatening to kill the person
threatened or any other person; (iii) the person harasses a criminal justice
participant who is performing his or her official duties at the time the threat
is made; or (iv) the person harasses a criminal justice participant because
of an action taken or decision made by the criminal justice participant
during the performance of his or her official duties. For the purposes of
(b)(iii) and (iv) of this subsection, the fear from the threat must be a fear
that a reasonable criminal justice participant would have under all the
circumstances. Threatening words do not constitute harassment if it is
apparent to the criminal justice participant that the person does not have
the present and future ability to carry out the threat.
Because the legislature does not define the unit of prosecution, France contends
it is the course of conduct of repeatedly threatening the same victim. France asserts
the only case to address the unit of prosecution for felony harassment, State v. Vidales
Morales, 174 Wash. App. 370, 298 P.3d 791 (2013), supports his argument. We disagree.
In State v. Alvarez, 74 Wash. App. 250, 252, 872 P.2d 1123(1994), we addressed
whether the harassment statute punished only repeated threats. In Alvarez, the
defendant argued the criminal antiharassment act of 1985 required more than one act of
harassment against a single victim. Alvarez, 74 Wash. App. at 252. The defendant
asserted the legislative findings established the intent to criminalize only "'repeated
invasions. .. by acts and threats which show a pattern of harassment.'" Alvarez, 74
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Wn. App. at 256 (quoting RCW 9A.46.010).
We concluded that although the legislative intent and findings in RCW 9A.46.010
"speak[]in the plural, declaring the aim of'making unlawful the repeated invasions of a
person's privacy by acts and threats' showing a 'pattern of harassment,'"the statute
defining the crime, RCW 9A.46.020,"unambiguously describes what is necessary for
conviction." Alvarez, 74 Wash. App. at 257. Because the elements section is
unambiguous and requires "only one act or threat rather than multiple acts or threats to
support a conviction," we held the statement of legislative intent did not "override the
unambiguous elements section of[the] penal statute." Alvarez, 74 Wash. App. at 258.
We will not substitute the intent section's reference to plural "acts and
threats" for the straightforward definition of the crime found in RCW
9A.46.020, on the basis of a perceived inconsistency between that section
and the preamble in RCW 9A.46.010.
Alvarez, 74 Wash. App. at 258 (quoting RCW 9A.46.010).
In State v. Alvarez, 128 Wash. 2d 1, 13, 904 P.2d 754(1995), the Washington
Supreme Court affirmed. The Supreme Court held that although the legislative intent
and findings indicate the legislature "intended to make criminal 'repeated invasions of a
person's privacy' by acts and threats showing a 'pattern of harassment,'"the
unambiguous language of the statute defining the crime does not require repeated
invasions or a pattern of harassment. Alvarez, 128 Wash. 2d at 12(quoting RCW
9A.46.010).
Harassment is defined under RCW 9A.46.020. Nothing in that section
indicates a legislative intent to criminalize only invasion of privacy by
repeated acts and threats showing a pattern of harassment.
Alvarez, 128 Wash. 2d at 12. The Supreme Court held RCW 9A.46.020 is the operative
7 Alteration in original.
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No. 74508-5-1/15
and controlling statute that defines the elements and prescribes the penalties, and the
court of appeals correctly concluded ROW 9A.46.020 requires only one act of
harassment against a victim. Alvarez, 128 Wash. 2d at 12-13.
Vidales Morales is the only case that has addressed the unit of prosecution for
felony harassment. In Vidales Morales, Jesus Vidales Morales threatened to kill the
mother of his three children, Yanett Farias. Vidales Morales, 174 Wash. App. 374. On
February 14, 2011, Morales went to the house of her sister. Morales told the sister's
spouse Trinidad Diaz that when Farias dropped the children off at day care the next
morning,"he would be waiting for her and kill her." Vidales Morales, 174 Wash. App. at
374. Diaz feared Morales would carry out the threat. Farias's sister called Farias to tell
her that Morales threatened to kill her when she took the children to day care the next
morning. Farias contacted the police. Vidales Morales, 174 Wash. App. at 374.
The next morning on February 15, Farias saw Morales parked across the street
from the house of the day care provider. Vidales Morales, 174 Wash. App. at 375. Farias
told the children to run inside the house. The day care provider helped the 11-year-old
call the police. Vidales Morales, 174 Wash. App. at 375. Meanwhile, Morales blocked
Farias from driving away with his truck. Morales yelled at Farias, "'This is as far as
you've gone, you fucking bitch, because I'm going to kill you here.'" Vidales Morales,
174 Wash. App. at 375. After the day care provider intervened and yelled at Morales, he
left. Vidales Morales, 174 Wash. App. at 375.
The State charged Morales with two counts of felony harassment in violation of
RCW 9A.46.020. Vidales Morales, 174 Wash. App. at 375. The State alleged Morales
threatened to kill Farias on February 14, 2011, count 1; and he threatened to kill Farias
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on February 15, 2011, count 2. Vidales Morales, 174 Wash. App. at 375-76. A jury
convicted Morales as charged of two counts of felony harassment. Vidales Morales,
174 Wash. App. at 376.
On appeal, we addressed "whether, if a person threatens a single harm, placing
the person threatened in fear, the unit of prosecution is then that threat of harm, or is
instead each time and place he or she repeats it to the victim or third parties." Vidales
Morales, 174 Wash. App. at 386. We held one of the two convictions for threatening to
cause bodily harm to a single person at the same time and place violated double
jeopardy. Vidales Morales, 174 Wash. App. at 387-88.8 We concluded that given the
particular factual scenario, a threat to cause bodily harm to a single identified person at
a particular time and place was "only one unit of prosecution," regardless of how many
times the threat was communicated to others. Vidales Morales, 174 Wash. App. at 387-
88.
We need not determine the unit of prosecution for all harassment
scenarios to conclude that where, as here, a perpetrator(1)threatens to
cause bodily harm to a single identified person at a particular time and
place and (2) places a single victim of the harassment in reasonable fear
that the threat will be carried out, the conduct constitutes a single offense.
The harassment statute focuses on a perpetrator's coercing, intimidating,
or harassing the victim by a threat or threats that place her in reasonable
fear. The number of persons who might learn of the threat and
communicate with the victim about it and the number of times it might be
communicated are secondary.
Vidales Morales, 174 Wash. App. at 387.
Here, because the facts establish France made different types of threats to
cause bodily harm to Paulsen and Daugaard at different times and places, the unit of
8 We vacated one of the convictions and remanded for resentencing. Vidales Morales, 174 Wn.
App. at 388. See State v. Knight, 162 Wash. 2d 806, 810, 174 P.3d 1167(2008)(The proper remedy is to
vacate a conviction that violates double jeopardy.).
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No. 74508-5-1/17
prosecution in this case is each threat.
In the November 10, 2011 voice mail to Daugaard, France threatened to harm
Daugaard when he got out of prison in eight years. France tells Daugaard,"You fucked
up. . . . You think for one fucking minute nothing's going to happen to you? ... Give a
message to ... Anita Paulsen, same thing. [Eight] years. You'd better find a new job,
bitch. You better find a new fucking job."
In the November 11 voice mail, France tells Paulsen that he "called up a few of
my friends" and they would "be paying you a visit." Paulsen testified that France
threatened to "recruit other individuals to... hurt me."
[W]hat struck me is, despite all attempts, when he's in custody, to limit his
access to a telephone, he still manages to call, and I believe that he would
attempt to recruit other individuals to — to hurt me.
In the November 17 voice mail, France told Paulsen, "[M]y buddies are coming to
see ya. They'll take you out for lunch. . . . I told them to take care of ya." Paulsen
testified the November 17 voice mail meant France planned to recruit others to kill her.
Paulsen testified she was "[a]bsolutely" afraid after receiving the voice mail and believed
France "will not be dissuaded, he cannot be stopped" from "implement[ing] his threat" to
harm her.
In the December 5 voice mail, France told Paulsen he wanted "to put a bullet up
your fucking ass," "I'm gonna lick your pussy" and "[s]tick my dick in your pussy," and
"then I'm gonna stick a broom up your ass." Paulsen testified that after she received the
December 5 voice mail, she believed it was only "a question of time" before France
would try to carry out his threats.
Q. What effect or impact do you recall did that[December 5] call have
on you, Miss Paulsen?
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No. 74508-5-1/18
A. Again, he will not be stopped; he does everything he can to
circumvent the security at the jail. He still manages to make calls.
It essentially is a question of time.
Q. ... Reflecting back on those calls, considering how you thought
about them over that time, do you have any changed opinion about
your sense of safety or the threats that are a part of those. . . three
calls you've identified?
A. No, I think it's a question of time before Mr. France comes after me.
In the December 14 voice mail to Daugaard, France states that "in 10 years, . . .
I'm gonna get you in the fuckin elevator" and "fuck you in your ass, bitch." Daugaard
testified that she felt "extreme apprehension that Mr. France might do the things that he
said" in his voice mails. Specifically, in the November 10 voice mail, threatening to
harm her in "8 years," and in the December 14 voice mail, threatening to sexually
assault her. Daugaard testified, "[N]o one has ever made me feel afraid in the way that
these calls made me afraid because they are so specific, and because they are so
reasonable, honestly, in the plan that is being expressed." Daugaard testified that she
took France's threats seriously because he was very specific about the timing, location,
and types of harms he threatened.
Q. You took the threats seriously, and why is that?
A. Because it was very evident that Mr. France wanted us to take
them very seriously.
They were very — they kept coming. They were very
explicit. They were very specific. They were very mean. What
was being threatened was awful.
Q. Disturbing?
A. Yes, and he also was making an effort to — seemed to be making
an effort to make clear, you know, he was explaining exactly how
he was going to do these things, and exactly where he was going
[to] do these things, and exactly how he was going to get away with
doing these things.
Because the facts establish France made different threats to cause bodily harm
to Paulsen and Daugaard at different times and places, the jury convictions for five
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No. 74508-5-1/19
counts of felony harassment do not violate double jeopardy. We deny the personal
restraint petition.
WE CONCUR:
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