State of Washington v. Troy Michael Fix ( 2019 )

FILED
JULY 23, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36651-1-III
Respondent, )
)
v. )
)
TROY MICHAEL FIX, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Troy Fix appeals after a Clark County jury found him guilty of
both felony stalking and the gross misdemeanor offense of violation of a civil
antiharassment protection order. We affirm the felony conviction and remand to strike
certain legal financial obligations (LFOs), while also permitting the court to clarify an
aspect of the judgment and sentence if necessary.
FACTS
The relevant facts governing this appeal are largely procedural in nature. Troy and
Lisa Fix were married for 18 years. The couple legally separated in 2013 and their
marriage was dissolved April 1, 2015. In 2014, Lisa obtained a no contact order in
Oregon and subsequently obtained one in Washington. The order prohibited Troy from
coming within 500 yards of Lisa or her residence.
No. 36651-1-III
State v. Fix
Throughout and after the marriage, Lisa lived on a 10-acre farm in rural
Ridgefield. Troy had not lived on the property since 2013. Between March 16 and April
25, 2017, Troy was seen on numerous occasions driving around the area where Lisa took
her early morning walks with a friend and/or her residence. These incidents led the Clark
County Prosecuting Attorney’s Office to file the two noted charges, both of which were
alleged to be domestic violence offenses. The felony stalking was predicated on the
actions also constituting a violation of the protection order.
The jury returned guilty verdicts on both charges and also determined that both
crimes were domestic violence offenses. The trial court ordered a standard range prison
sentence of 12 months and one day on the stalking conviction. Our record does not
reflect that any sentence was imposed on the gross misdemeanor offense.
Mr. Fix timely appealed from the sentence. Division Two administratively
transferred this case to Division Three. A panel of this court considered the appeal
without hearing argument.
ANALYSIS
This appeal presents challenges to the lack of a unanimity instruction, the alleged
failure to merge offenses, and the imposition of certain LFOs. Mr. Fix also filed a
statement of additional grounds (SAG) raising six arguments. We address the issues
raised by appellate counsel first before briefly turning to some of the SAG claims.
2
No. 36651-1-III
State v. Fix
Unanimity Instruction
Mr. Fix initially argues that it was error to fail to instruct the jury that it needed to
unanimously agree on the actions that constituted the crime. This argument fails due to
the nature of the crimes charged.
Only a unanimous jury can return a “guilty” verdict in a criminal case. State v.
Camarillo, 115 Wash. 2d 60, 63, 794 P.2d 850 (1990). Where the evidence shows multiple
acts occurred that could constitute the charged offense, the State must either choose
which act it relies on or instruct the jury that it must unanimously agree on which act it
found. State v. Petrich, 101 Wash. 2d 566, 572, 683 P.2d 173 (1984). Constitutional error
occurs if there is no election and no unanimity instruction is given. State v. Bobenhouse,
166 Wash. 2d 881, 893, 214 P.3d 907 (2009); State v. Kitchen, 110 Wash. 2d 403, 411, 756
P.2d 105 (1988). This type of error requires a new trial unless shown to be harmless
beyond a reasonable doubt. Camarillo, 115 Wash. 2d at 64.
However, no election or unanimity instruction is needed if the defendant’s acts
were part of a continuing course of conduct. State v. Handran, 113 Wash. 2d 11, 17, 775
P.2d 453 (1989). Appellate courts must “review the facts in a commonsense manner to
decide whether criminal conduct constitutes one continuing act.” State v. Fiallo-Lopez,
78 Wash. App. 717, 724, 899 P.2d 1294 (1995). A continuing course of conduct exists
when actions promote one objective and occur at the same time and place. Petrich, 101
Wash. 2d at 571; State v. Love, 80 Wash. App. 357, 361, 908 P.2d 395 (1996). A continuing
3
No. 36651-1-III
State v. Fix
course of conduct also exists when the charged criminal behavior is an “ongoing
enterprise.” State v. Gooden, 51 Wash. App. 615, 620, 754 P.2d 1000 (1988) (promoting
prostitution was ongoing enterprise). It is this latter definition that is at issue in this case.
The crime of stalking requires intentional and repeated harassment. As charged
here, the crime is committed when one “intentionally and repeatedly harasses or
repeatedly follows another person.” RCW 9A.46.110(1)(a). Stalking is a crime that can
be committed by a combination of separate acts, in a course of conduct, intended to
harass, frighten, or intimidate a person. State v. Bradford, 175 Wash. App. 912, 924, 308
P.3d 736 (2013). In turn, “Harasses” means “unlawful harassment as defined in RCW
10.14.020.” RCW 9A.46.110(6)(c). Unlawful harassment, including in violation of an
antiharassment protection order, is defined as a:
knowing and willful course of conduct directed at a specific person which
seriously alarms, annoys, harasses, or is detrimental to such person, and
which serves no legitimate or lawful purpose. The course of conduct shall
be such as would cause a reasonable person to suffer substantial emotional
distress, and shall actually cause substantial emotional distress to the
petitioner, or, when the course of conduct would cause a reasonable parent
to fear for the well-being of their child.
RCW 10.14.020(2).
“Repeatedly” means two or more occasions. RCW 9A.46.110(6)(e). Finally,
“course of conduct” is defined as a:
pattern of conduct composed of a series of acts over a period of time,
however short, evidencing a continuity of purpose. “Course of conduct”
includes, in addition to any other form of communication, contact, or
4
No. 36651-1-III
State v. Fix
conduct, the sending of an electronic communication, but does not include
constitutionally protected free speech. Constitutionally protected activity is
not included within the meaning of “course of conduct.”
RCW 10.14.020(1).
The short answer to Mr. Fix’s argument is that this is not a multiple acts case that
could possibly require a unanimity instruction. Instead, the offense is defined in terms of
needing multiple instances of harassing conduct in order to constitute a single crime of
stalking. No single action could constitute the crime; it is only when harassing actions
are committed on a recurring basis that stalking is established.
Applying the necessary “common sense” view of the statute, stalking is an
ongoing offense that is not subject to the requirement of a unanimity instruction. This
argument fails.
Merger of Offenses
Mr. Fix next argues that the trial court erred by failing to merge the protection
order violation into the stalking offense. The State responds by arguing that the trial
court did merge the offenses. Unable to discern if there is any error here, we leave this
issue to the trial court on remand.
The parties agree on appeal, as they did in the trial court, that the two offenses
merge. The trial court did not expressly state at sentencing that it was merging the two
offenses, and the clerk’s papers forwarded to this court do not mention the possibility one
way or the other. However, the judgment and sentence form only addresses the felony
5
No. 36651-1-III
State v. Fix
conviction and does not even mention the existence of the other offense as part of Mr.
Fix’s criminal history. On the face of that document, it appears likely that the court at
least treated the misdemeanor as if it had merged into the felony as recommended by the
parties.
Because we are remanding to the trial court to address some LFO issues, we leave
the matter for the trial court. If there is not an order already on file that merges the
offenses, an order ought to be entered memorializing that fact for the record.
Financial Obligations
Mr. Fix next argues that the trial court erred by imposing LFOs without
conducting a sufficient inquiry into his ability to pay. The prosecutor agrees that the
discretionary LFOs were imposed without a proper basis and should be struck. We agree
and direct the trial court to strike the jury demand fee and the domestic violence
assessment.1
The DNA collection fee need not be waived. Mr. Fix has no prior Washington
convictions that would have authorized the collection of his DNA on an earlier occasion.2
Accordingly, the trial court need not strike the DNA fee unless evidence is presented that
1
The trial court did not impose a filing fee.
2
Mr. Fix’s criminal history indicates a 2014 conviction in Oregon for fourth
degree assault and a Washington disorderly conduct conviction later that same year.
Clerk’s Papers at 199.
6
No. 36651-1-III
State v. Fix
his DNA was collected on some prior occasion that is not reflected in his criminal
history. RCW 43.43.7541.
We remand to strike the two noted fees from the judgment and sentence.
Statement of Additional Grounds
Mr. Fix filed a pro se SAG listing six arguments. We will briefly address two of
them. The others fail because they are either dependent on facts outside the record or are
insufficiently briefed. RAP 10.10(c).
The SAG argues that the trial court erred in denying his last request for a
continuance in order to subpoena an alibi witness. The trial court had previously granted
him two continuances for the same purpose, but declined two last minute requests for an
additional continuance.
A trial court’s decision to grant or deny a continuance of trial is reviewed for
manifest abuse of discretion. State v. Campbell, 103 Wash. 2d 1, 14, 691 P.2d 929 (1984),
cert. denied, 471 U.S. 1094 (1985); State v. Early, 70 Wash. App. 452, 458, 853 P.2d 964
(1993). When a case has been previously continued, an even stronger showing in support
of the subsequent request is necessary. State v. Barnes, 58 Wash. App. 465, 471, 794 P.2d
52 (1990), aff’d, 117 Wash. 2d 701, 818 P.2d 1088 (1991). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
7
No. 36651-1-III
State v. Fix
The trial court had tenable grounds for denying a third continuance. Two previous
continuances had been granted and no showing was made that indicated the defense
would be more successful in finding the witness on the latest occasion. The court had
tenable grounds for rejecting the motion; there was no abuse of discretion.
The SAG also argues that this court should reconsider the credibility of the
victim's testimony. However, this court defers to the credibility decisions made at trial.
Camarillo, 115 Wash. 2d at 71. Appellate courts do not engage in fact-finding or
reweighing of evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 572,
575,343 P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wash. App. 710,
717, 225 P.3d 266 (2009). This argument, too, is without merit.
The conviction is affirmed. The matter is remanded to the superior court to strike
the noted LFOs and, if necessary, enter an order reflecting that the two convictions were
merged.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
8