State Of Washington, Resp/cross-app v. Brooks Owen Laughlin, App/cross-resp ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79369-1-I
Respondent/Cross-Appellant, DIVISION ONE
v.
UNPUBLISHED OPINION
BROOKS OWEN LAUGHLIN,
Appellant/Cross-Respondent.
CHUN, J. — The State brought numerous charges against Brooks Laughlin
for repeatedly abusing his spouse, A.D. A jury found him guilty of three counts of
second degree assault, one count of fourth degree assault, two counts of
violating a no-contact order (NCO), one count of felony stalking, one count of
felony harassment, and one count of misdemeanor harassment. The trial court
imposed orders prohibiting Laughlin from contacting A.D. and her family.
Laughlin appeals and the State cross-appeals.
We accept the State’s concession that we should reverse the conviction
for misdemeanor harassment. We also reverse the felony stalking conviction.
And we vacate the 25-year NCO. We affirm in all other respects and remand for
proceedings consistent with this opinion.
I. BACKGROUND
Laughlin, a law enforcement officer, and A.D. began dating in 2015. They
married in June 2016. Throughout their relationship, Laughlin discouraged A.D.
Citations and pin cites are based on the Westlaw online version of the cited material.
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from having a relationship with her family. A.D. was close with her family before
she met Laughlin, but she did not invite them to the wedding and saw them
increasingly less afterwards. Laughlin kept in constant contact with A.D. and
tracked her location through her phone.
Laughlin first physically abused A.D. in September 2016 and continued to
attack her afterwards. On various occasions, Laughlin strangled her, punched
her in the face and head, slammed her head into the side of a bath tub, kicked
her, and slapped her. A.D. did not report the abuse. During this time, A.D.’s
family and coworkers noticed more than once that A.D. had bruises and swelling
on her face. Laughlin also verbally abused A.D. and threatened to commit
suicide on multiple occasions.
On February 9, 2018, A.D. went to her parents’ house for dinner, which
angered Laughlin. He repeatedly texted A.D., insisting that she leave. She left
and the two met in a parking lot where Laughlin told A.D. that he wanted to
“shoot [her] in the fucking face.” This scared A.D., who told her family about this
threat. Her family called the sheriff’s office. A.D. spoke with the sheriff’s office
about the threat but omitted some information because she did not want them to
arrest Laughlin. A.D. spent the night at her parents’ house.
The next day, Laughlin appeared at A.D.’s parents’ property. Law
enforcement officers arrested him for trespass. Upon Laughlin’s release, a
Whatcom County District Court judge entered an NCO after considering the
information from the incident report. The NCO prohibited Laughlin from
contacting A.D. or her family. Despite the NCO, Laughlin and A.D. exchanged
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texts, called each other, and met in person. Laughlin pushed A.D. to seek to
modify the NCO and made threats against her family. Thinking it was the best
way to protect her family, A.D. successfully requested modification of the NCO
and Laughlin moved back into their house.
A month later, A.D. visited her sick grandmother. Laughlin became furious
when she stayed longer than promised. A.D.’s sister worried about her and the
next day gave her a book on escaping domestic violence. A.D. showed her
sister photographs of her previous injuries and agreed to speak with law
enforcement. The two went to the police department and A.D. gave a statement.
The State charged Laughlin with one count of felony stalking; two counts
of violation of an NCO; one count of first degree criminal trespass; four counts of
felony harassment; four counts of second degree assault; one count of
misdemeanor harassment; and three counts of witness tampering.
At trial, the State introduced the testimonies of A.D., her family members,
and law enforcement officers. The State also introduced the testimonies of an
expert psychologist and an expert on domestic violence. Laughlin testified in his
defense.
The jury found Laughlin guilty of one count of felony stalking; two counts
of violation of an NCO; one count of felony harassment; three counts of second
degree assault; one count of misdemeanor harassment; and one count of fourth
degree assault (as a lesser-included offense of second degree assault). The jury
found him not guilty as to the remaining counts.
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Following the verdict, Laughlin moved for arrest of judgment or a new trial
for the felony stalking charge. The trial court denied the motion, determining that
the evidence sufficed to support finding beyond a reasonable doubt that Laughlin
“repeatedly harassed” and “repeatedly followed” A.D.
Laughlin appeals.1
II. ANALYSIS
A. Dr. Hobart’s Testimony
Laughlin says that the trial court erred by admitting Dr. Hobart’s expert
testimony that Laughlin had acted like a typical domestic violence batterer. The
State disagrees and says that Laughlin waived some of his arguments on this
issue and that Dr. Hobart’s testimony is otherwise admissible. We conclude that
Laughlin did waive some of his arguments, and that the trial court did not abuse
its discretion in admitting the testimony.
We review a trial court’s admission of evidence for abuse of discretion.
State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). “An abuse of
discretion occurs when a trial court exercises its discretion in an unreasonable
manner or bases it on untenable grounds or reasons.” State v. Dennington, 12
Wn. App. 2d 845, 851, 460 P.3d 643, review denied, 196 Wn.2d 1003, 471 P.3d
225 (2020).
1The State cross appeals, claiming that the trial court abused its discretion by
excluding some text messages Laughlin sent to A.D. on February 9, 2018. The State
says that the excluded texts were relevant to the felony harassment charge. But
because we affirm the felony harassment conviction, we do not address this issue.
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1. Waiver
The State says that Laughlin waived his ER 404(a), ER 702, and profile
testimony arguments by failing to object to the admission of Dr. Hobart’s
testimony on those grounds. Laughlin responds that he did object, both in his
motion in limine and during trial. We agree with the State.
Generally, we will not consider an error in the admission of evidence if the
party did not make a timely objection at trial. Matter of Det. of Belcher, 196 Wn.
App. 592, 612, 385 P.3d 174 (2016), aff’d, 189 Wn.2d 280, 399 P.3d 1179(2017). And “a party may assign error on appeal only on the specific ground of
the evidentiary objection made at trial.” State v. Scherf, 192 Wn.2d 350, 386,
429 P.3d 776 (2018). Our Supreme Court has “adopt[ed] a strict approach
because trial counsel’s failure to object to the error robs the court of the
opportunity to correct the error.” State v. Powell, 166 Wn.2d 73, 82, 206 P.3d
321 (2009). When a court has denied a motion in limine, a party typically need
not renew the same objection at trial to preserve the objection. State v. Weber,
159 Wn.2d 252, 271, 149 P.3d 646 (2006). In cases involving evidence that is
potentially profile testimony,2 it is important to object during trial so the court can
limit the profiling aspects of the testimony. State v. Avendano-Lopez, 79 Wn.
App. 706, 711, 904 P.2d 324 (1995).
2
Profile testimony is testimony showing that a person who possesses certain
traits is more likely to commit a crime. State v. Crow, 8 Wn. App. 2d 480, 495, 438 P.3d
541, review denied, 193 Wn.2d 1038, 449 P.3d 664 (2019). The inadmissibility of profile
testimony implicates a number of evidentiary rules including Rules 404(a), 402, 403,
and 702. Id. at 495–96.
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Laughlin did not preserve an objection on profile testimony, ER 404(a), or
ER 7023 grounds. Laughlin moved in limine to limit Dr. Hobart’s testimony, but
his did not raise these issues.4 And though Laughlin made a series of objections
at trial, none of them were based on profile testimony, ER 404(a), or ER 702.5
2. Admissibility of Dr. Hobart’s Testimony
Preliminarily, Laughlin concedes on appeal that some of Dr. Hobart’s
testimony is admissible. Specifically, Laughlin concedes as to these statements:
First, victims of abuse often do not leave abusive relationships because they
want to make the relationship work, they have lost economic power and agency,
they are alienated from support systems, and the abuser prevents them from
leaving through physical control or tracking. Second, victims of abuse often do
not report the abuse, especially when the abuser is a law enforcement officer
because they are skilled at using violence and tracking people and because
other law enforcement officers may be loyal to them. Third, a victim of abuse
may continue to have contact with their abuser after a court issues an NCO
3
Laughlin does not mention ER 702 in his assignments of error, but he does
make an ER 702 argument in his appellate briefing.
4
Laughlin’s motion in limine concerning Dr. Hobart was based on ER 403 and
ER 404(b) grounds. The trial court denied the motion. Laughlin preserved those
arguments for appeal. Laughlin did mention ER 702 in his motion in limine but it was in
the context of saying that Dr. Hobart was not qualified to testify, which is an argument he
does not raise on appeal.
5
Laughlin seemingly contends that his ER 403 objection in his motion in limine
preserved a profile testimony argument. See State v. Braham, 67 Wn. App. 930, 935,
841 P.2d 785 (1992) (the specific grounds of an objection may be inferred from context).
But nothing in the motion supports such an inference. And “[w]e do not generalize
specific objections such that the existence of a pretrial motion to suppress evidence
seized preserves any claim of error with respect to that evidence.” State v. Jones, 163
Wn. App. 354, 365, 266 P.3d 886 (2011). And again, it is particularly important to object
to potential profile testimony at trial and Laughlin did not do so. See Avendano-Lopez,
79 Wn. App. at 711.
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because an NCO is not a “magic shield” and the victim may be trying to prevent
an escalation of violence by appeasing the abuser and keeping track of them.
But Laughlin says that most of Dr. Hobart’s testimony was inadmissible
under ER 404(a), ER 404(b), ER 702, and as profile testimony.6 As discussed
above, Laughlin waived his ER 404(a), ER 702, and profile testimony arguments.
Thus, we address only his ER 404(b) argument. The State says that Dr. Hobart’s
testimony did not violate ER 404(b). We agree with the State.
Testimony about a defendant’s other crimes, wrongs, or acts is not
admissible to prove the defendant’s character to show that they acted in
conformity with that character. ER 404(b).
An expert on domestic violence, Dr. Hobart testified about the mental state
of domestic violence victims. She did not testify about Laughlin’s prior wrongful
conduct. Instead, she explained generally the pattern of domestic abuse, using
the “power and control wheel” to illustrate. The power and control wheel is a
visual representation of the ways in which abuse may manifest in a
relationship. It includes isolation; emotional abuse; intimidation; coercion and
threats; male privilege; economic abuse; using children; and minimizing, denying,
and blaming, all held together by the constant threat of violence. Dr. Hobart also
answered a series of hypothetical questions, based on the facts of this case,
6
Laughlin assigns error to the admission of Dr. Hobart’s testimony under
ER 403. Though he preserved an ER 403 argument, Laughlin does not adequately
argue an ER 403 claim of error separate from his argument on profile testimony. See
Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 95–96, 231 P.3d 1211 (2010)
(“an appellant’s brief must include arguments supporting the issues presented for review
and citations to legal authority”). He embeds all mentions of ER 403 or “prejudice” in a
profile testimony argument. Thus, we do not consider any ER 403 argument.
7
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about whether certain behaviors looked like a “hallmark of domestic violence”
and about how a victim may be reluctant to leave or report abuse. Because the
testimony did not address prior wrongful acts by Laughlin, the trial court acted
within its discretion and did not violate ER 404(b) by admitting it.7
3. Harmless error
Even assuming the trial court erred in admitting Dr. Hobart’s testimony,
any error was harmless.
In determining whether a non-constitutional error was harmless, we ask if
the outcome of the trial would have been materially different without the error.
State v. Braham, 67 Wn. App. 930, 939, 841 P.2d 785 (1992). “Evidentiary
errors under ER 404 are not of constitutional magnitude.” State v. Chirinos, 161
Wn. App. 844, 851, 255 P.3d 809 (2011) (quoting State v. Jackson, 102 Wn.2d
689, 695, 689 P.2d 76 (1984)). “An error is prejudicial if, ‘within reasonable
probabilities, had the error not occurred, the outcome of the trial would have
been materially affected.’” State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255(2001) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
Laughlin says that, without the contested portion of Dr. Hobart’s testimony,
his denial of the abuse renders the case inconclusive and that the jury would
have been more likely to believe his testimony. But because an abundance of
7
The test to determine the admissibility of ER 404(b) evidence helps
demonstrate that none of Dr. Hobart’s testimony violated ER 404(b). Among other
requirements, “[t]o determine admissibility of evidence under ER 404(b) . . . [t]he court
must (1) find by a preponderance of the evidence that the uncharged act probably
occurred.” State v. Arredondo, 188 Wn.2d 244, 274, 394 P.3d 348 (2017). None of
Dr. Hobart’s testimony mentioned an uncharged act.
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evidence supported the convictions of second degree assault, fourth degree
assault, and felony harassment,8 the outcome of the trial would have been the
same without the contested portions of Dr. Hobart’s testimony.
a. Assault Convictions9
A.D. testified in detail about multiple occasions of violence and abuse by
Laughlin. She testified that more than once between September 1, 2016 and
December 31, 2016,10 Laughlin struck and strangled her. She said that the
strangling made it difficult to breathe and that the day after being strangled she
would have a sore throat and sometimes bruising on her neck or burst blood
vessels in her eye. Her mother testified that on October 7, 2016, she saw
bruising and a cut near A.D.’s eye. Her mother also testified that she saw
8
Because we reverse the convictions for misdemeanor harassment and felony
stalking, we do not address them here. Also, because Laughlin admits to violations of
an NCO, we also do not address those convictions here. Below, we address Laughlin’s
arguments applying the merger doctrine to the NCO convictions.
9
The jury found Laughlin guilty of three counts of second degree assault, and
one count of fourth degree assault. “A person is guilty of assault in the second degree if
he . . . (a) [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily
harm; or . . . (g) [a]ssaults another by strangulation or suffocation.” RCW 9A.36.021
(1)(a), (g). Substantial bodily harm is “bodily injury which involves a temporary but
substantial disfigurement, or which causes a temporary but substantial loss or
impairment of the function of any bodily part or organ, or which causes a fracture of any
bodily part.” RCW 9A.04.110. “‘Strangulation’ means to compress a person’s neck,
thereby obstructing the person’s blood flow or ability to breathe, or doing so with the
intent to obstruct the person's blood flow or ability to breathe.” Id. “A person is guilty of
assault in the fourth degree if, under circumstances not amounting to assault in the first,
second, or third degree, or custodial assault, he or she assaults another.”
RCW 9A.36.041(1). The term ‘assault’ itself is not statutorily defined, so
Washington courts apply the common law definition.” State v. Stevens, 158 Wn.2d 304,
310, 143 P.3d 817 (2006). There are “three common law definitions of assault: (1) an
attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching
with criminal intent; and (3) putting another in apprehension of harm whether or not the
actor intends to inflict or is incapable of inflicting that harm.” Id. at 310–11.
10
The charging period for Count IX, second degree assault.
9
No. 79369-1-I/10
bruising on A.D.’s cheek in November and that when she asked A.D. if Laughlin
had done that to her, A.D. “collapsed in my arms . . . weeping.”
A.D. testified that between April 1, 2017 and April 30, 2017,11 Laughlin
choked her in front of his children for starting dinner without him. She said this
made it difficult for her to breathe. She testified that after the incident, the
children would not let anyone start eating without Laughlin present.
A.D. testified that on September 19, 2017,12 Laughlin grabbed her by the
throat and slammed her head into the side of their bathtub until she lost
consciousness. She testified that after she regained consciousness she could
neither speak nor move. A.D. testified that eventually her mobility returned and
as she fled from the tub, he knocked her down and punched her repeatedly,
giving her a black eye.
Finally, A.D. testified that in October 2017,13 she and Laughlin got into a
dispute during which he repeatedly insulted her in front of his children. She
testified that she told him that it seemed like his life would be “better without” her
and went to the kitchen to get a knife. A.D. testified that she did not actually get
a knife out. A.D. testified that in response, Laughlin held her by the throat and
punched her head in front of one of his children.
Many exhibits admitted into evidence supported the charges. Multiple
photographs show bruising and swelling on A.D.’s body and face. Photographs
11
The charging period for Count X, second degree assault.
12
The charging period for Count XI, second degree assault.
13
The charging period for Count XII, fourth degree assault.
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No. 79369-1-I/11
show holes in the walls of their home resulting from attacks by Laughlin. The trial
court admitted a series of remorseful voicemails Laughlin left A.D. after the first
NCO was entered.
Expert testimony also supported the charges. An expert psychologist
testified that Laughlin displayed signs of personality disorders seen in domestic
abusers. And, as discussed above, in the uncontested portions of her testimony,
Dr. Hobart said that victims of abuse often do not leave abusive relationships
because of a desire to make the relationship work, a loss of economic power and
agency, alienation from support systems, and control through electronic tracking.
Dr. Hobart also testified that victims of abuse often do not report the abuse,
especially when the abuser is a law enforcement officer because they are skilled
at using violence and tracking people and because other law enforcement
officers may be loyal to them.
Laughlin presented little exculpatory evidence. He testified in his defense,
denying that he ever strangled, or threatened A.D. But he admitted that the two
fought often and had caused bruises on each other. He testified that on almost
every occasion of charged assault, he was protecting A.D. from herself by
wresting a knife or a gun away from her. Laughlin said that when he gave A.D. a
black eye, it was not because he punched her, but because he had inadvertently
struck her eye when he went to push her chest and her head “dipped” down.
Within reasonable probabilities, even without the contested portions of
Dr. Hobart’s testimony, the outcome of assault charges would not have been
materially affected.
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b. Felony harassment conviction14
A.D. testified that on February 9, 2018, Laughlin threatened her life. She
said that Laughlin was furious at her for having dinner with her parents that night.
After receiving a barrage of abusive text messages, A.D. said that she met
Laughlin in a parking lot where they spoke from inside their cars. A.D. testified
that after a short argument, Laughlin drove away and yelled “die bitch.” A.D.
testified that Laughlin suggested in his texts that he was going to kill himself, so
she told him she was still at the parking lot. She said that when he returned, she
walked up to his car and they continued arguing. A.D. testified that she said, “[I]t
sure seems like you want to punch me in the face right now” and Laughlin
responded, “[N]o, I want to shoot you in the fucking face and then I’ll shoot
myself in the head and that’s what people will read about in the paper. That will
be my legacy.” A.D. testified that she was afraid he would do so given his skill in
quickly drawing his gun.
A.D.’s mother testified that A.D. called her family after the threat and was
crying uncontrollably. Her father testified similarly, stating that A.D. told him that
Laughlin told her he was going to “shoot her f-ing head off.” Her father testified
that the family met A.D. at a gas station where she spoke with law enforcement.
A.D.’s brother testified that she was extremely upset on her call with him and that
she told him that Laughlin had said, “I’m going to shoot you in the fucking face.”
14
“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.” RCW 9A.46.020(1)(a)(i). Harassment is a felony if it
involves a threat to kill a person. RCW 9A.46.020(2)(b)(ii).
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No. 79369-1-I/13
He also testified that she said she was afraid of Laughlin, particularly because he
could track her location. A.D.’s brother said that he called the sheriff’s office and
told them about the threat. A sergeant confirmed this call. The sergeant testified
that he met A.D. at the gas station and she was visibly upset. A responding
deputy sheriff testified that A.D. was emotional when he spoke with her.
A.D. testified that she told the officers that she was not scared of Laughlin,
and that she did so because she did not want them to arrest him that night.
Dr. Hobart explained that victims of abuse often do not report the abuse, and that
it is even more common when the abuser is a law enforcement officer. Finally,
the trial court admitted some of Laughlin’s combative and insulting text messages
from that night.
Again, Laughlin presented little exculpatory evidence. He denied making
any threat against A.D.’s life. He testified that he said that he would rather shoot
himself in the face than punch her. Laughlin also testified that he had said “bye
bitch,” not “die bitch.” Laughlin stated that it is difficult to draw his gun while in
his car to contend that A.D.’s fear was not reasonable.
Within reasonable probabilities, even without the contested portions of
Dr. Hobart’s testimony, the outcome of the felony harassment charge would not
have been materially affected.
B. Alternative Means Crimes
Laughlin says that the State failed to prove each alternative means for the
felony stalking, second degree assault, and misdemeanor harassment
convictions beyond a reasonable doubt and thus that we must reverse the
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convictions. We disagree with him as to the second degree assault convictions.
But we agree with him as to the felony stalking conviction and the misdemeanor
harassment conviction; and the States concedes as to the latter.
If insufficient evidence supports each alternative means of an alternative
means crime, a particularized expression of jury unanimity is required for a
conviction. State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014), State v.
Woodlyn, 188 Wn.2d 157, 163–64, 392 P.3d 1062 (2017). But if sufficient
evidence supports each alternative means, the defendant cannot insist on
unanimity for each means. Woodlyn, 188 Wn.2d at 163–64. When the court
does not instruct the jury that it must be unanimous as to the means used to
convict an alternative means crime, sufficient evidence must support each
alternative means. Owens, 180 Wn.2d at 99. Sufficient evidence is evidence
that, when viewed in the light most favorable to the State, supports a rational jury
finding all the essential elements of the crime beyond a reasonable doubt. State
v. Armstrong, 188 Wn.2d 333, 341, 394 P.3d 373 (2017).
1. Second degree assault
Laughlin says that insufficient evidence supports the jury’s finding that he
inflicted substantial bodily harm on A.D. for purposes of Counts IX and X for
second degree assault. We disagree.
Second degree assault is an alternative means crime. State v. Smith, 159
Wn.2d 778, 784, 154 P.3d 873 (2007). The trial court instructed the jury that, to
convict Laughlin of second degree assault, it must find that Laughlin assaulted
A.D. by strangulation or by inflicting substantial bodily harm.
14
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RCW 9A.36.021(1)(a), (g). Substantial bodily harm is defined as “bodily injury
which involves a temporary but substantial disfigurement, or which causes a
temporary but substantial loss or impairment of the function of any bodily part or
organ, or that causes a fracture of any bodily part.” RCW 9A.04.110. Laughlin
says that insufficient evidence supports a finding that he inflicted substantial
bodily harm on A.D. for Counts IX and X.
The charging period for Count IX included an incident on October 6, 2016,
when Laughlin strangled A.D. A.D. testified that she could not breathe or scream
during the incident, and the next day she had bruising and swelling around the
eyes. The charging period for Count IX also included multiple attacks during
November 2016, during which Laughlin strangled A.D., who suffered bruising as
a result. A.D. stated that the bruising was unlike bruising she had seen before
and took pictures to document them. Count X concerned an incident on April 29,
2017 where Laughlin strangled A.D. for beginning dinner without him. She
testified that it was hard to breathe.
A finding of substantial bodily harm may stem from bruising because it is a
temporary but substantial disfigurement. See State v. Ashcraft, 71 Wn. App.
444, 455, 859 P.2d 60 (1993) (bruising from being beat with a shoe is substantial
bodily harm); State v. Hovig, 149 Wn. App. 1, 13, 202 P.3d 318 (2009) (a bite-
shaped bruise on a child’s cheek that could last for 1–2 weeks is substantial
bodily harm). Also, not being able to breathe or scream is a temporary but
substantial impairment of a bodily part or organ. Thus, sufficient evidence
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No. 79369-1-I/16
supports the alternative means of infliction of substantial bodily harm for
purposes of the second degree assault convictions.
2. Felony stalking
Laughlin says that insufficient evidence supports a finding that he
“repeatedly followed” A.D. for purposes of the felony stalking conviction because
Laughlin did not maintain “physical or visual proximity” to A.D. The State
counters that Laughlin may not challenge the sufficiency of the evidence based
on a definition that the court did not give to the jury. It also says that sufficient
evidence supports a finding that Laughlin “repeatedly followed” A.D. We agree
with Laughlin.
Felony stalking is an alternative means crime. State v. Kintz, 169 Wn.2d
537, 551, 238 P.3d 470 (2010). The trial court instructed the jury that the crime
of felony stalking requires that the defendant “intentionally and repeatedly
harass[] or,” alternatively, “repeatedly follow[]” another person. RCW 9A.46.110.
RCW 9A.46.110 defines “follows” as “maintaining visual or physical proximity.”
See also State v. Ainslie, 103 Wn. App. 1, 7, 11 P.3d 318 (2000) (holding that the
defendant “followed” the victim when he “repeatedly parked within sight” of her).
The court did not instruct the jury on the statutory definition of “follows.” But “the
critical inquiry on review of the sufficiency of the evidence to support a criminal
conviction must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
16
No. 79369-1-I/17
The evidence does not suffice for the jury to find that Laughlin “repeatedly
follow[ed]” A.D. The State presented evidence that Laughlin (1) tracked A.D. on
her phone’s GPS system, (2) knew how long she stayed at the hospital with her
sick grandmother, (3) knew when she was at her parents’ house, and (4) urged
her to turn the GPS on when she had it switched off. The State contends that
electronic tracking constitutes maintaining visual or physical proximity. But the
State does not cite—nor have we found—any legal authority or dictionary
definition supporting this interpretation. We thus conclude that the State did not
prove beyond a reasonable doubt that Laughlin maintained visual or physical
proximity to A.D.
3. Misdemeanor harassment
Laughlin says that the evidence does not suffice to support findings for
two of the alternative means for misdemeanor harassment. The State concedes
this issue. We agree with the parties.
Misdemeanor harassment is an alternative means crime. State v.
Morales, 174 Wn. App. 370, 377, 298 P.3d 791 (2013). The trial court instructed
the jury that to convict Laughlin for misdemeanor harassment, it must find that,
between January 1, 2017 and March 30, 2018, Laughlin threatened to (1) cause
bodily injury to A.D., (2) cause physical damage to A.D.’s property, (3) subject
A.D. to physical confinement or restraint, or (4) harm A.D.’s health or safety. See
RCW 9A.46.020. As the State concedes, the record contains insufficient
evidence for a rational jury to find that Laughlin threatened to damage A.D.’s
17
No. 79369-1-I/18
property or to subject her to physical confinement or restraint during the relevant
period.
C. Merger
Laughlin says that his convictions for one count of misdemeanor
harassment and two counts of misdemeanor violation of an NCO merge into his
conviction for felony stalking and must be reversed. Contending that the felony
stalking conviction should be affirmed, the State concedes that the convictions
for violation of an NCO should be reversed; it does not address the harassment
conviction, as it believes it should be reversed on the grounds discussed just
above. Because we reverse the felony stalking conviction, we conclude no
double jeopardy violation exists and uphold the convictions for violation of an
NCO. And because we have concluded that the misdemeanor harassment
conviction should be reversed on the grounds discussed above, we do not
address it here.
Federal and state constitutional double jeopardy protections prevent
multiple punishments for the same offense. State v. Vladovic, 99 Wn.2d 413,
422, 662 P.2d 853 (1983); State v. Davis, 177 Wn. App. 454, 460, 311 P.3d 1278(2013); CONST. art. I, § 9; U.S. CONST. amend V. Absent a clear legislative intent
to permit punishment of multiple offenses, if a jury convicts the defendant on
greater and lesser-included offenses, the lesser offenses merge into the greater
and must be vacated on remand. State v. Turner, 169 Wn.2d 448, 459, 238 P.3d
461 (2010); In re Pers. Restraint of Strandy, 171 Wn.2d 817, 819–20, 256 P.3d
1159 (2011).
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We review de novo issues involving merger. Davis, 177 Wn. App. at 460.
Proving a violation of an NCO can elevate a stalking charge to a felony.
RCW 9A.46.110(1), (5)(b)(ii). Thus, the felony stalking conviction is the greater
offense and the NCO violations are the lesser-included offenses. Because we
reverse Laughlin’s felony stalking conviction, there is no longer a double jeopardy
issue.
D. Sentencing
Laughlin says that, under State v. Warren, the NCOs prohibiting him from
contacting A.D. and her family can last no longer than 10 years because that is
the statutory maximum for his most serious crimes of second degree assault.
165 Wn.2d 17, 32, 195 P.3d 940 (2008). The State responds that, under State v.
Weller, because the trial court imposed an exceptional sentence and ran
Laughlin’s sentences to Counts X and XI consecutively, it did not exceed its
authority. 197 Wn. App. 731, 735, 391 P.3d 527 (2017). We conclude that the
11-year NCO between Laughlin and A.D.’s family does not exceed the maximum
allowable exceptional sentence; but the 25-year NCO between him and A.D.
does so exceed.
Generally, we review the imposition of crime-related prohibitions for abuse
of discretion. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). But if the
question is whether the trial court exceeded its authority in imposing a crime-
related prohibition, we review de novo. Weller, 197 Wn. App. at 734.
A trial court may impose a crime-related prohibition such as an NCO for a
period up to the statutory maximum for the crime. Warren, 165 Wn.2d at 32;
19
No. 79369-1-I/20
former RCW 9.94A.505(8) (2010). If, however, the trial court imposes an
exceptional sentence and runs multiple sentences consecutively, the crime-
related prohibition can last for a period equaling the “sum total” of the exceptional
sentence.15 Weller, 197 Wn. App. at 735.
The trial court exceeded the statutory maximum when it imposed the
NCOs. Counts X and XI for second degree assault are class B felonies with a
10-year statutory maximum. RCW 9A.36.021, RCW 9A.20.021(b). During
sentencing, the trial court imposed an 11-year NCO between Laughlin and A.D.’s
family and a 25-year NCO between him and A.D. Laughlin says the trial court
exceeded its authority in imposing these NCOs.
Because the trial court imposed exceptional sentences for Counts X and
XI, the trial court could impose NCOs for up to 20 years. Here, the trial court ran
Counts X and XI consecutively for community custody purposes.16 As each
count had a statutory maximum of 10 years, the maximum allowable exceptional
sentence is 20 years. Thus, the trial court did not exceed its authority in
imposing the 11-year NCO between Laughlin and A.D.’s family, but it did so
exceed its authority in imposing a 25-year NCO between Laughlin and A.D.17
15
In Weller, one of the defendants was charged with four counts of second
degree assault (10 year maximum) and one count of unlawful imprisonment (5 year
maximum), and all five counts ran consecutively. 197 Wn. App. at 735. Thus, the court
held that the trial court did not exceed its authority by imposing an NCO of 45 years. Id.
16
Laughlin says that Weller does not apply because it involved a consecutive
sentence of confinement, not a consecutive sentence of community custody. But he
cites no legal authority to support such a distinction and there appears to be none.
17
The State says that one of Laughlin’s other convictions can be tacked on to
boost the NCO from 20 to 25 years. This misapplies Weller because none of the
sentences for the other convictions ran consecutively with Counts X and XI and
therefore cannot be used to increase the length of the NCO.
20
No. 79369-1-I/21
III. CONCLUSION
Given the foregoing, we reverse the convictions for misdemeanor
harassment and felony stalking. And we vacate the 25-year NCO. We affirm in
all other respects and remand for proceedings consistent with this opinion.
WE CONCUR:
21