State of Washington v. Torin Rilan Marcell Tinnin ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
February 21, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57646-5-II
Respondent,
v. UNPUBLISHED OPINION
TORIN RILAN MARCELL TINNIN,
Appellant.
MAXA, J. – Torin Tinnin appeals his conviction of fourth degree assault-domestic
violence. The conviction arose out of an incident with Rachel Coley, the mother of Tinnin’s
child. Apparently upset that Coley had stayed out all night while he was with the child, Tinnin
came to Coley’s home and pushed her several times, grabbed her neck, jabbed her in the neck,
and grabbed her shirt and swung her.
Tinnin argues that the trial court erred in failing to give a unanimity jury instruction
because there were multiple acts that could constitute fourth degree assault. In the alternative,
Tinnin argues that he received ineffective assistance of counsel because defense counsel did not
request a unanimity instruction.
We hold that (1) a unanimity instruction was not required because the evidence shows
that Tinnin engaged in a continuous course of criminal conduct, and (2) Tinnin did not receive
ineffective assistance of counsel because a unanimity instruction was not warranted.
Accordingly, we affirm Tinnin’s conviction.
No. 57646-5-II
FACTS
Background
Tinnin and Coley were in an intimate relationship for approximately a year and a half.
They have a young child together.
Coley returned to her home around 5:00 AM on July 12, 2021. At 5:30 AM, Tinnin arrived
at Coley’s home with their daughter. He knocked loudly on the back door of the house. Coley
opened the door, and Tinnin gave their daughter to Coley.
Tinnin asked Coley why she was wearing their daughter’s necklace. Coley said she was
wearing it because it fit her, and she didn’t want her daughter to break it. Tinnin told her to take
it off. Tinnin pushed Coley’s shoulder, spinning her around, and removed the necklace from her
neck.
Coley said goodbye to Tinnin and attempted to close the back door. Tinnin stopped the
door and pushed Coley inside. Tinnin pushed Coley backwards again, and said, “What were you
doing? What were you doing? Where did you go?” 2 Rep. of Proc. at 227.
Coley, still holding their child, tried to lock herself in the bathroom to call for help.
However, Tinnin prevented her from closing the door. Tinnin then took Coley’s phone and put it
in his pocket. Coley began to scream.
Tinnin grabbed Coley’s neck and pushed her up against the bathroom sink. He squeezed
Coley’s neck for five seconds, during which time she could not breathe. He also jabbed at her
neck and throat three or four times. Tinnin then grabbed Coley’s clothes and started swinging
her. She screamed at him to stop.
Coley’s neighbor heard the screaming and came to the house to check on her. Coley
asked her to call 911. The neighbor called 911. Tinnin left before law enforcement arrived.
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These events took place over a period of about 60 minutes.
The State charged Tinnin with second degree assault against an intimate partner.
Trial Court Proceedings
At trial, Coley testified regarding the facts stated above. The jury instruction for second
degree assault stated that the jury must find that Tinnin intentionally assaulted Coley by
strangulation. The court also granted the State’s request for an inferior degree instruction for
fourth degree assault.
The inferior degree instruction stated that if the jury found Tinnin not guilty of second
degree assault, they could consider whether he was guilty of fourth degree assault. The
instruction defined assault as “an intentional touching or striking of another person that is
harmful or offensive regardless of whether any physical injury is done to the person.” Clerk’s
Papers at 141. Tinnin’s defense counsel did not request a unanimity instruction for fourth degree
assault.
During closing argument, the prosecutor did not elect which of the several acts the jury
should consider in determining whether fourth degree assault had occurred.
The jury found Tinnin not guilty of second degree assault, but guilty of fourth degree
assault-domestic violence. Tinnin appeals his conviction.
ANALYSIS
A. UNANIMITY INSTRUCTION FOR ASSAULT CHARGE
Tinnin argues that the trial court erred in failing to instruct the jury on unanimity for
assault in the fourth degree. We disagree.
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1. Legal Principles
Under article I, section 21 of the Washington Constitution, criminal defendants have a
right to a unanimous jury verdict. State v. Rodriquez, 187 Wn. App. 922, 936, 352 P.3d 200(2015). Generally, in cases where there is evidence of multiple acts that could support the crime
charged, either the State must elect which act the jury should consider in its deliberations or the
trial court must instruct the jury to unanimously agree on a specific criminal act. State v.
Christian, 18 Wn. App. 2d 185, 208, 489 P.3d 657 (2021). The failure to do so can be
constitutional error if it is possible that some jurors relied on one act and some on another act,
rendering that verdict not unanimous. Id.However, election by the State or a unanimity instruction is required “only when the
State presents evidence of several distinct criminal acts.” State v. McNearney, 193 Wn. App.
136, 141, 373 P.3d 265 (2016). Neither election nor a unanimity instruction is needed if the
defendant engaged in multiple acts that form a single continuing course of criminal conduct.
Christian, 18 Wn. App. 2d at 208. In other words, the jury does not need to be unanimous
regarding which of the acts in a continuing course of conduct supports the conviction. See id. In
a continuing course of conduct situation, each juror can choose one of the defendant’s multiple
acts in reaching a verdict.
In determining whether multiple acts form a continuing course of conduct, we consider
the facts in a commonsense manner. Id. at 208. We determine whether the acts (1) were against
the same victim, (2) occurred in the same place, (3) occurred within the same time period, and
(4) were committed for the same objective. Id. Assault can be a continuing course of conduct
crime. Rodriquez, 187 Wn. App. at 937.
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We review de novo whether the trial court should have given a unanimity instruction.
State v. Lee, 12 Wn. App. 2d 378, 393, 460 P.3d 701 (2020).
2. Analysis
Viewing the evidence in a commonsense manner, the applicable factors favor finding that
Tinnin’s assaults against Coley were one course of conduct rather than distinct acts. First,
Tinnin’s actions all were directed toward the same victim, Coley. Second, all the events took
place in or around the same place: Coley’s home.
Third, the events occurred at roughly the same time. Although the incident took place
over the course of approximately 60 minutes, such a period of time is not inconsistent with a
continuous course of conduct. See State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991)
(finding a continuous course of conduct when the defendant committed multiple acts of
unwitnessed assault against a child victim over a two-hour period); State v. Marko, 107 Wn.
App. 215, 221, 27 P.3d 228 (2001) (finding a continuing course of conduct for a defendant’s
actions taken over a 90 minute period aimed at intimidating witnesses).
Fourth, Tinnin displayed the same general objective in committing the multiple acts of
assault. The evidence shows that Tinnin had a single motive to physically intimidate and assault
Coley because she had stayed out late the night before. See Rodriquez, 187 Wn. App. at 937(relying on the defendant’s common objective to injure the victim because of his hostility toward
her).
Tinnin argues that his actions did not form a continuing course of conduct because he had
different objectives throughout the assault. He argues that when he pushed Coley’s shoulder, his
objective was to take off her necklace. And when he blocked Coley from closing the door to her
home, his objective was to come inside the residence. When he yelled “what were you doing?”
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and “where did you go?” his objective was to learn where Coley had been the night before.
However, this argument is not persuasive and does not view what happened in a commonsense
manner. Using the language from McNearney, “it was not at all apparent” that Tinnin’s multiple
assaults “could be viewed as separate acts, as opposed to a continuing course of conduct.” 193
Wn. App. at 142-43.
Accordingly, we hold that the trial court did not err in failing to give a unanimity
instruction.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Tinnin argues that his trial counsel’s failure to request a unanimity instruction amounted
to ineffective assistance of counsel. We disagree.
To prevail on an ineffective assistance claim, the defendant must show both that (1)
defense counsel’s representation was deficient and (2) the deficient representation prejudiced the
defendant. State v. Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021). Representation is
deficient if, after considering all the circumstances, it falls below an objective standard of
reasonableness. Id. Failing to propose an instruction is not deficient performance if the trial
court would not have given the instruction. See State v. Brown, 25 Wn. App. 2d 634, 639, 528
P.3d 370 (2023).
Here, the evidence showed that Tinnin engaged in a continuing course of criminal
conduct when he carried out the assault against Coley. Therefore, the trial court was not required
to give a unanimity instruction. Under these circumstances, defense counsel was not deficient in
failing to propose a unanimity instruction.
Accordingly, we conclude that Tinnin did not receive ineffective assistance of counsel.
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CONCLUSION
We affirm Tinnin’s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
CRUSER, A.C.J.
VELJACIC, J.
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