IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

. THE STATE OF WASHINGTON, ) No. 76308-3-1 ) Respondent, ) ) DIVISION ONE v. ) ) JOE JOSEPH, ) PUBLISHED OPINION ) Appellant. ) FILED: April 30, 2018 )

MANN, A.C.J. —Joe Joseph appeals his conviction for one count of felony

violation of a court order and one count of felony harassment for assaulting his

partner Nita KatIong.1 Joseph contends that(1) his conviction for felony violation

of court order should be reversed because there was insufficient evidence of one

of the charged alternative means of committing the crime,(2) his prior conviction

for third degree assault was not a crime of harassment, and thus does not qualify

as a predicate offense supporting a conviction for felony harassment, and (3)the

trial court erred by failing to instruct the jury that the domestic violence

1 There is some discrepancy in the record regarding Nita Katlong's name. In the transcript, her name is spelled Katalong. Whereas in the Clerk's Papers her name is spelled Katlong. To avoid confusion, we rely on the spelling in the Clerk's Papers. No. 76308-3-1/2

aggravator for both offenses required proof beyond a reasonable doubt and a

unanimous verdict.

Because assault in the third degree is a qualifying predicate crime, we

affirm Joseph's conviction for felony harassment. We agree, however, that there

was insufficient evidence to support the alternative means and reverse Joseph's

conviction for felony violation of a court order. We also agree that the trial court

erred by failing to instruct the jury that the domestic violence aggravator required

proof beyond a reasonable doubt and unanimity.

We affirm Joseph's conviction for felony harassment, but reverse for

resentencing with a lesser offender score.

FACTS

Joseph and Katlong temporarily lived together at a friend's home despite a

no-contact order prohibiting Joseph from contact with Katlong. On August 30,

2016, Joseph accused Katlong of infidelity and threatened to kill her. Joseph

pushed Katlong to the couch, picked up a hammer, waived it around, and tapped

Katlong's forehead with the flat end. Joseph's niece, Nekky, was present and

watching. Nekky asked Joseph to stop because he was scaring her and then left

the room.

Joseph was charged by amended information with domestic violence

felony violation of a court order (count one), felony harassment(count two), and

misdemeanor harassment(count three). All charges stemmed from the August

30, 2016, incident.

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Joseph had previously pleaded guilty to a charge of assault in the third

degree, domestic violence, for a separate assault of Katlong. The parties

stipulated at trial that this charge had been proven beyond a reasonable doubt.

The State relied on this prior conviction of assaulting Katlong to elevate the

harassment allegation to a class C felony under RCW 9A.46.020(2)(b)(i).

The jury found Joseph guilty on all charges. The jury was then

reconvened to consider special verdict forms that asked whether Joseph and

Katlong were members of the same household for purposes of elevating

Joseph's offender score. The special verdict form was answered "yes."

Based on a joint motion by Joseph and the State, the trial court agreed

that the convictions for misdemeanor harassment(count 3) and felony

harassment(count 2) violated double jeopardy. The court vacated the conviction

on count 3.

For the purposes of sentencing, the parties and court agreed to treat the

convictions for felony violation of a no-contact order (count one)and felony

harassment(count two) as the same criminal conduct.

Joseph appeals.

ANALYSIS

Alternative Means for Conviction of Felony Violation of a Court Order

Joseph argues first that his conviction for felony violation of court order

(count 1)should be reversed because there was insufficient evidence of one of

the charged alternative means of committing the crime. The State concedes this

issue and we agree.

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Article 1, section 21 of the Washington State Constitution guarantees

criminal defendants the right to a unanimous jury verdict. See State v. Ortega-

Martinez,

,

(1994). In alternative means

cases, where the criminal offense can be committed in more than one way, an

expression of jury unanimity is not required if each alternative means is

supported by sufficient evidence. State v. Sandholm,

,

(2015)(citing Ortega-Martinez,

). "But when

insufficient evidence supports one or more of the alternative means presented to

the jury, the conviction will not be affirmed." Sandholm,

(citing

Ortega-Martinez,

).

The to-convict jury instruction for felony violation of a no-contact order

stated the prosecution must prove:

(4) That (a) the defendant's conduct was an assault or (b) the defendant's conduct was reckless and created a substantial risk of death or serious physical injury to another.

The jury was instructed that the State must prove "either of the alternative

elements (4)(a) or (4)(b)" beyond a reasonable doubt. The instruction further

explained "the jury need not be unanimous as to which alternatives (4)(a) or

(4)(b) has been proved beyond a reasonable doubt as long as each juror finds

that at least one alternative has been proved beyond a reasonable doubt."

The State concedes that the jury instruction sets forth alternative means

for committing the same crime, and that the evidence that Jpseph had a hammer

and tapped Katlong on the head was insufficient to demonstrate that he

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recklessly "created a substantial risk of death or serious physical injury" under

4(b). If there is insufficient evidence to support an alternative means,"a

'particularized expression' of jury unanimity is required." State v. Woodlyn,

, 165,

(2017). "Absent some form of colloquy or

explicit instruction, we cannot assume that every member of the jury relied solely

on the supported alternative." Woodlvn, 188 Wn.2d at 166. No "particularized

expression" of the jury's decision exists here. Joseph's conviction for felony

violation of a no-contact order (count 1) is reversed.

Felony Harassment Based on a Predicate Offense of Third Degree Assault

Joseph next contends that his prior conviction for third degree assault was

not a crime of harassment under RCW 9A.46.060, and thus does not qualify as a

predicate offense supporting the elevation of harassment from a gross

misdemeanor to a felony. We disagree and hold a previous conviction for third

degree assault of the same victim is a qualifying crime of harassment under

RCW 94.46.020(2)(b)(i). See also RCW 9A.36.031(f); RCW 9A.46.060.

"The meaning of a statute is a question of law we review de novo." State

v. Mitchell,

,

(2010). "The court's fundamental

objective in construing a statute is to ascertain and carry out the legislature's

intent." Lake v. Woodcreek Homeowners Ass'n,

,

(2010). If the meaning of the statute is plain on its face, then we must give

effect to the plain meaning as an expression of legislative intent. State v. Larson,

,

(2015). A statute's plain meaning can be

discerned by looking at the text of the statutory provision in question, the context

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of the statute, related provisions, and the statutory scheme as a whole. Larson,

.

The State charged Joseph with harassment under RCW 9A.46.020(1),

alleging that Joseph knowingly threatened to cause bodily injury to Katlong.

While the crime of harassment is ordinarily a gross misdemeanor, when the

"person who harasses another" has "previously been convicted ... of any crime

of harassment, as defined in RCW 9A.46.060, of the same victim" the crime is

elevated to a class C felony. RCW 9A.46.020(2)(b)(i)(emphasis added). The

State elevated Joseph's charge to a class C felony under RCW 9A.46.020(2)(b)

based on Joseph's prior conviction of assault in the third degree against Katlong.

The question before us is whether Joseph's prior conviction for third degree

assault is a "crime of harassment" under RCW 9A.46.060.

RCW 9A.46.060 sets out a list of crimes included in harassment, stating

that "harassment' may include but is not limited to" any one of the 38 crimes

enumerated.2 Listed offenses include: reckless endangerment, extortion,

coercion, burglary, criminal trespass, malicious mischief, kidnaping, unlawful

imprisonment, rape, rape of a child, indecent liberties, child molestation, stalking,

residential burglary, and violation of a protective order. The list includes, in

relevant part,

(4) Assault in the first degree(RCW 9A.36.011); (5) Assault of a child in the first degree(RCW 9A.36.120); (6) Assault in the second degree(RCW 9A.36.021); (7) Assault of a child in the second degree(RCW 9A.36.130); (8) Assault in the fourth degree(RCW 9A.36.041);

2(Emphasis added.)

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RCW 9A.46.060(4)-(8). The statute does not list assault in the third

degree.

While Joseph acknowledges that the list of predicate 'crimes in RCW

9A.46.060 is not exclusive, he nonetheless argues that legislature's decision to

omit assault in the third degree demonstrates the legislature's intent to omit the

crime. We reject this contention.

Washington courts have consistently interpreted the statutory language,

"including but not limited to," to indicate the legislative intent to create an

illustrative, not exhaustive, list. See Larson,

. When a statute

is plain and unambiguous on its face, our analysis stops there, we do not resort

to interpretive tools such as legislative history. Larson,

.

Joseph provides no authority to support a claim that the mere inclusion of a

nonexhaustive list renders a statute ambiguous. And we do not so find. Here,

the plain language of this statute unambiguously creates an illustrative and

nonexhaustive list that does not specifically exclude any crimes.

Washington courts have a recognized method for interpreting such lists

within a statute. Where a general term, here harassment, is modified by a

nonexclusive list, the general term will be deemed to "incorporate those things

similar in nature or 'comparable to' the specific terms." Larson,

(quoting Simpson Inv. Co. v. Dep't of Revenue,

,

(2000)). Accordingly, the question is whether Joseph's conviction of assault

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in the third degree is "of a similar nature" or "comparable" to the crimes

specifically listed in the statute.

In determining whether assault in the third degree is "of a similar nature" to

those included in harassment, we look to the clearly stated legislative intent

behind the anti-harassment act, chapter 9A.46 RCW:

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.

RCW 9A.46.010. A person is guilty of assault in the third degree where, among

other alternatives, the person, "[w]ith criminal negligence, causes bodily harm

accompanied by substantial pain that extends for a period sufficient to cause

considerable suffering." RCW 9A.36.031(1)(f). A crime where the defendant has

caused "substantial pain" and "considerable suffering" to the same victim, falls

squarely within the stated legislative intent.3

Joseph argues assault in the third degree is not comparable to the other

crimes of "harassment" under RCW 9A.46.060, because the other crimes require

intent, or at least a higher mens rea than the criminal negligence mens rea

required for assault in the third degree. This argument also fails.

There is no uniform expression of mens rea within the other crimes listed

in RCW 9A.46.060. The listed crimes included in the statute rely on different

3 As part of the stipulation admitting the prior assault conviction, Joseph entered the following statement: On or about May 15, 2016, with criminal negligence, I did cause'bodily harm accompanied by substantial pain that did extend for a period of time sufficient to cause considerable suffering to Nita Katlong. She is the mother of my children. -8- No. 76308-3-1/9

levels of intent. Some require intentional conduct, others require recklessness,

and a few include no mens rea at all. For example, rape in the first degree(RCW

9A.44.040),4 rape in the second degree(RCW 9A.44.050), rape in the third

degree(RCW 9A.44.060),5 rape of a child in the first degree(RCW 9A.44.073),

rape of a child in the second degree(RCW 9A.44.050), and rape of a child in the

third degree(RCW 9A.44.079) do not have a mens rea element. Because there

is no indication within the plain language of the statute that the legislature

intended to differentiate crimes based on criminal intent, we will not assume such

an exclusion exists.

We hold that assault in the third degree, where the defendant has caused

"substantial pain" and "considerable suffering" to the same victim, is "of a similar

nature" to the other crimes listed in RCW 9A.44.060, and falls within the

legislature's intent to punish "harassment." Accordingly, although the crime was

not specifically listed in RCW 9A.44.060, the crime is a qualifying predicate crime

under RCW 9A.46.020(2)(b)(i).

Domestic Violence Aggravator

Joseph argues finally that the trial court erred by failing to instruct the jury

that a finding that Joseph's crimes were domestic violence offenses required

proof beyond a reasonable doubt and a unanimous verdict. "The Sixth

Amendment to the United States Constitution requires that a jury must

unanimously find beyond a reasonable doubt any aggravating circumstances that

4 See State v. DeRvke,

,

(2003)("First degree rape contains no mens rea element."). 5 See State v. Chhom,

, 741-42 n.4,

(1996)(noting that all rape crimes lack a mens rea element). -9- No. 76308-3-1/10

increase a defendant's sentence. In Washington, a jury uses special verdict

forms to find these aggravating circumstances." State v. Nunez,

,

(2012).

Because the jury's special verdict findings of domestic violence increased

Joseph's punishment, it was a violation of the Sixth Amendment that the jury was

not instructed that their verdicts must be unanimous and beyond a reasonable

doubt. The State agrees that the failure to instruct the jury was error and

concedes that the matter must be remanded for resentencing with a lesser

offender score.

We affirm Joseph's conviction for felony harassment. We reverse

Joseph's conviction for felony violation of a no-contact order based on insufficient

evidence to support the alternative means. We remand for resentencing with a

lesser offender score.

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WE CONCUR: CO

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