IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 85002-4-I
Respondent,
v. UNPUBLISHED OPINION
ANTONIO PIERCE GODFREY,
Appellant.
BOWMAN, J. — Antonio Pierce Godfrey appeals his jury convictions for
domestic violence (DV) second degree rape and DV first degree incest of his
daughter. He argues that the trial court denied him his constitutional right to a
unanimous jury verdict by failing to give a unanimity instruction. Because
Godfrey’s actions were a continuing course of conduct, the court did not err, and
we affirm his convictions. But we remand for the trial court to strike the $500
victim penalty assessment (VPA) from his judgment and sentence under the
recent amendments to RCW 7.68.035.
FACTS
A.G. is Godfrey’s biological daughter and one of his seven children. In
about 2010, after graduating high school, she moved to Ohio and had limited
contact with Godfrey. After a few years, A.G. resumed contact with him. Around
2012, she started returning to Seattle regularly to visit her family and sometimes
stayed with Godfrey in his one-room studio apartment. When she stayed with
Godfrey, A.G. slept on a raised futon couch “in front of his bed.” No. 85002-4-I/2
A.G. moved back to Seattle in January 2021. She stayed in hotels or with
different family members and saw Godfrey for their weekly “dad-daughter day.”
On June 24, Godfrey and A.G. spent the day together. They bought cannabis at
a dispensary, which was common. But they also bought cocaine from one of
A.G.’s brothers, which was “unusual.” A.G. and Godfrey smoked the cannabis
throughout the day. A.G. also took a Benadryl allergy pill early in the afternoon.
That evening, they returned to Godfrey’s apartment. A.G. was living with
her nephew’s mother at the time. But because it was late, she decided to stay
the night. Godfrey and A.G. smoked more cannabis and A.G. rubbed cocaine on
her gums. They talked and watched movies. A.G. fell asleep on the futon at
about 10:30 p.m. When she woke up around 1:00 a.m., Godfrey was “still up.”
They talked more, listened to music, and smoked cannabis until about 4:00 a.m.
A.G. then fell back asleep on the futon, which was covered with a blanket. She
was fully clothed in her jeans and T-shirt and covered with a comforter.
About an hour later, A.G. woke to find her shirt and bra “pushed up” and
her “breasts completely . . . exposed.” Her jeans and underwear were at her
ankles and her right leg was completely out of them. Godfrey was naked and
“caressing” A.G.’s breasts. He was performing oral sex on her, and A.G. felt like
Godfrey had also penally raped her. A.G. screamed, “ ‘What the [fuck]? Are you
serious? . . . What did you do?’ ” Godfrey, who “was aroused,” ran to the kitchen
area and repeatedly apologized.
A.G. ran from Godfrey’s apartment while putting her clothes back on. She
immediately called her oldest brother and told him what happened. Then she
2 No. 85002-4-I/3
called her nephew’s mother to come get her. While she waited, Godfrey called
her several times, but she did not answer. He then started texting her. A.G.
texted back:
“How could you do this to me, Dad? I trusted you. I trusted you with my life and you have sex with me in my sleep. I’m your daughter. I feel so disgusted. I just want to go home. I’m never coming back here.”
Godfrey replied, “ ‘I [am] really sorry, I can’t lose you, I’m going to end my life. I
didn’t do nothing.’ ” A.G. texted, “ ‘I know what you did, so do you, and you will
have to live with this for the rest of your life.’ ” Godfrey replied, “ ‘I said I was
sorry.’ ” After waiting about 10 minutes, A.G.’s family member arrived and took
her home.
A.G. showered when she got home and decided to call the police about an
hour later. The next day, she underwent a sexual assault examination. The
nurse swabbed A.G.’s vagina and other parts of her body. The Washington
State Patrol Crime Laboratory (WSPCL) then tested the swabs. The swabs of
A.G.’s vagina did not detect semen but they showed the presence of Godfrey’s
DNA.
The State charged Godfrey with one count of second degree rape and one
count of first degree incest, both with DV designations. At the time of trial, A.G.
was 30 years old. The jury convicted Godfrey as charged. At sentencing, the
court imposed 34 months of confinement for the incest conviction and a
concurrent, indeterminate sentence of 114 months to life for the rape conviction.
The court found Godfrey indigent and waived all discretionary legal financial
obligations (LFOs).
3 No. 85002-4-I/4
Godfrey appeals.
ANALYSIS
Godfrey argues the trial court denied him his constitutional right to a
unanimous jury verdict by failing to give a unanimity instruction. He also asserts
a recent amendment to the LFO statute requires we strike the $500 VPA from his
judgment and sentence.
Unanimity Instruction
Godfrey argues that the trial court violated his right to a unanimous jury
verdict because “there were two distinct acts which could have been the basis for
the guilty verdicts” and the court did not instruct the jury on unanimity. The State
argues that a unanimity instruction was unnecessary because the acts
constituted a continuing course of conduct. Whether or not a unanimity
instruction was required in a particular case is a question of law we review de
novo. State v. Lee, 12 Wn. App. 2d 378, 393, 460 P.3d 701 (2020).
Criminal defendants in Washington have a constitutional right to a
unanimous jury verdict under article I, section 21. State v. Smith, 159 Wn.2d
778, 783, 154 P.3d 873 (2007). If the State presents evidence of multiple acts of
misconduct that could support conviction of a single count, either the State must
elect which act it will rely on for a conviction, or the trial court instructs the jury
that it must unanimously agree that the State proved a specific criminal act
beyond a reasonable doubt. State v. Coleman, 159 Wn.2d 509, 511-12, 150
P.3d 1126 (2007). But this rule applies only where the State presents evidence
of “ ‘several distinct acts.’ ” State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453
4 No. 85002-4-I/5
(1989)1 (quoting State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984)). In
cases involving a “ ‘continuing course of conduct,’ ” the State need not elect
which act proves a conviction, nor does the trial court need to provide a
unanimity instruction. Id. (quoting Petrich, 101 Wn.2d at 571).
In determining whether more than one act amounts to a continuing course
of conduct, we consider such facts as the time between the criminal acts and
whether they involved the same party, location, and ultimate purpose. State v.
Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). And rather than rely on a
steadfast rule, we evaluate these facts in a “commonsense manner.” Handran,
113 Wn.2d at 17. So, while evidence that the charged conduct occurred at
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 85002-4-I
Respondent,
v. UNPUBLISHED OPINION
ANTONIO PIERCE GODFREY,
Appellant.
BOWMAN, J. — Antonio Pierce Godfrey appeals his jury convictions for
domestic violence (DV) second degree rape and DV first degree incest of his
daughter. He argues that the trial court denied him his constitutional right to a
unanimous jury verdict by failing to give a unanimity instruction. Because
Godfrey’s actions were a continuing course of conduct, the court did not err, and
we affirm his convictions. But we remand for the trial court to strike the $500
victim penalty assessment (VPA) from his judgment and sentence under the
recent amendments to RCW 7.68.035.
FACTS
A.G. is Godfrey’s biological daughter and one of his seven children. In
about 2010, after graduating high school, she moved to Ohio and had limited
contact with Godfrey. After a few years, A.G. resumed contact with him. Around
2012, she started returning to Seattle regularly to visit her family and sometimes
stayed with Godfrey in his one-room studio apartment. When she stayed with
Godfrey, A.G. slept on a raised futon couch “in front of his bed.” No. 85002-4-I/2
A.G. moved back to Seattle in January 2021. She stayed in hotels or with
different family members and saw Godfrey for their weekly “dad-daughter day.”
On June 24, Godfrey and A.G. spent the day together. They bought cannabis at
a dispensary, which was common. But they also bought cocaine from one of
A.G.’s brothers, which was “unusual.” A.G. and Godfrey smoked the cannabis
throughout the day. A.G. also took a Benadryl allergy pill early in the afternoon.
That evening, they returned to Godfrey’s apartment. A.G. was living with
her nephew’s mother at the time. But because it was late, she decided to stay
the night. Godfrey and A.G. smoked more cannabis and A.G. rubbed cocaine on
her gums. They talked and watched movies. A.G. fell asleep on the futon at
about 10:30 p.m. When she woke up around 1:00 a.m., Godfrey was “still up.”
They talked more, listened to music, and smoked cannabis until about 4:00 a.m.
A.G. then fell back asleep on the futon, which was covered with a blanket. She
was fully clothed in her jeans and T-shirt and covered with a comforter.
About an hour later, A.G. woke to find her shirt and bra “pushed up” and
her “breasts completely . . . exposed.” Her jeans and underwear were at her
ankles and her right leg was completely out of them. Godfrey was naked and
“caressing” A.G.’s breasts. He was performing oral sex on her, and A.G. felt like
Godfrey had also penally raped her. A.G. screamed, “ ‘What the [fuck]? Are you
serious? . . . What did you do?’ ” Godfrey, who “was aroused,” ran to the kitchen
area and repeatedly apologized.
A.G. ran from Godfrey’s apartment while putting her clothes back on. She
immediately called her oldest brother and told him what happened. Then she
2 No. 85002-4-I/3
called her nephew’s mother to come get her. While she waited, Godfrey called
her several times, but she did not answer. He then started texting her. A.G.
texted back:
“How could you do this to me, Dad? I trusted you. I trusted you with my life and you have sex with me in my sleep. I’m your daughter. I feel so disgusted. I just want to go home. I’m never coming back here.”
Godfrey replied, “ ‘I [am] really sorry, I can’t lose you, I’m going to end my life. I
didn’t do nothing.’ ” A.G. texted, “ ‘I know what you did, so do you, and you will
have to live with this for the rest of your life.’ ” Godfrey replied, “ ‘I said I was
sorry.’ ” After waiting about 10 minutes, A.G.’s family member arrived and took
her home.
A.G. showered when she got home and decided to call the police about an
hour later. The next day, she underwent a sexual assault examination. The
nurse swabbed A.G.’s vagina and other parts of her body. The Washington
State Patrol Crime Laboratory (WSPCL) then tested the swabs. The swabs of
A.G.’s vagina did not detect semen but they showed the presence of Godfrey’s
DNA.
The State charged Godfrey with one count of second degree rape and one
count of first degree incest, both with DV designations. At the time of trial, A.G.
was 30 years old. The jury convicted Godfrey as charged. At sentencing, the
court imposed 34 months of confinement for the incest conviction and a
concurrent, indeterminate sentence of 114 months to life for the rape conviction.
The court found Godfrey indigent and waived all discretionary legal financial
obligations (LFOs).
3 No. 85002-4-I/4
Godfrey appeals.
ANALYSIS
Godfrey argues the trial court denied him his constitutional right to a
unanimous jury verdict by failing to give a unanimity instruction. He also asserts
a recent amendment to the LFO statute requires we strike the $500 VPA from his
judgment and sentence.
Unanimity Instruction
Godfrey argues that the trial court violated his right to a unanimous jury
verdict because “there were two distinct acts which could have been the basis for
the guilty verdicts” and the court did not instruct the jury on unanimity. The State
argues that a unanimity instruction was unnecessary because the acts
constituted a continuing course of conduct. Whether or not a unanimity
instruction was required in a particular case is a question of law we review de
novo. State v. Lee, 12 Wn. App. 2d 378, 393, 460 P.3d 701 (2020).
Criminal defendants in Washington have a constitutional right to a
unanimous jury verdict under article I, section 21. State v. Smith, 159 Wn.2d
778, 783, 154 P.3d 873 (2007). If the State presents evidence of multiple acts of
misconduct that could support conviction of a single count, either the State must
elect which act it will rely on for a conviction, or the trial court instructs the jury
that it must unanimously agree that the State proved a specific criminal act
beyond a reasonable doubt. State v. Coleman, 159 Wn.2d 509, 511-12, 150
P.3d 1126 (2007). But this rule applies only where the State presents evidence
of “ ‘several distinct acts.’ ” State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453
4 No. 85002-4-I/5
(1989)1 (quoting State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984)). In
cases involving a “ ‘continuing course of conduct,’ ” the State need not elect
which act proves a conviction, nor does the trial court need to provide a
unanimity instruction. Id. (quoting Petrich, 101 Wn.2d at 571).
In determining whether more than one act amounts to a continuing course
of conduct, we consider such facts as the time between the criminal acts and
whether they involved the same party, location, and ultimate purpose. State v.
Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). And rather than rely on a
steadfast rule, we evaluate these facts in a “commonsense manner.” Handran,
113 Wn.2d at 17. So, while evidence that the charged conduct occurred at
different times and places tends to show that several distinct acts occurred,
evidence that a defendant engaged in a series of actions intended to secure the
same objective supports a continuous course of conduct. State v. Fiallo-Lopez,
78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
Lee and Handran are instructive. In Lee, the defendant Lee strangled the
victim K.H. in her living room and kitchen, then chased her to the bedroom where
he removed her clothes and penetrated her with his penis. 12 Wn. App. 2d at
384-85. When he could not stay aroused, Lee penetrated her digitally. Id. at
385. We concluded that the acts amounted to a continuing course of conduct
because the defendant’s “acts of sexual penetration involved the same victim,
K.H., occurred in one place, K.H.’s bed, occurred within a brief period of time,
1 Internal quotation marks omitted.
5 No. 85002-4-I/6
less than 10 minutes, and occurred for the single purpose of Lee’s sexual
gratification.” Id. at 397.
In Handran, the defendant climbed through his sleeping ex-wife’s
apartment window and kissed her while he was nude. 113 Wn.2d at 12. She
told him to leave, but the defendant pinned her down and hit her in the face. Id.
The State charged the defendant with one count of first degree burglary but did
not elect which assault was the predicate for the charge, and the trial court did
not give the jury a unanimity instruction. Id. at 12-13. Our Supreme Court
concluded, “Under a commonsense evaluation of these facts, the actions
evidence a continuing course of conduct to secure sexual relations with [the
victim] . . . rather than several distinct acts.” Id. at 17.
Here, A.G. fell asleep at 4:00 a.m. and woke to Godfrey performing oral
sex on her around 5:00 a.m. She testified that she believed Godfrey had also
penetrated her with his penis. The evidence shows that both acts occurred at
nearly the same time, in the same place, with the same victim, and with the
single ultimate purpose of Godfrey’s sexual gratification. Godfrey’s actions
amount to a continuing course of conduct.2
Godfrey argues that the acts do not amount to a continuing course of
conduct because “there is no evidence they occurred within a relatively short
time frame like the 5 minutes in Lee or within a few minutes like in Handran.” But
case law shows there is no minimum amount of time between acts for them to be
2 Second degree rape and first degree incest are separate offenses, but the double jeopardy clause does not prevent convictions—and attendant penalties—for both offenses arising out of a single act of intercourse. State v. Calle, 125 Wn.2d 769, 782, 888 P.2d 155 (1995).
6 No. 85002-4-I/7
continuous. Indeed, our Supreme Court found a continuing course of conduct
when a defendant inflicted several fatal injuries over a 2-hour period on the same
victim. State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991). In State v.
Craven, 69 Wn. App. 581, 588-89, 849 P.2d 681 (1993), the trial court did not err
in failing to give a unanimity instruction where the defendant abused the same
victim over 3 weeks. And in State v. Marko, 107 Wn. App. 215, 220-21, 27 P.3d
228 (2001), the defendant’s threatening statements to different people during a
90-minute time period did not require a unanimity instruction to support a
conviction of witness tampering.
Here, a commonsense evaluation of the facts shows Godfrey engaged in
a continuing course of conduct. The trial court did not err by failing to instruct the
jury on unanimity.3
VPA
Godfrey argues we should remand for the trial court to strike the VPA from
his judgment and sentence under RCW 7.68.035(4). The State concedes the
issue. We accept the State’s concession.
Courts may not impose discretionary LFOs on indigent defendants. State
v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018). That prohibition applies
prospectively when the legislature amends an LFO statute pending appeal. Id. at
749. Here, when the trial court sentenced Godfrey in February 2023, the $500
3 In Godfrey’s statement of additional grounds for review, he argues that “no evidence [was] found at the [crime] scene or semen.” He also points out that law enforcement did not test the blanket that A.G. slept on during the rape and asks why A.G. “never woke up.” But WSPCL found his DNA on the swab of A.G.’s vagina, and she did eventually wake up during the assault. In any event, Godfrey offers no legal argument to support his contentions, so we do not address them. See RAP 10.3(a)(6).
7 No. 85002-4-I/8
VPA was mandatory under former RCW 7.68.035(1)(a) (2018). But while
Godfrey’s appeal was pending, the legislature amended the LFO statute to
prohibit imposing a VPA “if the court finds that the defendant, at the time of
sentencing, is indigent as defined in RCW 10.01.160(3).” RCW 7.68.035(4);
LAWS OF 2023, ch. 449, § 1 (effective July 1, 2023). The parties do not dispute
that the sentencing court found Godfrey indigent. Accordingly, we remand for the
trial court to strike the $500 VPA from Godfrey’s judgment and sentence.
We affirm Godfrey’s convictions but remand to strike the VPA.
WE CONCUR: