IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87491-8-I
Respondent,
v. DIVISION ONE
DEON JURON RUSSELL, UNPUBLISHED OPINION
Appellant.
CHUNG, J. — Deon Russell was convicted of assault in the third degree after he punched a bus driver and hit him on the head with a flag. On appeal, Russell argues the trial court erred in not issuing a unanimity instruction to the jury. We agree that the court erred in not issuing a unanimity instruction; however, because we hold the error was harmless, we affirm.
BACKGROUND
At 4:02 a.m. on May 20, 2024, Deon Russell boarded a bus in Everett, Washington, with a wagon containing various belongings. Russell struggled to secure the wagon on the bus and the bus driver, Ronald McLean, told Russell it was in the way and adjusted the accessible seats to create room for it. 1 Russell walked away from the wagon and sat in another area of the bus. As the bus drove, the wagon shifted from where it had been stowed, and McLean told Russell that he needed to stay with it and keep the wagon out of the aisle for safety. Russell moved the wagon out of the aisle,
1 McLean testified he did not help Russell stow the wagon.
then moved away from the wagon. After several minutes, the bus’s movement caused the wagon to roll into the aisle again. McLean admonished Russell several times that he needed to keep the wagon out of the aisle, at one point stopping the bus and going to move it himself. McLean told Russell he needed to “take care of it” and was “required to stay with [his] stuff.”
At 4:25 a.m., a passenger came to the front of the bus and spoke to McLean, who at that point got out of his seat, walked back to where Russell was sitting, and grabbed an unlit cigarette from Russell’s mouth. McLean told Russell to get off the bus or he would call the police. Russell “tried to give [McLean] a little bit of a punch in the stomach.” McLean then moved back and walked to the front of the bus to use the bus’s phone. Russell got up and moved slowly as McLean watched, and McLean called the police. After hanging up with the police, McLean walked towards Russell and told him again to get off the bus. McLean repeatedly told Russell to get his “stuff” off the bus, and Russell responded that McLean “put hands on me,” which McLean immediately denied doing. Then, Russell punched McLean in the mouth and was tackled by another passenger from behind. McLean returned to the front of the bus and called the police to report that he had been punched in the mouth, described Russell, and said that two passengers were holding Russell down. Three bystanders wrestled Russell out the back door and off the bus and another passenger removed the wagon from the bus. McLean returned to the back doorway and observed the bystanders with Russell outside the bus. After Russell stood up, he stated to McLean, “you put your hands on me first,” which McLean again denied. Russell then asked for McLean’s badge number, and McLean responded that he didn’t have a badge number.
3
Russell walked away from the bus and returned to the back door with “a plastic stick with a flag on it,” which he used to stop the back door from closing, exchanged words with another passenger, briefly boarded and then got off. McLean returned to the front of the bus and apologized to passengers boarding the bus. McLean got off the bus at 4:31 a.m., and as he spoke with a security officer. Russell then approached McLean and hit him with the flag.
The State charged Russell with one count of assault in the third degree on a transit employee performing official duties at the time of assault. Before trial, the State asserted it was arguing a continuing course of conduct and, therefore, did not seek a unanimity instruction. Russell also did not request a unanimity instruction.
In closing argument, the State twice characterized the events as constituting “two assaults.” Immediately thereafter, and prior to the defense’s closing argument, the court raised a concern that it “might need to add a [unanimity] instruction based upon the way the State just argued the case.” The State again asserted that this was a continuing course of conduct case. Russell did not seek a unanimity instruction but instead moved for dismissal under CrR 8.3(b). The court denied the motion and specifically asked Russell whether he wanted a Petrich 2 instruction. In response, defense counsel stated it was “the Court’s duty to instruct on the law” and that it would not “take a position at this point other than to say that [the State] has been derelict in his duty here and specifically argued something he told the Court at the beginning of this trial he was not going to.” The court initially informed the parties it was going to give a unanimity instruction, but
2 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), abrogated on other grounds by, State v.
Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
4
after both parties asked to be heard in response to the court’s decision, the court then stated:
All right. So you’re fighting against the instruction. I’m not going to give it, then. And if it’s an issue on appeal if he gets convicted, you’ll live or die with that. I think I need to give the instruction, but you’re asking me not to give it. [The defense is] not taking a position, so I won’t give it.
Russell was convicted of assault in the third degree and sentenced to three months incarceration. He timely appeals.
DISCUSSION
“In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed.” State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). Accordingly, “[w]hen the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” Id. “The former is known as ‘election,’ the latter is known as giving a ‘Petrich’ instruction, after the case in which the instruction originated.” State v. Aguilar, 27 Wn. App. 2d 905, 924, 534 P.3d 360 (2023) (quoting Kitchen, 110 Wn.2d at 411 (“election”); State v. Carson, 184 Wn.2d 207, 216-17, 357 P.3d 1064 (2015) (“Petrich instruction”)). However, “[a] Petrich instruction is unnecessary and the State need not elect where what appear to be multiple acts are in fact a ‘continuing course of conduct.’ ” Id. at 925 (quoting State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)). However, “one continuing offense must be distinguished from several distinct acts, each of which could be the basis for a criminal charge.” State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). “Whether a unanimity instruction was required is reviewed de novo.” Aguilar, 27 Wn. App. 2d at 924.
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Whether criminal conduct constitutes one continuing act or multiple acts is guided by “common sense.” Id. at 925. “Generally, a continuing course of conduct is an ongoing enterprise with a single objective[,] but where evidence involves conduct at different times or places, or concerning different victims, then multiple acts have occurred and the jury unanimity right may be implicated.” Id. “The continuing course of conduct exception has been applied to multiple acts of assault over a two-hour time period, resulting in fatal injury, [and] to acts of assault occurring in one place, during a short period of time, by the same aggressor upon a single victim.” Love, 80 Wn. App. at 361 (citation omitted).
The State argues Russell’s actions constitute a continuous course of conduct because the conduct occurred in the same place—“a single bus stop[,] inside the bus[,] and just outside the bus, within what appears to be a 15-foot radius at most”—against the same victim, McLean, and with the same objective—“reacting in anger to his perception McLean put his hands on Russell and told him to get off the bus.” Russell counters that the conduct constitutes multiple acts, as there was “no single objective.” Specifically, on appeal, he claims that “the objective of the first altercation was one of self-defense,” “the objective for the second altercation was different . . . Russell felt disrespected and . . . hit McLean in anger,” and “the objective of this third altercation [hitting McLean with the flag] was arguably informed by a perception of self-defense, and it was separated from the other two assaults by intervening acts.” Further, Russell points to the State’s closing argument, where “the State told the jury that more than one assault occurred.”3
3 As additional support for this argument, Russell also pointed to the following jury inquiry: “There appears to be more than one assault here. Do we consider each individually, or all together as one
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In Aguilar, we held that a Petrich instruction was required where “the State opined at multiple points throughout trial that more than one rape occurred,” particularly in its opening and closing statements. 27 Wn. App. 2d at 924. Like in Aguilar, here, the State characterized the facts as constituting “two assaults” multiple times in its closing argument. Accordingly, a Petrich instruction was required, and the court erred in not requiring one.
“A constitutional error occurs in a multiple acts case in which no Petrich instruction was given and no election was made, but reversal is not warranted if the error was harmless.” Id. An error is harmless “only if no rational [trier of fact] could have a reasonable doubt as to any of the incidents alleged.” Kitchen, 110 Wn.2d at 411. “This is a high standard. Courts that have affirmed multiple acts cases despite finding error tend to do so because there is no material difference in the evidence supporting one act and the evidence supporting another.” Aguilar, 27 Wn. App. 2d at 928. For example, in State v. Camarillo, our Supreme Court held failing to give a Petrich instruction was harmless error where “the defendant testified he stated only a general denial that any improper physical contact occurred” and did not “introduce[] evidence controverting the
assault? If some have doubt on one of the assaults, does that provide reasonable doubt on the other assaults?” However, our court has made clear that “questions from the jury are not final determinations, and the decision of the jury is contained exclusively in the verdict.” State v. Miller, 40 Wn. App. 483, 489, 698 P.2d 1123, rev. denied, 104 Wn.2d 1010 (1985). “The [jurors’] individual or collective thought processes leading to a verdict . . . cannot be used to impeach a jury verdict.” State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988). For example, in Ng, the defendant claimed that the court's robbery instructions created ambiguity because the instruction defining robbery for felony murder purposes referred explicitly to duress, but the “to convict” robbery instruction did not. Id. at 43. In support of his “ambiguity” argument, Ng pointed to the jury's question as to whether the provided duress instruction applied to the lesser included charges, copies of the instructions marked by the jury during deliberations, and statements made by individual jurors after trial. Id. The court reasoned that “the jury’s question does not create an inference that the entire jury was confused, or that any confusion was not clarified before a final verdict was reached.” Id. Further, the court refused to speculate as to the meanings of jurors’ markings on the instructions, and the “post-verdict statements regarding matters which inhere in the verdict” could not be used to attack the verdict. Id. at 43-44.
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different incidents of the alleged improper contact.” 115 Wn.2d 60, 71-72, 794 P.2d 850 (1990), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505 P.3d 529 (2022). In other words, “nothing save the defendant’s own testimony controverted or impeached the testimony of the victim.” Id. at 72. Likewise, in State v. Bobenhouse, our Supreme Court held failing to give a Petrich instruction was harmless error because “Bobenhouse offered only a general denial to the[] allegations, and, consequently, the jury had no evidence on which it could rationally discriminate between the two incidents.” 166 Wn.2d 881, 894, 214 P.3d 907 (2009).
In contrast, in Aguilar, where multiple acts could have proved the charged rape, the defendant attempted to cast doubt on the credibility of a rape victim’s testimony “by highlighting what he characterized as inconsistencies with her story and between her testimony and the physical evidence.” 27 Wn. App. 2d at 929. On appeal, he argued that “the error of not electing an act underlying the rape charge or giving a Petrich instruction cannot be harmless beyond a reasonable doubt” because “some of his arguments about the weight of evidence and [the victim’s] testimony go to one act and some go to the other, and the jury could therefore differentiate between them.” Id. at 930. We agreed, reasoning that “[u]nlike Bobenhouse, Camarillo, and similar cases, the jury in this case had more evidence to weigh and consider than only the victim’s testimony countered by the defendant’s blanket denial. . . . The manner of Aguilar’s entry into the apartment was contested, as were the events leading to sexual intercourse.” Id.
Here, the jury heard testimony from McLean, two passengers present on the bus that day, and two Snohomish County sheriffs who were dispatched to the scene. The
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jury was also presented with security camera footage from the bus. In its closing argument, the State relied heavily on the footage and the testimony of McLean and one witness, Chad Littlewood, as evidence of both assaults.
Russell did not deny that either of the two incidents happened, offer evidence controverting the incidents, or cast doubt on the credibility of the witnesses or the accuracy of the video as to either incident. Instead, Russell offered the same defense as to each of the incidents: that he was “in defense mode” throughout his interactions with McLean. Specifically, in closing, defense counsel argued, “And so from the evidence in this case, you can see that each time [McLean] approached [Russell] from that initial point to that continuing act outside of the less than five minutes outside the front door of that bus, [Russell] reasonably believed that he was about to be attacked, again, based on what had just happened to him only minutes before.” Accordingly, the court provided the jury with instructions about self-defense, including lawful use of force and that the defendant was entitled to “act on appearances.”
The facts here are thus more similar to those in Camarillo and Bobenhouse than those in Aguilar. Here, unlike in Aguilar, there is “no material difference in the evidence supporting one act and the evidence supporting another,” as the State relied on the same evidence for both assaults. Cf. Aguilar, 27 Wn. App. 2d at 928. Multiple witnesses testified and corroborated McLean’s testimony about the assaults, as did the security camera footage. Russell did not make arguments concerning “the weight of the evidence,” and his “defense mode” argument extended to both acts, rather than “some . . . to one act and some . . . to the other.” Cf. id. at 930. Therefore, there was no
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theory by which the jury “could rationally discriminate between the two incidents.” Bobenhouse, 166 Wn.2d at 894.
Based on the evidence presented at trial, no rational trier of fact could have a reasonable doubt as to any of the incidents alleged. Accordingly, the failure to give a Petrich instruction was harmless error.
CONCLUSION
Affirmed.
I CONCUR:
State v. Deon Juron Russell, No. 87491-8-I
HAZELRIGG, C.J. (concurring) — I join my colleagues as to their outcome to affirm but write separately to clarify the controlling standard for that conclusion and because the record supports a determination that no unanimity instruction or election was required. This is so because the report of proceedings from the trial court establishes that both the State and the defense argued this case as a continuing course of conduct.
I. Constitutional Harmless Error Standard Applies to Unanimity Violations Article I, section 21 of the Washington State Constitution provides for our right to trial by jury. Our courts have long interpreted section 21 as requiring a unanimous jury verdict. State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017). In Ramos v. Louisiana, the United States Supreme Court expressly held that the federal constitution, specifically the Sixth Amendment as applied to the states through the Fourteenth Amendment, also requires jury unanimity for criminal convictions in state courts. 590 U.S. 83, 93 (2020) (“So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”).
The majority correctly relies on State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988) and State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984) (abrogated on other grounds by Kitchen, 110 Wn.2d 403) for the proposition that a violation of the constitutional right to a unanimous jury does not require reversal if the error is
2
harmless. 1 However, the majority fails to identify that in the context of a unanimity challenge, it is specifically the constitutional harmless error standard that applies. Such distinction matters.
Division Two of this court recently explained the difference as follows:
Under the constitutional harmless error standard, the State must prove beyond a reasonable doubt that the verdict would have been the same without the error. State v. Charlton, 23 Wn. App. 2d 150, 168, 515 P.3d 537 (2022), [aff’d, 2 Wn.3d 421, 538 P.3d 1289 (2023)]. Under the nonconstitutional harmless error standard, an error is harmless if there is no reasonable probability that the error materially affected the outcome of trial. [State v.] Booth, 22 Wn. App.
2d [565,] 584[, 510 P.3d 1025 (2022)].
State v. Hale, 28 Wn. App. 2d 619, 639, 537 P.3d 707 (2023), review denied, 2 Wn.3d 1026 (2024). The majority cites to the harmless error test articulated in Kitchen, 2 but subsequent to that decision, our Supreme Court has clarified that
[i]n “multiple acts” cases, the jury must unanimously agree as to which incident constituted the crime charged. Where multiple acts relate to one charge, the State must elect the act on which it relies to convict the defendant, or the trial court must provide a unanimity instruction—a Petrich instruction. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). The failure to do so in multiple acts cases is constitutional error. “The error stems from the possibility that some jurors may have relied on one act or incident and some [jurors a different act], resulting in a lack of unanimity on all of the elements necessary for a valid conviction.” State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). Under Petrich, where this error occurs, we apply constitutional harmless error analysis.
State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009) (emphasis added) (some alteration in original). There, the court relied on its analysis from a prior opinion, State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505 P.3d 529 (2022), to
1 Majority at 6.
2 Id. at 6.
explain that where “the evidence presented was sufficient to establish that each crime had occurred, there was no conflicting testimony, and the victim provided specific detailed testimony,” constitutional harmless error is established because “if the jury reasonably believed one incident occurred, all the incidents must have occurred.” Bobenhouse, 166 Wn.2d at 894.
The constitutional harmless error standard places the burden on the State to prove harmlessness beyond a reasonable doubt. Hale, 28 Wn. App. 2d at 639. While the majority notes that the State charged Russell with a single count of assault in the third degree and expressly asserted that it would present the case as a continuing course of conduct, 3 it nonetheless accepts Russell’s assertion in his opening brief that this is a multiple acts case that required either issuance of a Petrich instruction or election by the State. 4 Critical to this point is the fact that the deputy prosecuting attorney (DPA) who tried the case made multiple references to more than one assault, despite also characterizing the State’s case as one involving a continuing course of conduct. However, careless language by the prosecutor does not convert a case into one involving multiple acts.
Further, even if this court were to view Russell’s trial as a multiple acts case and decide that his right to unanimity was violated by the absence of a Petrich instruction and failure of the State to make a clear election in closing argument, the State’s burden under the controlling standard would require much more than mere reliance on Russell’s testimony regarding his self-defense claim 5 in order to
3 Majority at 3.
4 Id. at 6.
5 See id. at 8.
“prove beyond a reasonable doubt that the verdict would have been the same without the error.” Id. The reason the constitutional harmless error standard is such a high one, as noted by the majority, 6 is because the fundamental right at stake, the right to a unanimous jury verdict, is one designed to protect the liberty interests of an accused person. Our state’s highest court has consistently held that it is not an easy task to establish constitutional harmless error. See State v. Magaña Arévalo, 5 Wn.3d 781, 808-16, 582 P.3d 330 (2026); State v. Belmarez, 101 Wn.2d 212, 216-20, 676 P.2d 492 (1984); State v. Nist, 77 Wn.2d 227, 233- 34, 461 P.2d 322 (1969).
Fortunately, given the reasoning of the majority, the State’s response brief properly identifies the evidence that satisfies the high standard it must meet under the controlling test even if this was actually a multiple acts case. Consistent with the holding in Bobenhouse, the evidence presented in support of each incident of physical contact between Russell and McLean was “sufficient to establish that each crime had occurred,” in part because “the victim provided specific detailed testimony.” 166 Wn.2d at 894. Here, as in Camarillo and Bobenhouse, the State relied on the same evidence to prove each point of contact it described as assaultive: McLean’s detailed testimony, that of bus passengers who had observed the altercation, and video footage from inside the bus. Accordingly, even assuming this was a multiple acts case, the evidence was such that “if the jury reasonably believed one incident occurred, all the incidents must have occurred.”
6 Id. at 6 (quoting State v. Aguilar, 27 Wn. App. 2d 905, 928, 534 P.3d 360 (2023)).
Bobenhouse, 166 Wn.2d at 894. On that basis, the State would have carried its burden to establish harmlessness beyond a reasonable doubt.
However, this was not a multiple act case, neither as charged nor argued, and Petrich does not control here. Nonetheless, in the event of any confusion on the part of the jury as a result of the DPA’s imprecise language during closing argument, the fact that the case as pleaded and proved is a continuing course of conduct more than satisfies the high standard for constitutional harmless error.
II. Russell Engaged in a Continuing Course of Conduct We consider de novo the question of whether a unanimity instruction is required. State v. Boyd, 137 Wn. App. 910, 922, 155 P.3d 188 (2007). Our Supreme Court, in Bobenhouse, relied on its own precedent, State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), to highlight the distinction between multiple acts and alternative means cases and explain the test for determining which was at issue. It held,
The review standard for whether the failure to provide a unanimity instruction was error hinges on whether we are dealing with an alternative means case or a multiple acts case. To do so, we must determine whether [the controlling criminal statute] provides for “(1)
a single offense of [the charged crime] committable in more than one way, or (2) several separate and distinct offenses, each constituting [the charged crime].”
Bobenhouse, 166 Wn.2d at 892 (quoting Arndt, 87 Wn.2d at 377). The court further explained that “[w]here the legislature intended to define but one crime that could be committed in different ways, we are dealing with a multiple acts case.” Id. Recently, in In re Personal Restraint of Mulamba, the Supreme Court reiterated that “Petrich does not apply to alternative means or continuing course of conduct
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crimes. No unanimity instruction is needed for cases that involve a ‘continuing course of conduct.’” 199 Wn.2d 488, 508, 508 P.3d 645 (2022) (emphasis added) (internal quotation marks omitted) (quoting State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)). The court then explained that “[i]n order for a crime to be considered a ‘continuing course of conduct,’ the defendant generally must commit the alleged acts during ‘only a small time frame’ and as part of a single, overarching criminal act.” Id. (quoting State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991)).
To support his contention that his was a multiple acts case, Russell references three assaults in his opening brief and relies on the DPA’s statements to the court during motions in limine. The prosecutor stated,
There are three assaults that are alleged in this case. One, when he takes the cigarette out of his mouth, he is alleged to have punched the bus driver in the stomach.
The second is, after that, there are people that are waiting outside of the bus, and he’s standing there with the bus door open talking to—the—the defendant is talking to people outside the bus who are saying to him, “Get off the bus. I have to go to work.” . . .
....
And then he asks Mr. Russell—I mean, the bus driver for his badge number, walks up to him, and then punches him. And that is when the other passengers take action.
....
The bus driver has gone back up to the front. The other passengers are now getting on. The bus driver gets off the bus and is—appears to be talking to a security guard in a vest.
And it is at that time Mr. Russell takes that flag, walks up . . .
to the bus driver and hits him in the side of the head. That is the third assault.
(Emphasis added.) As a preliminary matter, statements made to the court outside the presence of the jury during motions in limine, without more, do not render a criminal prosecution one involving multiple acts.
However, Russell also rests his claim of a unanimity violation in a multiple acts case on comments the prosecutor made during closing argument when he referenced “two assaults. One perpetrator” and later expressly stated, “There are two assaults perpetrated by Mr. Russell upon a transit operator, Mr. McLean.” These comments were sufficiently problematic, in light of the manner by which the State charged the case, that the trial judge properly excused the jury and advised the parties that he believed he “might need to add a Petrich instruction based upon the way the State just argued the case.” He further stated to the prosecutor, “The way it was argued . . . you said twice it’s two separate assaults.” The DPA responded, “[T]his is three fluid events that happened right after the other within a span—a time frame of about five to six minutes” and then answered a number of questions from the judge regarding the test for continuing course of conduct. Defense counsel weighed in at that point and, in response to a direct question from the judge as to why she had not offered a Petrich instruction if she believed one was necessary, expressed surprise that the State argued the case in the manner it did and sought dismissal under CrR 8.3(b) based on a claim of prosecutorial misconduct. The judge denied that motion and refocused counsel on his inquiry, whether the defense wanted the court to issue a Petrich instruction, to which she replied,
[I]t’s the [c]ourt’s duty to instruct on the law, and so I’m not going to take a position at this point other than to say that [the DPA] has I think been derelict in his duty here and specifically argued something he told the [c]ourt at the beginning of this trial he was not going to.
The court moved on and inquired whether, if he provided the Petrich instruction, the State should be allowed to address it as an addendum of sorts to its preliminary
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closing argument, before the defense closing, or only on rebuttal. The only response from defense counsel was, “I’m objecting to this whole procedure. I want a dismissal.” After the deputy prosecutor highlighted the single count charged in the information and the language set out in the “to convict” instruction that plainly referred to “the assault” in the singular and based on the fact that defense counsel declined to take a position, the trial judge decided not to issue the Petrich instruction. Defense counsel then made her closing argument to the jury.
Russell’s closing argument began with the following statement: “Ronald McLean went rogue, and he put [Russell] into defense mode.” (Emphasis added.) Soon thereafter, defense counsel argued,
Defense mode is not something you just turn on or off. Defense mode—this whole situation, from the snatch of the cigarette directly from [Russell’s] lips to whatever happened supposedly with a flag outside of the front door of the bus, was not even five minutes.
(Emphasis added.) As she continued to build on her theme of “defense mode,” defense counsel then highlighted the following:
[F]rom the evidence in this case, you can see that each time [McLean] approached [Russell] from that initial point to that continuing act outside of the less than five minutes outside the front door of the bus, [Russell] reasonably believed that he was about to be attacked, again, based on what had just happened to him only minutes before.
(Emphasis added.) Counsel noted that Russell boarded the bus at “around 4:00 a.m. on May 20th,” proceeded to play portions of the video footage from inside the bus, and noted the time stamp on the video established that McLean was on the phone “at 4:27, 4:28” to report the incident and the transit security officer arrived “around 4:30.” As she reviewed the sequence of events, along with the video
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footage, defense counsel linked each interaction to the one that preceded it with phrases that included “minutes before” and “moments earlier” As she neared the conclusion of closing argument, counsel stated, “And so we have the last part of this continuing incident where [Russell] is still in defense mode.” (Emphasis added.) When she described the third point of contact, counsel reiterated, “[T]hen he sees [McLean] get off the bus . . . and [Russell], again, still within five minutes, he is still in defense mode.” (Emphasis added.) Defense counsel then urged the jurors to consider the reasonableness of Russell’s self-defense claim and stated, “[T]his wasn’t unreasonable. This is based on having just been attacked twice in the last five minutes.” (Emphasis added.) Finally, defense closing argument concluded with a statement that “this was an ongoing situation, less than five minutes.”
In State v. Fiallo-Lopez, we explained that “[w]e review the facts in a commonsense manner to decide whether criminal conduct constitutes one continuing act.” 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). There, we emphasized that the incidents at issue involved the same parties and the same ultimate purpose and held that two separate sales of cocaine in significantly different quantities that occurred in a restaurant (a small sample amount) and a grocery store parking lot (eight ounces), “a day or so” later and some distance away from the restaurant, nonetheless constituted a continuing course of conduct and a single count of delivery of a controlled substance. Id. at 720, 725-26. In State v. Brown, we held that the trial court did not err in when it declined to issue a unanimity instruction in a case involving five counts of violation of a no-contact
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order and one count of interfering with an emergency call because, “[a]lthough the criminal acts did not occur at the same time, the time separating the criminal acts was short. The criminal acts involved the same parties . . . the same locations (at [the victim’s] apartment and on her phones), and the same ultimate purpose (to contact and confront [the victim]).” 159 Wn. App. 1, 8, 15, 248 P.3d 518 (2010). In State v. Lee, we held that multiple instances of sexual penetration of the same victim that occurred in one place over a period of “less than 10 minutes” and for a “single purpose” constituted a continuing course of conduct such that neither election nor a unanimity instruction was required. 12 Wn. App. 2d 378, 397, 460 P.3d 701 (2020).
Here, the jury was provided instruction no. 7 that defined an assault as
an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive.
While Russell avers in his briefing that three separate assaults occurred, starting with the initial interaction between himself and McLean during which McLean swiped the cigarette from Russell’s lips, McLean expressly disclaimed that interaction as assaultive in his direct examination. When McLean was asked by the deputy prosecutor if he was injured during that contact with Russell, he answered, “No. Like I said, he just did a little bit of a punch on the side of my stomach. That was it. It didn’t really affect anything.” Accordingly, there was no evidence that this interaction was harmful to McLean even if it involved force, and
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it is entirely possible that the jury accepted McLean’s testimony that the physical contact was not even offensive, such that the definition of assault was not satisfied.
Focusing on the remaining two points of contact during the entire interaction, there is no dispute that they both involved the same victim, McLean. The State provided testimonial evidence from McLean and passengers Chad Littlewood and Rafael Perez that both instances of assaultive conduct by Russell against McLean occurred in roughly the same place; on the bus or just outside the bus at the transit station. The State asserts in its response brief on appeal that based on the video footage admitted at trial, the assaultive conduct occurred entirely within “at most” a “15-foot radius” inside the bus and just outside it. Even without a precise distance estimate, the instances of physical contact here occurred in much closer proximity to each other than the two cocaine sales in Fiallo-Lopez that occurred at a restaurant and a grocery store parking lot but were nonetheless held to constitute a continuing course of conduct. As such, the record here plainly establishes the factors of same victim and same location.
As to the same intent, the parties both argued as much from the same evidence. In its initial closing, the State argued that the assaultive conduct resulted from Russell’s anger that “manifest[ed] into a retaliation” for McLean taking his cigarette out of his mouth and ordering him off the bus. The defense closing, quoted extensively supra, repeated the theme that the assaultive interactions were the result of Russell being in “defense mode”; the same intent applied to each interaction, that is, to defend himself from McLean.
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Finally, both parties relied heavily on the video footage from inside the bus and the transit station in their respective closing argument. Defense counsel repeatedly asserted that each interaction between Russell and McLean occurred within the span of a few minutes; at one point she described the entire incident as a “continuing act outside of the less than five minutes outside the front door of the bus.” (Emphasis added.) The State points out in its response brief that the video footage admitted at trial established that Russell punched McLean in the face at 4:28:34 a.m., McLean can be observed calling dispatch to report the incident at 4:29:05 a.m., and Russell struck McLean with a stick-like object 7 just outside the bus at 4:31:32 a.m. The three minutes that lapsed between the two points of physical contact at issue here is much shorter than the span of “a day or so” between the incidents in Fiallo-Lopez that were deemed a continuing course of conduct.
The events at issue here were so fluid and occurred so closely in time and space that they were easily understood by witnesses on the scene as to constitute a continuous incident, consistent with how the defense argued the case. In fact, when the deputy prosecutor asked Perez if he observed “another altercation” after Russell was removed from the bus, Perez corrected him and stated, “Not a different altercation but the same—the same altercation involving the same people.” (Emphasis added.) Accordingly, the record plainly supports that both as charged and argued, by both the State and Russell, this case was one involving a continuous course of conduct such that no Petrich instruction was required. But
7 McLean variously described the object as a plastic stick or flag.
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even if the State’s careless reference in closing argument to more than one assault in the three minutes that elapsed between the relevant interactions could have converted this case to one of multiple acts, the record amply establishes that any unanimity error would have been harmless beyond a reasonable doubt such that the State would be able to meet that heavy burden.