State Of Washington, Respondent V Dale J. Purser, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DALE JACKSON PURSER,
Appellant.
No. 71641-7-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 16, 2014
Leach, J. — Dale Purser appeals his convictions for assault in the first
degree, assault in the second degree, felony harassment, and two counts of
intimidating 	a 	witness. 	He 	claims 	that 	the 	aggravating 	factor 	in 	RCW
9.94A.535(3)(h) is unconstitutionally vague as applied to him, that the imposition
of a no-contact order prohibiting contact with his son violated his fundamental
right to parent, that his convictions for both felony harassment and intimidating a
witness 	violated 	the 	prohibition 	against double jeopardy, 	and 	that the court
violated his 	right to a unanimous jury verdict on the felony harassment count
when it failed to give a unanimity instruction. 	On cross appeal, the State claims
that 	none 	of 	Purser's 	crimes 	constituted 	the 	same 	criminal 	conduct 	for
sentencing 	purposes. 	In a 	statement of additional 	grounds, 	Purser alleges
violations of ER 403 and ineffective assistance of counsel. 	Finding no merit in
these arguments, we affirm.

No. 71641-7-1/2
Background
Purser married J.P. in 2009. 	At the time they married, J.P. had a son,
B.C., who was born in 2005, from a previous relationship. 	Purser and J.P. had a
son, D.P., who was born in 2010.
On 	September 1, 2011, 	after months of continuous fighting, 	J.P. 	told
Purser that she no longer wanted to be married to him. Purser hit her in the face.
J.P. told her sons to run from the house, but Purser would not let them leave.
Purser then began punching J.P. in the face, choking her, and screaming in her
face. 	She pleaded with Purser to stop because the children were watching the
beating and were crying. 	She also pleaded with him to allow her to go to the
dentist to fix the damage that he caused to her mouth. 	Purser told J.P. to take
the 	children 	and 	go 	into the 	bathroom 	because 	there 	was 	a 	police officer
standing outside. 	He told J.P. to "shut up" D.P., who was crying, or "he was
gonna shut him up."
J.P. took the children into the bathroom and breastfed D.P. so that he
would stop crying. 	Purser told J.P. that if the police came into the house or if the
police did not leave "that he was gonna kill us." 	The police did not enter the
home.
After the police left, Purser took J.P. and the children to the dentist. 	He
told J.P. a story to tell the dentist about her injury and told her that if she called
the police, called her father, or told the dentist what happened, "that he was
going to kill the kids and he pulled out a knife and showed [J.P.] and told [J.P.]

No. 71641-7-1/3
that he would kill them and he would leave and go to Kingston and that nothing
would stop him."
On September 23, 2011, 	after B.C. jumped on Purser, Purser grabbed
him, threw him on the ground, and punched him. 	Purser then grabbed J.P., hit
her, grabbed her throat, and pulled her away from the children. 	He climbed on
top of J.P. and, while choking her, told her that "this was all [J.P.'s] fault" and that
he was going to kill her. 	Purser punched her in the face and threatened to "break
out all [J.P.'s] teeth." 	He also told J.P. "to say good-bye to [her] children because
he was gonna kill [her]." When J.P. refused to do this, Purser told the children "to
say good-bye to [J.P.] and 	that 	he was gonna kill [J.P.]." 	J.P. covered the
children with her body, but Purser grabbed her and punched and choked her.
After the beating, Purser allowed J.P. to take D.P. to a scheduled doctor's
appointment but would not permit her to take B.C. along. When the doctor asked
J.P. about her injuries, she gave a false story.
When 	J.P. 	returned 	home 	from 	the 	doctor's 	appointment, 	Purser
screamed at her, grabbed her by the throat, and held her against the wall. 	J.P.
told Purser that she had to leave. 	Purser made her promise that she would not
call the police and told her, "I'll kill them and I'll kill your family and no one can
stop me."
Purser allowed J.P. to leave the home without the children, telling her that
if she sought help, "he would kill [J.P.] and he would kill the kids and he would kill
[J.P.'s] mom and [J.P.'s] dad or [J.P.'s] sister." 	After J.P. left, Purser called her
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No. 71641-7-1/4
and told her that she "better not call the police or tell anyone what happened or
tell [J.P.'s] dad and if [J.P.] did that he would kill [B.C.]." J.P. called 911.
The State charged Purser with one count of assault in the first degree, one
count of felony harassment, two counts of intimidating a witness, and one count
of assault in the second degree.1
At trial, J.P. testified that she never tried to leave Purser "[b]ecause I was
scared of him" and "[b]ecause he always would threaten me and tell me that he
would kill my family and kill my sister or my mom or my dad or he said that he
would kill my children and then kill me." 	She also testified that she believed
Purser's threats and that "he also would tell me that he would take [D.P.] from me
and I would never get him back or that he would have [Indian Child Welfare] take
him from me and I would never get him back." 	J.P. further stated that she never
sought help "[b]ecause I didn't want to be responsible for somebody getting killed
or for him to kill my children or kill me" and that she never escaped with her
children "[bjecause he would most of the time always keep a child from me or he
would be with me."
A jury convicted 	Purser as 	charged. 	The jury 	also 	returned 	special
verdicts on 	each count, finding 	that the crime was an 	aggravated 	domestic
violence offense. 	At sentencing, the court concluded that the assault in the first
degree count, the felony harassment count, 	and 	one count of intimidating 	a
1 The State also charged Purser with a second count of assault in the
second degree, malicious mischief, and attempted escape in the second degree.
The court later dismissed these charges.

No. 71641-7-1/5
witness encompassed the same criminal conduct. 	The court also concluded that
the assault in the second degree count and the remaining count of intimidating a
witness 	encompassed 	the 	same 	criminal 	conduct. 	The 	court 	imposed
exceptional sentences and also imposed a lifetime no-contact order prohibiting
contact with J.P., B.C., and D.P.
Purser appeals.
Analysis
RCW 9.94A.535(3)(h) permits a court to impose a sentence outside the
standard range for an offense if the jury finds beyond a reasonable doubt that the
offense involved domestic violence and one or more of the following was present:
(i) 	The 	offense 	was 	part 	of 	an 	ongoing 	pattern 	of
psychological, physical, or sexual 	abuse of a victim 	or multiple
victims manifested by multiple incidents over a prolonged period of
time;
(ii) The offense occurred within sight or sound of the victim's
or the offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the 	commission of the
current offense manifested deliberate cruelty or intimidation of the
victim.
Purser claims that the 	"deliberate cruelty" aggravating 	factor 	in RCW
9.94A.535(3)(h)(iii) is unconstitutionally vague as applied to him.2 	Because this
vagueness doctrine has no application in the context of sentencing guidelines,
his argument fails.
"The due process vagueness doctrine under the Fourteenth Amendment
and article I, section 3 of the state constitution requires that citizens have fair
2 Purser 	does 	not allege 	that 	the 	jury did 	not find 	the 	aggravating
circumstance beyond a reasonable doubt.

No. 71641-7-1/6
warning of proscribed conduct.'"3 A valid statute must be clear enough to provide
fair 	warning 	of 	the 	proscribed 	conduct 	and 	also 	must 	have 	ascertainable
standards of guilt to prevent arbitrary enforcement.4
In State v. Baldwin,5 our Supreme Court held that the sentencing guideline
statutes at issue "are not subject to a vagueness analysis." 	In Baldwin, 	the
defendant challenged former 	RCW 9.94A. 120(2) 	(2000),6 which 	required 	the
court to 	impose a 	standard 	range sentence 	unless 	it found 	substantial and
compelling 	reasons 	to 	impose 	an 	exceptional 	sentence, 	and 	former 	RCW
9.94A.390(2)(d) 	(2000),7 which characterized 	an 	offense 	that 	was 	a 	"major
economic 	offense" 	as 	an 	aggravating 	circumstance 	that 	could 	support 	an
exceptional sentence under former RCW 9.94A.120(2).8
Our 	Supreme 	Court 	concluded, 	"[D]ue 	process 	considerations 	that
underlie the void-for-vagueness doctrine have no application in the context of
sentencing 	guidelines."9 	The 	court 	explained 	that the 	sentencing 	guideline
statutes did not define conduct, permit arbitrary arrest and criminal prosecution,
inform the public of penalties attached to criminal conduct, vary the statutory
3 State v. Chanthaboulv, 164 Wn. App. 104, 141, 262 P.3d 144 (2011)
(quoting State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008)).
4 Chanthaboulv, 164 Wn. App. at 141 (citing State v. Baldwin, 150 Wn.2d
448, 458, 78 P.3d 1005 (2003)).
5 150 Wn.2d 448, 461, 78 P.3d 1005 (2003).
6 Former RCW 9.94A. 120, recodified as RCW 9.94A.505 (Laws of 2001,
ch. 10, §6).
7 Former RCW 9.94A.390, recodified as RCW 9.94A.535 (Laws of 2001,
ch. 10, §6).
8 Baldwin. 150 Wn.2d at 458-59.
9 Baldwin, 150 Wn.2d at 459.
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No. 71641-7-1/7
maximum or minimum penalties that the legislature assigned to illegal conduct,
or set penalties.10 	Thus, because "nothing in these guideline statutes requires a
certain 	outcome," 	the 	guideline 	statutes 	did 	not 	create 	a 	"constitutionally
protectable liberty interest."11
Purser contends that the 	United 	States Supreme Court's decisions 	in
Apprendi v. New Jersey12 and Blakelv v. Washington13 "clearly establish that
aggravating 	factors 	affect 	a 	liberty 	interest 	protected 	by 	the 	Due 	Process
Clause." 	In these 	cases, 	the 	Court 	ruled 	that a 	judge 	may 	not 	impose 	a
sentencing enhancement without either findings by the jury or a stipulation by the
defendant.14 	Apprendi and Blakelv focused on the right to a jury trial, which is
distinct from the vagueness doctrine that 	provides 	public notice and 	prevents
arbitrary state intrusion.15 Therefore, we remain bound by Baldwin-
Baldwin 	precludes 	Purser 	from 	challenging 	the 	"deliberate 	cruelty"
aggravating factor on vagueness grounds. 	This aggravating circumstance does
not define conduct, authorize arrest, inform the public of criminal penalties, or
vary legislatively defined criminal penalties.
Purser also claims that a lifetime no-contact order prohibiting contact with
D.P. violates his fundamental right to parent. 	He asserts, "[Although the State
has a compelling interest in protecting children from harm, the State failed to
10 Baldwin, 150 Wn.2d at 459.
11 Baldwin, 150 Wn.2d at 461.
12 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
13 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
14 Blakelv, 542 U.S. at 303-04; Apprendi, 530 U.S. at 490.
15 Baldwin, 150 Wn.2d at 458.

No. 71641-7-1/8
demonstrate how prohibiting all contact between Mr. Purser and his son for life
was reasonably necessary to effectuate that interest." We disagree.
RCW 9.94A.505(8) permits a court to impose and enforce crime-related
prohibitions as part of any sentence. 	A "crime related prohibition" is a court order
"prohibiting conduct that directly relates to the circumstances of the crime for
which the offender has been convicted."16 	A court may impose crime-related
prohibitions "for a term of the maximum sentence to a crime, independent of
conditions of community custody."17
A parent has a fundamental 	liberty interest in the care, 	custody, 	and
control of his children.18 We generally review sentencing conditions for an abuse
of discretion.19 	But a court must "'sensitively impose[ ]'" sentencing conditions
that 	limit 	a 	fundamental 	constitutional 	right 	and 	the 	conditions 	must 	be
"'reasonably necessary to accomplish the essential needs of the State and public
order.'"20
A sentencing condition 	limiting a fundamental 	right to 	parent must 	be
"reasonably necessary to prevent harm to a child" and must be narrowly drawn.21
16RCW9.94A.030(10).
17 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008) (citing State v.
Armendariz, 160Wn.2d 106, 112, 120, 156P.3d201 (2007)).
18 State v. Cortes Aquilar, 176 Wn. App. 264, 277, 308 P.3d 778 (2013)
(citing Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)). review denied. 179Wn.2d 1011 (2014).
19 Warren, 165 Wn.2d at 32 (citing State v. Riley, 121 Wn.2d 22, 37, 846
P.2d 1365(1993)).
20 Cortes Aquilar, 176 Wn. App. at 277 (quoting Warren, 165 Wn.2d at 32).
21 Cortes Aguilar, 176 Wn. App. at 277 (citing State v. Ancira, 107 Wn.
App. 650, 654, 27 P.3d 1246 (2001)); Warren, 165 Wn.2d at 34 (citing Riley, 121
Wn.2d at 37).
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No. 71641-7-1/9
Because "what is 	reasonably necessary to 	protect the State's interests may
change over time," the duration of the no-contact order must also be reasonably
necessary.22 	"Prevention of harm to children is a compelling state interest, and
the 	State does 	have an 	obligation to 	intervene and 	protect a 	child 	when a
parent's actions or decisions seriously conflict with the physical or mental health
of the child."23
When offering the State's recommended sentence, the prosecutor stated,
In this particular instance we want, and what is most important to
the victim is just knowing that her children will reach adulthood in
safety. 	She had to undergo a pretty horrific, year long ordeal with
the 	defendant 	in 	which 	she 	was 	continually 	abused, 	beaten,
degraded and in part held hostage to a degree because of her fears
for the 	safety of 	her children. 	In this 	case we think 	that the
defendant shows a 	little bit of insight into his actions. 	We don't
have a lot of optimism that he is going to change. 	He appears to
have very poor impulse control.
When announcing Purser's sentence, the court stated,
In twenty years on the bench the court has not seen a more
sever[e] act of domestic violence, short of a killing that [could have]
occurred in this case. 	So, when the court looks at the guidelines,
the court has a range that the Legislature has given the court. 	In
this case the range is 162 to 216 months and when deciding what
part of the range the court's going to impose, the court looks at the
circumstances behind the case to determine whether or not this is
kind of a minor violation or major violation. 	As far as the court's
concerned this was a major violation of the assault one because of
the harm that was done and the way it was inflicted.
22 In re Pers. Restraint of Rainev. 	168 Wn.2d 367, 381, 229 P.3d 686
(2010).
23 Cortes Aquilar, 176 Wn. App. at 277 (internal quotation marks omitted)
(quoting Ancira. 107 Wn. App. at 653-54).

No. 71641-7-1/10
The court informed Purser that "it's a lifetime no contact order unless it's changed
by the court."
Purser relies upon State v. Ancira,24 in which we concluded that the court
could not prohibit the defendant from all contact with his children as a condition
of his sentence for violating a no-contact order prohibiting him from contacting his
wife. 	We held that the condition was not reasonably necessary to protect the
children from the harm of witnessing domestic violence when they were not direct
victims of physical violence.25
Purser also relies upon In re Personal Restraint of Rainev.26 	In Rainev.
the State proved that the defendant had been convicted of a violent crime against
his child—first degree kidnapping—and had a record of attempting to leverage
the child to inflict emotional distress on the mother.27 	These facts were sufficient
to establish that a total contact ban, including indirect or supervised contact, was
reasonably necessary to protect the child 	and the mother.28 	But the court
reversed 	the 	no-contact 	order 	because 	the 	sentencing 	court 	provided 	no
justification for the order's lifetime duration and the State failed to show that the
lifetime prohibition was reasonably necessary.29 	Recognizing the "fact-specific
nature of the inquiry," the court remanded to the trial court for resentencing so
24 107 Wn. App. 650, 654, 27 P.3d 1246 (2001).
25 Ancira. 107 Wn. App. at 654.
26 168 Wn.2d 367, 229 P.3d 686 (2010).
27 Rainev, 168 Wn.2d at 380.
28 Rainev. 168 Wn.2d at 379-80.
29 Rainev. 168 Wn.2d at 381.
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No. 71641-7-1/11
that the court could "address the parameters of the no-contact order under the
'reasonably necessary' standard."30
Here, 	although 	Purser was 	never convicted 	of a 	crime 	against 	D.P.,
prohibiting all contact appears reasonably necessary to protect him. 	Purser does
not dispute that D.P. witnessed Purser's violence against J.P. 	J.P. testified that
Purser threatened to kill D.P. 	In contrast to Rainev, the court here explained that
Purser could seek to have a court modify the order in the future.31 	Because the
no-contact order prohibiting contact with D.P. 	was reasonably necessary, the
court did not abuse its discretion.
Purser 	also 	claims 	that 	imposing 	convictions 	for 	both 	intimidating 	a
witness and felony 	harassment violated double jeopardy. 	We review double
jeopardy challenges de novo.32
The state and federal constitutions protect against multiple punishments
for the same offense. 	The Fifth Amendment to the United States Constitution
provides that no "person [shall] be subject for the same offense to be twice put in
30 Rainev, 168 Wn.2d at 382.
31 In a footnote, the court in Rainev explained,
It is possible that the sentencing court believed the order
would be subject to a family court's later ruling on visitation. 	The
prosecutor 	recommended 	that 	the 	no-contact 	order 	be
subordinated to a family court's subsequent ruling. 	Still, the face
of the judgment and sentence does not contain any conditional
language and, 	when 	the defendant asked for clarification, 	the
judge did not qualify the lifetime imposition of the order.
Rainev, 168 Wn.2d at 381 n.5 (citations omitted).
32 RAP 2.5(a)(3); State v. Kier, 164 Wn.2d 798, 803-04, 	194 P.3d 212
(2008); State v. Zumwalt. 119 Wn. App. 126, 129, 82 P.3d 672 (2003), affd,
State v. Freeman. 153 Wn.2d 765, 108 P.3d 753 (2005).
•11-

No. 71641-7-1/12
jeopardy 	of 	life 	or 	limb." 	Similarly, 	article 	I, 	section 	9 	of the 	Washington
Constitution ensures that "[n]o person shall be .. . twice put in jeopardy for the
same offense." 	Beyond those constraints, the legislature may prescribe multiple
punishments for a single course of conduct under separate criminal statutes.33 	If
the 	legislature 	authorized 	multiple 	punishments 	for 	multiple 	crimes, 	double
jeopardy is not offended.34 	"'Where a defendant's act supports charges under
two 	criminal 	statutes, 	a 	court 	weighing 	a 	double 	jeopardy 	challenge 	must
determine whether, in light of legislative intent, the charged crimes constitute the
same offense.'"35
Our 	Supreme Court has 	adopted 	a 	four-part test to 	determine 	if the
legislature intended multiple punishments in a 	particular situation.36 	First, we
consider 	any 	express 	or 	implicit legislative 	intent 	based 	upon 	the 	criminal
statutes involved.37 	If this intent is unclear, we use the "same evidence" test to
assess whether the two offenses are the same in law and fact.38 	Where the
degree of one offense is elevated by conduct constituting a separate offense, a
third test, the merger doctrine, may help determine legislative intent.39 	Under the
merger doctrine, we presume the legislature intended to punish both offenses
33 State v. Esparza. 135 Wn. App. 54, 59, 143 P.3d 612 (2006) (citing
State v. Calle. 125 Wn.2d 769, 776, 888 P.2d 155 (1995)).
34 Freeman, 153 Wn.2d at 771.
35 Kier. 164 Wn.2d at 803-04 (internal quotations marks omitted) (quoting
Freeman, 153 Wn.2d at 771).
36 See Freeman, 153 Wn.2d at 771-73.
37 Freeman. 153 Wn.2d at 771-72.
38 Freeman. 153 Wn.2d at 772.
39 Kier. 164 Wn.2d at 805.
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No. 71641-7-1/13
through 	a 	greater 	sentence 	for 	the 	greater 	crime.40 	Finally, 	even 	if two
convictions appear to merge on an abstract level under this test, they may be
punished separately if an independent purpose or effect for each exists.41
To convict Purser of harassment, the State had to prove that he knowingly
threatened to kill J.P. immediately or in the future and that his words or conduct
placed J.P. in reasonable fear that he would carry out this threat. 	To convict
Purser of intimidating a witness, the State had to prove that Purser, by using a
threat against a current or prospective witness, attempted to induce that person
not to report the information relevant to a criminal investigation or the abuse or
neglect of a minor child.
The parties agree that the legislative intent is not explicit in the statutory
language. And the merger doctrine does not apply here.42
Our analysis begins with the "same evidence" test. 	We examine each
crime to determine if it includes any element not included in the other and if proof
of one offense would necessarily prove the other.43
Purser contends that "the precise same acts by Mr. Purser were the basis
for felony harassment and intimidating a witness." 	He asserts that the State's
evidence that he told J.P. on September 23, 2011, if she called police he would
40 Freeman, 153 Wn.2d at 772-73.
41 Kier. 164 Wn.2d at 804.
42 See State v. Fuentes. 150 Wn. App. 444, 454 n.30, 208 P.3d 1196
(2009).
43 Fuentes, 150 Wn. App. at 451 (citing Calle. 125 Wn.2d at 777).
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No. 71641-7-1/14
kill her and her family "had both the threat to kill and the threat of harm if [J.P.]
called the police, thus constituting the evidence supporting Counts II and III."
Although the same threats made on September 23, 2011, support both
convictions, they are not the same offense as charged and tried. 	We addressed
this issue in State v. Fuentes.44 	In Fuentes, we determined that convictions for
both intimidating a witness and harassment that were based on the same events
did 	not violate double jeopardy because each 	required 	proving one or more
elements not required to establish the other crime.45 We concluded, "Intimidating
a witness requires proof of the additional element that the victim be a witness,
and felony harassment requires proof of the additional elements of a threat to kill
and the victim's reasonable fear the threat would be carried out."46 	Accordingly,
we held that "although the charged offenses may be identical in fact because
they were both based on a threat to kill a witness, they are not the same under
the 'same evidence' test because each crime required proof of additional facts
not necessary to prove the other crime."47 	The mere fact that a single threat
supports an offense under two statutes is not sufficient to demonstrate a double
jeopardy violation.48
Purser's 	challenge 	also 	fails 	the 	final 	step 	of 	the 	double 	jeopardy
analysis—if 	an 	independent 	purpose 	or 	effect 	exists 	for 	each 	offense. 	In
44 150 Wn. App. 444, 208 P.3d 1196 (2009).
45 Fuentes, 150 Wn. App. at 452.
46 Fuentes. 150 Wn. App. at 452.
47 Fuentes. 150 Wn. App. at 452.
48 Fuentes. 150 Wn. App. at 453 (quoting In re Pers. Restraint of Orange,
152 Wn.2d 795, 817, 100 P.3d 291 (2004)).
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No. 71641-7-1/15
Fuentes, 	we found 	a 	legislative intent to 	punish 	these 	crimes 	separately.49
Because the legislature intended to punish felony harassment and intimidating a
witness separately, the trial court did not violate his right against double jeopardy
by entering convictions on both offenses.
Purser next alleges, "The trial court failed to ensure the jury verdict was
unanimous." 	Purser did not propose a unanimity instruction at trial. 	But "the right
to a unanimous verdict is derived from the fundamental constitutional right to a
trial by jury and thus may be raised for the first time on appeal."50 The adequacy
of jury instructions is a question of law that we review de novo.51
When the State alleges multiple criminal acts but charges the defendant
with only one crime, either the State must choose the act it relies upon as the
basis for the 	charge 	or the 	court 	must 	instruct 	the jury that 	it must agree
unanimously that a single act has been proved beyond a reasonable doubt.52 	If
neither of these alternatives occurs, a constitutional error arises because of the
possibility that some jurors may have relied on one of the criminal acts while
other jurors relied 	on another, resulting 	in 	a lack of unanimity on all of the
49 Fuentes, 150 Wn. App. at 454.
50 State v. Handvside. 42 Wn. App. 412, 415, 711 P.2d 379 (1985) (citing
State v. Fitzgerald, 	39 Wn. App. 652, 	655, 	694 	P.2d 	1117 	(1985); State v.
Russell, 101 Wn.2d 349, 678 P.2d 332 (1984)).
51 State v. Bovd. 137 Wn. App. 910, 922, 155 P.3d 188 (2007) (citing State
v. Pirtle. 127 Wn.2d 628, 656, 904 P.2d 245 (1995)).
52 State v. Greathouse. 113 Wn. App. 889, 916, 56 P.3d 569 (2002) (citing
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984)).
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No. 71641-7-1/16
elements necessary for a conviction.53 	If this error occurs, we will not uphold a
conviction unless the error is harmless beyond a reasonable doubt.54
But this 	unanimity instruction 	is not required 	if the evidence shows a
continual course of conduct as opposed to several distinct acts.55 	Evidence
tends to show several distinct acts if it involves conduct at different times and
places or different victims.56 A continuing course of conduct involves "an ongoing
enterprise with a single objective."57 	We use common sense to determine if
multiple acts constitute one continuing offense.58
Purser claims that each of the threats to kill J.P. he made on September
23, 	2011, 	"was 	a 	separate 	offense, 	and 	each 	act 	alone 	was 	sufficient 	to
independently constitute a 	count of harassment, 	thus 	requiring 	a 	unanimity
instruction." 	But a 	commonsense evaluation 	of these threats 	indicates that
Purser committed these acts with a single purpose against a single victim in a
short period of time.59 The evidence shows that Purser made at least two threats
on September 23, 2011, to kill J.P.—one before she went to the doctor's office
53 Greathouse. 113 Wn. App. at 916 (citing State v. Kitchen, 110 Wn.2d
403, 411,756P.2d 105(1988)).
54 State v. Coleman. 159 Wn.2d 509, 512, 150 P.3d 1126 (2007) (citing
Kitchen, 110 Wn.2d at 411-12).
55 Boyd, 137 Wn. App. at 923 (citing Petrich, 101 Wn.2d at 571).
56 State v. Love. 80 Wn. App. 357, 361, 908 P.2d 395 (1996) (citing State
v. Handran, 113Wn.2d 11, 17, 775 P.2d 453 (1989); Petrich, 101 Wn.2dat571).
57 Love, 80 Wn. App. at 361 (citing State v. Gooden, 51 Wn. App. 615,
619-20, 754 P.2d 1000 (1998)).
58 Boyd, 137 Wn. App. at 923 (citing State v. Elliott, 114 Wn.2d 6, 14, 785
P.2d 440 (1990); Petrich, 101 Wn.2d at 571).
59 See State v. Locke, 175 Wn. App. 779, 	803, 	307 	P.3d 771 	(2013),
review denied, 179Wn.2d 1021 (2014).
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No. 71641-7-1/17
and one after she returned. 	These occurred on the same date over the course of
a few hours in an attempt to maintain control over J.P. and to cause her to fear
him.60 	Because the facts here demonstrate a continuous course of conduct, the
court was not required to give a multiple acts unanimity instruction. 	Purser fails
to demonstrate a manifest error allowing him to raise this claim for the first time
on appeal.61
On cross appeal, the State argues, "None of the charges are the same
criminal conduct for sentencing purposes." 	The State conceded at sentencing
that the harassment count was the same criminal conduct as the intimidation
charge for the purposes of sentencing. 	But an erroneous concession does not
bind this court.62
We review a court's determination of same criminal conduct for abuse of
discretion 	or misapplication 	of the 	law.63 	If 	the 	record 	supports a 	single
conclusion about whether the crimes constitute the same criminal conduct, the
sentencing court abuses its discretion if it arrives at a contrary result.64 	But if the
record supports different conclusions, the issue lies in the court's discretion.65
60 J.P. testified that during the first beating on September 23, 2011, Purser
told her "he didn't do anything wrong and that everything was my fault and I
should just shut up and do what he says." 	When she returned, he "was yelling at
me for trying to leave." 	J.P. testified at trial that she feared Purser would kill B.C.
while she was at the doctor's office.
61 See RAP 2.5(a).
62 See State v. Kniqhten, 	109 Wn.2d 896, 902, 748 P.2d 1118 (1988)
(erroneous concession on a point of law does not bind the court).
es State v. Aldana Graciano, 176 Wn.2d 531, 535, 295 P.3d 219 (2013).
64 Aldana Graciano, 176 Wn.2d at 537-38.
65 Aldana Graciano. 176 Wn.2d at 538.
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No. 71641-7-1/18
We construe RCW 9.94A.589(1)(a) narrowly to disallow most assertions of same
criminal conduct.66 	A defendant bears the burden of establishing that multiple
crimes constitute the same criminal conduct.67
A determination of same criminal conduct affects the defendant's offender
score, which affects the standard range sentence.68 	If the court finds that some
or all of the current offenses encompass the same criminal conduct, the court
counts those current offenses as one crime.69
Crimes constitute the same criminal 	conduct if they involve the same
victim and time and place and require the same criminal intent.70 	Simultaneity is
not required; crimes may be part of a "continuous, uninterrupted sequence of
conduct over a very short period of time."71 	When the defendant has time to
"pause, reflect, and either cease his criminal activity or proceed to commit a
further criminal act," he forms "a new intent to commit the second act."72 	In
making this factual 	determination 	about whether crimes constitute the same
criminal 	conduct, 	we 	consider 	how 	intimately the 	crimes 	are 	related, 	if the
criminal objective changed substantially between the crimes, and if one crime
furthered the other.73
66 Aldana Graciano, 176 Wn.2d at 540 (quoting State v. Porter. 133 Wn.2d
177, 181, 942 P.2d 974 (1997)).
67 Aldana Graciano. 176 Wn.2d at 539.
68 Aldana Graciano. 176 Wn.2d at 535-36.
69 Aldana Graciano. 176 Wn.2d at 536 (quoting RCW 9.94A.589(1)(a)).
70 Aldana Graciano, 176 Wn.2d at 536 (quoting RCW 9.94A.589(1)(a)).
71 Porter, 133Wn.2dat183.
72 State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997).
73 State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990) (citing State
v. Edwards, 45 Wn. App. 378, 382, 725 P.2d 442 (1986)).
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No. 71641-7-1/19
At sentencing, defense counsel argued,
The 	Intimidation of Witness charges are also 	part of the same
course 	of 	conduct with 	their 	respective 	Assault 	charges. 	The
phrase that the state has used relative, I think they said; well, that
those acts that the jury found understood Mr. Purser denies that,
were not necessary. 	I'm not sure what acts they are contending
were 	necessary of the conduct that was charged. 	It's just an
interesting 	use 	of 	phrasing, 	but 	they 	were 	not 	separated 	by
significant amounts of time. 	There was continuous conduct and
contact between them. 	The state has urged and the jury found
certain 	enhancing 	components 	that 	effectively 	combine 	these
crimes 	as 	being 	part of the 	overall... or circumstances of the
relationship between Ms. Purser and Mr. Purser. 	Given that, we
believe the proper analysis would be to find that those are in fact
the same course of conduct.
The court determined,
The assault two and intimidating a witness that occurred on
September 1st, I believe are part of the same criminal conduct. 	I
believe they're part and partial [sic] to the same incident, so I would
put those together. 	Then the assault one and the intimidating a
witness of 9/23/11, again are a part of that same criminal conduct
that surrounded that whole affair on that date. 	So, but I don't think
the assault one and the assault two are the same criminal conduct.
The trial court did not abuse its discretion when it determined that Purser's
crimes encompassed the same criminal conduct. 	The parties do not dispute that
the 	crimes 	Purser committed 	on 	September 	1 were 	not the 	same 	criminal
conduct as the crimes he committed on September 23.
On September 1, Purser threatened J.P. 	in their home within a short
period of time to prevent her from reporting the assault. 	The State asserts that
two intervening events occurred: 	"[t]he time she spent breast feeding [D.P.] and
the time she spent in the bathroom." But these events occurred after the beating
when Purser ordered J.P. into the bathroom to prevent her from contacting the
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No. 71641-7-1/20
police who were outside the house. 	Again, Purser intended to use the beating
and the threat to control J.P. and to cause her to fear him.
On September 23, Purser beat J.P. and threatened her and then beat her
and threatened her again after she returned from 	the doctor's office. 	Again,
these crimes occurred within a few hours of each other in an attempt to exert
control 	over 	J.P. 	Contrary 	to 	the 	State's 	contention, 	the 	trial 	court 	could
reasonably conclude that J.P.'s trip to the doctor's office provided insufficient
time for Purser to pause, reflect, and form a new intent to commit his later acts.
In a statement of additional grounds, Purser alleges violations of ER 403
and 	ineffective assistance of counsel. 	He claims that ER 403 should 	have
precluded 	Dr. 	Grace 	Yelland's 	testimony 	about 	B.C.'s 	injuries 	and 	J.P.'s
testimony 	about 	"alleged 	events 	that 	took 	place 	during 	the 	course 	of 	our
marriage." 	He also challenges under ER 403 the admission of photographs
depicting damage to the front door of his house.
ER 	403 	states, 	"Although 	relevant, 	evidence 	may 	be 	excluded 	if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence." 	We
review for 	abuse 	of discretion 	a 	trial 	court's 	determination 	in balancing the
probative value of evidence against its prejudicial impact.74 	"'A trial court abuses
74 Greathouse. 113 Wn. App. at 918 (citing State v. Norlin. 134 Wn.2d
570, 584, 951 P.2d 1131 (1998)).
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No. 71641-7-1/21
its discretion when its order is manifestly unreasonable or based on untenable
grounds' and it 'necessarily abuses its discretion if it applies the incorrect legal
standard.'"75
Yelland, 	a 	pediatrician, 	testified 	about 	injuries 	she 	observed 	when
examining B.C. at a clinic on September 26, 2011. 	Purser asserts, "There was
evidence that he was bruised, but no evidence as to how it happened or who
caused them." 	In challenging 	J.P.'s testimony, 	Purser argues, "Not only are
these 	crimes 	alledged 	[sic] 	they 	were 	never 	reported." 	Purser 	had 	the
opportunity to challenge the credibility of these witnesses on cross-examination.
He also testified on his own behalf. 	He stated that he did not inflict the injuries
that Yelland observed. 	But he also testified about his marriage to J.P. and had a
chance to respond to events about which J.P. testified.
Purser's attorney did not object timely to the admission of the photographs
at 	issue. 	Even 	if Purser 	objected 	properly, 	the 	court 	concluded 	that 	the
admission of these photographs would not prejudice him because Purser was not
"tied into" the damage to the door. 	Purser also testified at trial that he had no
knowledge about the damage to the door. 	Purser demonstrates no violations of
ER 403.
Purser also claims that his trial attorney provided ineffective assistance
because he failed to call certain witnesses. 	We review ineffective assistance of
75 Kreidler v. Cascade Nat'l Ins. Co., 	Wn. App. 	, 321 P.3d 281,
290 (2014) (quoting Gillett v. Conner. 132 Wn. App. 	818, 822, 133 P.3d 960
(2006)).
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No. 71641-7-1/22
counsel claims de novo.76 	To prevail, a defendant must show both deficient
performance and resulting prejudice.77 Failure on either prong of the test defeats
an ineffective assistance of counsel claim.78
Counsel's performance is deficient if it fell below an objective standard of
reasonableness.79 	Our 	scrutiny 	of defense 	counsel's 	performance 	is highly
deferential, 	and 	we employ a strong 	presumption of reasonableness.80 	The
presumption of competence can 	be overcome 	by showing 	counsel failed 	to
subpoena necessary witnesses.81
"The decision whether to call a witness is ordinarily a matter of legitimate
trial tactics and will not support a claim of ineffective assistance of counsel.'"82
Purser claims that he identified a witness who would have testified that
J.P. filed a false police report. 	Before trial, Purser's attorney told the court that
he advised Purser that calling this witness would be "counterproductive." 	Purser
claims that the second witness he identified "would have testified that [J.P.] was
a well known drug dealer of pain pills." 	He argues that he wanted to call this
witness because the State had a witness who "was investigating her for indeed
selling pain pills." 	But the trial court granted the State's motion in limine to
76 In re Pers. Restraint of Brett. 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
77 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
78 Strickland. 466 U.S. at 697.
79 State v. Stenson. 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
80 Strickland. 466 U.S. at 689; State v. McFarland. 127 Wn.2d 322, 335-
36, 899P.2d 1251 (1995).
81 In re Pers. Restraint of Davis. 152 Wn.2d 647, 742, 101 P.3d 1 (2004).
82 State v. Statler. 160 Wn. App. 622, 636, 248 P.3d 165 (2011) (quoting
State v. Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008)).
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No. 71641-7-1/23
exclude any evidence that J.P. "was involved 	in 	selling 	prescription 	narcotic
medication." 	Because Purser fails to establish that the witnesses he identified
were necessary for his case, his ineffective assistance of counsel claim fails.
Conclusion
Purser may not challenge the "deliberate cruelty" aggravating factor on
vagueness grounds. 	The court's imposition of a no-contact order as a condition
of Purser's sentence did not violate his fundamental 	right to parent, 	and 	its
imposition of convictions for both felony harassment and intimidating a witness
did not violate double jeopardy. 	Purser fails to show a manifest error allowing
him to challenge the trial court's failure to give a unanimity instruction. 	The State
fails to show that the trial court abused its discretion when it found that Purser's
crimes constituted the 	same 	criminal 	conduct. 	No 	evidence 	in 	the 	record
supports the claims that Purser asserts in his statement of additional grounds.
For these reasons, we affirm Purser's conviction.
J~^< /
WE CONCUR:
Xv d/x^i 	^J &57(t3
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