* State Of Washington, Respondent. V. Shawn Michael Morgan, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SHAWN MICHAEL MORGAN,
Appellant.
No. 86639-7-I
DIVISION ONE
OPINION PUBLISHED IN PART
SMITH, J. — Shawn Morgan was convicted of harassment domestic
violence, second degree malicious mischief domestic violence, attempted
residential burglary domestic violence, and fourth degree assault – domestic
violence, against his girlfriend, Virginia Foy, and with resisting arrest. Morgan
appeals, asserting insufficiency of the evidence, evidentiary errors by the trial
court, violation of his right to a unanimous jury verdict, and the award of
restitution to Foy’s insurer, among other things.
In the published portion of this opinion, we conclude that the trial court did
not err when it held that under RCW 9.94A.753, to waive Morgan’s restitution to
Foy’s insurer, it would have to find both that Morgan did not have the current
ability to pay, and he did not have the likely future ability to pay.
In the unpublished part of this opinion, we find no error and affirm the trial
court’s ruling on Morgan’s remaining claims.
We affirm.
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No. 86639-7-I/2
2
FACTS
Background
On January 24, 2024, around noon, Virginia Foy and Shawn Morgan left
Morgan’s residence in Lake Stevens to visit the Edmonds waterfront. Before
driving to Edmonds, the couple had an argument. At the Edmonds waterfront,
Morgan asked Foy to walk into an area with a clearly marked “no-trespass” sign.
Foy refused because she was afraid that Morgan would harm her and not let her
back in the vehicle if she got out of the car. Morgan and Foy decided to leave
the waterfront and return to Morgan’s residence. Around 1:00 p.m., while Foy
was driving home, Morgan, who was in the front passenger seat, attempted to
push Foy’s head into the steering column. During the drive, Morgan got more
agitated and aggressive.
When the couple returned to Morgan’s residence, Foy informed Morgan
she wanted to gather her belongings and leave. Morgan became increasingly
upset and informed Foy that she could leave, but it would not be peaceful. While
Foy packed her belongings, Morgan “shoulder-checked” her two times. Around
4:00 p.m., Foy left Morgan’s residence and returned to her home in Marysville,
where she lived with her brother, sister-in-law, and brother’s minor children.
After Foy returned home, Morgan called and texted her repeatedly. Foy
did not answer Morgan’s calls and expressed, via text message, that she wanted
space. At approximately 10:30 p.m., Morgan showed up at Foy’s house
unannounced. When Morgan asked to come into the house and speak to Foy,
Foy stated she did not want to speak with him and asked him to leave. Morgan
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No. 86639-7-I/3
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kicked the door, attempting to force his way into the home. While Morgan was
attempting to get into the apartment, Foy’s brother called 911. Morgan left
multiple shoeprints on the door and caused it to bow, which prevented it from
closing properly. When Morgan was unable to get into Foy’s residence he
returned to his car. Morgan then used his car as a battering ram and drove into
Foy’s minivan. Morgan rammed Foy’s minivan twice, damaging her vehicle and
his own. Morgan fled the scene. When law enforcement located Morgan,
Sergeant Michael Young approached him and asked him to stop and identify
himself. Morgan stated his name was Riff Raff and ran away from the area.
Sergeant Young and another officer chased Morgan down, tackled him, and
detained him in handcuffs.
Morgan’s Statements After Arrest
After Morgan was arrested and booked, he was handcuffed again to be
taken to housing. Morgan told Sergeant Matthew Brunskill, who handcuffed him,
to be careful because he had an injury on his wrist. Sergeant Brunskill asked
Morgan, “what happened?” Brunskill was referring to the wrist injury. Morgan
replied that he let someone in his life who hurt him emotionally, and he would
make them pay. Sergeant Brunskill advised Morgan not to say anything that
would land him back in jail. Morgan then said, “Oh, I’m going to kill her.” Without
being prompted by Sergeant Brunskill, Morgan repeated the statement. Morgan
also said there was no difference between hurting someone emotionally and
hurting them physically.
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No. 86639-7-I/4
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Morgan was charged with five crimes: (1) felony harassment with
domestic violence, (2) malicious mischief second degree with domestic violence,
(3) attempted residential burglary with domestic violence, (4) assault fourth
degree with domestic violence, and (5) resisting arrest.
Russell Foy’s Testimony
At trial, Foy’s brother, Russell Foy,1 testified that Foy was very distraught
and hysterical when she returned home from Morgan’s apartment. Russell
stated that Foy “kind of word vomited and started, like, saying that there was
something that happened.” The State asked Russell about what Foy told him,
including any threats from Morgan. Russell responded, “not, like, direct threats.
But—like, that day they said that they were going to go sit by railroad tracks.”
Morgan raised a hearsay objection. The State explained the statement was an
excited utterance, because Russell was describing “the demeanor of his sister,”
and “[h]e specifically used the word hysterical.” The court overruled Morgan’s
objection. Russell then said Foy told him she was scared because she felt like
she was going to get pushed in front of a train.
Sergeant Young’s Testimony
Sergeant Young testified that after he responded to Russell’s 911 call, he
checked the area around Foy’s apartment to look for Morgan. When Sergeant
Young found Morgan at a nearby laundromat, Morgan walked “purposefully [and]
directly” toward the driver-side door of Sergeant Young’s patrol vehicle.
1 We refer to Russell Foy by his first name solely for the purpose of clarity
and to avoid confusion.
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No. 86639-7-I/5
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Sergeant Young recalled, “I was fearing a confrontation at the driver's door. Very
abnormal behavior.” Morgan objected and the court overruled. Sergeant Young
then stated, “I believed [Morgan] was going to confront me at the door.”
Sergeant Young testified that he confronted Morgan:
He is profusely sweating. He is staring right through me. He puts
his hand back in a pocket, I think I recall, at which point I tell him to
take his hands out of his pockets. He says: What are you going to
do? Shoot me? I said: No. I am going to tase you. I pull my taser
out, tell him to get on the ground.
The State then asked, “As this interaction is occurring, what is going through, I
guess, your head? What’s your priority at this point?” Sergeant Young replied,
“Well, I have been involved in deadly force situations before. And I was afraid
that was going to happen.” Morgan objected. The court excused the jury and
asked the State to explain the relevance of Sergeant Young’s comment. The
State explained,
Your Honor, one of the charges in this case is resisting arrest. As
defense previewed in his opening statement, there is going to be
some argument, it sounds like, pertaining to the actual
apprehension of the defendant in this case. I am asking Sergeant
Young to talk about what he is thinking and feeling at this time
because I think it goes directly to the response and force that was
used in this case, which I anticipate defense will be arguing about
with regard to the resisting arrest charge.
Morgan’s attorney, Mr. Jacobsen, replied, “my concern is with the narrative from
Mr. Young moving into kind of speculation about worst-case possible scenarios
rather than something maybe more simple such as I felt the need to tackle him to
the ground because I was concerned that he could have a weapon.”
The court then asked Jacobsen whether there would be an argument that
law enforcement used excessive force. Jacobsen stated, “I actually do think
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No. 86639-7-I/6
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that’s a difficult question to answer. I am not saying that the arrest itself is
unlawful due to the amount of force he used. But I suppose I am saying that
looking at the force that the jury could read that as someone not resisting.” The
court reasoned that if the jury was presented with the argument that law
enforcement overreacted, it would make sense to hear from Sergeant Young
now rather than call him back. Jacobsen agreed. The court noted there was
probative value in Sergeant Young’s thoughts while arresting Morgan because
the testimony would provide reasons for “what was going on in his mind and
would give some explanation for why they did whatever they did.” The court
added that “defense can certainly argue it was excessive, but the State should be
permitted to argue that it was not. And the jury would have the wherewithal to
make a decision.” Ultimately, the court overruled Morgan’s objections.
Jury Instructions, Sentencing, and Restitution
Morgan was charged with five crimes: (1) felony harassment with
domestic violence, (2) malicious mischief second degree with domestic violence,
(3) attempted residential burglary with domestic violence, (4) assault fourth
degree with domestic violence, and (5) resisting arrest. The court did not
include, nor did any party request, a jury instruction requiring jury unanimity for
the assault charge. At sentencing, the judge determined Morgan’s prior
convictions and calculated his offender score. The court sentenced Morgan to
57.75 months on all counts and ordered him to pay $2,620.68 in restitution. The
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No. 86639-7-I/7
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restitution amount included $2,221.59, which was to be paid to Foy’s car
insurance company. The court found Morgan to be indigent.
ANALYSIS
Restitution to Foy’s Insurer
Morgan contends the court erred in finding RCW 9.94A.753 only provided
the court the discretion to relieve Morgan’s restitution to the insurer if he did not
currently have the ability to pay and was not likely to have the future ability to
pay.
We review questions on the interpretation of restitution statutes de novo.
State v. Edelman, 97 Wn. App. 161, 165, 984 P.2d 421 (1999).
The fundamental purpose of statutory construction is “to determine and
give effect to the intent of the legislature.” State v. Sweany, 174 Wn.2d 909, 914,
281 P.3d 305 (2012). When interpreting statutory terms, this court takes “ ‘into
consideration the meaning naturally attaching to them from the context, and
adopt[s] the sense of the words which best harmonizes with the context.’ ” State
v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005) (internal quotation
marks omitted) (quoting State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229
(1999)). This court does not engage in overly technical construction of restitution
statutes that would permit the defendant to escape from just punishment. State
v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007).
Looking at its plain meaning, “or as a ‘function word’ indicat[es] ‘an
alternative between different or unlike things.’ ” Lake v. Woodcreek Homeowners
Ass’n, 169 Wn.2d 516, 528, 243 P.3d 1283 (2010) (first emphasis added)
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No. 86639-7-I/8
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(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 1585 (2002)).
When used as an alternative, or is an “inclusive disjunctive—one or more of the
unlike things can be true.” Lake, 169 Wn.2d at 528. Additionally, or can be “a
‘choice between alternative things, states, or courses,’ ” creating an “ ‘exclusive
disjunctive—one or the other can be true, but not both.’ ” Lake, 169 Wn.2d at
528 (emphasis omitted) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY at 1585 (2002)). Courts look to “the surrounding context” to
determine which meaning is intended. Lake, 169 Wn.2d at 528 (“Usually, the
intended meaning is apparent from the surrounding context.”). Under RCW
9.94A.753(3),
[a]t any time, including at sentencing, the court may determine that
the offender is not required to pay, or may relieve the offender of
the requirement to pay, full or partial restitution and accrued interest
on restitution where the entity to whom restitution is owed is an
insurer or state agency, except for restitution owed to the
department of labor and industries under chapter 7.68 RCW, if the
court finds that the offender does not have the current or likely
future ability to pay.
(Emphasis added.)
Here, the trial court assessed the plain language of the statute and
determined that it would have to find both: Morgan does not have the current
ability to pay, and he does not have the likely future ability to pay. Morgan was
indigent, so he did not have the current ability to pay. The trial court assessed
whether Morgan would be unlikely to pay restitution in the future. The court
found that Morgan was a commercial plumber but lost his job. Morgan appeared
able-bodied in court and, although he lost his career, there are other careers that
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No. 86639-7-I/9
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he could pursue after his incarceration. The court was not aware of any physical
or mental debilitation that would prevent Morgan from obtaining work in the
future. The court concluded that Morgan may have the future ability to get a job
after incarceration, therefore, he had the likely future ability to pay.
The trial court’s plain reading analysis of or is correct. Our court has
found that “while ‘A or B’ is disjunctive, ‘not A or B’ is conjunctive and means the
same thing as ‘not A nor B.’ ” Black v. Nat’l Merit Ins. Co., 154 Wn. App. 674,
688, 226 P.3d 175 (2010) (quoting Brian Garner, A Dictionary of American Usage
at 453–54 (1998)). The restitution statute reads, “if the court finds that the
offender does not have the current or likely future ability to pay.” RCW
9.94A.753(3) (emphasis added). Therefore, in this statute, or is conjunctive
because not is included in the statute. The court must find that the defendant
does not have the current ability to pay and does not have the future ability to
pay.
The legislative intent supports this interpretation of or in the statute. In
2022, the legislature added the appealed language. The legislature wanted to
give courts discretion for defendants who “just could not pay.”2 In House
Appropriation Committee meetings, legislative members did not distinguish
between whether defendants could pay now or in the future, they were
concerned with if the defendant could pay at all. The legislature’s concerns are
aligned with our reading of the statute.
2 House Appropriations Committee Meeting (Wash. State Legis. Feb. 22,
2021) at 4 hr., 43 min., 45 sec. through 4 hr., 44 min., 34 sec., video recording by
TVW, Washington State’s Public Affairs Network, http://www.tvw.org.
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No. 86639-7-I/10
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The language in RCW 9.94A.753(3), noting “if the court finds that the
offender does not have the current or likely future ability to pay,” is like our
language for discretionary legal financial obligations (LFOs). In State v. Blazina,
our Supreme Court held that to impose discretionary LFOs under
RCW 10.01.160(3), “[t]he record must reflect that the trial court made an
individualized inquiry into the defendant’s current and future ability to pay.”3 182
Wn.2d 827, 838, 344 P.3d 680 (2015) (emphasis added). In applying this
statute, our court has considered present and future financial circumstances
when determining whether to order LFOs. See State v. Lundy, 176 Wn. App. 96,
107, 308 P.3d 755 (2013) (considering the defendant’s income prior to trial and
that the defendant had “no known disabilities that preclude the possibility of him
working the future.”); see State v. Ramirez, 191 Wn.2d 732, 742, 743, 426 P.3d
714 (2018) (holding that “the trial court is required to consider ‘important factors,’
such as incarceration and the defendant's other debts” and can consider other
factors such as the defendant’s “income, [their] assets and other financial
resources, [their] monthly living expenses, and [their] employment history.”
(quoting Blazina, 182 Wn.2d at 839)). Since RCW 9.94A.753(3) has similar
statutory language, the statue requires courts to consider both present and future
ability to pay.
3 Blazina addressed the “defendant’s current and future ability to pay.”
182 Wn.2d at 838 (emphasis added). And should be generally construed as
conjunctive. HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 473 n.95, 61 P.3d
1141 (2003).
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No. 86639-7-I/11
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In assessing the present and likely future ability to pay, the court has
discretion to determine whether the defendant has the current ability to pay and
whether they can pay the restitution in the future. Analogously, the Blazina court
held that the court must consider important factors, such as incarceration, when
determining whether the defendant had the ability to pay. 182 Wn.2d at 838.
Subsequently, our Supreme Court in Ramirez held that a trial court could also
consider employment history, present employment and past work experience,
income and other expenses. 191 Wn.2d at 744. These factors consider both
current and future financial circumstances. In this case, the court considered
Morgan’s past and current employment, his incarceration, and his mental and
physical health. This was within the court’s discretion, therefore no error
occurred.
The panel has determined that the remainder of this opinion has no
precedential value. Therefore, it will be filed for public record in accordance with
the rules governing unpublished opinions. See RCW 2.06.040.
Sufficiency of the Evidence
Morgan contends that insufficient evidence exists to sustain the State’s
attempted burglary charge. Specifically, Morgan asserts that the State did not
prove that he had the intent to commit a crime inside Foy’s home when he kicked
her door. Because Morgan had threatened and assaulted Foy before arriving at
her home, along with his behavior upon arriving at her home, substantial
evidence supports attempted burglary and we affirm.
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No. 86639-7-I/12
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Evidence is sufficient when, “after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v. Brooks, 107 Wn.
App. 925, 928, 29 P.3d 45 (2001).
“A sufficiency challenge admits the truth of the State’s evidence and
accepts the reasonable inferences to be made from it.” State v. O’Neal, 159
Wn.2d 500, 505, 159 P.3d 1121 (2007). “All reasonable inferences from the
evidence must be drawn in favor of the State and interpreted against the
defendant.” Brooks, 107 Wn. App. at 928-29. Circumstantial and direct evidence
carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
This court “must defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence.” State v.
Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). An appellate court will
reverse a conviction “only where no rational trier of fact could find that all
elements of the crime were proved beyond a reasonable doubt.” State v. Smith,
155 Wn.2d 496, 501, 120 P.3d 559 (2005).
Under RCW 9A.52.025(1), a person commits residential burglary when he
“enters or remains unlawfully in a dwelling other than a vehicle” with the “intent to
commit a crime . . . therein.” To convict a defendant of attempted residential
burglary, the State must prove that the defendant intended to commit residential
burglary and that they took a substantial step toward committing the
burglary. RCW 9A.28.020(1). In addition, criminal intent may be inferred from all
the facts and circumstances surrounding the commission of an act. Brooks, 107
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No. 86639-7-I/13
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Wn. App. at 929. Intent may also “be inferred from conduct that plainly indicates
such intent as a matter of logical probability.” Brooks, 107 Wn. App. at 929.
Here, the evidence and testimony presented at trial was sufficient to
conclude Morgan had the intent to commit residential burglary. Foy testified that,
during the week leading up to the event at issue, Morgan threatened to kill her.
Foy testified that Morgan threatened to shoot her and make her “disappear in the
lake.” When the couple drove back to Morgan’s apartment from Edmonds,
Morgan yelled at Foy and attempted to smash her head into the steering wheel.
Morgan also shoulder-checked Foy twice while she packed her belongings to
leave Morgan’s apartment. When Morgan went to Foy’s residence and Foy told
him he was not welcome, Morgan repeatedly kicked in the door. After Morgan’s
attempt to kick open the door failed, he then got in his car and rammed Foy’s
minivan twice, causing damage to it. Drawing all reasonable inferences in favor
of the State, sufficient evidence shows that Morgan attempted to commit
residential burglary.
Evidentiary Errors
1. Sergeant Young’s Statement
Morgan contends that the trial court made evidentiary errors when it
admitted unfairly prejudicial evidence. Specifically, Sergeant Young’s testimony
that he was afraid that a deadly force situation was about to happen when he
arrested Morgan. Because we do not find Sergeant Young’s comments
prejudicial, we conclude the trial court did not abuse its discretion when it allowed
the testimony.
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No. 86639-7-I/14
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Evidence rulings are reviewed under an abuse of discretion standard.
State v. Orn, 197 Wn.2d 343, 351, 482 P.3d 913 (2021). “Discretion is abused
when the trial court’s decision is manifestly unreasonable, or is exercised on
untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d
822, 830, 845 P.2d 1017 (1993).
Under ER 403, “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” “ ‘When evidence is
likely to stimulate an emotional response rather than a rational decision, a danger
of unfair prejudice exists.’ ” State v. Beadle, 173 Wn.2d 97, 120, 265 P.3d 863
(2011) (quoting State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995)). A
court considers the whole case when weighing the risk of unfair prejudice,
including,
“the importance of the fact of consequence for which the evidence
is offered in the context of the litigation, the strength and length of
the chain of inferences necessary to establish the fact of
consequence, the availability of alternative means of proof, whether
the fact of consequence for which the evidence is offered is being
disputed, and, where appropriate, the potential effectiveness of a
limiting instruction.”
State v. Yusuf, 21 Wn. App. 2d 960, 975, 512 P.3d 915 (2022) (internal quotation
marks omitted) (quoting State v. Bedada, 13 Wn. App. 2d 185, 193-94, 463 P.3d
125 (2020)). When the error is not constitutional, the “ ‘error is not prejudicial
unless, within reasonable probabilities, had the error not occurred, the outcome
of the trial would have been materially affected.’ ” State v. Barry, 183 Wn.2d 297,
303, 352 P.3d 161 (2015) (internal quotation marks omitted) (quoting State v.
Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
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No. 86639-7-I/15
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Here, Morgan alleges Sergeant Young’s testimony that he was afraid that
a deadly force situation was about to happen was prejudicial because it could
cause the jury to speculate about worst-case scenarios. After Morgan objected
to Sergeant Young’s testimony, the State claimed that Sergeant Young’s
thoughts and feelings were relevant because they tied directly to the law
enforcement’s response and the amount of force used on Morgan. The court
asked Jacobsen if he planned to argue that the law enforcement used excessive
force. Jacobsen replied, “I am not saying that the arrest itself is unlawful due to
the amount of force he used. But I suppose I am saying that looking at the force
that the jury could read that as someone not resisting.” Jacobsen did not deny
that he would use an unlawful force argument.
The court decided that if the jury was presented with an argument that the
law enforcement overacted or took unreasonable measures, it would make more
sense to question Sergeant Young now instead of having to call him back. The
State agreed. Ultimately, the court found that Sergeant Young’s thoughts had
probative value, and the testimony was not substantially more prejudicial than
probative. Jacobsen indicated he may argue that looking at the force, Morgan
was not resisting arrest. Morgan’s argument makes Sergeant Young’s thoughts
about deadly force relevant, and therefore probative.
Even if Sergeant Young’s comments were prejudicial, they were harmless
because the circumstances of Morgan’s arrest were substantially already in
evidence. Sergeant Young’s body camera footage showed the sequence of
events as Sergeant Young described, and Morgan agreed that Sergeant Young
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No. 86639-7-I/16
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could testify that he felt the need to tackle Morgan because he was concerned
that Morgan might have a weapon. We find that no abuse of discretion occurred.
2. Russell Foy’s Statement
Morgan challenges the trial court’s finding that Russell’s statement that
Foy said Morgan threatened to push her in front of a train was an excited
utterance. Because Foy made the statement still under distress from the event, it
falls under the excited utterance exception to hearsay.
A trial court’s determination that a hearsay exception applies is reviewed
for abuse of discretion. State v. Magers, 164 Wn.2d 174, 187, 189 P.3d 126
(2008) (plurality opinion). An appellate court will not disturb the trial court’s ruling
unless “no reasonable judge would have made the same ruling.” State v.
Woods, 143 Wn.2d 561, 595-96, 23 P.3d 1046 (2001).
Under ER 803, statements that would otherwise be excludable as hearsay
are admissible when they are not offered for the truth of their contents, but for
another relevant purpose. An exception to the hearsay rule is an excited
utterance, which is defined as “a statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.” ER 803(2). A statement is an excited utterance if “(1) a
startling event occurred, (2) the declarant made the statement while under the
stress or excitement of the event, and (3) the statement relates to the event.”
Magers, 164 Wn.2d at 187-88 (citing Woods, 143 Wn.2d at 597).
A key determination is “whether the statement was made while the
declarant was still under the influence of the event to the extent that the
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No. 86639-7-I/17
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statement could not be the result of fabrication, intervening actions, or the
exercise of choice or judgment.” Woods, 143 Wn.2d at 597. “Other
considerations include the declarant’s emotional state and whether the declarant
had an opportunity to reflect on the event and fabricate a story.” State v.
Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000) (citing State v.
Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912 (1999); see Thomas, 150
Wn.2d at 855 (holding that “the statements of a child who had been raped, made
three and a half hours after the rape, were admissible as excited utterances as
the child was plainly distressed”).
Here, Morgan claims the startling event was when Morgan shoulder-
checked Foy at his home, not what occurred earlier that day at the Edmonds
wharf. Therefore, Russell’s testimony about Foy could not have been an excited
utterance. Additionally, Morgan claims evidence shows that Foy calmed down
from the events at the wharf, removing an excited utterance exception.
Foy testified that at the Edmonds wharf, Morgan aggressively talked to
Foy. On the drive home, Morgan yelled at Foy throughout the drive and
attempted to smash her head into the steering wheel. Morgan’s actions at the
waterfront and the drive back to Morgan’s were the startling event. Although a
notable amount of time passed between Foy and Morgan’s time at the waterfront
and when Foy returned home, Foy did not have time to reflect on the events from
earlier in the day. From the time that Morgan and Foy drove to Morgan’s house
to when Foy arrived home, she was under constant duress from Morgan’s
ongoing threats and physical attacks. When Foy returned home, Russell stated
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No. 86639-7-I/18
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that Foy was crying and very distraught. Foy then “word vomited” about what
happened and was “very hysterical.” Russell also testified that he was trying to
calm her down. Because Foy was still under the influence of the events at the
wharf when she told Russell about Morgan’s threat, we find that the trial court did
not err in admitting Russell’s statement as an excited utterance.
Even if Foy’s statement was not an excited utterance, no prejudice
occurred because Foy testified about Morgan’s threats before Russell’s
testimony. Foy testified that Morgan made threats over the past weeks about
ending her life, including threatening to shoot her. During her testimony, the
State asked Foy if she thought Morgan was going to murder her by pushing her
into a train, to which she replied, “correct.” Even if Russell’s statement was
improperly admitted hearsay, Morgan’s threats to Foy, specifically the threat to
push her in front of a train, was already admitted into evidence. We find that the
court did not abuse its discretion in admitting Russell’s testimony.
Right to a Unanimous Jury Verdict
Morgan declares that he was entitled to a unanimous jury instruction
because the State presented multiple acts that could qualify as fourth degree
assault, and the State did not elect a specific act. Because Morgan’s acts were a
continuing course of conduct, the jury instructions were not erroneous.
The adequacy of jury instructions is reviewed de novo. State v. Pirtle, 127
Wn.2d 628, 656, 904 P.2d 245 (1995).
A defendant has a right to a unanimous jury under the Sixth Amendment
of the United States Constitution and article I, section 22 of the Washington State
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No. 86639-7-I/19
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Constitution. A defendant may not be convicted unless a unanimous jury
concludes that the criminal act charged in the information was committed. State
v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980). However, “an exception
exists when the acts constitute a continuing course of conduct.” State v. Brown,
159 Wn. App. 1, 14, 248 P.3d 518 (2010). One continuing offense must be
distinguished from several distinct acts. State v. Petrich, 101 Wn.2d 566, 569,
683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110
Wn.2d 403, 571, 756 P.2d 105 (1988). This court has found that if the time
separating multiple criminal acts is short, the crimes involve the same parties,
and the same ultimate purpose, the continuing course of conduct exception
applies. Brown, 159 Wn. App. at 15. Where evidence involves conduct at
different times and places, or different victims, the evidence tends to show
several distinct acts. State v. Love, 80 Wn. App. 357, 362, 908 P.2d 395 (1996).
An appellate court “may refuse to review any claim of error which was not raised
in the trial court.” RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d
844 (2005). But a party may raise for the first time on appeal claimed manifest
errors affecting constitutional rights. RAP 2.5(a).
Here, when the court read the proposed jury instructions, Jacobsen did
not raise an objection to the assault instruction. Even if Morgan had raised this
issue during trial, the trial court did not err because Morgan’s actions were a
continuing course of conduct toward Foy. The crimes involved the same parties,
Morgan and Foy, and had the same ultimate purpose, an assault on Foy.
Although Morgan claims that the assault in the car and at Morgan’s apartment
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No. 86639-7-I/20
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were two separate events, Morgan’s threats and assaults toward Foy were a
continuous event throughout the afternoon. On the drive from Edmonds to
Morgan’s apartment, Foy testified that Morgan was increasingly agitated and
yelled at her for more than five minutes. Morgan then tried to slam Foy’s head
into the steering wheel while she was driving. Once Foy and Morgan got back to
Morgan’s apartment, Morgan continued to loudly berate Foy. Morgan also
threatened Foy that she could pack, but it would not be peaceful. The testimony
supports that Morgan’s actions were a continuous assault on Foy. We find that
the court did not err in not requiring an unanimity instruction.
Constitutionality of Washington’s Harassment Statute
Morgan claims RCW 9A.46.020 is unconstitutional because it punishes
threats under a negligence standard, rather than the required recklessness
standard. Because Morgan relies on outdated case law to support his
contention, we conclude the statute is not unconstitutional.
The court “presume[s] statutes are constitutional and review[s] challenges
to them de novo.” Ludvigsen v. City of Seattle, 162 Wn.2d 660, 668, 174 P.3d 43
(2007). On appeal, “the challenger bears the burden of showing the statute is
unconstitutional beyond a reasonable doubt.” City of Bothell v. Barnhart, 172
Wn.2d 223, 229, 257 P.3d 648 (2011). “Where a party contends a statute is
unconstitutional on its face, that party will prevail only if there is no set of
circumstances in which a constitutional application of the statute is possible.”
State v. Calloway, 31 Wn. App. 2d 405, 415, 550 P.3d 77, review granted, 3
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No. 86639-7-I/21
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Wn.3d 1031, 559 P.3d 1023 (2024) (citing State v. Fraser, 199 Wn.2d 465, 486,
509 P.3d 282 (2022)).
Under RCW 9A.46.020, Washington’s harassment statute, “ ‘the
defendant must subjectively know’ ” that they are communicating a threat and
know that the communication “ ‘is a threat to cause bodily injury to the person
threatened or to another person.’ ” State v. Trey M., 186 Wn.2d 884, 895, 383
P.3d 474 (2016) (internal quotation marks omitted) (quoting State v. Kilburn, 151
Wn.2d 36, 48, 84 P.3d 1215 (2004)). A person may be convicted under RCW
9A.46.020 only if the person makes a true threat. Kilburn, 151 Wn.2d at 41. A
true threat is “ ‘a statement made in a context or under such circumstances
wherein a reasonable person would foresee that the statement would be
interpreted . . . as a serious expression of intention to inflict bodily harm upon or
to take the life of’ another person.” Calloway, 31 Wn. App. 2d at 417 (2024)
(alteration in original) (internal quotation marks omitted) (quoting Trey M., 186
Wn.2d at 894). Under Counterman v. Colorado, there must be proof that the
defendant “consciously disregarded a substantial risk that [the] communications
would be viewed as threatening violence.” 600 U.S. 66, 69, 143 S. Ct. 2106, 216
L. Ed. 2d 775 (2023).
Division Two of this court addressed the constitutionality of Washington’s
harassment statute after the Counterman decision in Calloway. 31 Wn. App. 2d
at 417-18. In Calloway, the court held that although Counterman required a
“departure from prior case law that placed a First Amendment limitation on the
statute,” the statute is not facially unconstitutional. 31 Wn. App. at 409. Because
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No. 86639-7-I/22
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no direct conflict exists between the statutory language and Counterman’s
definition of a true threat, the court held that it did not need to declare the
harassment statute unconstitutional. Calloway, 31 Wn. App. at 420. Rather, the
court held that to meet the standard set in Counterman, “the State must prove
the defendant was at least ‘aware that others could regard [the] statements as
threatening violence and [delivered] them anyway.’ ” Calloway, 31 Wn. App. at
420 (alterations in original) (internal quotation marks omitted) (quoting
Counterman, 600 U.S. at 79).
Here, Morgan asserts that harassment requires a true threat – that the
defendant consciously disregarded a substantial risk that their communication
would be viewed as threatening violence. This is a higher mental state than a
negligence standard, which asks whether a reasonable person could foresee
some risk. Morgan cites pre-Counterman case law to support his claim that the
Washington harassment statute is unconstitutional. But, Counterman’s definition
of true threat is binding. As Calloway found, “because the United States
Supreme Court has intervened, we are permitted to depart from prior Washington
Supreme Court holdings and import the United States Supreme Court’s definition
of a true threat.” 31 Wn. App. at 421. Accordingly, we conclude RCW 9A.46.020
is constitutional.
Determination of Criminal History for Sentencing
Morgan argues the court erred when it determined that his prior
convictions could be included in his offender’s score.
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No. 86639-7-I/23
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A sentencing court’s offender score is reviewed de novo. State v. Moeurn,
170 Wn.2d 169, 172, 240 P.3d 1158 (2010). “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000). Additionally, the Apprendi Court stressed “[i]t is unconstitutional
for a legislature to remove from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof beyond a reasonable
doubt.” 530 U.S. at 490 (alteration in original) (quoting Jones v. United States,
526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J.,
concurring)). “All that is required by the constitution and the statute is a
sentencing hearing where the trial judge decides by a preponderance of the
evidence whether the prior convictions exist.” State v. Wheeler, 145 Wn.2d 116,
121, 34 P.3d 799 (2001). The Washington State Supreme Court further clarified
that Apprendi applies “only for prior convictions.” State v. Hughes, 154 Wn.2d
118, 142, 110 P.3d 192 (2005) (emphasis omitted). Additionally, the court has
held that when a sentence is increased because of prior convictions, “the fact of
those prior convictions need not be found by a jury.” State v. Anderson, 31 Wn.
App. 2d 668, 678, 552 P.3d 803, review denied, 3 Wn.3d 1034, 559 P.3d 1013
(2024). “Where an enhancement requires findings of ‘new factual determinations
and conclusions’ beyond ‘mere criminal history,’ those findings are required to be
made by a jury.” Anderson, 31 Wn. App. at 678 (internal quotation marks
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No. 86639-7-I/24
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omitted) (quoting Hughes, 154 Wn.2d at 141-42). “ ‘Traditional factors
considered by a judge in determining the appropriate sentence, such as prior
criminal history, are not elements of the crime.’ ” Anderson, 31 Wn. App. 2d at
679 (quoting Wheeler, 145 Wn.2d at 120).
Here, Morgan claims that the jury should have determined whether the
prior convictions should be included in his offender score. Morgan asserts that
the court’s ruling is inconsistent with Erlinger v. United States, which held that a
jury must find that a defendant’s past offenses were committed on separate
occasions. 602 U.S. 821, 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024).
Morgan also cites Apprendi to support his assertion that any fact
increasing his “punishment must be found beyond a reasonable doubt by a jury.”
But our courts have held that the fact of prior convictions does not need to be
found by a jury. Traditional factors, including prior criminal history, considered by
a judge in determining the appropriate sentence are not elements of the crime.
Wheeler, 145 Wn.2d at 120. Therefore, a jury determination of Morgan’s prior
convictions beyond a reasonable doubt prior to the court using the convictions to
calculate Morgan’s offender score is unnecessary. We conclude the court did
not err.
We affirm.
WE CONCUR:
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