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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON CO rt*i ^ '
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STATE OF WASHINGTON, ) No. 71967-0-1
9?
Respondent, ) DIVISION ONE -c- q£
O! «™ «C
v. )
JENNIFER L. MARKWITH, ) UNPUBLISHED
Aooellant. ) FILED: October 20, 2014
Cox, J. - Jennifer Markwith appeals her judgment and sentence for her
convictions of residential burglary, second degree assault, and reckless
endangerment. The giving of the court's instruction on reasonable doubt was
harmless error. Markwith failed to preserve below the challenge to alleged
propensity evidence that she now makes on appeal. Likewise, she failed to
preserve below her challenge on appeal to the admission of evidence of
uncharged conduct. She fails in her burden to show that trial counsel was
ineffective. The record does not show any violation of her Fifth Amendment
rights. The convictions for second degree assault and reckless endangerment
do not violate double jeopardy under the circumstances of this case. We affirm.
In early 2012, Markwith lived with Yvonne Bell in Shelton, Washington.
The two had been dating for about 10 years. They lived in the loft of a barn that
they rented from Bell's friend, Angela Tecpile, and Tecpile's husband. Another
tenant, Daniel Irwin, lived in the barn below the loft.
No. 71967-0-1/2
On the night of April 23, Bell went to Tecpile's house to sleep for the night
because she and Markwith were having a disagreement. Markwith had accused
Bell of sleeping with Tecpile. After a confrontation, Tecpile told Markwith that she
was no longer welcome on the property.
The next morning, Markwith went to the house to talk to Bell. Another
confrontation broke out between Markwith and Tecpile. The police arrested
Tecpile, and released her about an hour later. Tecpile's husband picked Tecpile
up and told her that he learned that Markwith had taken her Wii gaming system.
Tecpile called 911 and upon returning home, she noticed that other items were
missing.
After she finished checking her house, Tecpile, her husband, and Irwin left
the house to go to the store. When they returned, they saw Markwith and Bell by
the loft. Tecpile's husband positioned his car in such a way so as to block their
exit. Tecpile called 911. Tecpile told Markwith to stay put and that the police
were on their way.
Markwith got in her car. According to Irwin's testimony at trial, Markwith
"stomped on the gas" and "floored it." Markwith drove straight toward the
group—Tecpile, Bell, Irwin, and Tecpile's husband. Tecpile jumped out of the
way. Markwith drove through a barbed wire fence. A piece of barbed wire and a
fence post caught underneath the car. The wire caught the front wheel of Irwin's
walker and knocked him over. He sustained minor injuries.
No. 71967-0-1/3
Markwith testified at trial that she ran through the fence to avoid hitting
Tecpile's car, Tecpile, and Bell. She testified that it was her only way off of the
property.
Based on these events, the State charged Markwith with residential
burglary, second degree assault, and reckless endangerment. The case
proceeded to a jury trial in late 2012. The jury returned guilty verdicts for each of
the three charges.
Markwith appeals.
JURY INSTRUCTION
Markwith argues that the trial court committed reversible error when it
used a modified version of the standard jury instruction on reasonable doubt.
She contends the instruction relieved the State of its burden of proof. We
disagree.
"Instructions must convey to the jury that the State bears the burden of
proving every essential element of a criminal offense beyond a reasonable
doubt."1 "Although no specific wording is required, jury instructions must define
reasonable doubt and clearly communicate that the State carries the burden of
proof."2 It is reversible error to instruct the jury in a manner relieving the State of
its burden to prove every element of a crime beyond a reasonable doubt.3 A
1 State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).
3 Id.
No. 71967-0-1/4
challenged jury instruction is reviewed de novo, in the context of the instructions
as a whole.4
In State v. Bennett, the supreme court instructed trial courts to use the
approved Washington Pattern Jury Instruction, WPIC 4.01, to instruct juries on
the State's burden to prove beyond a reasonable doubt each element of the
crime.5
Eight months after Bennett, this court, in State v. Castillo, reversed a
conviction where the trial court gave a completely nonstandard instruction.6
There, the defendant proposed WPIC 4.01, but the trial court refused to provide
it, stating that "the WPIC is goobley-gook [sic] in my mind."7
But erroneous modification of WPIC 4.01 does not automatically constitute
reversible error.8 Rather, this type of erroneous jury instruction is subject to a
constitutional harmless error analysis.9 Thus, a court may hold the error
harmless if it is satisfied "'beyond a reasonable doubt that the jury verdict would
414
5161 Wn.2d 303, 306, 165 P.3d 1241 (2007) (citing 11 Washington
Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 79 (2d ed.
Supp. 2005) (WPIC)).
6 150 Wn. App. 466, 208 P.3d 1201 (2009).
7 jd. at 470 (alteration in original) (internal quotation marks omitted).
8 State v. Lundv, 162 Wn. App. 865, 871-73, 256 P.3d 466 (2011).
9 Id. at 871-72.
No. 71967-0-1/5
have been the same absent the error.'"10 "Even misleading instructions do not
require reversal unless the complaining party can show prejudice."11
Here, unlike Castillo, the trial court did not give a completely nonstandard
instruction. Rather, it provided an instruction that deviated slightly from WPIC
4.01. This WPIC provides:
[The] [Each] defendant has entered a plea of not guilty. That
plea puts in issue every element of [the] [each] crime charged. The
[State] [City] [County] is the plaintiff and has the burden of proving
each element of [the] [each] crime beyond a reasonable doubt.
The defendant has no burden of proving that a reasonable
doubt exists [as to these elements],
A defendant is presumed innocent. This presumption
continues throughout the entire trial unless during your
deliberations you find it has been overcome by the evidence
beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and
may arise from the evidence or lack of evidence. It is such a doubt
as would exist in the mind of a reasonable person after fully, fairly,
and carefully considering all of the evidence or lack of evidence. [If,
from such consideration, you have an abiding belief in the truth of
the charge, you are satisfied beyond a reasonable doubt.][12]
Instruction 3 conformed to WPIC 4.01 except that it lacked the
emphasized language above. Instruction 3 stated:
The defendant has entered a plea of not guilty. That plea
puts in issue every element of the crime charged. The State of
Washington is the plaintiff and has the burden of proving each
element of the crime beyond a reasonable doubt.
10 la\ at 872 (internal quotation marks omitted) (quoting State v. Bashaw,
169 Wn.2d 133, 147, 234 P.3d 195 (2010)).
11 Id,
12 WPIC 4.01 (emphasis added).
No. 71967-0-1/6
A defendant is presumed innocent. This presumption
continues throughout the entire trial unless during your
deliberations you find it has been overcome by the evidence
beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and
may arise from the evidence or lack of evidence. It is such a doubt
as would exist in the mind of a reasonable person after fully, fairly
and carefully considering all of the evidence or lack of evidence. If,
after such consideration, you have an abiding belief in the truth of
the charge, you are satisfied beyond a reasonable doubt.[131
No one objected to this incomplete instruction and, presumably, no one
even noticed the discrepancy during the proceedings.
We conclude that Instruction 3's slight deviation from WPIC 4.01 was
harmless error. Instruction 3 unequivocally stated that the State had the burden
of proving each element of the crimes beyond a reasonable doubt. Additionally,
it communicated the fundamental concept that Markwith was presumed innocent.
Moreover, Markwith does not explain how the omission of the emphasized
language in the WPIC instruction caused her prejudice. This record does not
show that the State ever attempted to shift the burden of proof by its arguments
or otherwise. And Instruction 3 made it clear to the jury that the State had the
burden of proof.
In sum, we are satisfied beyond a reasonable doubt that the jury verdict
would have been the same absent the error.
Markwith argues that Instruction 3 "did not make the relevant standard
manifestly apparent to the average juror" and "left open the possibility" that she
13
Clerk's Papers at 27.
No. 71967-0-1/7
had the burden of raising a reasonable doubt.14 But for the reasons just
discussed, we disagree.
Markwith relies on Castillo to assert that this deviation from WPIC 4.01
requires reversal.15 But this court reversed in Castillo because the trial court
provided a completely nonstandard instruction that suffered from several
problems.16 Additionally, in Castillo, the omission of the "defendant has no
burden" sentence was significant because the State attempted to shift its burden
of proof to the defendant.17 Here, Markwith does not show any instance where
the State engaged in such conduct. Her reliance on this case is not persuasive.
DUE PROCESS
Markwith argues that her convictions were based in part on propensity
evidence in violation of her Fourteenth Amendment right to due process. She
contends that admission of such evidence was a manifest error affecting a
constitutional right that she may raise the first time on appeal under RAP
2.5(a)(3). We disagree.
Generally, appellate courts will not review issues raised for the first time
on appeal.18 RAP 2.5(a)(3) permits a party to raise such a claim if it amounts to
a "manifest error affecting a constitutional right." To determine the applicability of
14 Appellant's Opening Brief at 12.
15 Id, (citing Castillo. 150 Wn. App. at 473).
16 See Castillo. 150 Wn. App. at 470-75.
17 id, at 473.
18 Smith v. Shannon. 100 Wn.2d 26, 37, 666 P.2d 351 (1983).
No. 71967-0-1/8
RAP 2.5(a)(3), we must first determine whether the alleged error is
constitutional.19
"Issues of constitutional interpretation and waiver are questions of law,
which courts review de novo."20
Markwith asserts that her due process rights were violated because the
admission of testimony that she broke the rear window of Bell's car the night
before the incident, along with the absence of a limiting instruction, allowed the
jury to convict her based in part on propensity evidence.21 But such an assertion
is based on ER 404(b), an evidentiary rule. And our supreme court has held that
evidentiary errors under ER 404 are not of constitutional magnitude.22
To support her argument, Markwith relies on Garceau v. Woodford, a
Ninth Circuit case.23 But we are bound only by the decisions of our state
supreme court and nonsupervisory decisions of the United States Supreme
Court.24
19 State v. Powell. 166 Wn.2d 73, 84, 206 P.3d 321 (2009).
20 State v. Robinson. 171 Wn.2d 292, 301, 253 P.3d 84 (2011).
21 Appellant's Opening Brief at 15-16.
22 State v. Smith. 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (citing State
v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984)).
23 Appellant's Opening Brief at 14-16 (citing Garceau v. Woodford. 275
F.3d 769, 775 (9th Cir. 2001), reversed on other grounds. 538 U.S. 202, 123 S.
Ct. 1398, 155 L. Ed. 2d 363 (2003)).
24 In re Pers. Restraint of Crace. 157 Wn. App. 81, 98 n.7, 236 P.3d 914
(2010V reversed on other grounds. 174 Wn.2d 835, 280 P.3d 1102(2012).
8
No. 71967-0-1/9
In any event, Markwith's reliance on Garceau is entirely unpersuasive. In
that case, the court instructed the jury that evidence that Robert Garceau
committed other crimes may be considered "for any purpose, including but not
limited to . . . [Garceau's] conduct on a specific occasion."25 The trial court
rejected Garceau's objection to this instruction.26 On appeal, the Ninth Circuit
concluded that this jury instruction violated due process because it "rendered
Garceau's trial so fundamentally unfair as to constitute a violation of the Due
Process Clause."27
Here, in contrast, the instruction identified by Markwith, Instruction 1, did
not specifically reference the evidence of Markwith's prior misconduct. Nor did it
expressly instruct the jury that this evidence could be used to prove her conduct
on a specific occasion. The court's instructions did not "'so infect[] the entire trial
that the resulting conviction violate[d] due process.'"28
In sum, RAP 2.5(a)(3) does not apply and we decline to review Markwith's
claim any further.
The State argues that even if this is constitutional error, it is not manifest
and its admission was harmless error. It also argues that the evidence was not
propensity evidence because it showed a continuing course of action by
25 Garceau. 275 F.3d at 773.
26 Id,
27 \± at 776.
28 Id, at 775 (quoting Estelle v. McGuire. 502 U.S. 62, 72, 112 S. Ct. 475,
116 L.Ed. 2d 385 (1991)).
9
No. 71967-0-1/10
Markwith. Because we hold that RAP 2.5(a)(3) does not apply, we need not
address these arguments.
EVIDENTIARY RULING
Markwith contends that the court erred when it denied her motion to
exclude evidence that Markwith had intimidated Bell the night before the incident.
She argues that admission of this evidence violated ER 404(b). We hold that
Markwith failed to preserve this claim for review.
"Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident."29
An appellate court reviews a trial court's evidentiary rulings for abuse of
discretion.30 An appellate court will overturn the trial court's rulings on the
admissibility of evidence only if its decision was manifestly unreasonable,
exercised on untenable grounds, or based on untenable reasons.31
"A party may only assign error in the appellate court on the specific ground
of the evidentiary objection made at trial."32 "An objection which does not specify
29 ER 404(b).
30 Cole v. Harvevland LLC, 163 Wn. App. 199, 213, 258 P.3d 70 (2011).
31 Gorman v. Pierce County. 176 Wn. App. 63, 84, 307 P.3d 795 (2013),
review denied, 179 Wn.2d 1010 (2014).
32 State v. Gulov. 104 Wn.2d 412, 422, 705 P.2d 1182(1985).
10
No. 71967-0-1/11
the particular ground upon which it is based is insufficient to preserve the
question for appellate review."33
This issue was not preserved for review. When Markwith asked the court
to exclude any testimony from Bell about the preceding night and Bell's resulting
intimidation and fear, defense counsel did not specify any evidentiary rule or
basis for the request.
Further, any basis for the objection based on ER 404(b) was not apparent
from the context. The prosecutor responded to Markwith's request by arguing
that the evidence was relevant. And the court, after clarifying the request,
concluded that the testimony was admissible. It stated, "I think it goes to—it
goes, actually, one, to Ms. Bell's state of mind and also as to why she was in the
home."34 At no point in this exchange did defense counsel ever reference ER
404(b), the basis now asserted on appeal. The record reflects that all parties
were focused on the issue of relevance, and a different basis for the objection
was never clarified by defense counsel.
Because Markwith failed to object on the basis of ER 404(b) at trial, we do
not review this claim.
INEFFECTIVE ASSISTANCE OF COUNSEL
Markwith asserts that she received ineffective assistance of counsel when
defense counsel elicited testimony from Bell that Markwith had smashed the rear
window of Bell's car. We disagree.
33ig\
34 Report of Proceedings (November 27, 2012) at 113.
11
No. 71967-0-1/12
The right to counsel includes the right to effective assistance of counsel.35
In order to prevail on an ineffectiveness claim, the defendant must prove that (1)
counsel's performance was deficient and (2) the defendant was prejudiced by the
deficient performance.36 Counsel's performance was deficient if it fell below "an
objective standard of reasonableness."37 The defendant was prejudiced ifthere
is "a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."38 "A reasonable probability
is a probability sufficient to undermine confidence in the outcome."39
"Deficient performance is not shown by matters that go to trial strategy or
tactics."40 Reviewing courts make "every effort to eliminate the distorting effects
of hindsight and must strongly presume that counsel's conduct constituted sound
trial strategy."41
When the defendant claims ineffective assistance based on counsel's
failure to challenge the admission of evidence, the defendant must show (1) an
absence of legitimate strategic or tactical reasons supporting the challenged
35 Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
36 jd, at 687.
37 ]d, at 688.
38 id, at 694.
39 id,
40 State v. Saunders. 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
41 In re Pers. Restraint of Rice. 118 Wn.2d 876, 888-89, 828 P.2d 1086
(1992).
12
No. 71967-0-1/13
conduct; (2) that an objection to the evidence would likely have been sustained;
and (3) that the result of the trial would have been different if the evidence had
not been admitted.42
Markwith fails to show that defense counsel's performance was deficient.
While Bell testified about Markwith smashing her car window, it does not appear
that Markwith's attorney intended to elicit this testimony. Thus, this case is unlike
State v. Saunders, upon which Markwith relies.43 There, Lee Saunders' attorney
elicited evidence of Saunders' prior conviction by directly asking Saunders if he
had any prior convictions.44
Further, as the State points out, "accepting the testimony and moving past
it had the tactical effect of deemphasizing it and diminishing its effect."45
Additionally, the trial court here had already ruled that this evidence was
admissible. Thus, it is unlikely that any objection to Bell's response, or a motion
to strike, would have been sustained.
Moreover, Markwith also fails to show prejudice by her counsel's
performance. The jury heard ample evidence in support of Markwith's
convictions, and Markwith cannot show a reasonable probability that the outcome
at trial would have been different.
42 Saunders. 91 Wn. App. at 578.
43 91 Wn. App. 575, 958 P.2d 364 (1998).
44 id, at 578.
45 Brief of Respondent at 28.
13
No. 71967-0-1/14
Markwith also argues that defense counsel failed to propose a limiting
instruction. But she does not cite authority or make argument specific to this
claim. Thus, we do not consider it further.
FIFTH AMENDMENT
Markwith argues that, at trial, a deputy made an improper comment on her
post-arrest exercise of her privilege against self-incrimination during his
testimony and that this comment violated due process. We disagree.
The State may not comment on a defendant's Fifth Amendment right to
remain silent.46 An impermissible comment on silence occurs when the State
uses the defendant's silence "as substantive evidence of guilt or to suggest to the
jury that the silence was an admission of guilt."47 "A mere reference to silence,
however, is not necessarily an impermissible comment and, therefore, not
reversible constitutional error, absent a showing of prejudice."48
A direct comment, such as when a witness or state agent refers to the
defendant's invocation of his or her right to remain silent, is reviewed for
prejudice using a harmless error beyond a reasonable doubt standard.49 An
indirect comment, such as when a witness or state agent references a comment
or action by the defendant which could be inferred as an attempt to exercise the
right to remain silent, is reviewed using the lower, nonconstitutional harmless
46 State v. Lewis. 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
47 id, at 707.
48 State v. Slone. 133 Wn. App. 120, 127, 134 P.3d 1217 (2006).
49 State v. Pottorff. 138 Wn. App. 343, 346-47, 156 P.3d 955 (2007).
14
No. 71967-0-1/15
error standard to determine whether no reasonable probability exists that the
error affected the outcome.50
Markwith challenges the following portion of the responding deputy's
testimony:
[PROSECUTOR]: Did—after this conversation, did Ms.
Markwith say anything to you—regarding, you know, use of
obscenities?
[DEPUTY]: She got tired of my asking her questions real
quick, started yelling obscenities at me, saying that I was a liar, and
then she accused me for some reason of having drugs with the
victim.
[PROSECUTOR]: Of using drugs with the victim?
[DEPUTY]: Right, and at that time I could not get anything
out of her, so I just stopped any questioning.[51]
Assuming she can raise this issue for the first time on appeal, Markwith
does not show that the deputy's testimony amounted to an impermissible
comment on her silence. Viewing the testimony as a whole, the deputy did not
directly reference Markwith's invocation of the right to remain silent, and the
State did not elicit such testimony or use it as substantive evidence of guilt.
At most, this testimony amounts to an indirect comment on Markwith's
right to remain silent. But even if the deputy's testimony could be characterized
in this manner, it was not prejudicial. The State did not invite the jury to infer guilt
from Markwith's response, and the State's closing argument did not focus on this
portion of the testimony. Further, there was significant evidence of Markwith's
50 Id, at 347.
51 Report of Proceedings (November 27, 2012) at 141-42.
15
No. 71967-0-1/16
guilt presented at trial. In sum, Markwith fails to show that the alleged error
affected the outcome at trial.
For the same reasons, we also reject Markwith's argument that her trial
counsel was ineffective for failing to object to this testimony. Markwith cannot
show either that her counsel was deficient for failing to object to this testimony, or
that failure to object to this testimony was prejudicial.
The State contends that Markwith did not assert her right to remain silent.
But we need not address this argument, given our previous discussion.
DOUBLE JEOPARDY
Markwith argues that her convictions for second degree assault and
reckless endangerment violated the constitutional protection against double
jeopardy. Specifically, she contends both convictions stemmed from the same
conduct. We hold that there was no double jeopardy violation.
"The Washington State Constitution, article I, section 9 provides the same
protection against double jeopardy as the fifth amendment to the federal
constitution."52 The state and federal double jeopardy clauses protect against
multiple punishments for the same offense, as well as against a subsequent
prosecution for the same offense after acquittal or conviction.53 "Where a
defendant's act supports charges under two criminal statutes, a court weighing a
52 In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291
(2004).
53 id,
16
No. 71967-0-1/17
double jeopardy challenge must determine whether, in light of legislative intent,
the charged crimes constitute the same offense."54
When legislative intent is unclear, Washington follows the rule referred to
as the "same evidence" rule or "same elements" rule.55 This test is very similar to
that set forth in Blockburger v. United States.56 "'[T]he defendant's double
jeopardy rights are violated if he or she is convicted of offenses that are identical
both in fact and in law."'57 "The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not."58
"Under Blockburger. we presume that the legislature did not intend to
punish criminal conduct twice when 'the evidence required to support a
conviction upon one of [the charged crimes] would have been sufficient to
warrant a conviction upon the other."59 "Accordingly, ifthe crimes, as charged
54 id,
55 State v. Womac, 160 Wn.2d 643, 652, 160 P.3d 40 (2007).
56 id, (citing Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct.
180, 76 L Ed. 306(1932)).
57 Jd, (alteration in original) (quoting State v. Calle, 125 Wn.2d 769, 777,
888P.2d 155(1995)).
58 Orange. 152 Wn.2d at 817 (emphasis omitted).
59 State v. Freeman, 153 Wn.2d 765, 776-77, 108 P.3d 753 (2005)
(emphasis omitted) (alteration in original) (internal quotation marks omitted)
(quoting Orange. 152 Wn.2d at 820).
17
No. 71967-0-1/18
and proved, are the same in law and in fact, they may not be punished
separately absent clear legislative intent to the contrary."60
"[Ojffenses are not constitutionally the same if there is any element in one
offense not included in the other and proof of one offense would not necessarily
prove the other."61 "Washington courts, however, have occasionally found a
violation of double jeopardy despite a determination that the offenses involved
clearly contained different legal elements."62
Double jeopardy violations are constitutional issues reviewed de novo.63
Here, the State charged Markwith with second degree assault and
reckless endangerment.
As for the assault charge, the State alleged in count two of the third
amended information that Markwith "did intentionally assault another person, to
wit: Angela Tecpile, with a deadly weapon to wit: a vehicle; contrary to RCW
9A.36.021(1)(c)."
The State also charged Markwith with reckless endangerment pursuant to
RCW 9A.36.050(1). Count three of the third amended information alleges that
Markwith "did recklessly engage in conduct which did create a substantial risk of
death or serious physical injury to another person."
60 id, at 777.
61 State v. Truiillo, 112 Wn. App. 390, 410, 49 P.3d 935 (2002).
62 Womac. 160 Wn.2d at 652.
63 Id. at 649.
18
No. 71967-0-1/19
A mere comparison of the legal elements of second degree assault and
reckless endangerment shows that such elements are not the same.64 Second
degree assault brought under RCW 9A.36.021(1)(c) requires proof of an assault
with a deadly weapon. The assault in this case required proof of "an act done
with the intent to create in another apprehension and fear of bodily injury, and
which in fact creates in another a reasonable apprehension and imminent fear of
bodily injury even though the actor did not actually intend to inflict bodily injury."65
On the other hand, reckless endangerment requires proof that a person
"recklessly engages in conduct not amounting to drive-by shooting but that
creates a substantial risk of death or serious physical injury to another person."66
But a mere comparison of the legal elements of separate charges does
not satisfy the controlling test for double jeopardy. As the supreme court clearly
stated in State v. Freeman. "When applying the Blockburger test, we do not
consider the elements of the crime on an abstract level."67 Rather, we consider
the elements as charged and proved.68 Thus, the question in this case is
64 See State v. Rivera. 85 Wn. App. 296, 299-300, 932 P.2d 701 (1997)
(comparing the legal elements of a former version of first degree assault with the
legal elements of a former version of reckless endangerment for double jeopardy
purposes).
65 Clerk's Papers at 40 (Court's Instruction 16).
66 RCW 9A.36.050.
67 153 Wn.2d 765, 772, 108 P.3d 753 (2005).
68 Id. at 777.
19
No. 71967-0-1/20
whether the elements of these two crimes, as charged and proved, violate double
jeopardy.
The essence of Markwith's argument is that her reckless endangerment
conviction was based on the same act of allegedly driving toward Tecpile that
supported the second degree assault charge. In her reply, she further argues
that the State misreads the record by claiming that it proved separate acts for the
two separate charges. In her words, "both convictions may have been based on
her assaulting and endangering Tecpile."
The chief problem with this argument is that even assuming that these
charges were based on the same act or transaction, these crimes, as charged
and proved, are not the same in law and fact.
As stated above, "The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not."69 "[0]ffenses
are not constitutionally the same ifthere is any element in one offense not
included in the other and proof of one offense would not necessarily prove the
other."70
Here, these offenses are not constitutionally the same because they each
require proof of a different mens rea. And proof of this element for one offense
does not necessarily prove the other.
69 Orange. 152 Wn.2d at 817 (emphasis omitted).
70 Truiillo. 112 Wn. App. at 410.
20
No. 71967-0-1/21
As charged and proved in this case, the assault charge required proof that
Markwith "inten[ded] to create in another apprehension and fear of bodily injury."
In contrast, the reckless endangerment charge required proof that
Markwith "recklessly engagefd] in conduct that create[d] a substantial risk of
death or serious physical injury to another person." The jury was instructed that
a person "is reckless or acts recklessly" when she "knows of and disregards a
substantial risk that a wrongful act may occur and this disregard is a gross
deviation from conduct that a reasonable person would exercise in the same
situation."71 It was also instructed, "When recklessness as to a particular result
or fact is required to establish an element of a crime, the element is also
established ifa person acts intentionally or knowingly as to that result or fact."72
Proof that Markwith "inten[ded] to create apprehension and fear of bodily
injury," which is necessary to support the assault charge, does not necessarily
prove that Markwith "[knew] of and disregarded]" a substantial risk that a
wrongful act may occur or that she acted intentionally as to that result or fact.
And proof that Markwith knew of and disregarded a substantial risk that a
wrongful act would occur or acted intentionally as to that result, which is
necessary to sustain the reckless endangerment charge, does not necessarily
prove that Markwith intended to create apprehension and fear of bodily injury.
Accordingly, because the proof necessary to establish the mens rea
required for each of these crimes does not necessarily prove the other, these
71 Clerk's Papers at 44 (Court's Instruction 20).
72 id,
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No. 71967-0-1/22
charges are not the same in law and fact. Thus, even assuming the charges
were based on the same act or transaction, there is no double jeopardy violation.
Given this analysis, we need not address Markwith's arguments that these
two charges were based on the same act or transaction. We also need not
address the State's arguments that these were based on separate and distinct
acts.
Markwith argues in her opening brief, "The jury was instructed that an act
is reckless if it is also intentional. Thus, the mens rea element necessary to
convict on the assault charge was also sufficient to convict on the reckless
endangerment charge." But this is incorrect. The jury was instructed that
recklessness as to a particular result or fact may be established "if a person
acts intentionally or knowingly as to that result or fact."73 Further, this does not
address the fact that assault requires intent to cause apprehension or fear, while
reckless endangerment requires knowledge or intent of a substantial risk of
harm. Thus, this argument is not persuasive.
In her reply brief, Markwith argues, "When attacked with a car, a person
who reasonably fears imminent bodily injury necessarily suffers a substantial risk
of serious physical injury, if not of death." Accordingly, she argues that the
evidence in this case establishing Tecpile's reasonable apprehension and
imminent fear of bodily injury also proves substantial risk of death or serious
physical injury. But this argument does not address the mens rea required to
establish these crimes. This is also not persuasive.
73 id, (Court's Instruction 20) (emphasis added).
22
No. 71967-0-1/23
Markwith fails in her burden to show an actual double jeopardy violation.
We affirm the judgment and sentence.
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WE CONCUR:
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23