FILED
MAY 21, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36314-7-III
Respondent, )
)
v. )
)
TOMMY D. CANFIELD, ) PUBLISHED OPINION
)
Appellant. )
KORSMO, J. — On remand from a previous appeal, the State filed two additional
charges that could have been filed before the first trial. The charges should have been
precluded by our mandatory joinder rule. We reverse the two newest counts.
PROCEDURAL HISTORY
Appellant Tommy Canfield previously appealed convictions for possession of
methamphetamine, second degree unlawful possession of a firearm, possession of a
stolen firearm, and obstructing a public servant to this court. State v. Canfield, No.
34881-4-III (Wash. Ct. App. Apr. 3, 2018) (Canfield I) (unpublished),
http://www.courts.wa.gov/pdf/348814_unp.pdf. This court affirmed the three felony
convictions and reversed the gross misdemeanor offense of obstructing a public servant.
No. 36314-7-III
State v. Canfield
A majority of this court concluded that the obstructing a public servant charge had
been treated as a multiple acts case and that in the absence of an election or a special
verdict, the defendant’s right to a unanimous verdict could not be ensured.1 Id. at 10-11.
In particular, the prosecutor argued that Mr. Canfield had obstructed the officers by lying
about his identity, trying to hide evidence, and resisting handcuffing. Id. at 3. The
obstructing conviction was reversed due to the unanimity problem and the case remanded
for further proceedings. Id. at 12.
The prosecutor opted to retry the obstructing incident. Prior to trial, the court
granted an amendment to the information that again charged obstructing a public servant
and added charges of making a false or misleading statement and tampering with physical
evidence. The defense did not object to the amendment. Mr. Canfield waived his right to
a jury trial and proceeded to a bench trial.
The evidence was similar to that presented at the first trial. Law enforcement
officers testified that Mr. Canfield feigned sleep when first contacted, disregarded several
commands, and tried to start his vehicle as if to drive away from the scene. He also lied
about his identity and tried to hide a gun while being arrested. The court convicted Mr.
Canfield of obstructing for the “continuous course of conduct” including the behavior
1
The authoring judge believed the obstructing charge constituted a continuing
course of conduct for which no unanimity instruction was needed. Canfield I, slip op. at
11.
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No. 36314-7-III
State v. Canfield
noted above. The court also found Mr. Canfield guilty of giving a false statement and
guilty of attempted tampering with physical evidence due to the unsuccessful attempt to
conceal the revolver.
The court imposed a 7 month sentence on the false statement conviction, 4 months
for the obstructing conviction, and 45 days for the attempted evidence tampering offense.
The false statement and obstructing sentences ran consecutively to all other sentences and
the evidence tampering sentence was ordered to be served concurrently. The court also
imposed a criminal filing fee and sheriff’s service fee.
Mr. Canfield again appealed to this court. A panel considered his case without
hearing argument.
ANALYSIS
Mr. Canfield contends that his counsel was ineffective, the evidence did not
support the obstructing charge, and the noted financial obligations were improperly
ordered. We address his arguments in the order noted.
Ineffective Assistance of Counsel
Mr. Canfield first argues that his counsel provided ineffective assistance by failing
to object to the amendment of charges. We agree.
Ineffective assistance claims are reviewed under well settled standards. Counsel’s
failure to live up to the standards of the profession will require a new trial when the client
has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-35,
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No. 36314-7-III
State v. Canfield
899 P.2d 1251 (1995). Review is highly deferential and we engage in the presumption
that counsel was competent; moreover, counsel’s strategic or tactical choices are not a
basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not
(1) counsel’s performance failed to meet a standard of reasonableness and (2) actual
prejudice resulted from counsel’s failures. Id. at 690-92.
Also at issue is CrR 4.3.1(b)(3), the mandatory joinder rule. It provides:
A defendant who has been tried for one offense may thereafter move to
dismiss a charge for a related offense, unless a motion for consolidation of
these offenses was previously denied or the right of consolidation was waived
as provided in this rule. The motion to dismiss must be made prior to the
second trial, and shall be granted unless the court determines that because the
prosecuting attorney was unaware of the facts constituting the constituting the
related offense or did not have sufficient evidence to warrant trying this
offense at the time of the first trial, or for some other reason, the ends of
justice would be defeated if the motion were granted.
“Two or more offenses are related offenses, for purposes of this rule, if they are within the
jurisdiction and venue of the same court and are based on the same conduct.” CrR
4.3.1(b)(1). The phrase “same conduct” means “conduct involving a single criminal
incident or episode.” State v. Lee, 132 Wn.2d 498, 503, 939 P.2d 1223 (1997). Related
offenses must be joined to avoid the possibility of multiple prosecutions based on the same
conduct. State v. McNeil, 20 Wn. App. 527, 532, 582 P.2d 524 (1978).
There was a previous trial and the superior court had jurisdiction and venue over the
obstructing incident. Thus, if the new charges involved the same conduct as the original
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No. 36314-7-III
State v. Canfield
obstructing charge, then mandatory joinder applied and counsel erred by failing to object to
the amendment. Under both our original opinion and the case law, the new charges were
the same conduct as the original charge.
The three principal components of the current charges—defendant’s failure to
comply with the deputy’s lawful commands and resistance to handcuffing, his efforts at
hiding the gun, and his lying about his identity—were argued to the jury in the first trial and
provided the ratio decidendi for the first opinion. From those facts, the original panel
concluded that there either were three instances of obstructing (majority) or one continuing
obstruction of public servants (author). No panel member considered any aspects of the
behavior unrelated to the case at hand. Rather, all members concluded that Mr. Canfield’s
behavior was part and parcel of the obstructing charge before the jury in the first trial. The
obstructing conduct at issue in the first trial was related.
More importantly, our case law compels the same result. In a later case analyzing
the authority relied on by Lee, the court concluded that same conduct/related offenses
concepts referred to actions based on “the same physical act or actions” and relied on “the
close logical and temporal proximity of the events.” State v. Kindsvogel, 149 Wn.2d 477,
482-83, 69 P.3d 870 (2003) (construing former CrR 3.3 (2000)). The same physical actions
were before the jury in the first case as were before the judge in the second case. Those
actions also were logically and temporally related—the obstructing episode played out
between the initial efforts to take Mr. Canfield into custody at his vehicle and continued
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No. 36314-7-III
State v. Canfield
until his arrival at the jail. This was one related incident, no matter whether it was parceled
out into three offenses or one.
McNeil presents one example of related offenses. There the defendant was
charged with embezzlement and, by a later information, falsifying accounts by a public
officer. 20 Wn. App. at 528-29. The charges arose from the same documents and
involved the same basic incident. Id. at 529. This court concluded that the offenses were
related and the mandatory joinder rule barred the second prosecution. Id. at 532-34.2
Another example is presented by State v. Holt, 36 Wn. App. 224, 673 P.2d 627
(1983). There an adult bookstore owner was prosecuted for obscene materials found at
his place of business. Id. at 225. In a second case, 20 additional charges were filed
relating to obscene materials found in a storage unit; both charging documents referenced
the same dates. Id. at 225-26. The 20 later-filed charges were dismissed for failure to
have been joined with the charges arising from the operation of the store. Id. at 226-28.
The Washington Supreme Court likewise has applied mandatory joinder to bar
trials of similar offenses arising from the same actions. E.g., State v. Dallas, 126 Wn.2d
324, 892 P.2d 1082 (1995) (possession of stolen property prosecution barred later theft
prosecution); State v. Anderson, 96 Wn.2d 739, 638 P.2d 1205 (1982) (dismissal of one
2
Different offenses arising at the same time are not subject to mandatory joinder.
See State v. Bradley, 38 Wn. App. 597, 687 P.2d 856 (1984) (marijuana possessed at
same time as eluding charge not related offenses).
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No. 36314-7-III
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theory of first degree murder barred later prosecution under alternative theory of first
degree murder); State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978) (robbery and
assault charge barred subsequent assault charge involving different victim in the same
robbery incident).
Accordingly, we believe the false statement and witness tampering charges that
arose from the same behavior underlying the original obstructing charge were subject to
mandatory joinder. The information necessary to prosecute those charges was available
to the prosecutor before the first trial. Accordingly, defense counsel erred by failing to
object to the amended information. The error was prejudicial because Mr. Canfield
received additional punishment for the new charges.
The false statement and attempted witness tampering convictions are reversed.3
Sufficiency of the Evidence
Mr. Canfield next challenges the sufficiency of the evidence to support the
conviction for obstructing, raising a challenge that we previously said should not be
raised. We affirm the conviction.
Sufficiency of the evidence challenges also are reviewed on appeal in accordance
with well settled standards. Evidence is sufficient to support a verdict if there is a factual
basis for finding each element of the offense proved beyond a reasonable doubt. Jackson
3
Because the two offenses are not felonies and did not impact Mr. Canfield’s
offender score, resentencing is not required.
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v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green,
94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). The evidence is viewed in the light most
favorable to the prosecution. Green, 94 Wn.2d at 221. Appellate courts defer to the trier-
of-fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness
of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Here, sufficient evidence supported the judge’s determination that Mr. Canfield
hindered a public servant in the performance of his duties. Indeed, Mr. Canfield does not
truly dispute the sufficiency of the evidence and does not challenge any finding, but
attempts to liken his situation to that in State v. D.E.D., 200 Wn. App. 484, 402 P.3d 851
(2017). The comparison fails.
D.E.D., also a prosecution for obstructing a public servant, involved a defendant
who passively resisted an investigatory detention. Id. at 487-88. Noting that no one has
a duty to cooperate with a police investigation, we concluded that passive resistance to an
investigatory detention was simply another form of declining to cooperate. Id. at 494-96.
“Passive resistance consistent with the lack of a duty to cooperate, however, is not
criminal behavior.” Id. at 496. Thus, the defendant’s resistance to being handcuffed did
not constitute obstructing a public servant. Id. However, we cautioned “against
extending our narrow holding, which is simply that resisting handcuffing when a suspect
is not under arrest does not constitute obstructing a law enforcement officer.” Id. That
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No. 36314-7-III
State v. Canfield
caution was warranted because only slight additional activity on top of passive resistance
could amount to a crime. Id. at 496-97.
This case falls directly into the D.E.D. caution and fails because of it. The law
imposes a duty to cooperate with an arrest and makes it a crime to resist arrest. RCW
9A.76.040(1). Actions that hinder an arrest short of resisting can constitute obstructing a
public servant. E.g., State v. Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985) (assisting
another person to resist arrest constituted obstructing). Passive resistance to a lawful
arrest can constitute obstructing by itself. Here, there was additional evidence beyond the
handcuffing incident, including the repeated refusals to obey commands and feigning
sleep.
Mr. Canfield did not merely refuse to cooperate with the police. He actively tried
to hinder them. The trial court had ample basis for concluding that Mr. Canfield was
guilty of obstructing a public servant.
Financial Obligations
Two weeks after the sentencing in this case, the Washington Supreme Court
determined that recent changes to the sentencing laws applied retroactively to all non-
final criminal cases. State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). The State
agrees with Mr. Canfield that the trial court must strike all discretionary financial
obligations from the sentence. We concur.
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No. 36314-7-III
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The trial court must strike the filing fee and the sheriff’s service fee from the
judgment.
Reversed and remanded.
_________________________________
Korsmo, J.
WE CONCUR:
_________________________________
Pennell, C.J.
_________________________________
Lawrence-Berrey, J.
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