IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79986-0-I
Respondent,
DIVISION ONE
v.
ORDER WITHDRAWING
DESHAWN LAVELLE WEATHERLY, AND SUBSTITUTING
OPINION
Appellant.
The court has determined that the opinion in the above-entitled case filed on
June 1, 2020 shall be withdrawn and a substitute unpublished opinion be filed.
Now, therefore, it is hereby
ORDERED that the opinion filed on June 1, 2020 is withdrawn and a
substitute unpublished opinion shall be filed.
FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79986-0-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
DESHAWN LAVELLE WEATHERLY,
Appellant.
MANN, C.J. — Deshawn Weatherly appeals his jury convictions for third degree
malicious mischief, felony harassment, and unlawful imprisonment. Weatherly argues
that he was denied his right to a unanimous jury verdict because multiple acts could
have supported the malicious mischief and harassment convictions. He also contends
that the evidence was insufficient to support the unlawful restraint conviction and that
the jury instructions relieved the State of its burden to prove that he knowingly
restrained the victim. We affirm.
I.
Kamari Thompson met Weatherly at her younger brother’s high school basketball
game in January 2017. They began seeing each other every day, and by March they
were involved romantically. Thompson described the beginning of the relationship as
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79986-0-I/2
“really good” because Weatherly bought her food and gave her rides to school and
work.
Shortly after their relationship began, Weatherly began demanding to look at
Thompson’s cell phone to determine if she was talking to other men. Weatherly also
took Thompson’s phone while she slept and even changed the password so that
Thompson had to ask him for permission to use her own phone.
In late July 2017, Weatherly was visiting Thompson at her home in Beacon Hill
where she lived with her family. Weatherly demanded to look through Thompson’s cell
phone. When Thompson refused, Weatherly became angry. He took her phone and
threw it against a brick fireplace, breaking it in half. Terrified, Thompson tried to get
away from Weatherly, but he chased her throughout the house. Ultimately, Thompson
locked herself in the garage. Weatherly forced his way through the door, breaking the
door frame in the process. Once inside, Weatherly apologized and hugged Thompson.
In mid-August 2017, Thompson and her family were in Las Vegas for her
brother’s basketball tournament. While there, Thompson and her mother went to a
nightclub together. They met a group of people and Thompson exchanged phone
numbers with one of the men who said that he would suggest things for Thompson to
do while she was in town. After she returned home, the man sent Thompson a text
message. Weatherly found the text message on Thompson’s cell phone. He became
furious and called Thompson names. He then wrapped his hands around Thompson’s
neck and choked her severely enough to rupture blood vessels in her eyes. Thompson
was terrified, believing Weatherly was going to kill her. Weatherly begged Thompson to
forgive him, and she did not call the police.
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Throughout the relationship, Weatherly threatened Thompson with physical
harm. The threat was always the same: Weatherly told Thompson that he would have
girls come to her school, her work, or her home, and attack her. Weatherly made this
threat “consistently” every time he became angry or frustrated at Thompson. He also
made the threat when Thompson tried, on several occasions, to end the relationship.
On the evening of October 29, 2017, Thompson met some friends at an
apartment in West Seattle to get ready for a Halloween party held at a nightclub.
Weatherly joined Thompson at the party around midnight. When the nightclub closed
around 2:00 a.m., Thompson and her friends hailed an Uber back to West Seattle so
Thompson could retrieve some of her belongings. Weatherly followed in his work truck
so that he could pick Thompson up afterwards.
While driving Thompson home, Weatherly became upset about Thompson
talking to her cousin’s boyfriend at the nightclub. He pulled over and began to
physically assault Thompson by hitting her in the head, biting her chest and pulling out
some of her hair. He grabbed Thompson’s arms to prevent her from leaving the
vehicle. At some point, Weatherly took Thompson’s shoes, purse and cell phone. He
also locked the vehicle doors so that Thompson could not leave. Thompson manually
unlocked the door but Weatherly got out of the vehicle, came around to the passenger
side, and locked it from the outside, preventing Thompson from exiting.
Thompson begged Weatherly to free her, stating: “Can you please let me out? I
just want to go home.” At one point, Thompson successfully escaped the vehicle.
However, because she was far from her home and did not have her shoes, her cell
phone or her purse, she returned to the car. She asked Weatherly to return her
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belongings but he refused. Weatherly began driving and threw Thompson’s purse and
shoes out the window. Eventually, Weatherly parked, and Thompson, realizing
Weatherly would not let her leave, fell asleep. In the morning, Weatherly drove
Thompson home. Thompson and her mother went to the hospital for Thompson’s
injuries, and hospital staff called the police.
The State charged Weatherly with second degree assault by strangulation,
unlawful imprisonment, fourth degree assault, harassment, and third degree malicious
mischief. 1 A jury convicted Weatherly as charged. Weatherly appeals.
II.
Weatherly first contends that he was deprived of his right to a unanimous jury.
He argues that multiple acts could have formed the basis for both the malicious mischief
and the harassment convictions, but the State did not elect the act upon which the jury
could rely on and the trial court did not give a unanimity instruction. As to the
harassment conviction, Weatherly claims that the State presented evidence of multiple
threats throughout his relationship with Thompson. As to the malicious mischief
conviction, Weatherly contends that the evidence showed two distinct acts of property
destruction: breaking Thompson’s cell phone by throwing it against the fireplace and
damaging the garage door frame by barging through it.
We disagree. Because the multiple acts of harassment were part of a continuing
course of conduct, and only one act of property destruction supported the malicious
mischief conviction, no election or unanimity instruction was needed.
1 The State also charged Weatherly with witness tampering and two counts of violation of a court
order, which are not at issue in this appeal.
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We review constitutional errors de novo. State v. Jorgenson, 179 Wn.2d 145,
150, 312 P.3d 960 (2013). Under the Sixth Amendment to the United States
Constitution and article I, section 22 of the Washington Constitution, a criminal
defendant has a right to a unanimous jury verdict. State v. Fisher, 165 Wn.2d 727, 755,
202 P.3d 937 (2009) (citing State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105
(1988)). When the State presents evidence of several distinct acts that could constitute
a charged crime, the jury must agree unanimously on which act constituted the crime.
Kitchen, 110 Wn.2d at 411. Either the State must elect the act on which it relies on or
the court must instruct the jury to agree unanimously as to what act or acts the State
proved beyond a reasonable doubt. Kitchen, 110 Wn.2d at 411. Failure to do so is
constitutional error because of “the possibility that some jurors may have relied on one
act or incident and some another, resulting in a lack of unanimity on all of the elements
necessary for a valid conviction.” Kitchen, 110 Wn.2d at 411.
However, an election or unanimity instruction is only required if the State
presents evidence of “several distinct acts.” State v. Fiallo-Lopez, 78 Wn. App. 717,
724, 899 P.2d 1294 (1995). There is no such requirement if the evidence shows the
defendant was engaged in a “continuing course of conduct.” Fiallo-Lopez, 78 Wn. App.
at 724. A continuing course of conduct is “an ongoing enterprise with a single
objective.” State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). To determine
whether criminal conduct constitutes one continuing act, the trial court must evaluate
the facts in a commonsense manner. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d
453 (1989). A reviewing court will consider “(1) the time separating the criminal acts
and (2) whether the criminal acts involved the same parties, location, and ultimate
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purpose.” State v. Brown, 159 Wn. App. 1, 14, 248 P.3d 518 (2010) (citing Love, 80
Wn. App. at 361).
“[E]vidence that a defendant engages in a series of actions intended to secure
the same objective supports the characterization of those actions as a continuing
course of conduct rather than several distinct acts.” Fiallo-Lopez. 78 Wn. App. at 724.
A continuing offense may exist even when it takes place over a long period. See, e.g.,
State v. Knutz, 161 Wn. App. 395, 409, 253 P.3d 437 (2011) (numerous acts of fraud
against the same investor over a period of 29 months constituted a continuing course of
conduct because the purpose was “‘to promote an enterprise with a single objective’—
to obtain money through deceit.”); State v. Barrington, 52 Wn. App. 478, 761 P.2d 632
(1988) (multiple incidents of promoting prostitution over three months was a continuing
course of conduct when it involved one woman and a “single objective—to make
money.”).
As to the harassment conviction, the information alleged that Weatherly
threatened Thompson between October 1 and October 30, 2017. Weatherly claims that
the State presented evidence of multiple threats during the charging period that could
have formed the basis for the crime. But the evidence showed a pattern of threatening
conduct, not a series of discrete threats. The form of the threat was always the same:
that Weatherly would tell his female friends to assault Thompson. And the purpose of
each threat was the same: to control Thompson and prevent her from ending the
relationship. Because the threats happened so frequently, Thompson was unable to
identify specific dates or times that Weatherly threatened her. She knew only that it
must have happened at least once in October because Weatherly made the threats
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“consistently,” each time he was angry with her. Because the evidence clearly showed
that Weatherly’s threats were part of a continuing course of conduct, no election or
unanimity instruction was needed.
As to the malicious mischief conviction, the information alleged that Weatherly
maliciously caused damage to Thompson’s cell phone:
That the defendant Deshawn Lavelle Weatherly in King County,
Washington, between July 1, 2017 and July 31, 2017, did knowingly and
maliciously cause physical damage to a phone, the property of Kamari J.
Thompson;
Weatherly argues that the act of breaking the garage door frame could also have
supported the charge of malicious mischief. We disagree.
“A person is guilty of malicious mischief in the third degree if he or she:
knowingly and maliciously . . . [c]auses physical damage to the property of
another.” RCW 9A.48.090(1)(a). To be malicious, an act must evince “an evil
intent, wish, or design to vex, annoy, or injure another person.” RCW
9A.04.110(12).
The damage to the door frame was not malicious because Weatherly did
not intentionally cause the damage to upset Thompson. Instead, the damage
was a result of Weatherly forcing his way into the garage. The deputy prosecutor
explained in closing argument that only the breaking of Thompson’s cell phone
constituted malicious mischief because he chose to throw the cell phone at a
hard surface in order to break it. Because only a single act supported the
charged crime, no election or unanimity instruction was required.
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III.
Weatherly next contends that the evidence was insufficient to convict him of
unlawful imprisonment because the State failed to prove that he knew his restraint of
Thompson was “without legal authority.” We disagree.
Evidence is sufficient to support a conviction if, viewing the evidence in the light
most favorable to the State, any rational trier of fact can find the essential elements of
the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). All reasonable inferences from the evidence are drawn in favor of the
State and against the defendant. Salinas, 119 Wn.2d at 201. A claim of insufficiency of
the evidence “admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial and direct
evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980).
A person is guilty of unlawful imprisonment “if he or she knowingly restrains
another person.” RCW 9A.40.040(1). “Restrain” means “to restrict a person’s
movements without consent and without legal authority in a manner which interferes
substantially with his or her liberty.” RCW 9A.40.010(6). A person knows or acts
knowingly or with knowledge when “he or she is aware of a fact, facts, or circumstances
or result described by a statute defining an offense; or he or she has information which
would lead a reasonable person in the same situation to believe that facts exist which
facts are described by a statute defining an offense.” RCW 9A.08.010(1)(b)(i), (ii).
Relying on State v. Warfield, 103 Wn. App. 152, 5 P.3d 1280 (2000), Weatherly
argues that the State must prove not only that the restraint was without legal authority,
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but also that the defendant knew it was without legal authority. Warfield involved bounty
hunters who had a good faith belief that they had the legal authority to apprehend and
return a person to Arizona, where there was a warrant for the person’s arrest. Because
the Arizona warrant was for a misdemeanor, it had no lawful effect in Washington.
Division Two of this court reversed the conviction for unlawful imprisonment, holding
that the State was required to prove the bounty hunters knew they lacked legal authority
to restrain the victim.
But in State v. Johnson, 180 Wn.2d 295, 325 P.3d 135 (2014), the Washington
Supreme Court limited the holding of Warfield “to those unique cases where the
defendant had a good faith belief that he or she had legal authority to imprison a
person.” Johnson, 180 Wn.2d at 304. It held that the logic of Warfield “does not extend
to most unlawful imprisonment cases—particularly those involving domestic violence—
where there is no indication that the defendants believed they actually had legal
authority to imprison the victim.” Johnson, 180 Wn.2d at 304. Consequently, “where no
claim of a good faith belief of lawful authority is raised, the State need only prove that
the defendant acted knowingly to restrain.” State v. Dillon, 12 Wn. App. 2d 133, 142,
456 P.3d 1199 (2020).
Weatherly argues the State was nonetheless required to prove he knew the
restraint was without legal authority under the law of the case doctrine. The law of the
case doctrine provides that “the State assumes the burden of proving otherwise
unnecessary elements of the offense when such added elements are included without
objection in the ‘to convict’ instruction.” State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d
900 (1998).
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Weatherly is correct that the jury instructions informed the jury that they must find
Weatherly knew he was acting without legal authority. Jury instruction 18, defining
unlawful imprisonment, provided as follows:
A person commits the crime of unlawful imprisonment when he or
she knowingly restrains the movements of another person in a manner
that substantially interferes with the other person’s liberty if the restraint
was without legal authority and was without the other person’s consent or
accomplished by physical force, intimidation, or deception.
The offense is committed only if the person acts knowingly in all
these regards.
(Emphasis added). Jury instruction 20, the to-convict instruction, provided that the jury
was required to find each of the following elements beyond a reasonable doubt:
(1) That between October 29, 2017, and October 30, 2017, the defendant
restrained the movements of KAMARI J. THOMPSON in a manner that
substantially interfered with her liberty;
(2) That such restraint was
(a) without KAMARI J. THOMPSON’S consent or
(b) accomplished by physical force, intimidation, or deception; and
(3) That such restraint was without legal authority;
(4) That with regard to elements (1), (2), and (3), the defendant acted
knowingly; and
(5) That any of these acts occurred in the State of
Washington.
(Emphasis added).
However, the State presented sufficient evidence such that a reasonable juror
could conclude beyond a reasonable doubt that Weatherly knew he was acting without
legal authority. Unlike Warfield, where the defendants apprehended the victim in order
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to turn him over to law enforcement, Weatherly had no conceivable lawful purpose to
restrain Thompson. The evidence showed that Weatherly restrained Thompson solely
to punish and frighten her for talking to another man. Weatherly did not say anything
that indicated he thought he had legal authority to restrain Thompson. Thus, sufficient
evidence exists to support that Weatherly knew he was acting without legal authority.
Finally, Weatherly contends that the knowledge instruction conflicted with the to-
convict instruction and misinformed the jury that the State did not need to prove he
knew the restraint was unlawful. Jury instruction 19, which defined knowledge, provided
as follows:
A person knows or acts knowingly or with knowledge with respect
to a fact, circumstance, or result when he or she is aware of that fact,
circumstance, or result. It is not necessary that the person know that the
fact, circumstance, or result is defined by law as being unlawful or an
element of a crime.
If a person has information that would lead a reasonable person in
the same situation to believe that a fact exists, the jury is permitted but not
required to find that he or she acted with knowledge of that fact.
When acting knowingly as to a particular fact is required to
establish an element of a crime, the element is also established if a
person acts intentionally as to that fact.
(Emphasis added). This instruction is identical to 11 Washington Practice: Washington
Pattern Jury Instructions: Criminal 10.02 (4th ed. 2016). But we have held that this
instruction is an accurate statement of the law with regard to unlawful imprisonment,
and thus a trial court does not err by giving the instruction. Dillon, 12 P.3d at 143, n.2.
As discussed previously, the State was required to prove that Weatherly knew that he
lacked legal authority to restrain Thompson. The State did not have to prove that
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Weatherly knew that unlawful imprisonment is a crime. The jury instructions did not
relieve the State of its burden of proof.
Affirmed.
WE CONCUR:
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