Washington defendants are entitled to a unanimous jury verdict. Washington criminal defense attorneys know, however, that this general rule can become complicated when there are multiple acts underlying the charges. If multiple acts could each form the basis of a charge, and the state presents evidence of each, either the state must elect which act is the basis of the charge, or the jury must be instructed on unanimity. If the multiple acts are all part of a continuing course of conduct, there is no requirement for an election or instruction. Additionally, multiple acts may be presented as alternative means of committing the crime. If there is sufficient evidence to support each means, express unanimity is not required. A Washington appeals court recently addressed these issues in a case in which a man was charged with residential burglary after allegedly violating a no-contact order and assaulting his wife.
The defendant was charged with three counts of felony violation of a court order, along with two assault charges, residential burglary, and third-degree malicious mischief. The charges stemmed from allegations that the defendant violated a no-contact order and assaulted his wife, sister, and mother. The defendant and his wife were separated, and she had obtained a no-contact order that prohibited him from coming within 1,000 feet of her or her home. The defendant had several misdemeanor convictions for violating the order.
The defendant’s wife testified that he came to her home twice in April 2015, but he left when she called the police. He came back in July 2015 and came in through the back door. She testified that he was intoxicated and called her names. She also testified that he kicked her, threw her on the couch, and struck her. The defendant’s parents and sister lived with his wife. The defendant started to leave when his sister told him she was calling the police. She grabbed his shirt to stop him, and he bit her hand until she kicked him. He pushed his mother to the ground and stepped on her chest as he left.
The defendant testified, denying being at his wife’s home at the time. He denied assaulting his wife, sister, and mother.
The defendant was found guilty of residential burglary, third-degree assault against his sister, and three felony violations of the court order. He was acquitted of the charged assault against his mother. The defendant appealed.
The defendant argued the state had presented evidence of multiple acts of residential burglary: unlawful entry with the intent to commit a crime and unlawful remaining with the intent to commit a crime. The appeals court noted that the defendant would not have a right to a unanimous verdict if the two acts were alternative means of committing the crime, and both were supported by sufficient evidence.
To convict the defendant of both means, the state had to prove that the defendant entered and remained unlawfully in the home without permission and with the intent to commit a crime. The defendant had testified that he knew the no-contact order prohibited him from coming within 1,000 feet of his wife’s home. The appeals court found that the evidence supported an inference that he had entered and remained with the intent to violate the no-contact order. The appeals court also found the evidence supported an inference he had remained with the intent to assault his wife. The appeals court found there was sufficient evidence, when viewed in a light most favorable to the state, for a rational juror to find the elements of the alternative means were met.
The appeals court also considered the multiple acts analysis. The appeals court found that the acts of entering and remaining were part of a continuing course of conduct. The verdict therefore did not have to be unanimous as to the act.
The appeals court found that it did not matter whether the alternative means analysis or the multiple acts analysis applied, since it had found that there was no unanimity violation under either analysis.
Another important aspect of this case is the role the no-contact order played. A violation of the no-contact order served as the crime underlying the burglary charge. Additionally, the defendant’s awareness of the no-contact order and its effect supported a finding of intent in the burglary charge. A violation of a no-contact order or a domestic violence civil protection order is itself a crime. Multiple violations and violations that involve assaults may result in felony charges. As seen in this case, a violation of no-contact or protection orders can also result in other serious criminal charges.
Anyone facing domestic violence charges or a civil protection order should consult with an attorney and discuss fighting any sort of protection order. If an order is entered, it is important for the person to fully understand which activities it prohibits. It can sometimes be possible to inadvertently violate a no-contact or protection order.
Our Washington civil protection order attorneys know the impact a protection order can have. If you are facing domestic violence charges or a civil protection order, call us at (206) 622-6562 to discuss your case.
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Image: FreeImages.com / Lance Kidwell