Opinion
No. 63023-7-I.
Filed: June 28, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-04925-2, Jim Rogers, J., entered February 17, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Lau, J., concurred in by Cox and Appelwick, JJ.
A jury convicted Clyde Johnson of one count of second degree assault, two counts of felony harassment, one count of felony violation of a court order, four counts of misdemeanor violation of a court order, and seven counts of witness tampering. Johnson appeals, arguing that his witness tampering convictions violated double jeopardy and insufficient evidence supports a misdemeanor violation of a court order count. Because the multiple convictions for witness tampering constitute one unit of prosecution under the facts here, we reverse six of the seven counts and remand for proceedings consistent with this opinion. And because sufficient evidence supports count 6, misdemeanor violation of a court order, we affirm this conviction.
Facts
At trial, witnesses testified to the following events: On July 5, 2008, Clyde Johnson grabbed his former girl friend, Marsette Prentiss, by the neck. He then shoved her, chased her in a car, and threatened to kill her and her friend, JohnRegis Francis, while brandishing a baseball bat. After this incident, a judge issued a July 5, 2008 order prohibiting Johnson from contacting Prentiss "until fourteen days from the date of this order or further order of this court." Ex. 20.
On July 6, Johnson confronted Prentiss and Francis as they were walking to a restaurant. Johnson and Prentiss began arguing. He pushed her, grabbed her hair, and kicked her in the face after she fell. Prentiss, however, denied that Johnson grabbed or kicked her, even though she admitted she told the police he did. Police arrested Johnson two days later, and a judge issued another order prohibiting contact with Prentiss "until three (3) years from the date of this order or further order of this court." Ex. 21.
While awaiting trial, Johnson made repeated telephone calls to Prentiss from jail. On some of the calls, Johnson told Prentiss not to talk to the prosecutor or go into detail and to say the fight was mutual, that nothing happened, and that she overreacted. Based on those calls, the State charged Johnson with seven counts of witness tampering.
A jury convicted Johnson of one count of second degree assault, two counts of felony harassment (of Prentiss and Francis), one count of felony violation of a court order, four counts of misdemeanor violation of a court order, and seven counts of witness tampering. This appeal followed.
In this appeal, Johnson challenges only his convictions for witness tampering and misdemeanor violation of a court order (count 6).
ANALYSIS
Johnson first contends his seven convictions for witness tampering under RCW 9A.72.120 violate double jeopardy principles because the underlying conduct constitutes only one, not seven, units of prosecution. We rejected an identical argument in State v. Hall, 147 Wn. App. 485, 196 P.3d 151 (2008), review granted, 166 Wn.2d 1005 (2009). There, we concluded that the witness tampering statute unambiguously creates a unit of prosecution for "any one instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120." Hall, 147 Wn. App. at 490. But after this court issued an opinion affirming the witness tampering convictions based on Hall, Johnson moved to reconsider the seven convictions for witness tampering. Following Johnson's convictions, our Supreme Court reversed Hall, holding that the offense of witness tampering is complete as soon as a defendant attempts to induce another not to testify or to testify falsely. State v. Hall, 168 Wn.2d 726, 230 P.3d 1048 (2010). The State concedes error insofar as "Johnson's multiple attempts to tamper with a witness constitute but a single unit of prosecution." We accept the State's concession and conclude that under the facts here, Johnson committed one crime of witness tampering.
Johnson next argues that insufficient evidence supports his conviction for misdemeanor violation of a court order (count 6). Specifically, he argues that the order prohibiting contact with Prentiss had lapsed before the date of his violation. "In reviewing the sufficiency of the evidence in a criminal case, the question is whether, 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. Hagler, 74 Wn. App. 232, 234-35, 872 P.2d 85 (1994). We interpret all reasonable inferences from the evidence in favor of the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). And circumstantial evidence is as probative as direct evidence. State v. Moles, 130 Wn. App. 461, 465, 123 P.3d 132 (2005).
Under CrR 8.1, "[t]ime shall be computed and enlarged in accordance with CR 6." CR 6(a) provides, Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any superior court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday. Here, the court order was issued on July 5, 2008, and prohibited contact with Prentiss "until fourteen days from the date of this order or further order of this court." Johnson called Prentiss on July 19, 2008. Under CrR 8.1 and CR 6(a), July 6 is counted as the first day and July 19 is the fourteenth day from July 6. But because the order continued "until fourteen days from the date of this order . . .," it did not expire until the end of the fourteenth day — July 19. Accordingly, the order was still in effect on July 19 when the violation occurred. Sufficient evidence supports Johnson's conviction for misdemeanor violation of a court order because "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Hagler, 74 Wn. App. at 234-35. The conviction for misdemeanor violation of a court order is affirmed
The State's amended information alleged that the violation occurred at "a time intervening between July 19, 2008 and July 21, 2008." The "to convict" instruction stated, "That on or about 19th day of July, 2008 the defendant willfully had contact with Marsette Prentiss."
In sum, we reverse six of the seven witness tampering convictions and remand for proceedings consistent with this opinion. And we affirm count 6, misdemeanor violation of a court order conviction.
WE CONCUR: