Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )            No. 66315-1-I
                                              )
                      Respondent,             )         DIVISION ONE
                                              )
              v.                              )
                                              )
TODD ALAN SMITH,                              )         UNPUBLISHED
                                              )
                      Appellant.              )         FILED: April 16, 2012
                                              )
                                              )

       Cox, J.  --  When the evidence at trial establishes multiple criminal acts 

that could each constitute the charged crime, the defendant is entitled to a 

unanimity instruction or an election by the State of the act relied on for 

conviction.  Here, the State neither alleged multiple acts nor was there evidence 

of more than one threat to kill a specific police officer that could have supported 

the charged crime of felony harassment.  Neither a unanimity instruction nor an 

election was required.  We affirm.

       On the evening of July 9, 2010, the Wayward Vegan Café in the 

University District of Seattle was crowded with patrons attending a fundraiser 

event.  Without warning, Todd Smith punched his fist through the café's front 

glass window and shattered the window.  Smith tried to flee, but a group of 20 to 

30 patrons followed and surrounded him.  Someone called 911.  Some of the 

patrons tried to talk to Smith and calm him down while they waited for the police 

to arrive.  

No. 66315-1-I/2

       Police Officer David Sullivan responded to the report of the disturbance.  

When he arrived at the café, Officer Sullivan found Smith surrounded by patrons 

with a bleeding hand.  Smith appeared to be upset.  He also smelled of alcohol, 

appeared to be intoxicated, and muttered unintelligibly in response to the 

officer's questions. The officer determined that Smith was unarmed, and that his 

injuries required medical treatment. Smith complied with the officer's verbal 

commands and responded to him in a neutral manner. The paramedics arrived 

and transported Smith to the University of Washington Medical Center.

       Emergency Medical Technician, Michael Anderson, rode in the back of 

the ambulance with Smith.  Initially, Smith appeared very agitated and anxious.  

He made rambling statements that Anderson was unable to understand. Then, 

Smith became very quiet and in a "very clear voice" said that "after he got out of 
jail he [would] go back to the café and start killing people."1  Anderson told Smith 

that he was required by law to report that type of statement to law enforcement.  
Smith continued, and said that he would "kill any cops that try to stop him."2        

       Officer Sullivan arrived at the hospital after the ambulance.  After taking a 

statement from the ambulance crew, the officer proceeded to the triage unit 

where Smith was receiving medical treatment.  Officer Sullivan observed that 

Smith's agitation had greatly escalated since he last saw Smith at the café.  

       1 Report of Proceedings (October 13, 2010) at 13.

       2 Id.

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Smith's anger was now specifically directed toward the officer.  Officer Sullivan 

was responsible for supervising Smith, so he could take custody of him after his 

injuries were addressed.  The officer tried to remain out of Smith's line of sight 

so as not to provoke him.  

       At one point, Smith was yelling and lurching toward Officer Sullivan.  

Although he was in four-point restraints, Smith succeeded in inching the gurney

toward the officer.  Smith told Officer Sullivan "'I'm going to kill you and your 
family.'"3  He squinted and craned his neck so he could read Officer Sullivan's 

badge and repeated his name over and over "like he was trying to memorize 
[the] name for future reference."4  Officer Sullivan explained that although he is 

subject with some regularity to vague threats that he does not consider to be 

serious, he believed Smith's threat was credible because he was "so very 
specific and so seemingly intent on remembering" his face and name.5  

       The State charged Smith with felony harassment, for threatening to kill 

Officer Sullivan, and third degree malicious mischief, for damaging property of 

the cafe. Following a jury trial, Smith was convicted as charged.      

                                     UNANIMITY

       3 Report of Proceedings (October 12, 2010) at 78.

       4 Id.

       5 Id. at 79.  

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       Smith challenges his felony harassment conviction.  He contends that the 

State presented evidence of two distinct threats to kill Officer Sullivan:  the threat 

to kill "any cops" who tried to stop him from returning to the café and killing 

people, and the threat made directly to Officer Sullivan at the hospital to kill him 

and his family.  Smith argues that because there was evidence of two threats, 

but only one count of felony harassment, either a unanimity instruction was 

required or the State was required to elect one of the two threats as the basis for 

the charge. Because there was no unanimity instruction and the State made no

election, Smith claims that constitutional error occurred and his conviction 

should be reversed.    

       A defendant may be convicted only when a unanimous jury concludes that 
the criminal act charged in the information has been committed.6  If the State 

presents evidence of multiple distinct acts that could form the basis of one 

charge, the State must tell the jury which act to rely on or the court must instruct 
the jury to agree on a specific act.7  Although Smith did not raise the issue of a 

unanimity instruction at trial, he may raise it for the first time on appeal, as it 
concerns an alleged manifest constitutional error.8

       The threshold question in determining whether a unanimity instruction 

       6 State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984).

       7 Petrich, 101 Wn.2d at 572; State v. Coleman, 159 Wn.2d 509, 511, 150 
P.3d 1126 (2007).

       8 State v. Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009).   

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was required is whether the prosecution was a "multiple acts case."9  A multiple 

acts prosecution occurs when "several acts are alleged and any one of them 
could constitute the crime charged."10  Each of the multiple acts alleged must be 

"capable of satisfying the material facts required to prove" the charged crime.11

       The premise of Smith's argument is that this was a multiple acts 

prosecution.  We reject this premise.  

       The felony harassment charge was based on a threat to kill Officer 

Sullivan alone. Specifically, the information stated that Smith committed the 

crime of felony harassment as follows:  

              That the defendant TODD ALAN SMITH in King County, 
       Washington, on or about July 9, 1010, knowingly and without 
       lawful authority, did threaten to cause bodily injury immediately or 
       in the future to David Sullivan, by threatening to kill David Sullivan, 
       and the words or conduct did place said person in reasonable fear 
       that the threat would be carried out.[12]

       Furthermore, the court instructed the jury in the to convict instruction that 

it had to find that Smith "knowingly threatened to kill David Sullivan immediately 

or in the future" and that the threat "placed David Sullivan in reasonable fear that 

       9 See id.

       10 State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).

       11 Bobenhouse, 166 Wn.2d at 894.

       12 Clerk's Papers at 1.

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the threat to kill would be carried out."13  Juries are presumed to follow the 

court's instructions.14  

       For these reasons, this was simply not a multiple acts case.  There was 

no chance that the jury was less than unanimous in its verdict on the charge of 

felony harassment based on a threat to kill Officer Sullivan.

       Smith's threat to kill any police officers who might try to prevent him from 

committing a future crime at the Wayward Vegan Café when he got out of jail 

was not specifically addressed to Officer Sullivan.  And there was no evidence 

that the threat expressed to Anderson placed Officer Sullivan in reasonable fear.  

The threat referencing law enforcement officers was not capable of satisfying the 

material elements required to prove felony harassment as charged.

       Because this was not a multiple acts prosecution, no unanimity instruction 

was required.

       We affirm the judgment and sentence.

       13 Clerk's Papers at 25; see RCW 9A.46.020(1); (2)(b).

       14 State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

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WE CONCUR:

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