STATE v. MORGAN (2025)

OPINION PUBLISHED IN PART

¶1 Shawn Morgan was convicted of harassment domestic violence, second degree malicious mischief domestic violence, attempted residential burglary domestic violence, and fourth degree assault – domestic violence, against his girlfriend, Virginia Foy, and with resisting arrest. Morgan appeals, asserting insufficiency of the evidence, evidentiary errors by the trial court, violation of his right to a unanimous jury verdict, and the award of restitution to Foy's insurer, among other things.

¶2 In the published portion of this opinion, we conclude that the trial court did not err when it held that under RCW 9.94A.753, to waive Morgan's restitution to Foy's insurer, it would have to find both that Morgan did not have the current ability to pay, and he did not have the likely future ability to pay.

¶3 In the unpublished part of this opinion, we find no error and affirm the trial court's ruling on Morgan's remaining claims.

¶4 We affirm.

FACTS

Background

¶5 On January 24, 2024, around noon, Virginia Foy and Shawn Morgan left Morgan's residence in Lake Stevens to visit the Edmonds waterfront. Before driving to Edmonds, the couple had an argument. At the Edmonds waterfront, Morgan asked Foy to walk into an area with a clearly marked “no-trespass” sign. Foy refused because she was afraid that Morgan would harm her and not let her back in the vehicle if she got out of the car. Morgan and Foy decided to leave the waterfront and return to Morgan's residence. Around 1:00 p.m., while Foy was driving home, Morgan, who was in the front passenger seat, attempted to push Foy's head into the steering column. During the drive, Morgan got more agitated and aggressive.

¶6 When the couple returned to Morgan's residence, Foy informed Morgan she wanted to gather her belongings and leave. Morgan became increasingly upset and informed Foy that she could leave, but it would not be peaceful. While Foy packed her belongings, Morgan “shoulder-checked” her two times. Around 4:00 p.m., Foy left Morgan's residence and returned to her home in Marysville, where she lived with her brother, sister-in-law, and brother's minor children.

¶7 After Foy returned home, Morgan called and texted her repeatedly. Foy did not answer Morgan's calls and expressed, via text message, that she wanted space. At approximately 10:30 p.m., Morgan showed up at Foy's house unannounced. When Morgan asked to come into the house and speak to Foy, Foy stated she did not want to speak with him and asked him to leave. Morgan kicked the door, attempting to force his way into the home. While Morgan was attempting to get into the apartment, Foy's brother called 911. Morgan left multiple shoeprints on the door and caused it to bow, which prevented it from closing properly. When Morgan was unable to get into Foy's residence he returned to his car. Morgan then used his car as a battering ram and drove into Foy's minivan. Morgan rammed Foy's minivan twice, damaging her vehicle and his own. Morgan fled the scene. When law enforcement located Morgan, Sergeant Michael Young approached him and asked him to stop and identify himself. Morgan stated his name was Riff Raff and ran away from the area. Sergeant Young and another officer chased Morgan down, tackled him, and detained him in handcuffs.

Morgan's Statements After Arrest

¶8 After Morgan was arrested and booked, he was handcuffed again to be taken to housing. Morgan told Sergeant Matthew Brunskill, who handcuffed him, to be careful because he had an injury on his wrist. Sergeant Brunskill asked Morgan, “what happened?” Brunskill was referring to the wrist injury. Morgan replied that he let someone in his life who hurt him emotionally, and he would make them pay. Sergeant Brunskill advised Morgan not to say anything that would land him back in jail. Morgan then said, “Oh, I'm going to kill her.” Without being prompted by Sergeant Brunskill, Morgan repeated the statement. Morgan also said there was no difference between hurting someone emotionally and hurting them physically.

¶9 Morgan was charged with five crimes: (1) felony harassment with domestic violence, (2) malicious mischief second degree with domestic violence, (3) attempted residential burglary with domestic violence, (4) assault fourth degree with domestic violence, and (5) resisting arrest.

Russell Foy's Testimony

¶10 At trial, Foy's brother, Russell Foy,¹ testified that Foy was very distraught and hysterical when she returned home from Morgan's apartment. Russell stated that Foy “kind of word vomited and started, like, saying that there was something that happened.” The State asked Russell about what Foy told him, including any threats from Morgan. Russell responded, “not, like, direct threats. But—like, that day they said that they were going to go sit by railroad tracks.” Morgan raised a hearsay objection. The State explained the statement was an excited utterance, because Russell was describing “the demeanor of his sister,” and “[h]e specifically used the word hysterical.” The court overruled Morgan's objection. Russell then said Foy told him she was scared because she felt like she was going to get pushed in front of a train.

Sergeant Young's Testimony

¶11 Sergeant Young testified that after he responded to Russell's 911 call, he checked the area around Foy's apartment to look for Morgan. When Sergeant Young found Morgan at a nearby laundromat, Morgan walked “purposefully [and] directly” toward the driver-side door of Sergeant Young's patrol vehicle. Sergeant Young recalled, “I was fearing a confrontation at the driver's door. Very abnormal behavior.” Morgan objected and the court overruled. Sergeant Young then stated, “I believed [Morgan] was going to confront me at the door.” Sergeant Young testified that he confronted Morgan:

He is profusely sweating. He is staring right through me. He puts his hand back in a pocket, I think I recall, at which point I tell him to take his hands out of his pockets. He says: What are you going to do? Shoot me? I said: No. I am going to tase you. I pull my taser out, tell him to get on the ground.

The State then asked, “As this interaction is occurring, what is going through, I guess, your head? What's your priority at this point?” Sergeant Young replied, “Well, I have been involved in deadly force situations before. And I was afraid that was going to happen.” Morgan objected. The court excused the jury and asked the State to explain the relevance of Sergeant Young's comment. The State explained,

Your Honor, one of the charges in this case is resisting arrest. As defense previewed in his opening statement, there is going to be some argument, it sounds like, pertaining to the actual apprehension of the defendant in this case. I am asking Sergeant Young to talk about what he is thinking and feeling at this time because I think it goes directly to the response and force that was used in this case, which I anticipate defense will be arguing about with regard to the resisting arrest charge.

Morgan's attorney, Mr. Jacobsen, replied, “my concern is with the narrative from Mr. Young moving into kind of speculation about worst-case possible scenarios rather than something maybe more simple such as I felt the need to tackle him to the ground because I was concerned that he could have a weapon.”

¶12 The court then asked Jacobsen whether there would be an argument that law enforcement used excessive force. Jacobsen stated, “I actually do think that's a difficult question to answer. I am not saying that the arrest itself is unlawful due to the amount of force he used. But I suppose I am saying that looking at the force that the jury could read that as someone not resisting.” The court reasoned that if the jury was presented with the argument that law enforcement overreacted, it would make sense to hear from Sergeant Young now rather than call him back. Jacobsen agreed. The court noted there was probative value in Sergeant Young's thoughts while arresting Morgan because the testimony would provide reasons for “what was going on in his mind and would give some explanation for why they did whatever they did.” The court added that “defense can certainly argue it was excessive, but the State should be permitted to argue that it was not. And the jury would have the wherewithal to make a decision.” Ultimately, the court overruled Morgan's objections.

Jury Instructions, Sentencing, and Restitution

¶13 Morgan was charged with five crimes: (1) felony harassment with domestic violence, (2) malicious mischief second degree with domestic violence, (3) attempted residential burglary with domestic violence, (4) assault fourth degree with domestic violence, and (5) resisting arrest. The court did not include, nor did any party request, a jury instruction requiring jury unanimity for the assault charge. At sentencing, the judge determined Morgan's prior convictions and calculated his offender score. The court sentenced Morgan to 57.75 months on all counts and ordered him to pay $2,620.68 in restitution. The restitution amount included $2,221.59, which was to be paid to Foy's car insurance company. The court found Morgan to be indigent.

ANALYSIS

Restitution to Foy's Insurer

¶14 Morgan contends the court erred in finding RCW 9.94A.753 only provided the court the discretion to relieve Morgan's restitution to the insurer if he did not currently have the ability to pay and was not likely to have the future ability to pay.

¶15 We review questions on the interpretation of restitution statutes de novo. State v. Edelman, 97 Wash. App. 161, 165, 984 P.2d 421 (1999).

¶16 The fundamental purpose of statutory construction is “to determine and give effect to the intent of the legislature.” State v. Sweany, 174 Wash.2d 909, 914, 281 P.3d 305 (2012). When interpreting statutory terms, this court takes “ ‘into consideration the meaning naturally attaching to them from the context, and adopt[s] the sense of the words which best harmonizes with the context.’ ” State v. Roggenkamp, 153 Wash.2d 614, 623, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. Jackson, 137 Wash.2d 712, 729, 976 P.2d 1229 (1999)). This court does not engage in overly technical construction of restitution statutes that would permit the defendant to escape from just punishment. State v. Tobin, 161 Wash.2d 517, 524, 166 P.3d 1167 (2007).

¶17 Looking at its plain meaning, “or as a ‘function word’ indicat[es] ‘an alternative between different or unlike things.’ ” Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 528, 243 P.3d 1283 (2010) (first emphasis added) (quoting Webster’s Third New International Dictionary at 1585 (2002)). When used as an alternative, or is an “inclusive disjunctive—one or more of the unlike things can be true.” Lake, 169 Wash.2d at 528, 243 P.3d 1283. Additionally, or can be “a ‘choice between alternative things, states, or courses,’ ” creating an “ ‘exclusive disjunctive—one or the other can be true, but not both.’ ” Lake, 169 Wash.2d at 528, 243 P.3d 1283 (emphasis omitted) (quoting Webster’s Third New International Dictionary at 1585 (2002)). Courts look to “the surrounding context” to determine which meaning is intended. Lake, 169 Wash.2d at 528, 243 P.3d 1283 (“Usually, the intended meaning is apparent from the surrounding context.”). Under RCW 9.94A.753(3),

[a]t any time, including at sentencing, the court may determine that the offender is not required to pay, or may relieve the offender of the requirement to pay, full or partial restitution and accrued interest on restitution where the entity to whom restitution is owed is an insurer or state agency, except for restitution owed to the department of labor and industries under chapter 7.68 RCW, if the court finds that the offender does not have the current or likely future ability to pay.

(Emphasis added.)

¶18 Here, the trial court assessed the plain language of the statute and determined that it would have to find both: Morgan does not have the current ability to pay, and he does not have the likely future ability to pay. Morgan was indigent, so he did not have the current ability to pay. The trial court assessed whether Morgan would be unlikely to pay restitution in the future. The court found that Morgan was a commercial plumber but lost his job. Morgan appeared able-bodied in court and, although he lost his career, there are other careers that he could pursue after his incarceration. The court was not aware of any physical or mental debilitation that would prevent Morgan from obtaining work in the future. The court concluded that Morgan may have the future ability to get a job after incarceration, therefore, he had the likely future ability to pay.

¶19 The trial court's plain reading analysis of or is correct. Our court has found that “while ‘A or B’ is disjunctive, ‘not A or B’ is conjunctive and means the same thing as ‘not A nor B.’ ” Black v. Nat'l Merit Ins. Co., 154 Wash. App. 674, 688, 226 P.3d 175 (2010) (quoting Brian Garner, A Dictionary of American Usage at 453–54 (1998)). The restitution statute reads, “if the court finds that the offender does not have the current or likely future ability to pay.” RCW 9.94A.753(3) (emphasis added). Therefore, in this statute, or is conjunctive because not is included in the statute. The court must find that the defendant does not have the current ability to pay and does not have the future ability to pay.

¶20 The legislative intent supports this interpretation of or in the statute. In 2022, the legislature added the appealed language. The legislature wanted to give courts discretion for defendants who “just could not pay.”² In House Appropriation Committee meetings, legislative members did not distinguish between whether defendants could pay now or in the future, they were concerned with if the defendant could pay at all. The legislature's concerns are aligned with our reading of the statute.

¶21 The language in RCW 9.94A.753(3), noting “if the court finds that the offender does not have the current or likely future ability to pay,” is like our language for discretionary legal financial obligations (LFOs). In State v. Blazina, our Supreme Court held that to impose discretionary LFOs under RCW 10.01.160(3), “[t]he record must reflect that the trial court made an individualized inquiry into the defendant's current and future ability to pay.”³ 182 Wash.2d 827, 838, 344 P.3d 680 (2015) (emphasis added). In applying this statute, our court has considered present and future financial circumstances when determining whether to order LFOs. See State v. Lundy, 176 Wash. App. 96, 107, 308 P.3d 755 (2013) (considering the defendant's income prior to trial and that the defendant had “no known disabilities that preclude the possibility of him working the future.”); see State v. Ramirez, 191 Wash.2d 732, 742, 743, 426 P.3d 714 (2018) (holding that “the trial court is required to consider ‘important factors,’ such as incarceration and the defendant's other debts” and can consider other factors such as the defendant's “income, [their] assets and other financial resources, [their] monthly living expenses, and [their] employment history.” (quoting Blazina, 182 Wash.2d at 839, 344 P.3d 680)). Since RCW 9.94A.753(3) has similar statutory language, the statute requires courts to consider both present and future ability to pay.

¶22 In assessing the present and likely future ability to pay, the court has discretion to determine whether the defendant has the current ability to pay and whether they can pay the restitution in the future. Analogously, the Blazina court held that the court must consider important factors, such as incarceration, when determining whether the defendant had the ability to pay. 182 Wash.2d at 838, 344 P.3d 680. Subsequently, our Supreme Court in Ramirez held that a trial court could also consider employment history, present employment and past work experience, income and other expenses. 191 Wash.2d at 744, 426 P.3d 714. These factors consider both current and future financial circumstances. In this case, the court considered Morgan's past and current employment, his incarceration, and his mental and physical health. This was within the court's discretion, therefore no error occurred.

¶23 The panel has determined that the remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.

Sufficiency of the Evidence

¶24 Morgan contends that insufficient evidence exists to sustain the State's attempted burglary charge. Specifically, Morgan asserts that the State did not prove that he had the intent to commit a crime inside Foy's home when he kicked her door. Because Morgan had threatened and assaulted Foy before arriving at her home, along with his behavior upon arriving at her home, substantial evidence supports attempted burglary and we affirm.

¶25 Evidence is sufficient when, “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. Brooks, 107 Wash. App. 925, 928, 29 P.3d 45 (2001).

¶26 “A sufficiency challenge admits the truth of the State's evidence and accepts the reasonable inferences to be made from it.” State v. O'Neal, 159 Wash.2d 500, 505, 159 P.3d 1121 (2007). “All reasonable inferences from the evidence must be drawn in favor of the State and interpreted against the defendant.” Brooks, 107 Wash. App. at 928-29, 29 P.3d 45. Circumstantial and direct evidence carry equal weight. State v. Goodman, 150 Wash.2d 774, 781, 83 P.3d 410 (2004). This court “must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). An appellate court will reverse a conviction “only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt.” State v. Smith, 155 Wash.2d 496, 501, 120 P.3d 559 (2005).

¶27 Under RCW 9A.52.025(1), a person commits residential burglary when he “enters or remains unlawfully in a dwelling other than a vehicle” with the “intent to commit a crime ․ therein.” To convict a defendant of attempted residential burglary, the State must prove that the defendant intended to commit residential burglary and that they took a substantial step toward committing the burglary. RCW 9A.28.020(1). In addition, criminal intent may be inferred from all the facts and circumstances surrounding the commission of an act. Brooks, 107 Wash. App. at 929, 29 P.3d 45. Intent may also “be inferred from conduct that plainly indicates such intent as a matter of logical probability.” Brooks, 107 Wash. App. at 929, 29 P.3d 45.

¶28 Here, the evidence and testimony presented at trial was sufficient to conclude Morgan had the intent to commit residential burglary. Foy testified that, during the week leading up to the event at issue, Morgan threatened to kill her. Foy testified that Morgan threatened to shoot her and make her “disappear in the lake.” When the couple drove back to Morgan's apartment from Edmonds, Morgan yelled at Foy and attempted to smash her head into the steering wheel. Morgan also shoulder-checked Foy twice while she packed her belongings to leave Morgan's apartment. When Morgan went to Foy's residence and Foy told him he was not welcome, Morgan repeatedly kicked in the door. After Morgan's attempt to kick open the door failed, he then got in his car and rammed Foy's minivan twice, causing damage to it. Drawing all reasonable inferences in favor of the State, sufficient evidence shows that Morgan attempted to commit residential burglary.

Evidentiary Errors

1. Sergeant Young's Statement

¶29 Morgan contends that the trial court made evidentiary errors when it admitted unfairly prejudicial evidence. Specifically, Sergeant Young's testimony that he was afraid that a deadly force situation was about to happen when he arrested Morgan. Because we do not find Sergeant Young's comments prejudicial, we conclude the trial court did not abuse its discretion when it allowed the testimony.

¶30 Evidence rulings are reviewed under an abuse of discretion standard. State v. Orn, 197 Wash.2d 343, 351, 482 P.3d 913 (2021). “Discretion is abused when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993).

¶31 Under ER 403, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” “ ‘When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists.’ ” State v. Beadle, 173 Wash.2d 97, 120, 265 P.3d 863 (2011) (quoting State v. Powell, 126 Wash.2d 244, 264, 893 P.2d 615 (1995)). A court considers the whole case when weighing the risk of unfair prejudice, including,

“the importance of the fact of consequence for which the evidence is offered in the context of the litigation, the strength and length of the chain of inferences necessary to establish the fact of consequence, the availability of alternative means of proof, whether the fact of consequence for which the evidence is offered is being disputed, and, where appropriate, the potential effectiveness of a limiting instruction.”

State v. Yusuf, 21 Wash. App. 2d 960, 975, 512 P.3d 915 (2022) (internal quotation marks omitted) (quoting State v. Bedada, 13 Wash. App. 2d 185, 193-94, 463 P.3d 125 (2020)). When the error is not constitutional, the “ ‘error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ ” State v. Barry, 183 Wash.2d 297, 303, 352 P.3d 161 (2015) (internal quotation marks omitted) (quoting State v. Smith, 106 Wash.2d 772, 780, 725 P.2d 951 (1986)).

¶32 Here, Morgan alleges Sergeant Young's testimony that he was afraid that a deadly force situation was about to happen was prejudicial because it could cause the jury to speculate about worst-case scenarios. After Morgan objected to Sergeant Young's testimony, the State claimed that Sergeant Young's thoughts and feelings were relevant because they tied directly to the law enforcement's response and the amount of force used on Morgan. The court asked Jacobsen if he planned to argue that the law enforcement used excessive force. Jacobsen replied, “I am not saying that the arrest itself is unlawful due to the amount of force he used. But I suppose I am saying that looking at the force that the jury could read that as someone not resisting.” Jacobsen did not deny that he would use an unlawful force argument.

¶33 The court decided that if the jury was presented with an argument that the law enforcement overacted or took unreasonable measures, it would make more sense to question Sergeant Young now instead of having to call him back. The State agreed. Ultimately, the court found that Sergeant Young's thoughts had probative value, and the testimony was not substantially more prejudicial than probative. Jacobsen indicated he may argue that looking at the force, Morgan was not resisting arrest. Morgan's argument makes Sergeant Young's thoughts about deadly force relevant, and therefore probative.

¶34 Even if Sergeant Young's comments were prejudicial, they were harmless because the circumstances of Morgan's arrest were substantially already in evidence. Sergeant Young's body camera footage showed the sequence of events as Sergeant Young described, and Morgan agreed that Sergeant Young could testify that he felt the need to tackle Morgan because he was concerned that Morgan might have a weapon. We find that no abuse of discretion occurred.

2. Russell Foy's Statement

¶35 Morgan challenges the trial court's finding that Russell's statement that Foy said Morgan threatened to push her in front of a train was an excited utterance. Because Foy made the statement still under distress from the event, it falls under the excited utterance exception to hearsay.

¶36 A trial court's determination that a hearsay exception applies is reviewed for abuse of discretion. State v. Magers, 164 Wash.2d 174, 187, 189 P.3d 126 (2008) (plurality opinion). An appellate court will not disturb the trial court's ruling unless “no reasonable judge would have made the same ruling.” State v. Woods, 143 Wash.2d 561, 595-96, 23 P.3d 1046 (2001).

¶37 Under ER 803, statements that would otherwise be excludable as hearsay are admissible when they are not offered for the truth of their contents, but for another relevant purpose. An exception to the hearsay rule is an excited utterance, which is defined as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” ER 803(2). A statement is an excited utterance if “(1) a startling event occurred, (2) the declarant made the statement while under the stress or excitement of the event, and (3) the statement relates to the event.” Magers, 164 Wash.2d at 187-88, 189 P.3d 126 (citing Woods, 143 Wash.2d at 597, 23 P.3d 1046).

¶38 A key determination is “whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.” Woods, 143 Wash.2d at 597, 23 P.3d 1046. “Other considerations include the declarant's emotional state and whether the declarant had an opportunity to reflect on the event and fabricate a story.” State v. Williamson, 100 Wash. App. 248, 258, 996 P.2d 1097 (2000) (citing State v. Briscoeray, 95 Wash. App. 167, 173-74, 974 P.2d 912 (1999)); see Thomas, 150 Wash.2d at 855, 83 P.3d 970 (holding that “the statements of a child who had been raped, made three and a half hours after the rape, were admissible as excited utterances as the child was plainly distressed”).

¶39 Here, Morgan claims the startling event was when Morgan shoulder-checked Foy at his home, not what occurred earlier that day at the Edmonds wharf. Therefore, Russell's testimony about Foy could not have been an excited utterance. Additionally, Morgan claims evidence shows that Foy calmed down from the events at the wharf, removing an excited utterance exception.

¶40 Foy testified that at the Edmonds wharf, Morgan aggressively talked to Foy. On the drive home, Morgan yelled at Foy throughout the drive and attempted to smash her head into the steering wheel. Morgan's actions at the waterfront and the drive back to Morgan's were the startling event. Although a notable amount of time passed between Foy and Morgan's time at the waterfront and when Foy returned home, Foy did not have time to reflect on the events from earlier in the day. From the time that Morgan and Foy drove to Morgan's house to when Foy arrived home, she was under constant duress from Morgan's ongoing threats and physical attacks. When Foy returned home, Russell stated that Foy was crying and very distraught. Foy then “word vomited” about what happened and was “very hysterical.” Russell also testified that he was trying to calm her down. Because Foy was still under the influence of the events at the wharf when she told Russell about Morgan's threat, we find that the trial court did not err in admitting Russell's statement as an excited utterance.

¶41 Even if Foy's statement was not an excited utterance, no prejudice occurred because Foy testified about Morgan's threats before Russell's testimony. Foy testified that Morgan made threats over the past weeks about ending her life, including threatening to shoot her. During her testimony, the State asked Foy if she thought Morgan was going to murder her by pushing her into a train, to which she replied, “correct.” Even if Russell's statement was improperly admitted hearsay, Morgan's threats to Foy, specifically the threat to push her in front of a train, was already admitted into evidence. We find that the court did not abuse its discretion in admitting Russell's testimony.

Right to a Unanimous Jury Verdict

¶42 Morgan declares that he was entitled to a unanimous jury instruction because the State presented multiple acts that could qualify as fourth degree assault, and the State did not elect a specific act. Because Morgan's acts were a continuing course of conduct, the jury instructions were not erroneous.

¶43 The adequacy of jury instructions is reviewed de novo. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995).

¶44 A defendant has a right to a unanimous jury under the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution. A defendant may not be convicted unless a unanimous jury concludes that the criminal act charged in the information was committed. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980). However, “an exception exists when the acts constitute a continuing course of conduct.” State v. Brown, 159 Wash. App. 1, 14, 248 P.3d 518 (2010). One continuing offense must be distinguished from several distinct acts. State v. Petrich, 101 Wash.2d 566, 569, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110 Wash.2d 403, 571, 756 P.2d 105 (1988). This court has found that if the time separating multiple criminal acts is short, the crimes involve the same parties, and the same ultimate purpose, the continuing course of conduct exception applies. Brown, 159 Wash. App. at 15, 248 P.3d 518. Where evidence involves conduct at different times and places, or different victims, the evidence tends to show several distinct acts. State v. Love, 80 Wash. App. 357, 362, 908 P.2d 395 (1996). An appellate court “may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a); Roberson v. Perez, 156 Wash.2d 33, 39, 123 P.3d 844 (2005). But a party may raise for the first time on appeal claimed manifest errors affecting constitutional rights. RAP 2.5(a).

¶45 Here, when the court read the proposed jury instructions, Jacobsen did not raise an objection to the assault instruction. Even if Morgan had raised this issue during trial, the trial court did not err because Morgan's actions were a continuing course of conduct toward Foy. The crimes involved the same parties, Morgan and Foy, and had the same ultimate purpose, an assault on Foy. Although Morgan claims that the assault in the car and at Morgan's apartment were two separate events, Morgan's threats and assaults toward Foy were a continuous event throughout the afternoon. On the drive from Edmonds to Morgan's apartment, Foy testified that Morgan was increasingly agitated and yelled at her for more than five minutes. Morgan then tried to slam Foy's head into the steering wheel while she was driving. Once Foy and Morgan got back to Morgan's apartment, Morgan continued to loudly berate Foy. Morgan also threatened Foy that she could pack, but it would not be peaceful. The testimony supports that Morgan's actions were a continuous assault on Foy. We find that the court did not err in not requiring an unanimity instruction.

Constitutionality of Washington's Harassment Statute

¶46 Morgan claims RCW 9A.46.020 is unconstitutional because it punishes threats under a negligence standard, rather than the required recklessness standard. Because Morgan relies on outdated case law to support his contention, we conclude the statute is not unconstitutional.

¶47 The court “presume[s] statutes are constitutional and review[s] challenges to them de novo.” Ludvigsen v. City of Seattle, 162 Wash.2d 660, 668, 174 P.3d 43 (2007). On appeal, “the challenger bears the burden of showing the statute is unconstitutional beyond a reasonable doubt.” City of Bothell v. Barnhart, 172 Wash.2d 223, 229, 257 P.3d 648 (2011). “Where a party contends a statute is unconstitutional on its face, that party will prevail only if there is no set of circumstances in which a constitutional application of the statute is possible.” State v. Calloway, 31 Wash. App. 2d 405, 415, 550 P.3d 77, review granted, 3 Wash.3d 1031, 559 P.3d 1023 (2024) (citing State v. Fraser, 199 Wash.2d 465, 486, 509 P.3d 282 (2022)).

¶48 Under RCW 9A.46.020, Washington's harassment statute, “ ‘the defendant must subjectively know’ ” that they are communicating a threat and know that the communication “ ‘is a threat to cause bodily injury to the person threatened or to another person.’ ” State v. Trey M., 186 Wash.2d 884, 895, 383 P.3d 474 (2016) (internal quotation marks omitted) (quoting State v. Kilburn, 151 Wash.2d 36, 48, 84 P.3d 1215 (2004)). A person may be convicted under RCW 9A.46.020 only if the person makes a true threat. Kilburn, 151 Wash.2d at 41, 84 P.3d 1215. A true threat is “ ‘a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ․ as a serious expression of intention to inflict bodily harm upon or to take the life of’ another person.” Calloway, 31 Wash. App. 2d at 417, 550 P.3d 77 (2024) (alteration in original) (internal quotation marks omitted) (quoting Trey M., 186 Wash.2d at 894, 383 P.3d 474). Under Counterman v. Colorado, there must be proof that the defendant “consciously disregarded a substantial risk that [the] communications would be viewed as threatening violence.” 600 U.S. 66, 69, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).

¶49 Division Two of this court addressed the constitutionality of Washington's harassment statute after the Counterman decision in Calloway. 31 Wash. App. 2d at 417-18, 550 P.3d 77. In Calloway, the court held that although Counterman required a “departure from prior case law that placed a First Amendment limitation on the statute,” the statute is not facially unconstitutional. 31 Wash. App. 2d at 409, 550 P.3d 77. Because no direct conflict exists between the statutory language and Counterman’s definition of a true threat, the court held that it did not need to declare the harassment statute unconstitutional. Calloway, 31 Wash. App. 2d at 420, 550 P.3d 77. Rather, the court held that to meet the standard set in Counterman, “the State must prove the defendant was at least ‘aware that others could regard [the] statements as threatening violence and [delivered] them anyway.’ ” Calloway, 31 Wash. App. 2d at 420, 550 P.3d 77 (alterations in original) (internal quotation marks omitted) (quoting Counterman, 600 U.S. at 79, 143 S.Ct. 2106).

¶50 Here, Morgan asserts that harassment requires a true threat – that the defendant consciously disregarded a substantial risk that their communication would be viewed as threatening violence. This is a higher mental state than a negligence standard, which asks whether a reasonable person could foresee some risk. Morgan cites pre-Counterman case law to support his claim that the Washington harassment statute is unconstitutional. But, Counterman’s definition of true threat is binding. As Calloway found, “because the United States Supreme Court has intervened, we are permitted to depart from prior Washington Supreme Court holdings and import the United States Supreme Court's definition of a true threat.” 31 Wash. App. 2d at 421, 550 P.3d 77. Accordingly, we conclude RCW 9A.46.020 is constitutional.

Determination of Criminal History for Sentencing

¶51 Morgan argues the court erred when it determined that his prior convictions could be included in his offender's score.

¶52 A sentencing court's offender score is reviewed de novo. State v. Moeurn, 170 Wash.2d 169, 172, 240 P.3d 1158 (2010). “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Additionally, the Apprendi Court stressed “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (alteration in original) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J., concurring)). “All that is required by the constitution and the statute is a sentencing hearing where the trial judge decides by a preponderance of the evidence whether the prior convictions exist.” State v. Wheeler, 145 Wash.2d 116, 121, 34 P.3d 799 (2001). The Washington State Supreme Court further clarified that Apprendi applies “only for prior convictions.” State v. Hughes, 154 Wash.2d 118, 142, 110 P.3d 192 (2005) (emphasis omitted). Additionally, the court has held that when a sentence is increased because of prior convictions, “the fact of those prior convictions need not be found by a jury.” State v. Anderson, 31 Wash. App. 2d 668, 678, 552 P.3d 803, review denied, 3 Wash.3d 1034, 559 P.3d 1013 (2024). “Where an enhancement requires findings of ‘new factual determinations and conclusions’ beyond ‘mere criminal history,’ those findings are required to be made by a jury.” Anderson, 31 Wash. App. at 678, 644 P.2d 154 (internal quotation marks omitted) (quoting Hughes, 154 Wash.2d at 141-42, 110 P.3d 192). “ ‘Traditional factors considered by a judge in determining the appropriate sentence, such as prior criminal history, are not elements of the crime.’ ” Anderson, 31 Wash. App. 2d at 679, 552 P.3d 803 (quoting Wheeler, 145 Wash.2d at 120, 34 P.3d 799).

¶53 Here, Morgan claims that the jury should have determined whether the prior convictions should be included in his offender score. Morgan asserts that the court's ruling is inconsistent with Erlinger v. United States, which held that a jury must find that a defendant's past offenses were committed on separate occasions. 602 U.S. 821, 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024).

¶54 Morgan also cites Apprendi to support his assertion that any fact increasing his “punishment must be found beyond a reasonable doubt by a jury.” But our courts have held that the fact of prior convictions does not need to be found by a jury. Traditional factors, including prior criminal history, considered by a judge in determining the appropriate sentence are not elements of the crime. Wheeler, 145 Wash.2d at 120, 34 P.3d 799. Therefore, a jury determination of Morgan's prior convictions beyond a reasonable doubt prior to the court using the convictions to calculate Morgan's offender score is unnecessary. We conclude the court did not err.

¶55 We affirm.

FOOTNOTES

1.   We refer to Russell Foy by his first name solely for the purpose of clarity and to avoid confusion.

2.   House Appropriations Committee Meeting (Wash. State Legis. Feb. 22, 2021) at 4 hr., 43 min., 45 sec. through 4 hr., 44 min., 34 sec., video recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

3.   Blazina addressed the “defendant's current and future ability to pay.” 182 Wash.2d at 838, 344 P.3d 680 (emphasis added). And should be generally construed as conjunctive. HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 473 n.95, 61 P.3d 1141 (2003).

Smith, J.

WE CONCUR: Diaz, J. Coburn, J.