State v. HallState v. Hall
I
¶ 2 Melissa Salazar briefly dated Hall in Nоvember and December 2006. Hall continued to press his attentions on Salazar after she broke off the relationship and after he suspected she was seeing another man. On January 14, 2007, he came to her apartment with a gun. When she stepped into the hall to talk to him, he drew that gun, pushed the barrel against her head, and announced his intent to kill her. He then shoved her down and fоrced his way into her apartment, where indeed he found another man. Hall then redirected his ire at that other man and chased him out of the house, gun raised. Upon realizing that Salazar was calling the police, Hall fled the scene.
¶ 3 Police contacted Desirae Aquiningoc because Hall had been driving a vehicle registered to her. Aquiningoc told the officers that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother, and that he owned a gun. It appears that his purpose was not to visit his mother but rather to confront Salazar. The detective, assisted by members of a SWAT (special weapons and tactics) team, returned to Hall‘s home and arrested him. The gun was found in the master bedroom closet. Later, Aquiningoc would testify that Hall told her he had shot at his mother‘s boyfriend on January 14 and that afterward he had taken the gun to a friend‘s house for a few days.
¶ 5 Based on phone calls made on March 22, March 30, and April 4, Hall was charged with the four counts of tampering with a witness that are before us today. A jury convicted Hall of three of those counts (as well as first degree burglary, assault in the second degree, and unlawful possession of a firearm) and he was sentenced to a total of 126 months. The trial judge treated each count of witness tampering as a separate unit of prosecution.2 His convictions were affirmed by the Court of Appeals, 147 Wash. App. 485, 196 P.3d 151 (2008), and Hall successfully petitioned this court for review of whether his multiple convictions for witness tampering violated dоuble jeopardy, 166 Wash.2d 1005, 208 P.3d 1124 (2009).
II
¶ 6 Only a question of law is before this court. Review is de novo. State v. Freeman, 153 Wash.2d 765, 770, 108 P.3d 753 (2005) (citing State v. Johnston, 100 Wash. App. 126, 137, 996 P.2d 629 (2000)). A defendant may face multiple charges arising from the same conduct, but double jeopardy forbids entering multiple convictions for the same offense. Id. at 770-71, 108 P.3d 753 (citing State v. Michielli, 132 Wash.2d 229, 238-39, 937 P.2d 587 (1997); State v. Vladovic, 99 Wash.2d 413, 422, 662 P.2d 853 (1983)). Whether or not a defendant faces multiple convictions for the same crime turns on the unit of prosecution. State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998)).
III
¶ 7 We must decide whether witness tamрering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely. We recently summarized the general analytical approach to determine the unit of prosecution:
[T]he first step is to analyze the statute in question. Next, we review the statute‘s history. Finally, we perform a fаctual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one “unit of prosecution” is present.
State v. Varnell, 162 Wash.2d 165, 168, 170 P.3d 24 (2007) (citing State v. Bobic, 140 Wash.2d 250, 263-66, 996 P.2d 610 (2000)). “[I]f the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambiguity must be `“resolved against turning а single transaction into multiple offenses.” ‘” State v. Tvedt, 153 Wash.2d 705, 711, 107 P.3d 728 (2005) (quoting Adel, 136 Wash.2d at 634, 965 P.2d 1072 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955))).
¶ 8 The witness tampering statute says in relevant part:
(1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding ... to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or
(b) Absent himself or herself from such proceedings.
¶ 9 In Varnell, 162 Wash.2d 165, 170 P.3d 24, we considered the unit of prosecution for solicitation for murder. The defendant solicited an undercover police detective to kill four people and was convicted of four separate counts. This court found that only one solicitation happened:
The language of the solicitation statute focuses on a pеrson‘s “intent to promote or facilitate” a crime rather than the crime to be committed. The evil the legislature has criminalized is the act of solicitation. The number of victims is secondary to the statutory aim, which centers on the agreement on solicitation of a criminal act. The statute requires only that the solicitation occur; that is, where a person offеrs to give money or some other thing of value to another to engage that person to commit a crime. The solicitation has occurred regardless of the completion of the criminal act.
Id. at 169, 170 P.3d 24. Hall argues we should take a similar approach here. He argues the evil the legislature has criminalized is the attempt to “induce a witness” not to testify or to testify fаlsely. The number of attempts to “induce a witness” is secondary to that statutory aim, which centers on interference with “a witness” in “any official proceeding” (or investigation).
¶ 10 By way of comparison, in Tvedt we found multiple units of prosecution did arise from the same course of conduct. There, a defendant was convicted of four counts of robbery for robbing two convenience stores. Both a clerk and a customer were in each store. This court affirmed entry of four counts, noting:
The language of
RCW 9A.56.190 shows that the legislature‘s intent was to define the unit of prosecution in terms of a taking of personal property and in terms of an offense against the person from whom or in whose presence and against whose will the property is forcibly taken. The unit of prosecution need not be defined by only a single characteristic or element of a crime and the legislature has not done so.
Tvedt, 153 Wash.2d at 712, 107 P.3d 728. There, the unit of prosecution was each separate victim from whom or in whose presenсe property was forcibly taken. This followed from the language of the statute “that ‘[a] person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of force.‘” Id. at 711, 107 P.3d 728 (alteration in original) (quoting
¶ 11 A plainer case was presented in the context of stolen “access devices,” such as credit and debit cards. State v. Ose, 156 Wash.2d 140, 146, 124 P.3d 635 (2005). There, the defendant рleaded guilty to 25 counts of second degree possession of stolen property under
¶ 12 The State calls our attention to State v. Alvarez, 74 Wash.App. 250, 872 P.2d 1123 (1994), where the Court of Appeals found that a harassment charge could be based on one threat. Id. at 260, 872 P.2d 1123. Under the harassment statute, a person was guilty if, among other things, he or she “`knowingly threatens‘” anоther. Id. at 255, 872 P.2d 1123 (quoting
¶ 13 The State also argues that if the legislature intended witness tampering to be an ongoing offense, it would have used phrases similar to “`engages in a pattern or practice‘” or “`repeatedly harasses or repeatedly follows‘” or “`at least two previous сonvictions.‘” Suppl. Br. of Resp. at 10 & n. 2 (citing
¶ 14 The plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding. Assuming for the moment that the plain language does not resolve the matter before us, under Varnell wе turn next to the history of the statute. In 1901, our legislature enacted the obstruction of justice statute that preceded our witness tampering statute. It provided:
If any person shall wilfully and corruptly hinder, prevent, or endeavor to hinder, or prevent, any person from appearing before any court of justice as a witness, or from giving evidence, in any action or procеeding, with intent thereby to obstruct the course of justice, he shall be deemed guilty of the misdemeanor of tampering with a witness, and, upon conviction thereof, shall be punished by imprisonment in the county jail for any period not exceeding one year, or by fine not exceeding one thousand dollars, or both, in the discretion of the court.
LAWS of 1901, ch. 17, § 1 (codified as former
that witness intimidation and witness tampering serve to thwart both the effective prosecution of criminal conduct in the state of Washington and resolution of child dependencies. Further, the legislature finds that intimidating persons who have information pertaining to a future proceeding serves to prevent both the bringing of a charge and prosecution of such future proceeding.
. . . .
The legislature finds, therefore, that tampering with and/or intimidating witnesses or other persons with information relevant to a present or future criminal or child dependency proceeding are grave offenses which adversely impact the state‘s ability to promote public safety and prosecute criminal behavior.
LAWS of 1994, ch. 271, § 201. Over the years, the statutory purpose has remained the same. “The obstruction of justice is the evil which the stаtute was designed to forestall.” State v. Stroh, 91 Wash.2d 580, 582, 588 P.2d 1182 (1979). While this history is not determinative of the legislature‘s intended unit of prosecution, it is consistent with criminalizing the act of obstructing justice by tampering with a witness no matter how many calls are made in an attempt to accomplish the act.
¶ 15 The final consideration under Varnell is whether “the facts in a particular case may reveal more than one `unit of prosecution’ is present.” 162 Wash.2d at 168, 170 P.3d 24. This principle played a part in Jensen, whеre this court found that three separate conversations, where the defendant attempted to solicit someone to kill a total of four people, was properly chargeable as two counts of solicitation to commit murder, not four. State v. Jensen, 164 Wash.2d 943, 195 P.3d 512 (2008). The court found that each time the defendant attempted to entice a new person to kill supported a separate charge. Id. at 958-59, 195 P.3d 512 (“a separate unit of prosecution arises when the facts support the conclusion the defendant enticed a different person, at a different time and place, to commit a distinct crime“). But one of the three conversations in Jensen did not support a separate charge because it simply confirmed the details of an еarlier one. Id. at 957, 195 P.3d 512. In this case, the course of conduct was continuous and ongoing, aimed at the same person, in an attempt to tamper with her testimony at a single proceeding. There is not the sort of separate efforts shown in Jensen.
¶ 16 The State urges and the Court of Appeals found persuasive a Wisconsin Court of Appeals case, State v. Moore, 2006 WI App 61, 292 Wis.2d 101, 713 N.W.2d 131. The relevant statute uses similar language to our own: “`Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.‘” Id. at 106, 713 N.W.2d 131 (quoting
¶ 17 But while the statutory language is similar, Wisconsin‘s common law approach to the unit of prosecution is much different than ours. Wisconsin presumes thе legislature intended multiple punishments and requires “`clear indication to the contrary.‘” Id. at 113, 713 N.W.2d 131 (quoting State v. Anderson, 219 Wis.2d 739, 751, 580 N.W.2d 329 (1998)). In Washington, by contrast, “[u]nless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the rule of lenity requires a court to resolve ambiguity in favor of one offense.” Jensen, 164 Wash.2d at 949, 195 P.3d 512 (citing Adel, 136 Wash.2d at 634, 965 P.2d 1072). Given that difference, Moore is not helpful. The Court of Appeals also reasoned that unless each new conversatiоn is separately chargeable, the defendant will have no incentive to stop attempting to tamper with a witness. But if we adopt that reasoning, the corollary is that each conversation is a separate crime and, in
¶ 18 Our determination might be different if Hall had changed his strategy by, for example, sending letters in addition to phone calls or sending intermеdiaries, or if he had been stopped by the State briefly and found a way to resume his witness tampering campaign. But those facts are not before us.
IV
¶ 19 Double jeopardy forbids the entry of multiple convictions for the same offense. A defendant may be convicted of multiple counts for the same offense arising out of the same course of conduct as long as eаch charge represents a separate unit of prosecution. We have a multistep analytical approach to determine the unit of prosecution. As always, we first look to the statute to glean the intent of the legislature. Then we look to the statute‘s history, and finally to the facts of the particular case. If there is still doubt, we apply the rule of lenity in favor of a single unit. In this case, we hold the plain language of the statute reveals that the legislature intended to criminalize inducing “a” witness not to testify or to testify falsely. We hold, under the facts of this case, Hall committed one crime of witness tampering, not three. However, we recognize that the facts of a different case may reveal more than one unit of prosecution. We do not reach whether or when additional units of prosecution, consistent with this opinion, may be implicated if additional attempts to induce are interrupted by a substantial period of time, employ new and different methods of communications, involve intermediaries, or other facts that may demonstrate a different course of conduct. We reverse the Court of Appeals and remand for resentencing.
WE CONCUR: MADSEN, C.J., C. JOHNSON, ALEXANDER, SANDERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ.