State Of Washington v. Andrew Jens Peter Mortensen ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
September 26, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48518-4-II
Respondent,
v. UNPUBLISHED OPINION
ANDREW JENS PETER MORTENSEN,
Appellant.
MAXA, A.C.J. – Andrew Mortensen appeals his convictions of two counts of second
degree assault, one involving assault with a deadly weapon. The convictions arose from an
incident in which Mortensen fought with one man while Mortensen’s friend fought with another
man. The fighting stopped when Mortensen used his gun to hit the man he was fighting and to
compel the other man to let go of his friend.
We hold that (1) the trial court erred in refusing to amend the self-defense instructions to
incorporate the defense of another, but this error was harmless; (2) the trial court did not err in
excluding a defense witness from being recalled when she remained in the courtroom after
testifying in violation of the trial court’s ER 615 witness exclusion order; (3) defense counsel
provided ineffective assistance by not initially proposing a defense of another instruction and by
allowing the defense witness to remain in the courtroom after testifying, but Mortensen does not
show prejudice; (4) the trial court’s reasonable doubt instruction was not constitutionally
No. 48518-4-II
deficient; (5) as the State concedes, Mortensen’s two assault convictions violate double jeopardy;
(6) the trial court properly imposed the criminal filing fee, which is a mandatory legal financial
obligation (LFO) that could be imposed without considering Mortensen’s ability to pay; and (7)
as the State concedes, a scrivener’s error in the judgment and sentence must be corrected on
remand.
Accordingly, we affirm Mortensen’s conviction of second degree assault with a deadly
weapon (count two), vacate Mortensen’s other conviction for second degree assault (count one)
and the sentence relating to that conviction, and remand for correction of the scrivener’s error in
the judgment and sentence.
FACTS
Assault Incident
On the night of July 5, 2014, Mortensen, his girlfriend Aisha Nottingham, Aisha’s1
brother Michael Nottingham, and others were camping on the bank of a fishing channel along the
Columbia River. The group was playing music at a high volume.
Scott Burkett, Joshua McDonald, and Bianca Lujan were across the channel. McDonald
yelled to Mortensen’s group to turn their music down. When Mortensen’s group refused, the
two groups began yelling insults and profanities across the water at each other. Someone in
Mortensen’s group eventually yelled that they could come over there and that they had a gun.
Mortensen and Michael Nottingham drove a boat across the channel, landing in front of a
fire that Burkett, McDonald, and Lujan had made. The two groups started fighting – Nottingham
1
To avoid confusion, we refer to Aisha Nottingham by her first name. We intend no disrespect.
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No. 48518-4-II
with McDonald and Mortensen with Burkett. Eventually, Mortensen displayed a gun that he had
with him and the fighting stopped. Mortensen and Nottingham then went back to their camp.
Charged Offenses
Mortensen was charged with three counts of second degree assault and three counts of
harassment.2 The first assault charge (count one) alleged that Mortensen inflicted substantial
bodily harm on Burkett under RCW 9A.36.021(1)(a). The second assault charge (count two)
alleged that Mortensen assaulted Burkett with a deadly weapon under RCW 9A.36.021(1)(c) and
included a firearm enhancement under RCW 9.94A.825. The third assault charge (count three)
alleged that Mortensen assaulted McDonald with a deadly weapon under RCW 9A.36.021(1)(c),
and also included a firearm enhancement.
Trial Testimony
Burkett and McDonald testified at trial that Mortensen and Nottingham started the fight
by charging at them as soon the boat landed. Burkett testified that he was able to put Mortensen
in a choke hold on the ground, but he then heard the sound of a gun cocking and saw that
Mortensen had a gun. Burkett let go and put his hands up while he backed away. Mortensen
struck Burkett in the face and then in the head with the gun. Burkett yelled at McDonald to stop
fighting because Mortensen had a gun. Burkett and McDonald both testified that Mortensen
walked over to McDonald, pointed the gun at him, and said, “Do you want to die?” 2 Report of
Proceedings (RP) at 186.
2
The State eventually added a charge of tampering with a witness, and at trial the court
dismissed the harassment charge involving Lujan based on insufficient evidence.
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No. 48518-4-II
In contrast, Mortensen and Nottingham testified that they had attempted to avoid a fight.
They testified that they crossed the river not for a confrontation, but because Nottingham needed
to get to his car on the other side. Mortensen testified that because he did not want a fight, when
the boat approached the other group’s area he shouted out for the other people to stay where they
were and not to come near.
Nottingham testified that when he got out of the boat, something hit him in the head,
causing his eyebrow to split open. He stated that he saw someone about 10 feet away.
Nottingham assumed that the person had hit him and rushed at the person, trying to detain him.
Mortensen testified that he was still on the boat when he saw a very large person
dragging Nottingham away. Mortensen jumped out of the boat and attempted to run toward
Nottingham, but heard someone behind him. He thought that whatever was happening to
Nottingham was going to happen to him. He turned around and swung, connecting with
Burkett’s shoulder. Mortensen again tried to help Nottingham, but Burkett grabbed him from
behind and pulled him backwards.
Mortensen testified that during the ensuing fight, his gun fell out of his waistband. Both
he and Burkett reached for the gun but Mortensen was able to get a better grip. Mortensen
swung the gun and connected with Burkett’s face. Mortensen then yelled for McDonald to let
Nottingham go. Nottingham heard Mortensen say “Get off my friend. Back up.” 4 RP at 851.
Mortensen and Nottingham then went back to the boat and left for the other side.
Mortensen stated that when he and Nottingham got back to their camp, the group talked
about making up a story about what had happened. Mortensen admitted that he told a fabricated
story to the police. He told one officer, David Krebs, that Burkett and McDonald had come
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across the channel on a raft and started a fight. Mortensen testified that he told the story because
Officer Krebs and another officer had threatened him, saying that Mortensen would go to jail and
his children would be taken away from him if he had gone to the other side of the river.
Witness Exclusion
Mortensen attempted to elicit testimony from Aisha about Officer Krebs’s alleged threat.
Aisha was at Mortensen’s campsite and apparently heard the threat, but she did not know who
made it. The State objected on the grounds that it would be difficult to offer rebuttal testimony
because Aisha did not know who made the statement. The trial court initially sustained the
objection. Aisha completed her testimony without testifying about the threat.
The parties revisited the trial court’s ruling during Mortensen’s testimony. The court
determined that it would allow testimony on the threat. Immediately after that ruling, the court
noted that Aisha was in the courtroom, which would prevent her from being recalled under the
court’s ER 615 witness exclusion order. Defense counsel stated that he did not expect to recall
Aisha. But he later sought to recall her and have her corroborate Mortensen’s testimony. The
court denied permission, citing the ER 615 order requested by both parties that excluded
testifying witnesses from the courtroom.
Jury Instructions
Mortensen intended to submit a jury instruction on defense of another, consistent with his
testimony about attempting to help Nottingham. However, his proposed instructions and the
instructions given by the trial court for both assault and harassment addressed only self-defense.
The court also gave a first aggressor instruction that did reference defense of another.
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No. 48518-4-II
Immediately after the court finished reading the jury instructions but before closing
argument, defense counsel informed the court that the self-defense instructions erroneously did
not include a reference to the defense of another. Counsel acknowledged that he had drafted the
instructions and had only himself to blame. But he requested that the court add language to the
self-defense instructions stating that a person can use force to lawfully aid a person who he
reasonably believes is about to be injured.
The trial court denied the request, stating, “I’ve already read the instructions to the jury.
We got all the way through the verdict forms. We’ve spent a lot of time on this.” 10 RP at 1425.
However, the court agreed that defense counsel could argue during closing argument that defense
of another applied and that the State could not argue that defense of another did not apply.
The court also provided a standard instruction on reasonable doubt. The instruction
included the statement, “A reasonable doubt is one for which a reason exists.” Clerk’s Papers
(CP) at 142.
Conviction and Sentencing
The jury found Mortensen guilty on counts one and two, both for second degree assault
of Burkett, and found that he was armed with a firearm on count two. The jury found Mortensen
not guilty on the remaining counts, including count three for assaulting McDonald.
At sentencing, the State conceded that the two assault convictions constituted the same
criminal conduct for purposes of calculating Mortensen’s offender score. The trial court
sentenced Mortensen at the top of the standard range, nine months for each count to run
concurrently plus 36 months for the firearm enhancement. The court also imposed as an LFO a
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No. 48518-4-II
criminal filing fee of $200. The judgment and sentence stated that Mortensen was found guilty
based on a guilty plea rather than on a jury verdict.
Mortensen appeals his convictions and the court’s imposition of the criminal filing fee
LFO.
ANALYSIS
A. INSTRUCTION ON DEFENSE OF ANOTHER
Mortensen argues that the trial court erred by refusing his request, made after the court
had given the jury instructions but before closing arguments, to amend the self-defense
instructions to incorporate defense of another. We agree, but we hold that the error was
harmless.
1. Legal Principles
A person’s use of force against someone is lawful if he or she (1) reasonably believes that
he or she is about to be injured or (2) is aiding a person who he or she reasonably believes is
about to be injured. RCW 9A.16.020(3); see also 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02, at 268 (4th ed. 2016) (WPIC).
“A criminal defendant is entitled to an instruction on his or her theory of the case if the
evidence supports the instruction.” State v. Werner, 170 Wash. 2d 333, 336, 241 P.3d 410 (2010).
More specifically, a defendant is entitled to a self-defense or defense of another instruction if
there is “some evidence” demonstrating self-defense or defense of another. Id. at 336-37
(addressing self-defense); see also State v. Marquez, 131 Wash. App. 566, 578, 127 P.3d 786
(2006) (addressing defense of another). The “some evidence” threshold is a low burden; the
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No. 48518-4-II
evidence does not even need to create a reasonable doubt. State v. George, 161 Wash. App. 86, 96,
249 P.3d 202 (2011).
The trial court must evaluate evidence of self-defense “from the standpoint of a
reasonably prudent person who knows all the defendant knows and sees all the defendant sees.”
State v. Read, 147 Wash. 2d 238, 242, 53 P.3d 26 (2002). This analysis involves both subjective
and objective components. Id. at 242-43. For the subjective component, the court must “place
itself in the defendant’s shoes and view the defendant’s acts in light of all the facts and
circumstances the defendant knew when the act occurred.” Id. at 243. For the objective
component, the court must “determine what a reasonable person would have done if placed in the
defendant’s situation.” Id. The same approach applies to the defense of another. See Marquez,
131 Wash. App. at 575.
Defense of another has other limitations. Specifically, a defendant’s use of force is
justifiable to protect a third party from injury when: (a) the defendant would be justified in using
force to defend himself or herself against the same injury being threatened against the third
party; (b) under the circumstances as understood by the defendant, the third party would be
justified in using force to protect himself or herself; and (c) the defendant believes that the
intervention is necessary to protect the third party. State v. Penn, 89 Wash. 2d 63, 66, 568 P.2d 797
(1977). In addition, the defendant’s apprehension of danger must be reasonable under the
circumstances. Id.
Whether the evidence is sufficient to support a self-defense or defense of another
instruction is a question of law that we review de novo. See State v. Fisher, 185 Wash. 2d 836,
849, 374 P.3d 1185 (2016) (stating rule for self-defense). In deciding whether such an
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No. 48518-4-II
instruction should have been given, we must view the evidence in the light most favorable to the
defendant. Id. And the defendant can rely on any evidence produced at trial to support the
defense, even if inconsistent with his or her own testimony. Id. at 849-51.
2. Assault Charge Regarding McDonald
The State charged Mortensen with assaulting McDonald with a deadly weapon. The
evidence was sufficient to support a defense of another instruction for the assault charge
involving McDonald. Mortensen testified that he saw McDonald dragging Nottingham away
and was trying to help Nottingham. He then pointed a gun at McDonald to make him stop
fighting with Nottingham.
The trial court erred in refusing to give a defense of another instruction for this charge.3
However, the jury acquitted Mortensen on the assault charge regarding McDonald. Therefore,
the trial court’s error was harmless for this charge.
3. Assault Convictions Regarding Burkett
The State charged Mortensen with two counts of assault against Burkett. The question is
whether there was sufficient evidence to support a defense of another instruction regarding these
charges.
3
Defense counsel failed to propose a defense of another instruction, but discovered his mistake
in time to correct it – before closing arguments began. It appears that the trial court did not want
to go through the inconvenience of amending the instruction and reading the revised instruction
to the jury when the court was ready to proceed with closing argument. However, the court’s
convenience is not a valid reason for refusing to give an instruction to which a defendant is
entitled.
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No. 48518-4-II
a. Applicability of Defense of Another
There is no evidence that Burkett ever fought with, attempted to fight with, or even was
anywhere near Nottingham. Burkett’s only involvement in the incident was fighting with
Mortensen. And there was no evidence that Mortensen used force against Burkett to prevent him
from joining McDonald in assaulting Nottingham. According to Mortensen, he fought with
Burkett only because Burkett ran up behind him and later grabbed him from behind. Therefore,
it would initially appear that Mortensen used force against Burkett only to defend himself, not to
defend Nottingham. The trial court properly gave a self-defense instruction that applied to
Mortensen’s use of force against Burkett.
However, Mortensen argues that defense of another is applicable because his goal in
fighting with Burkett was to assist Nottingham. He testified that Burkett ran up behind him and
then attacked him from behind as he moved toward McDonald and Nottingham. Mortensen
argues that he was justified in using force against Burkett because Burkett was trying to prevent
him from coming to Nottingham’s aid.
No Washington case addresses facts similar to this case – whether a defendant’s use of
force against the victim is justified as defense of another when the victim has not injured or
threatened to injure the person being defended but is trying to prevent the defendant from
coming to that person’s aid.
A strict application of the second Penn prong would not seem to allow Mortensen’s use
of force against Burkett under a defense of another theory. Under that prong, Mortensen would
be justified in using force against Burkett only to the extent that Nottingham would have been
justified in using the same force to protect himself against Burkett. Penn, 89 Wash. 2d at 66. But
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No. 48518-4-II
Burkett never threatened to injure Nottingham – only McDonald did. Therefore, Nottingham
would not have been justified in using force against Burkett.
On the other hand, the more general analysis the Supreme Court has outlined in self-
defense cases involving subjective and objective components, see Read, 147 Wash. 2d at 242-43, is
more favorable to Mortensen. Subjectively, there is evidence that Mortensen was in fact
attempting to come to Nottingham’s aid and that the only reason he used force against Burkett
was because Burkett attempted to stop him. Objectively, viewing the evidence in the light most
favorable to Mortensen, a reasonable person placed in Mortensen’s position could have believed
that it was necessary to get to Nottingham to defend him and would have fought off efforts to
prevent his assistance.
Based on the evidence in this case, we hold that there was sufficient evidence to support a
defense against another instruction for Mortensen’s assault charges regarding Burkett.
b. Harmless Error
The State argues that even if the trial court erred in refusing to give a defense of another
instruction, any error was harmless. A defendant has the constitutional right to a jury instruction
on defense of another when that defense is supported by the evidence. See George, 161 Wn.
App. at 100-01 (stating rule for self-defense). The State must show that any error of
constitutional magnitude was harmless beyond a reasonable doubt. State v. Lynch, 178 Wash. 2d
487, 494, 309 P.3d 482 (2013).
A combination of two factors demonstrates that the trial court’s error here was harmless.
First, the trial court’s self-defense instructions arguably allowed Mortensen to argue his theory of
the case. The court’s self-defense instruction stated:
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No. 48518-4-II
It is a defense to a charge of Assault in the Second Degree that the force used or
offered to be used was lawful as defined in this instruction.
The force used or offered to be used upon or toward the person of another is
lawful when used by a person who reasonably believes that he is about to be injured
in preventing or attempting to prevent an offense against the person, and when the
force is not more than is necessary.
CP at 153. The court provided a similar self-defense instruction regarding the harassment
charge.
The court also gave a first aggressor instruction that specifically mentioned defense of
another:
No person may, by any intentional act reasonably likely to provoke a belligerent
response, create a necessity for acting in self-defense or defense of another and
thereupon use, offer, or attempt to use force upon or toward another person.
Therefore, if you find beyond a reasonable doubt that the defendant was the
aggressor, and that defendant’s acts and conduct provoked or commenced the fight,
then self-defense or defense of another is not available as a defense.
CP at 155 (emphasis added).
In closing argument, defense counsel argued that the self-defense instructions included a
defense of another component:
[T]here’s a jury instruction here on self-defense. It’s also -- it’s a dual-purpose
instruction. It’s Instructions 16 and 17. Those are called “defenses.” They are
defense of self or another person. It’s dual purpose. It’s a little confusing from
reading at it, but it’s -- you can defend yourself or another person. If the person
reasonably believes they’re about to be harmed, they can use reasonable, necessary
force to protect themselves or protect another person.
RP at 1504 (emphasis added).
Mortensen correctly points out that the fact that defense counsel was able to argue
defense of another even though the court’s instructions did not allow such a defense does not
necessarily make the court’s error harmless. The court’s instructions explicitly required jurors to
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disregard any remark not supported by evidence or the court’s instructions. However, when
refusing to give a defense of another instruction, the trial court expressly precluded the State
from arguing that defense of another did not apply. Therefore, here Mortensen was able to argue
defense of another based on the language of the court’s instructions without contradiction from
the State.
Second, the jury found Mortensen guilty of assaulting Burkett despite the self-defense
instruction. As noted above, the trial court’s instructions stated that if Mortensen was the first
aggressor he could not rely on either self-defense or defense of another. Because the jury
rejected Mortensen’s self-defense argument, it must have found that Mortensen was the
aggressor with regard to Burkett. This same finding would have precluded Mortensen’s defense
of another defense.
Mortensen responds that the defense of another instruction could have impacted the
jury’s assessment of whether Mortensen was the first aggressor. Mortensen claims that without a
defense of another instruction, the jurors were not permitted to consider that Mortensen’s
objective in knocking Burkett down was not to act as an aggressor against Burkett but to come to
Nottingham’s aid.
But the absence of a defense of another instruction did not prevent Mortensen from
arguing that Burkett was the first aggressor in their altercation by running up behind him and
then grabbing him from behind as Mortensen attempted to reach Nottingham. And Mortensen
did testify and argue that he was attempting to assist Nottingham. Mortensen’s defense of
another argument would have been the same as his self-defense argument: that he was justified
in fighting with Burkett because Burkett attacked him first. The jury rejected this argument
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No. 48518-4-II
regarding self-defense. There is no reason to believe that the result would have been different
had the court’s instructions included defense of another.
Including a defense of another instruction would not have changed the outcome of the
trial under the facts here. Therefore, we hold that the trial court’s failure to include a defense of
another instruction was harmless error with regard to the assault charges involving Burkett.
B. EXCLUSION OF DEFENSE WITNESSES
Mortensen argues that the trial court violated his constitutional right to present a defense
when the court prevented him from recalling Aisha. He had intended for her to testify about the
alleged threat Officer Krebs made to Mortensen that Mortensen would go to jail and his children
would be taken away from him if he had gone to the other side of the river. The court refused to
allow Aisha to testify because she had remained in the courtroom while Mortensen testified
about the alleged threat. We hold that the trial court did not err.
1. Legal Background
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution require that defendants have a meaningful opportunity to present a
defense. State v. Ortuno-Perez, 196 Wash. App. 771, 783-84, 385 P.3d 218 (2016). This right
includes the right to present witness testimony in establishing a defense. State v. Lizarraga, 191
Wash. App. 530, 551-52, 364 P.3d 810 (2015), review denied, 185 Wash. 2d 1022 (2016).
A defendant’s right to present testimony is not absolute and is subject to established rules
of procedure and evidence designed to ensure fairness and reliability in determining guilt or
innocence. Id. at 553. Evidentiary rules do not infringe on a defendant’s right to present a
defense so long as they are not arbitrary and disproportionate to their intended purpose. Id. As a
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No. 48518-4-II
result, a defendant’s interest in presenting relevant evidence may, on occasion, yield to
accommodate other legitimate interests in the criminal trial process. Id.
Here, the trial court had issued an order excluding all witnesses from the courtroom under
ER 615. That rule states:
At the request of a party the court may order witnesses excluded so that they cannot
hear the testimony of other witnesses, and it may make the order of its own motion.
This rule does not authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by a party
to be reasonably necessary to the presentation of the party’s cause.
ER at 615. The rule’s purpose is to discourage or expose inconsistencies, fabrication, or
collusion in witnesses’ testimony. State v. Skuza, 156 Wash. App. 886, 896, 235 P.3d 842 (2010).
A trial court can respond to an ER 615 violation in three ways: (1) hold the witness in contempt,
(2) allow cross-examination concerning the violation or address the violation in closing
argument, or (3) preclude the witness from testifying. Id. The trial court has discretion in
imposing an appropriate sanction for violation of an ER 615 order. Id.
Skuza appears to be the only Washington case addressing a trial court’s decision to
exclude witness testimony based on violation of ER 615. However, the relevant part of the rule
is identical to the federal version and the issue has been repeatedly litigated in federal appellate
courts. When interpreting a Washington rule of evidence that mirrors the federal rule, we can
look to federal cases as persuasive authority. State v. McBride, 192 Wash. App. 859, 870, 370
P.3d 982 (2016).
The Ninth Circuit addressed this issue in United States v. Hobbs, 31 F.3d 918 (9th Cir.
1994). There, two witnesses in a suppression hearing were in the courtroom during part of the
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No. 48518-4-II
hearing. Id. at 920. The court held that exclusion of the witnesses’ testimony was error
implicating the defendant’s constitutional right to present evidence in his defense. Id. at 923.
The court explained that generally a witness in violation of ER 615 “ ‘cannot be excluded
on that ground merely, although the right to exclude under particular circumstances may be
supported as within the sound discretion of the trial court.’ ” Id. at 921 (quoting Holder v.
United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010 (1893)). But the court noted three
factors in determining whether exclusion of the witness is an appropriate remedy: (1) whether the
excluded witness’s testimony would be cumulative of testimony by other witnesses, (2) how
central the excluded testimony was to the defendant’s case, and (3) whether the defendant or
defense counsel cooperated in the violation. Hobbs, 31 F.3d at 922-23.
2. Analysis
Here, Aisha’s proposed testimony about Officer Krebs’s threat involved a collateral issue
– why Mortensen admittedly lied to law enforcement about the incident – and was not central to
Mortensen’s case. And her testimony was cumulative of Mortensen’s testimony about the threat,
although it would have corroborated his account. The exclusion of Aisha’s testimony on this
issue therefore did not prevent Mortensen from presenting a defense and did not rise to the level
of a constitutional violation.
In addition, the trial court noted at the time that Aisha was in the courtroom and expressly
informed defense counsel that if she was going to be recalled she could not remain. The trial
court’s warning came immediately after the court had allowed Mortensen to testify about Officer
Krebs’s alleged threat. Defense counsel informed the court that he did not plan to recall Aisha.
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No. 48518-4-II
But counsel should have recognized that Aisha might need to be recalled. Defense counsel
therefore participated in Aisha’s violation of the court’s ER 615 order.
The record shows that the trial court did not enforce its ER 615 order in an arbitrary or
unfair manner. Its reason for excluding Aisha’s testimony was directly related to the rule’s
intended purpose of exposing inconsistencies, fabrication, or collusion. Skuza, 156 Wash. App. at
896. That purpose is particularly significant here, where Aisha had limited knowledge and could
have adjusted her testimony to match Mortensen’s testimony.
We hold that Mortensen’s right to present a defense was not violated and that the trial
court did not abuse its discretion in excluding Aisha from being recalled to testify about Officer
Krebs’s alleged threat to Mortensen.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Mortensen argues that he received ineffective assistance when defense counsel (1) failed
to initially propose an instruction on defense of another, and (2) failed to ensure that Aisha
remained outside the courtroom in case she needed to be recalled. We agree that defense
counsel’s performance was deficient. However, we hold that Mortensen cannot show that he
was prejudiced.
1. Legal Principles
We review ineffective assistance of counsel claims de novo. State v. Clark, 187 Wash. 2d
641, 649, 389 P.3d 462 (2017). To prevail on an ineffective assistance claim, the defendant must
show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260
(2011). Representation is deficient if, after considering all the circumstances, it falls below an
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No. 48518-4-II
objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable
probability that, except for counsel’s errors, the result of the proceeding would have been
different. Id. at 34. A reasonable probability of prejudice is sufficient if the deficient
performance undermines confidence in the trial’s outcome. Id.
We begin our analysis with a strong presumption that counsel’s performance was
effective. Id. at 33. To rebut this presumption, the defendant must establish the absence of any
“ ‘conceivable legitimate tactic explaining counsel’s performance.’ ” Id. (emphasis added)
(quoting State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004)). If defense counsel’s
conduct can be considered to be a legitimate trial strategy or tactic, counsel’s performance is not
deficient. Grier, 171 Wash. 2d at 33. We review the challenged conduct from defense counsel’s
perspective at the time. Id. at 34.
2. Instruction on Defense of Another
Here, defense counsel erred by not submitting timely proposed jury instructions that
supported Mortensen’s defense of another theory of the case. As discussed above, Mortensen
was entitled to a defense of another instruction. Defense counsel admitted the error to the trial
court when he requested a corrected instruction. Therefore, defense counsel’s conduct was
deficient.
But defense counsel realized his mistake and informed the trial court in time to correct it.
In addition, as discussed above, the trial court’s error in refusing to give a defense of others
instruction was harmless. If the State satisfies the “beyond a reasonable doubt” standard for
determining harmless error relevant to a trial court’s error of constitutional magnitude, it
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No. 48518-4-II
necessarily satisfies the “reasonable probability” standard for determining prejudice on an
ineffective assistance of counsel claim.
We hold that Mortensen failed to show that defense counsel’s deficient performance
prejudiced him. Accordingly, we hold that Mortensen’s ineffective assistance of counsel claim
on this basis fails.
3. Allowing Aisha to Remain in Courtroom
Defense counsel also was deficient by allowing Aisha to remain in the courtroom when it
was likely that she would be recalled. However, as stated above, defense counsel’s error did not
prevent Aisha from testifying on other issues. The excluded testimony was relevant only to
Mortensen’s credibility. Mortensen had already admitted to lying to Officer Krebs, and Aisha
could testify only to Mortensen’s likely motivation for doing so. But even on this narrow point,
Aisha’s testimony was of limited value because she apparently did not know which officer made
the threat. The prejudicial effect of her exclusion was limited to a relatively minor point on
which she knew little. Therefore, Aisha’s exclusion does not undermine confidence in the trial’s
outcome.
We hold that Mortensen has not shown that he was prejudiced by defense counsel’s
decision to allow Aisha into the courtroom. Accordingly, we hold that Mortensen’s ineffective
assistance of counsel claim on this basis fails.
D. REASONABLE DOUBT INSTRUCTION
Mortensen argues that the trial court’s reasonable doubt instruction was constitutionally
deficient because it includes the statement that “[a] reasonable doubt is one for which a reason
exists.” Br. of Appellant at 33. We disagree.
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No. 48518-4-II
The trial court’s instruction was taken verbatim from WPIC 4.01. In State v. Bennett, the
Supreme Court admonished trial courts to use the exact language of WPIC 4.01. 161 Wash. 2d
303, 318, 165 P.3d 1241 (2007). The court reaffirmed that WPIC 4.01 was proper in State v.
Kalebaugh, 183 Wash. 2d 578, 585, 355 P.3d 253 (2015). In State v. Parnel, this court responded
to the same challenge to WPIC 4.01 that Mortensen now makes. 195 Wash. App. 325, 381 P.3d
128, review denied, 186 Wash. 2d 1031 (2016). The court stated that it was bound by the Supreme
Court’s affirmation that WPIC 4.01 provides the correct legal instruction on reasonable doubt.
Id. at 328.
Accordingly, we hold that the trial court did not err in giving a reasonable doubt
instruction identical to WPIC 4.01.
E. DOUBLE JEOPARDY
Mortensen argues that his conviction for two counts of second degree assault against
Burkett violated double jeopardy. The State concedes that one of Mortensen’s convictions
should be dismissed. We agree.
The constitutional guarantee against double jeopardy protects defendants from being
punished multiple times for the same offense. State v. Mutch, 171 Wash. 2d 646, 661, 254 P.3d 803
(2011); see U.S. CONST. amend. V; WASH. CONST. art. I, § 9. The remedy is to vacate the lesser
charge or the charge that carries a lesser sentence. State v. Weber, 159 Wash. 2d 252, 269, 149
P.3d 646 (2006). We review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180
Wash. 2d 975, 979-80, 329 P.3d 78 (2014).
The applicable double jeopardy analysis depends on the type of convictions at issue.
When the defendant has multiple convictions under a single statutory provision, we apply a “unit
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of prosecution” analysis. Id. at 980. This inquiry requires us to identify what act or course of
conduct the legislature has defined as the punishable act. Id.
In course of conduct offenses, a defendant cannot be convicted multiples times under the
same statute for acts that comprise a single course of conduct. State v. Diaz-Flores, 148 Wn.
App. 911, 915, 201 P.3d 1073 (2009). Assault is a course of conduct crime. Villanueva-
Gonzalez, 180 Wash. 2d at 984-85. Whether multiple assaultive acts constitute one course of
conduct is a fact-based question that looks to factors like the length of time over which the acts
took place, the location of each act, the motivation for each act, any interruption or intervening
acts, and the defendant’s opportunity for reflection. Id. at 985.
Here, Mortensen was charged twice with second degree assault against Burkett, once
under RCW 9A.36.021(1)(a) for inflicting substantial bodily harm when striking Burkett and
again under RCW 9A.36.021(1)(c) for assault with a deadly weapon for pointing a gun at
Burkett. These acts took place in quick succession and the same location. Mortensen’s
motivation did not change from one act to the other, there was no interruption between them, and
he had no opportunity for reflection. Therefore, these acts constitute a single course of conduct
that can be punished only once under the assault statute.
Accordingly, we hold that Mortensen’s two assault convictions constitutes double
jeopardy. The remedy is to vacate the conviction that carries a lesser sentence. Here that
conviction is count one, which does not include the firearm enhancement.
F. IMPOSITION OF CRIMINAL FILING FEE
Mortensen argues that the trial court erred in imposing a criminal filing fee as an LFO
without conducting an adequate inquiry into his ability to pay. He claims that, contrary to this
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court’s decision in State v. Lundy, 176 Wash. App. 96, 308 P.3d 755 (2013), a criminal filing fee is
a discretionary rather than a mandatory LFO. We disagree.
Former RCW 36.18.020(2)(h) (2013) provides that upon conviction in superior court, the
defendant “shall be liable” for a $200 fee for services of the court clerk. The word “shall”
presumptively creates an imperative duty rather than conferring discretion. State v. Blazina, 182
Wash. 2d 827, 838, 344 P.3d 680 (2015).
Mortensen argues that the phrase “shall be liable” in former RCW 36.18.020(2)(h) is
ambiguous as to whether the fee is mandatory. This court recently rejected an identical argument
in State v. Gonzales, holding that the language that the defendant “shall be liable” imposes a
mandatory requirement. 198 Wash. App. 151, 155, 392 P.3d 1158, review denied, 188 Wash. 2d
1022 (2017) (emphasis added). The court confirmed the holding from Lundy that criminal filing
fees are mandatory and must be imposed regardless of ability to pay. id.; see Lundy, 176 Wn.
App. at 103.
We hold that under Gonzales and Lundy, the trial court properly imposed a criminal filing
fee as a mandatory LFO without considering Mortensen’s ability to pay.
G. MISTAKE IN JUDGMENT AND SENTENCE
Mortensen points out, and the State agrees, that Mortensen’s judgment and sentence
includes a scrivener’s error stating that he pleaded guilty. We remand for the trial court to
correct this error. The judgment and sentence should reflect that Mortensen was found guilty by
jury verdict.
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H. APPELLATE COSTS
Mortensen asks that we refrain from awarding appellate costs if the State seeks them. We
decline to consider the issue. A court commissioner will determine whether to award costs under
RAP 14.2 if the State decides to file a cost bill and if Mortensen objects to that cost bill.
CONCLUSION
We affirm Mortensen’s conviction of second degree assault with a deadly weapon (count
two), vacate Mortensen’s other conviction for second degree assault (count one) and the sentence
relating to that conviction, and remand for correction of the scrivener’s error in the judgment and
sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is
so ordered.
MAXA, A.C.J.
We concur:
JOHANSON, J.
LEE, J.
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