State Of Washington v. Robert Lee King ( 2016 )

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2016SEP 26 Kiill:30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73755-4-1
Respondent,
DIVISION ONE
v.
ROBERT L. KING, UNPUBLISHED OPINION
Appellant. FILED: September 26, 2016
Becker, J. — Appellant Robert King was convicted of one count of
threatening to bomb or injure property, one count of stalking, and three counts of
cyberstalking. We accept the State's concession of error and remand for further
proceedings.
Two of the cyberstalking convictions were based on a single text message
threatening King's ex-girlfriend's two daughters. King argues the two convictions
violate double jeopardy because the unit of prosecution for cyberstalking is for
each electronic communication.
"A person is guilty of cyberstalking if he or she, with intent to harass,
intimidate, torment, or embarrass any other person . . . makes an electronic
communication." RCW 9.61.260(1) (emphasis added). King compares this
cyberstalking statute to an arson statute that prohibits causing "a fire or
explosion," so the unit of prosecution is for each fire caused, State v. Westling,
No. 73755-4-1/2
145 Wash. 2d 607, 611-12, 40 P.3d 669 (2002), and a statute that prohibits
possessing "a stolen access device," so the unit of prosecution is for each stolen
access device possessed, State v. Ose, 156 Wash. 2d 140, 144-46, 124 P.3d 635
(2005).
The State concedes the alleged double jeopardy violation and agrees that
one of the convictions for cyberstalking must be vacated and the case remanded
for resentencing. We accept the concession.
King also contends all of his convictions constitute the same criminal
conduct for the purpose of calculating this offender score. Although King did not
raise this issue in the trial court, the State does not object to allowing him to
present the argument to the trial court on remand. We agree it is appropriate to
have the issue of same criminal conduct resolved by the trial court on remand.
King asks that appellate costs not be awarded against him. The State is
not seeking an award of appellate costs in this appeal. Consequently, none will
be awarded.
Remanded.
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WE CONCUR:
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