Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 65824-7
Title of Case: State Of Washington, Respondent V. Alveno O' Brien, Appellant
File Date: 11/21/2011
SOURCE OF APPEAL
Appeal from Island County Clerk Court
Docket No: 10-1-00109-4
Judgment or order under review
Date filed: 07/26/2010
Judge signing: Honorable Vickie I Churchill
Authored by J. Robert Leach
Concurring: C. Kenneth Grosse
COUNSEL OF RECORD
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Seattle, WA, 98101
Maureen Marie Cyr
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Island Co Prosecuting Atty
Attorney at Law
7th & Main Sts
P O Box 5000
Coupeville, WA, 98239-5000
Gregory Marshall Banks
Attorney at Law
Island Co Pros Atty
Po Box 5000
Coupeville, WA, 98239-5000
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 65824-7-I
Respondent, ) DIVISION ONE
) PUBLISHED OPINION
ALVENO DOWLON O'BRIEN, )
Appellant. ) FILED: November 21, 2011
Leach, A.C.J. -- Alveno Dowlon O'Brien appeals four bail jumping
convictions. He claims three of his four convictions violate double jeopardy,
insufficient evidence supports his convictions, and the trial court erred by failing
to instruct the jury on the affirmative defenses of uncontrollable circumstances
and duress. Because the bail jumping statute is ambiguous regarding the
intended unit of prosecution, we apply the rule of lenity, reverse three of
O'Brien's four convictions, and remand for resentencing.
Between 1998 and 2003, O'Brien received four felony convictions. When
he failed to pay his legal financial obligations, the Island County Superior Court
found that he had violated the terms and conditions of his sentences. On
September 30, 2008, the court issued four separate orders, modifying O'Brien's
original sentences and ordering him to serve four consecutive seven-day
sentences, beginning on the morning of July 1, 2009.
NO. 65824-7-I / 2
O'Brien failed to report to jail on July 1 because he was incarcerated.
The State charged him with four counts of bail jumping. At trial, O'Brien
proposed jury instructions on the affirmative defenses of uncontrollable
circumstances and duress. In response, the State produced evidence that
O'Brien was convicted on May 4, 2010, of a new offense committed on April 15,
2010. The State argued this evidence showed that O'Brien did not surrender
promptly after his release from prison. The trial court agreed and refused to give
either instruction. O'Brien did not object to the denial of the duress instruction.
The jury convicted O'Brien as charged. The trial court sentenced him to
33 months in confinement. He appeals.
O'Brien argues that his four bail jumping convictions constitute a single
unit of prosecution and, therefore, three of his convictions violate the state and
federal constitutional guarantees against double jeopardy. Although O'Brien did
not raise this constitutional challenge at trial, he may assert it for the first time on
The federal and state constitutional prohibitions against double jeopardy
are coextensive and protect an individual from being punished twice for the
1 See State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998).
NO. 65824-7-I / 3
same offense.2 Two offenses are considered to be the "same offense" for
double jeopardy purposes if they are the same in law and in fact.3 But as our
Supreme Court recognized in State v. Adel,4 "When a defendant is convicted for
violating one statute multiple times, the same evidence test will never be
satisfied" because the multiple convictions "will always be the same in law, but . .
. never . . . the same in fact."
Consequently, to analyze whether a double jeopardy violation has
occurred, this court must determine the unit of prosecution intended by the
legislature.5 To avoid constitutional error, when a defendant is convicted for
violating one statute multiple times, each conviction must be for a separate "unit
of prosecution."6 The standard of review for resolving unit of prosecution issues
on appeal is de novo.7 This requires a three-step analysis:
[T]he first step is to analyze the statute in question. Next, we
review the statute's history. Finally, we perform a factual 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
2 U.S. Const. amend. V; Wash. Const. art. I, § 9; State v. Sutherby, 165
Wn.2d 870, 878, 204 P.3d 916 (2009).
3 Adel, 136 Wn.2d at 632.
4 136 Wn.2d 629, 633, 965 P.2d 1072 (1998).
5 Adel, 136 Wn.2d at 634.
6 Adel, 136 Wn.2d at 632.
7 State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635 (2005).
8 State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007).
NO. 65824-7-I / 4
When we examine the relevant statute, "[t]he meaning of a plain,
unambiguous statute must be derived from the statutory language."9 "[I]f the
legislature fails to define the unit of prosecution or its intent is unclear," the rule
of lenity requires that we resolve any ambiguity "'against turning a single
transaction into multiple offenses.'"10
RCW 9A.76.170(1) provides,
Any person having been released by court order or admitted to bail
with knowledge of the requirement of a subsequent personal
appearance before any court of this state, or of the requirement to
report to a correctional facility for service of sentence, and who
fails to appear or who fails to surrender for service of sentence as
required is guilty of bail jumping.
This statute states the legislature's intent to punish a person who has
been released by court order and subsequently fails to appear or surrender as
directed. But the statute provides no guidance about the unit of prosecution
where, as here, a person fails to surrender after one court released him under
multiple orders entered in different cases, each one requiring him to surrender
on the same day and at the same time. Therefore, the statute is ambiguous as
to whether the legislature intended to punish the single failure to appear or the
violations of multiple court orders.11 Because the statute is susceptible to two
9 State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005).
10 Tvedt, 153 Wn.2d at 711 (internal quotation marks omitted) (quoting
Adel, 136 Wn.2d at 635).
11 The statute's history does not indicate the legislature's intent regarding
the unit of prosecution. In 2001, the legislature amended the statute to add the
NO. 65824-7-I / 5
reasonable interpretations, we apply the rule of lenity and resolve the ambiguity
in O'Brien's favor.
Sufficiency of the Evidence
O'Brien claims that insufficient evidence supports his convictions.
However, O'Brien does not argue that the State failed to prove any of the
elements required to convict him of bail jumping.12 Rather, O'Brien claims the
State "failed to disprove the affirmative defense [of uncontrollable
circumstances]." But the State is not required to disprove a defense where, as
here, the defense is not an element of the crime and does not negate an element
of the crime.13 Therefore O'Brien essentially asserts the availability to him of the
uncontrollable circumstances defense under the facts of this case. We discuss
this argument below.
Availability of Defense Instructions
O'Brien claims that the trial court denied him his constitutional right to
failure to surrender and the affirmative defense language. It also removed the
former statute's knowledge element to require only that the defendant knew a
court order required him to appear or surrender. Compare former RCW
9A.76.170 (1983), with RCW 9A.76.170. See also State v. Cardwell, 155 Wn.
App. 41, 47, 226 P.3d 243 (2010) (citing State v. Fredrick, 123 Wn. App. 347,
353, 97 P.3d 47 (2004)), remanded on other grounds, 172 Wn.2d 1003, 257
P.3d 1114 (2011).
12 In order to convict, the State was required to prove that O'Brien (1) was
held, charged with, or convicted of a particular crime, (2) was released by court
order with knowledge of the requirement to report to a correctional facility for
service of sentence, and (3) failed to surrender for service of sentence. RCW
13 State v. Lively, 130 Wn.2d 1, 10-11, 921 P.2d 1035 (1996).
NO. 65824-7-I / 6
present a defense by refusing to give his proposed affirmative defense
instructions. This court reviews a trial court's refusal to give a requested jury
instruction de novo where the refusal is based on a ruling of law.14 This court
reviews a refusal based on factual reasons for an abuse of discretion.15
O'Brien's claims fail.
Jury instructions are adequate if they permit the parties to argue their
theories of the case, do not mislead the jury, and properly inform the jury of the
applicable law.16 A defendant is entitled to have the jury instructed on his theory
of the case if evidence supports that theory.17 A defendant must establish each
element of an affirmative defense by a preponderance of the evidence.18 Where
a defendant has done so and the trial court refused to instruct on the defense,
we must reverse.19
RCW 9A.76.170(2) provides this affirmative defense to the crime of bail
jumping: that "uncontrollable circumstances prevented the [defendant] from
appearing or surrendering." To establish the defense, a defendant must prove
that he did not contribute to the circumstances in "reckless disregard of the
requirement to appear or surrender" and that he "appeared or surrendered as
14 State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
15 Walker, 136 Wn.2d at 771-72.
16 State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).
17 State v. Williams, 132 Wn.2d 248, 258-60, 937 P.2d 1052 (1997).
18 State v. Harvill, 169 Wn.2d 254, 258, 234 P.3d 1166 (2010).
19 Williams, 132 Wn.2d at 259-60.
NO. 65824-7-I / 7
soon as such circumstances ceased to exist."20
We need not decide whether incarceration is an "uncontrollable
circumstance"21 because here the State presented evidence that O'Brien did not
surrender as soon as he was released from custody, i.e., as soon as
circumstances ceased to exist. O'Brien produced no evidence to the contrary
and did not challenge the State's evidence.22 Therefore, he failed to establish
his entitlement to an uncontrollable circumstances instruction.
O'Brien also claims he was entitled to a duress instruction. But O'Brien
waived his ability to pursue this claim on appeal by failing to object, as required
by CrR 6.15.23 Because he does not argue the trial court's refusal to give the
20 RCW 9A.76.170(2).
21 RCW 9A.76.010(4) provides the relevant definition:
"Uncontrollable circumstances" means an act of nature such as
a flood, earthquake, or fire, or a medical condition that requires
immediate hospitalization or treatment, or an act of a human
being such as an automobile accident or threats of death,
forcible sexual attack, or substantial bodily injury in the
immediate future for which there is no time for a complaint to the
authorities and no time or opportunity to resort to the courts.
22 O'Brien argues that he "was released long after the charging period, so
any acts or omissions that occurred then are irrelevant." But O'Brien does not
cite any authority to explain what he means by this statement. Therefore, we
assume he has found none. State v. Logan, 102 Wn. App. 907, 911 n.1, 10
P.3d 504 (2000) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122,
126, 372 P.2d 193 (1962)).
23 CrR 6.15(c) provides,
Before instructing the jury, the court shall supply counsel with
copies of the proposed numbered instructions . . . . The court
shall afford to counsel an opportunity . . . to object to the giving
of any instructions and the refusal to give a requested
instruction . . . . The party objecting shall state the reasons for
NO. 65824-7-I / 8
instruction was a manifest error affecting a constitutional right, we decline to
review this issue for the first time on appeal.24
Because the bail jumping statute, as applied to the facts of this case, is
ambiguous regarding the unit of prosecution intended by the legislature, we
apply the rule of lenity and resolve the ambiguity in O'Brien's favor.
Consequently, we reverse three of his four bail jumping convictions and remand
for resentencing on the remaining count.
the objection, specifying the number, paragraph, and particular
part of the instruction to be given or refused.
24 RAP 2.5(a)(3); see Trueax v. Ernst Home Center, Inc., 124 Wn.2d 334,
341-42, 878 P.2d 1208 (1994) (holding that by failing to object to trial court's
refusal to give proposed instruction, party did not preserve instructional error for
review in accordance with CR 51(f)).