Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment. He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc. Police later confront Aquiningoc about lending her car to Hall. She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother. Later, police find Hall at his home and arrest him.
Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial. While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.
The phone calls were recorded. The State charged Hall with four counts of Witness Tampering. Hall goes to trial. The trial judge treated each count of Witness Tampering as a separate unit of prosecution. Hall appeals. The case winds its way to the WA Supreme Court.
The legal issue was whether Witness Tampering 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.
The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct. Here, 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. They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.
“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court. “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.” Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.
My opinion? Makes sense. It DOES seem absurd to stack multiple charges in this case. After all, a unit of prosecution can either be a single act or a course of conduct. It seems more realistic to view Halls many calls as a continuing course of conduct. You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.
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