¶ 18 RCW 9A.46.060 sets out a list of crimes included in harassment, stating that harassment may include but is not limited to any one of the 38 crimes enumerated. Listed offenses include: reckless endangerment, extortion, coercion, burglary, criminal trespass, malicious mischief, kidnaping, unlawful imprisonment, rape, rape of a child, indecent liberties, child molestation, stalking, residential burglary, and violation of a protective order. The list includes, in relevant part,
(4) Assault in the first degree ( RCW 9A.36.011 );
(5) Assault of a child in the first degree ( RCW 9A.36.120 );
(6) Assault in the second degree ( RCW 9A.36.021 );
(7) Assault of a child in the second degree ( RCW 9A.36.130 );
(8) Assault in the fourth degree ( RCW 9A.36.041 );
RCW 9A.46.060(4) - (8). The statute does not list assault in the third degree.
¶ 19 While Joseph acknowledges that the list of predicate crimes in RCW 9A.46.060 is not exclusive, he nonetheless argues that legislatures decision to omit assault in the third degree demonstrates the legislatures intent to omit the crime. We reject this contention.
¶ 20 Washington courts have consistently interpreted the statutory language, including but not limited to, to indicate the legislative intent to create an illustrative, not exhaustive, list. See Larson, 184 Wsah.2d at 849, 365 P.3d 740. When a statute is plain and unambiguous on its face, our analysis stops there, we do not resort to interpretive tools such as legislative history. Larson, 184 Wash.2d at 854, 365 P.3d 740. Joseph provides no authority to support a claim that the mere inclusion of a nonexhaustive list renders a statute ambiguous. And we do not so find. Here, the plain language of this statute unambiguously creates an illustrative and nonexhaustive list that does not specifically exclude any crimes.
¶ 21 Washington courts have a recognized method for interpreting such lists within a statute. Where a general term, here harassment, is modified by a nonexclusive list, the general term will be deemed to incorporate those things similar in nature or comparable to the specific terms. Larson, 184 Wash.2d at 849, 365 P.3d 740 (quoting Simpson Inv. Co. v. Dept of Revenue, 141 Wash.2d 139, 151, 3 P.3d 741 (2000) ). Accordingly, the question is whether Josephs conviction of assault in the third degree is of a similar nature or comparable to the crimes specifically listed in the statute.
¶ 22 In determining whether assault in the third degree is of a similar nature to those included in harassment, we look to the clearly stated legislative intent behind the anti-harassment act, chapter 9A.46 RCW:
The legislature finds that the prevention of serious, personal harassment is an important government objective. Toward that end, this chapter is aimed at making unlawful the repeated invasions of a persons privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim.
RCW 9A.46.010. A person is guilty of assault in the third degree where, among other alternatives, the person, [w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering. RCW 9A.36.031(1)(f). A crime where the defendant has caused substantial pain and considerable suffering to the same victim, falls squarely within the stated legislative intent.
¶ 23 Joseph argues assault in the third degree is not comparable to the other crimes of harassment under RCW 9A.46.060, because the other crimes require intent, or at least a higher mens rea than the criminal negligence mens rea required for assault in the third degree. This argument also fails.
¶ 24 There is no uniform expression of mens rea within the other crimes listed in RCW 9A.46.060. The listed crimes included in the statute rely on different levels of intent. Some require intentional conduct, others require recklessness, and a few include no mens rea at all. For example, rape in the first degree ( RCW 9A.44.040 ), rape in the second degree ( RCW 9A.44.050 ), rape in the third degree ( RCW 9A.44.060 ), rape of a child in the first degree ( RCW 9A.44.073 ), rape of a child in the second degree ( RCW 9A.44.050 ), and rape of a child in the third degree ( RCW 9A.44.079 ) do not have a mens rea element. Because there is no indication within the plain language of the statute that the legislature intended to differentiate crimes based on criminal intent, we will not assume such an exclusion exists.
¶ 25 We hold that assault in the third degree, where the defendant has caused substantial pain and considerable suffering to the same victim, is of a similar nature to the other crimes listed in RCW 9A.44.060, and falls within the legislatures intent to punish harassment. Accordingly, although the crime was not specifically listed in RCW 9A.44.060, the crime is a qualifying predicate crime under RCW 9A.46.020(2)(b)(i).
Domestic Violence Aggravator
¶ 26 Joseph argues finally that the trial court erred by failing to instruct the jury that a finding that Josephs crimes were domestic violence offenses required proof beyond a reasonable doubt and a unanimous verdict. The Sixth Amendment to the United States Constitution requires that a jury must unanimously find beyond a reasonable doubt any aggravating circumstances that increase a defendants sentence. In Washington, a jury uses special verdict forms to find these aggravating circumstances. State v. Nunez, 174 Wash.2d 707, 709, 285 P.3d 21 (2012).
¶ 27 Because the jurys special verdict findings of domestic violence increased Josephs punishment, it was a violation of the Sixth Amendment that the jury was not instructed that their verdicts must be unanimous and beyond a reasonable doubt. The State agrees that the failure to instruct the jury was error and concedes that the matter must be remanded for resentencing with a lesser offender score.
¶ 28 We affirm Josephs conviction for felony harassment. We reverse Josephs conviction for felony violation of a no-contact order based on insufficient evidence to support the alternative means. We remand for resentencing with a lesser offender score.
WE CONCUR:
Cox, J.
Becker, J.
(Emphasis added.)
As part of the stipulation admitting the prior assault conviction, Joseph entered the following statement:
On or about May 15, 2016, with criminal negligence, I did cause bodily harm accompanied by substantial pain that did extend for a period of time sufficient to cause considerable suffering to Nita Katlong. She is the mother of my children.
See State v. DeRyke, 149 Wash.2d 906, 913, 73 P.3d 1000 (2003) (First degree rape contains no mens rea element.).
See State v. Chhom, 128 Wash.2d 739, 741-42 n.4, 911 P.2d 1014 (1996) (noting that all rape crimes lack a mens rea element).