STATE v. SLEEPER, 142 Wn. App. 1014 (2007)

No. 59507-5-I.The Court of Appeals of Washington, Division One.
December 24, 2007.

Appeal from a judgment of the Superior Court for King County, No. 06-1-03989-7, Michael S. Spearman, J., entered January 22, 2007.

Reversed and remanded by unpublished per curiam opinion.

PER CURIAM.

Daron Sleeper appeals the judgment and sentence entered following his conviction by a jury of rape in the second degree, domestic violence felony violation of a court order, and two counts of tampering with a witness.[1] Sleeper contends that the trial court erred in instructing the jury on an uncharged alternative means of committing tampering with a witness and that the error is prejudicial because based on the evidence presented, the jury may have convicted him under the uncharged alternative. Sleeper also contends that the convictions for two counts of tampering with a witness violate double jeopardy.

The State concedes that Sleeper’s convictions for witness tampering must be reversed because the instructions improperly included an uncharged means of committing the offense and the error is not harmless because there was evidence that could have supported a conviction on the uncharged means.

We accept the State’s concession of error. See State v. Chino, 117 Wn. App. 531, 540-41, 72 P.3d 256 (2003); State v. Nicholas, 55 Wn. App. 261, 273, 776 P.2d 1385 (1989) State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332
(1988). We need not address the double jeopardy issue.

Reversed and remanded.