                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT          FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                No. 05-11628                 March 30, 2005
                          _______________________          THOMAS K. KAHN
                                                               CLERK

                   D.C. Docket No. 05-00530-CV-T-27-TBM

THERESA MARIE SCHINDLER SCHIAVO,
incapacitated ex rel, Robert Schindler and
Mary Schindler, her parents and next friends,

                                                             Plaintiff-Appellant,
      versus

MICHAEL SCHIAVO,
as guardian of the person of
Theresa Marie Schindler Schiavo, incapacitated,
JUDGE GEORGE W. GREER,
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,

                                                          Defendants-Appellees.

                          _______________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                         _______________________

          ON PETITION FOR EXPEDITED REHEARING EN BANC
                       (Opinion March 25, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR,* Circuit Judges.

O R D E R:

      The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Emergency Petition for Rehearing En Banc is

DENIED.

                                            /s/ J. L. EDMONDSON
                                            CHIEF JUDGE

_______________

*     Judge William H. Pryor Jr. did not participate in the consideration of the Petition because
      he is recovering from surgery performed on Monday, 28 March 2005.

                                               2
BIRCH, Circuit Judge, specially concurring:

      I concur in the denial of rehearing en banc in this case because any further

action by our court or the district court, would be improper, as I explain below.

      An axiom in the study of law is that “hard facts make bad law.” The tragic

events that have afflicted Mrs. Schiavo and that have been compounded by the

resulting passionate inter-family struggle and media focus certainly qualify as

“hard facts.” And, while the members of her family and the members of Congress

have acted in a way that is both fervent and sincere, the time has come for

dispassionate discharge of duty.

      A popular epithet directed by some members of society, including some

members of Congress, toward the judiciary involves the denunciation of “activist

judges.” Generally, the definition of an “activist judge” is one who decides the

outcome of a controversy before him according to personal conviction, even one

sincerely held, as opposed to the dictates of the law as constrained by legal

precedent and, ultimately, our Constitution. In resolving the Schiavo controversy

it is my judgment that, despite sincere and altruistic motivation, the legislative and

executive branches of our government have acted in a manner demonstrably at

odds with our Founding Fathers’ blueprint for the governance of a free people —

our Constitution. Since I have sworn, as have they, to uphold and defend that

                                          3
Covenant, I must respectfully concur in the denial of the request for rehearing en

banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore,

this court and the district court are without jurisdiction in this case1 under that

special Act and should refuse to exercise any jurisdiction that we may otherwise

have in this case. Under the first amended complaint in this case (the initial

complaint was improperly grounded on habeas corpus) a basis for jurisdiction was

Pub. L. 109-3.2 The second amended complaint adopted other, independent

grounds for jurisdiction, including the Americans With Disabilities Act (“ADA”),

The Civil Rights Act (42 U.S.C. § 1983) and The Rehabilitation Act of 1973. We

have held that the Rooker-Feldman3 doctrine is jurisdictional. Clearly,

       1
         The court is duty-bound to question at anytime in a proceeding the bona fides of its
jurisdiction. Ortiz v. Fibreboard Corp., 527 U.S. 815, 831, 119 S.Ct. 2295, 2307 (1999);
National Solid Wastes Mgmt. Ass’n v. Alabama Dep’t of Env’t Mgmt., 924 F.2d 1001, 1002
(11th Cir. 1991). Given the rapid developments and sensitivities in this case, the need for
deliberative study necessitated the delay in my questioning our jurisdiction.
       2
           The entire text of Pub. L. 109-3 is attached as an appendix to this concurrence.
       3
         See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476-82, 103 S. Ct. 1303, 1311-15
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 150 (1923). Under the
Rooker-Feldman doctrine, federal district and circuit courts lack jurisdiction to review the final
judgments of state courts. See Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,
644 n.3, 122 S. Ct. 1753, 1759 n.3 (2002); Narey v. Dean, 32 F.3d 1521, 1524-25 (11th Cir.
1994). The doctrine applies where “(1) the party in federal court is the same as the party in state
court; (2) the prior state court ruling was a final or conclusive judgment on the merits; (3) the
party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the
state court proceeding; and (4) the issue before the federal court was either adjudicated by the
state court or was inextricably intertwined with the state court’s judgment.” Amos v. Glynn
County Bd. of Tax Assessors, 347 F.3d 1249, 1265 n.11 (11th Cir. 2003) (internal citations
omitted). We are mindful that there exists an exception to Rooker-Feldman when a federal

                                                   4
application of that doctrine should have been made in this case, the effect of which

would have been to decline to exercise any jurisdiction that we or the district court

did have under the ADA, the Civil Rights Act or the Rehabilitation Act of 1973.

       Since the passage of Pub. L. 109-3 on the morning of March 21, 2005, its

constitutionality has been presumed. See Schiavo ex rel. Schindler v. Schiavo,

No. 8:05-CV-530-T-27TBM (M.D. Fla. Mar. 22, 2005) at 3; Schiavo ex rel.

Schindler v. Schiavo, No. 05-11556 (11th Cir. March 23, 2005) at 5. In the instant

appeal, our court and the district court continue to indulge this presumption and

decline to address the constitutionality of the law which purports to grant federal

jurisdiction. See Schiavo ex. rel. Schindler v. Schiavo, No. 05-11628 (11th Cir.

March 25, 2005). Jurisdiction, however, is a prerequisite to the legitimate exercise

of judicial power, and therefore we may not hypothetically assume jurisdiction to

avoid resolving hard jurisdictional questions. See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 93-94, 118 S. Ct. 1003, 1012 (1998); Ex Parte

statute authorizes federal appellate review of final state court decisions. See Dale v. Moore, 121
F.3d 624, 627 (11th Cir. 1997). However, neither the ADA nor the Rehabilitation Act of 1973
provides an independent source of federal jurisdiction so as to fall within this exception. See id.
at 628 (concluding that the ADA does not override Rooker-Feldman); Hason v. Office of Prof’l
Med. Conduct, 314 F. Supp. 2d 241, 248 (S.D.N.Y. 2004) (applying Rooker-Feldman to bar
claims brought under the Rehabilitation Act). Moreover, Pub.L. 109-3 does not fall within this
exception because it is unconstitutional under the separation of powers doctrine as explained
herein.

                                                 5
McCardle, 74 U.S. 506, 514 (1869) (“Without jurisdiction the court cannot

proceed at all in any cause.”). I write separately to explain how various

provisions of Pub. L. 109-3 are an unconstitutional infringement on the core

principles of separation of powers and how this dynamic nullifies the exercise of

federal jurisdiction in this case.

A.    Pub. L. 109-3 and the Separation of Powers

      It is axiomatic that the Framers established a constitutional design based on

the principles of separation of powers. See Marbury v. Madison, 5 U.S. 137, 176

(1803) (noting that separation of powers is one of the governmental principles “on

which the whole American fabric has been erected”). The Framers established

three coequal but separate branches of government, each with the ability to

exercise checks and balances on the two others. And to preserve this dynamic, the

“Constitution mandates that ‘each of the three general departments of government

[must remain] entirely free from the control or coercive influence, direct or

indirect, of either of the others.’” Mistretta v. United States, 488 U.S. 361, 380,

109 S. Ct. 647, 659 (1989) (quoting Humphrey’s Executor v. United States, 295

U.S. 602, 629, 55 S. Ct. 869, 874 (1935)). Because of the important constitutional

role assigned to the judiciary by the Framers in safeguarding the Constitution and

the rights of individuals, see Federalist No. 78 (A. Hamilton), the execution of this

                                          6
constitutional mandate is particularly important when legislative acts encroach

upon the independence of the judiciary. See INS v. Chadha, 462 U.S. 919, 961,

103 S. Ct. 2764, 2789 (1983) (Powell, J. concurring) (citing Federalist No. 48 for

the proposition that the Framers enshrined in the Constitution separation of

powers principles because of past legislative interference with the judiciary);

Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50, 60, 102 S. Ct. 2858,

2866 (1982) (“[T]he independence of the judiciary [must] be jealously guarded.”).

Accordingly, we risk imperiling our constitutional design if we do not inquire as

to whether Pub. L. 109-3 infringes on the independence of the judiciary

guaranteed by Article III of the United States Constitution.

      Article III provides that the “judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior Courts as the Congress may

from time to time ordain and establish.” U.S. CONST. art. III, § 1. In defining the

extent of federal judicial power, Article III provides that “judicial Power shall

extend to all Cases, in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be made, under their

Authority” and to certain other enumerated cases and controversies. Id. at § 2.

These provisions have led courts to the unremarkable conclusion that “[f]ederal

courts are courts of limited jurisdiction” and may only exercise jurisdiction

                                          7
allowed under the Constitution when “authorized by . . . statute.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994).

Consistent with this dynamic outlined by Article III, and pursuant to its Article I

powers, see U.S. CONST. art. I, § 8, the United States Congress has vested federal

courts with original jurisdiction to hear claims “arising under the Constitution,

laws, or treaties of the United States,” 28 U.S.C. § 1331, and claims in which

certain amount in controversy and diversity of citizenship criteria are met, see 28

U.S.C. § 1332.

      Against these most elementary of constitutional principles, Section 1 of Pub.

L. 109-3—which states that the United States District Court for the Middle

District of Florida shall have jurisdiction to hear a suit regarding alleged violations

of rights held by Mrs. Schiavo “under the Constitution or laws of the United

States”—is not facially unconstitutional. If the Act only provided for jurisdiction

consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation

of the principles of separation of powers. The Act, however, goes further. Section

2 of the Act provides that the district court: (1) shall engage in “de novo” review

of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether

these claims were previously “raised, considered, or decided in State court

proceedings”; (3) shall not engage in “abstention in favor of State court

                                           8
proceedings”; and (4) shall not decide the case on the basis of “whether remedies

available in the State courts have been exhausted.” Pub. L. 109-3, § 2. Because

these provisions constitute legislative dictation of how a federal court should

exercise its judicial functions (known as a “rule of decision”), the Act invades the

province of the judiciary and violates the separation of powers principle.

      An act of Congress violates separation of powers if it requires federal courts

to exercise their Article III power “in a manner repugnant to the text, structure,

and traditions of Article III.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218,

115 S. Ct. 1447, 1452 (1995). By setting a particular standard of review in the

district court, Section 2 of the Act purports to direct a federal court in an area

traditionally left to the federal court to decide. See Fla. Progress Corp. v. Comm’r,

348 F.3d 954, 959 (11th Cir. 2004) (noting that the standard of review is for the

court to determine). In fact, the establishment of a standard of review often

dictates the rule of decision in a case, which is beyond Congress’s constitutional

power. See United States v. Klein, 80 U.S. 128, 146 (1871) (noting that Congress

may not prescribe a “rule of decision” for a particular case). In addition, “the

separation-of-powers doctrine requires that a branch not impair another in the

performance of its constitutional duties.” Loving v. United States, 517 U.S. 748,

757, 116 S. Ct. 1737, 1743 (1996). By denying federal courts the ability to

                                           9
exercise abstention or inquire as to exhaustion or waiver under State law, the Act

robs federal courts of judicial doctrines long-established for the conduct of

prudential decisionmaking. See Ungaro-Benages v. Dresdner Bank AG, 379 F.3d

1227, 1237 n.13 (describing abstention as a “prudential” doctrine); Duncan v.

Walker, 533 U.S. 167, 178-79, 121 S. Ct. 2120, 2127-28 (2001) (discussing the

jurisprudential merits of State remedy exhaustion doctrines); Labat v. Bennett, 365

F.2d 698, 707 (5th Cir. 1966) (discussing courts’ use of the doctrine of waiver). In

short, certain provisions of Section 2 of the Act attempt to “‘direct[] what

particular steps shall be taken in the progress of a judicial inquiry,’” Plaut, 514

U.S. at 225, 115 S. Ct. at 1456 (quoting THOMAS COOLEY, CONSTITUTIONAL

LIMITATIONS 94-95). Because this is violative of the fundamental principles of

separation of powers enshrined in our Constitution, they are unconstitutional. See

Plaut, 514 U.S. at 240, 115 S. Ct. at 1463 (finding unconstitutional a congressional

act which impinged on the independence of the judiciary by requiring federal

courts to reopen federal judgments); Klein, 80 U.S. at 147 (invalidating legislation

because “it passed the limit which separates the legislative from the judicial

power” by dictating a rule of decision in a pending case).4 Manifestly, because the

       4
        In his dissenting opinion, Judge Tjoflat questions why we have not cited any cases for
the proposition that Congress cannot, in a statute, withdraw our ability to use the doctrines of
abstention, exhaustion and waiver. As we have explained, the Act is unprecedented in nature.

                                                10
Act applies to only this case5 it lacks the generality and prospectivity of legislation

that comports with the basic tenets of the separation of powers.

       In sum, while Congress may grant jurisdiction to a federal court consistent

with Article III as it did in Section 1 of the Act,6 it may not “assume[] a function

that more properly is entrusted to” the judiciary. See INS, 462 U.S. at 963, 103 S.

Ct. at 2790 (Powell, J., concurring). By arrogating vital judicial functions to itself

in the passage of the provisions of Section 2 of the Act, Congress violated core

constitutional separation principles, it prescribed a “rule of decision” and acted

unconstitutionally.

B.     Pub. L. 109-3 and Severability

       Recognizing that the provisions of Section 2 of the Act are unconstitutional,

it remains to be determined whether such unconstitutionality renders the entire Act

My reading of Plaut, 514 U.S. 211 (1995), demonstrates that unprecedented congressional acts
can be lacking in constitutional propriety absent prior precedent. Moreover, I do not suggest that
the provision of a standard of review is in a general sense a “rule of decision.” Rather, it is the
abrogation of such standards in a single case, not in a category of cases like habeas corpus cases.
       5
         The Act references the parties by name, designates the forum for the dispute, sets a time
limit on decision-making, and suspends previous judgments, all so that the federal judiciary is
instructed as to how to conduct this specific case.
       6
         I hasten to note that the provisions in Section 2 of the Act cannot be construed as
limitations of the exercise of jurisdiction. Section 1 of the Act grants jurisdiction; Section 2
purports to do more by directing the district court how to execute its judicial function.
Accordingly, the provisions of Section 2 cannot be saved by creating the fiction that they are
permissible limitations on the exercise of federal jurisdiction under Sheldon v. Sill, 49 U.S. 441
(1850) and its progeny.

                                                11
a nullity under the doctrine of nonseverability. “The standard for determining the

severability of an unconstitutional provision is well established: Unless it is

evident that the Legislature would not have enacted those provisions which are

within its power, independently of that which is not, the invalid part may be

dropped if what is left is fully operative as a law.” New York v. United States,

505 U.S. 144, 186, 112 S. Ct. 2408, 2434 (1992) (internal quotations and citations

omitted). In most cases where unconstitutional sections of a statute have been

severed the legislation has contained a severability clause. See, e.g., INS, 462

U.S. at 932, 103 S. Ct. at 2774. The absence of a severability provision, however,

should not be construed to create a presumption against severability. See New

York, 505 U.S. at 186, 112 S. Ct. at 2434.

      While the haste in which the Act was passed offered little time for the full

development of congressional findings, a comprehensive review of the available

legislative history surrounding the passage of the Act reveals that Congress

manifestly would not have passed an act which allowed federal courts to give

deference to State court findings or exercise its discretion to invoke abstention or

exhaustion doctrines. See 151 CONG. REC. H1731 (daily ed. Mar. 20, 2005)

(statements of Speaker Hastert (R-Ill.)) (referencing the availability of de novo

review by noting that he supported the Act because it would allow the “case [to

                                          12
be] tried anew where the judge can reevaluate and reassess [Mrs. Schiavo’s]

medical condition”); id. (statements of Rep. Stupak (D-Mich.)) (referencing the

availability of the doctrines of State court waiver, abstention, and exhaustion by

noting that the Act allows a federal judge to review the case “without being

prejudiced by any of the information from the Florida State case”). Had this been

their intent, a federal court could have frustrated their purpose to obtain a stay of

the State court order. See 151 CONG. REC. S3100 (daily ed. Mar. 20, 2005)

(statements of Majority Leader Frist (R-Tenn.)) (noting that in passing the

legislation he “assume[d] . . . the Federal court would grant a stay based on the

facts of this case because Mrs. Schiavo would need to be alive in order for the

court to make its determination”). The United States Supreme Court has stated

that the most “relevant inquiry in evaluating severability is whether the statute will

function in a manner consistent with the intent of Congress.” Alaska Airlines, Inc.

v. Brock, 480 U.S. 678, 107 S. Ct. 1476, 1480 (1987). Here, in the absence of

Section 2, a federal court could nullify congressional intent, and therefore the Act

is not subject to severability. As such, the constitutional infirmity of Section 2 of

the Act renders the entire Act a nullity. Thus, under the Act and the Rooker-

Feldman doctrine, the district court lacked a jurisdictional basis to render its

decision and we lack jurisdiction on appeal.

                                          13
C.    Conclusion

      The separation of powers implicit in our constitutional design was created

“to assure, as nearly as possible, that each branch of government would confine

itself to its assigned responsibility.” INS, 462 U.S. at 951, 103 S. Ct. at 2784. But

when the fervor of political passions moves the Executive and the Legislative

branches to act in ways inimical to basic constitutional principles, it is the duty of

the judiciary to intervene. If sacrifices to the independence of the judiciary are

permitted today, precedent is established for the constitutional transgressions of

tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we

must conscientiously guard the independence of our judiciary and safeguard the

Constitution, even in the face of the unfathomable human tragedy that has befallen

Mrs. Schiavo and her family and the recent events related to her plight which have

troubled the consciences of many. Realizing this duty, I conclude that Pub. L.

109-3 is an unconstitutional infringement on core tenets underlying our

constitutional system. Had Congress or the Florida legislature, in their legislative

capacities, been able to constitutionally amend applicable law, we would have

been constrained to apply that law. See Robertson v. Seattle Audobon Soc’y, 503

U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3

instead, however, Congress chose to overstep constitutional boundaries into the

                                          14
province of the judiciary. Such an Act cannot be countenanced. Moreover, we

are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional

bases to override a final state judgment. Should the citizens of Florida determine

that its law should be changed, it should be done legislatively. Were the courts to

change the law, as the petitioners and Congress invite us to do, an “activist judge”

criticism would be valid.

                                         15
                                          APPENDIX

109th CONGRESS

1st Session

S. 686

For the relief of the parents of Theresa Marie Schiavo.

---------------------------------------------------------------------------

IN THE SENATE OF THE UNITED STATES

March 20, 2005

Mr. Frist (for himself, Mr. Martinez, and Mr. Santorum) introduced the

following bill; which was read twice, considered, read the third time, and

passed

---------------------------------------------------------------------------

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida

                                                16
shall have jurisdiction to hear, determine, and render judgment on a suit or

claim by or on behalf of Theresa Marie Schiavo for the alleged violation of

any right of Theresa Marie Schiavo under the Constitution or laws of the

United States relating to the withholding or withdrawal of food, fluids, or

medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit

under this Act. The suit may be brought against any other person who was a

party to State court proceedings relating to the withholding or withdrawal

of food, fluids, or medical treatment necessary to sustain the life of

Theresa Marie Schiavo, or who may act pursuant to a State court order

authorizing or directing the withholding or withdrawal of food, fluids, or

medical treatment necessary to sustain her life. In such a suit, the

District Court shall determine de novo any claim of a violation of any right

of Theresa Marie Schiavo within the scope of this Act, notwithstanding any

prior State court determination and regardless of whether such a claim has

previously been raised, considered, or decided in State court proceedings.

                                          17
The District Court shall entertain and determine the suit without any delay

or abstention in favor of State court proceedings, and regardless of whether

remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act,

the District Court shall issue such declaratory and injunctive relief as may

be necessary to protect the rights of Theresa Marie Schiavo under the

Constitution and laws of the United States relating to the withholding or

withdrawal of food, fluids, or medical treatment necessary to sustain her

life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this

Act shall be timely if filed within 30 days after the date of enactment of

this Act.

SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not

                                         18
otherwise secured by the Constitution and laws of the United States or of

the several States.

SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this act shall be construed to confer additional jurisdiction

on any court to consider any claim related--

   (1) to assisting suicide,

   (2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future

legislation, including the provision of private relief bills.

SEC. 8. NO EFFECT ON THE PATIENT SELF-DETERMINATION ACT OF

1990.

Nothing in this act shall affect the rights of any person under the

Patient Self-Determination Act of 1990.

SEC. 9. SENSE OF THE CONGRESS.

                                           19
It is the Sense of the Congress that the 109th Congress should consider

policies regarding the status and legal rights of incapacitated individuals

who are incapable of making decisions concerning the provision, withholding,

or withdrawal of foods, fluid, or medical care.

                                         20
CARNES and HULL, Circuit Judges, concurring in the denial of rehearing en

banc.

        We write briefly for the purpose of responding to Judge Tjoflat’s opinion

dissenting from the denial of rehearing en banc.

        The plaintiffs’ position concerning Count 8 of the amended complaint has

been fluid throughout these proceedings. Judge Tjoflat’s interpretation of their

latest contention is that they are arguing there was insufficient evidence before the

state courts to support by clear and convincing evidence the findings of those

courts. As he understands the plaintiffs’ latest arguments, “[t]he relevant question

here is whether a rational factfinder could have found by clear and convincing

evidence that Mrs. Schiavo would have wanted nutrition and hydration to be

withdrawn under these circumstances.” That is not the way we understand the

arguments that the plaintiffs have put forward in their current suggestion for

rehearing en banc. However, even if Judge Tjoflat’s understanding of those

arguments is correct and the question presented is the one he has articulated, this

Court is correct in denying rehearing en banc.

        Assuming, as Judge Tjoflat may, that the Due Process Clause requires clear

and convincing evidence, there was abundant testimony before the state trial court

                                         21
to prove by that evidentiary standard that Mrs. Schiavo would have wanted

nutrition and hydration to be withdrawn under these circumstances. Some of that

evidence is set out at some length in the trial court’s detailed order of February 11,

2000. While there was some conflict in the evidence, credibility determinations

are within the province of the factfinder. See Anderson v. City of Bessemer City,

470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985) (special deference is due where a

trial court’s findings are based on the credibility of witnesses, “for only the trial

judge can be aware of the variations in demeanor and tone of voice that bear so

heavily on the listener’s understanding of and belief in what is said”); Inwood

Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844, 856, 102 S. Ct. 2182, 2189 (1982)

(“Determining the weight and credibility of the evidence is the special province of

the trier of fact.”); United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)

(“Such a credibility finding is within the province of the factfinder.”). It is not the

role of an appellate court to second-guess credibility determinations.

      On appeal from the state trial court’s decision and findings, Florida’s

Second District Court of Appeal did carefully review the record and determined

that the question the trial court decided:

             was whether Theresa Marie Schindler Schiavo, not after
             a few weeks in a coma, but after ten years in a persistent
             vegetative state that has robbed her of most of her

                                             22
             cerebrum and all but the most instinctive of neurological
             functions, with no hope of a medical cure but with
             sufficient money and strength of body to live
             indefinitely, would choose to continue the constant
             nursing care and the supporting tubes in hopes that a
             miracle would somehow recreate her missing brain
             tissue, or whether she would wish to permit a natural
             death process to take its course and for her family
             members and loved ones to be free to continue their
             lives. After due consideration we conclude that the trial
             judge had clear and convincing evidence to answer this
             question as he did.

In re Guardianship of Schiavo, 780 So. 2d 176, 180 (Fla. 2d DCA 2001).

      Even assuming that this type of sufficiency of the evidence issue is a proper

one for an en banc determination, there is no substantial question in this case

about whether a rational factfinder could have found, as the Florida court did, that

there was clear and convincing evidence that Mrs. Schiavo would not have wanted

nutrition and hydration continued in these circumstances. Given the credibility

determinations that the state trial court was authorized to and did make, the

evidence clearly was sufficient to meet the clear and convincing evidence

standard, which the Florida courts had imposed and did apply in this case.

                                         23
TJOFLAT, Circuit Judge, dissenting from the denial of rehearing en banc, in

which WILSON, Circuit Judge, joins:

                                                 I.

       I would grant rehearing en banc. So that we can consider the merits of this

appeal, I would direct the district court to issue an injunction under the All Writs

Act, 28 U.S.C. § 1651(a). Otherwise the appeal will become moot. See Schiavo

v. Schiavo, __ F.3d __, 2005 WL 665257 (11th Cir. Mar. 23, 2005) (Tjoflat, J.,

dissenting from the denial of rehearing en banc).1

       The plaintiffs have now stated a plausible claim that the Due Process Clause

of the Fourteenth Amendment requires clear and convincing evidence of an

individual’s wishes before a state court may order withdrawal of life-sustaining

nutrition, hydration, or other medical attention.2 See generally Cruzan v. Missouri

       1
         The panel in its first opinion on this matter appears to have conflated injunctive relief
under the All Writs Act, which has nothing to do with the merits of an appeal, with an ordinary
preliminary injunction, which requires a showing of a substantial likelihood of success on the
merits. See Schiavo v. Schiavo, __ F.3d __, 2005 WL 648897 (11th Cir. Mar. 23, 2005).
       2
          While I think that the plaintiffs have stated a plausible claim, I am not certain they will
succeed on the merits. One reason for my uncertainty is the hurried pace of this litigation. To
give the plaintiffs claims the reasoned attention they deserve, and to develop the certainty the law
demands, we should rehear this case en banc. The United States Supreme Court encourages such
caution in life-and-death situations, such as in its federal habeas jurisprudence. The Court has
said that “[i]f the district court cannot dismiss the petition on the merits before the scheduled
execution, its is obligated to address the merits and must issue a stay to prevent the case from
becoming moot” when the prisoner dies. Lonchar v. Thomas, 517 U.S. 314, 320 (1996).

                                                 24
Dep’t of Health, 497 U.S. 261 (1990) (holding that a state may require clear and

convincing evidence of an incompetent’s wishes to the withdrawal of life-

sustaining treatment); Santosky v. Kramer, 445 U.S. 745 (1982) (holding that a

state must support allegations of neglect by clear and convincing evidence before

it may terminate parental rights); Addington v. Texas, 441 U.S. 418 (1979)

(holding that the clear and convincing evidence standard is required in civil

commitment proceedings). If such a right exists, it is not enough to simply say

that the state statute does, in fact, require clear and convincing evidence.

       In Jackson v. Virginia, 443 U.S. 307 (1979), a collateral attack on a state-

court criminal conviction, the state trial court had stated that it was applying the

constitutionally required reasonable doubt standard, but the defendant argued that

his constitutional rights were nonetheless violated because there was insufficient

evidence in the record for a rational factfinder to convict him under that standard.

The Court agreed and held that “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Id. at 319. Similarly, in the case at hand, while it is clear that the state court

Similarly, because the plaintiffs have stated a plausible claim, we should issue an injunction to
avoid the case from becoming moot when Mrs. Schiavo perishes.

                                                25
purported to use the clear and convincing evidence standard, the plaintiffs argue

that there is simply insufficient evidence to support its findings under that

standard. The relevant question here is whether a rational factfinder could have

found by clear and convincing evidence that Mrs. Schiavo would have wanted

nutrition and hydration to be withdrawn under these circumstances. The plaintiffs

carry a heavy burden, but I do not believe that this question can be determined in

this expedited fashion without a hearing on the merits.3

       Thus, “we certainly cannot say that [the plaintiffs have] no likelihood of

prevailing on the merits. As long as this factor is present to some degree, it is not

even necessary that a substantial likelihood of success be shown. Where the other

factors are strong, a showing of some likelihood of success on the merits will

justify temporary injunctive relief.” Productos Carnic, S.A. v. Cent. Am. Beef &

Seafood Trading Co., 621 F.2d 683, 686 (5th Cir. 1980).4 The other factors are

strong in this case. See Schiavo v. Schiavo, __ F.3d __, 2005 WL 648897, at *17-

       3
          Judges Carnes and Hull are firmly convinced that “the evidence clearly was sufficient to
meet the clear and convincing evidence standard, which the Florida courts had imposed and did
apply in this case.” Ante, at 23. My contention is that we cannot make this determination now.
Instead, the district court should make this determination only after a full and careful review of
the evidence, which cannot occur under current time constraints.
       4
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

                                               26
18 (11th Cir. Mar. 23, 2005) (Wilson, J., dissenting). Accordingly, I would grant a

preliminary injunction.

                                           II.

       Judge Birch now argues that this court lacks jurisdiction to entertain this

case due to constitutional infirmities in the legislation enabling federal review of

this case. In particular, he identifies four provisions of the act that “constitute

legislative dictation of how a federal court should exercise its judicial functions.”

Ante, at 9. I believe that it is fully within Congress’s power to dictate standards of

review and to waive in specific cases nonconstitutional abstention doctrines.

Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be

called into serious question. I wish to dispel any questions about our jurisdiction

in this case.

       Under Article III, Congress has the power both to establish federal courts

and, except as to the original jurisdiction of the Supreme Court, to make

exceptions and regulations as to their jurisdiction. U.S. Const. art. III. The

Supreme Court has recognized, at least in some contexts, that Congress also has

the power to require federal courts to entertain causes of action they would not

otherwise have entertained for prudential reasons. Cf. Raines v. Byrd, 521 U.S.

811, 820 n.3 (1997) (“It is settled that Congress cannot erase Article III’s standing

                                          27
requirements by statutorily granting the right to sue to a plaintiff who would not

otherwise have standing. . . . We acknowledge, though, that Congress’ decision to

grant a particular plaintiff the right to challenge an Act’s constitutionality . . .

eliminates any prudential standing limitations and significantly lessens the risk of

unwanted conflict with the Legislative Branch when that plaintiff brings suit.”

(citation omitted)).

      This is not a case, to use separation-of-powers parlance, of Congress

“arrogating” power to itself, nor is it a case in which one branch of government

has “impair[ed] another in the performance of its constitutional duties.” Loving v.

United States, 517 U.S. 748, 757 (1996) (emphasis added). Instead, Congress has

prescribed a particular approach to a particular problem in the general domain of

federal jurisdiction, without presuming to dictate—in any respect—our

performance of a court’s essential function: “to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.). It is in this domain that

the Supreme Court has jealously guarded our power against intrusion by Congress.

See, e.g., Dickerson v. United States, 530 U.S. 428, 432 (2000) (“We hold that

Miranda, being a constitutional decision of this Court, may not be in effect

overruled by an Act of Congress, and we decline to overrule Miranda ourselves.

We therefore hold that Miranda and its progeny in this Court govern the

                                           28
admissibility of statements made during custodial interrogation in both state and

federal courts.”).

       Here, Congress has attempted only what has long been established to be

within its power to dictate: our standard of review,5 the effect of a prior state court

judgment on that review,6 the application of prudential abstention doctrines,7 and

       5
          Judge Birch attempts to define standards of review as “rules of decision,” but I find no
basis for this in the case law. The rules Congress has established here go to the extent of our
authority to assess the merits of claims, without authorizing any new claims or elements thereof
to guide our determination of federal questions. As such, Congress’s rules are jurisdictional in
nature. See, e.g., Sosa v. Alvarez-Machain, ___ U.S. ___, 124 S. Ct. 2739, 2755 (2004) (“Nor
would the distinction between jurisdiction and cause of action have been elided by the drafters of
the [Judiciary] Act or those who voted on it. As Fisher Ames put it, ‘there is a substantial
difference between the jurisdiction of courts and rules of decision.’ 1 Annals of Cong. 807 (Gales
ed. 1834).”).
        Furthermore, to hold that Congress may not establish nor alter standards of review would
wreak havoc on dozens of federal statutes that do just that in numerous contexts. See, e.g., 5
U.S.C. § 552 (providing for de novo review of federal agency determinations of fees for requests
of records of notice and comment proceedings).
        Of course, the habeas corpus statutes are a subset of this string of cases. Section 2254
review, in particular, prescribes not just any standard of review, but one regarding the degree of
deference to be afforded final state adjudications. 28 U.S.C. § 2254(d).
       6
          Indeed, leaving aside whatever effect this might have on our abstention
doctrines—which I deal with in note 7, infra—de novo review of state determinations of federal
questions seems consonant with traditional relations between federal and state courts, particularly
in light of the fact that Congress need not vest the power to adjudicate federal questions at all in
state courts in the first place. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 336-37
(1816) (Story, J.) (“At all events, whether the one construction or the other prevail, it is manifest
that the judicial power of the United States is unavoidably, in some cases, exclusive of all state
authority, and in all others, may be made so at the election of congress.”). Separate questions
might arise if, upon reviewing the merits of the case, we determined that the parties had called
upon the district court to review a state court judgment of state law. See Murdock v. Memphis,
87 U.S. (20 Wall.) 590, 625-28 (1875).
       7
        In fact, the abstention doctrine applicable in this case—the so-called Rooker-Feldman
doctrine—does not even rise to the level of “prudential,” i.e., court-made, doctrine. Although

                                                29
the effect of exhaustion requirements.8 I know of no case barring Congress from

so dictating, and Judge Birch does not cite any. Indeed, quite to the contrary,

Judge Birch cites cases establishing that both our abstention and exhaustion

doctrines are prudential. See ante, at 10. If none of these dictates by itself goes

beyond Congress’s power to determine the jurisdiction of federal courts, I know of

no doctrine that could convert their aggregation into a separation-of-powers

violation.

Judge Birch describes this doctrine as “jurisdictional,” he concedes as he must that “there exists
an exception to Rooker-Feldman when a federal statute authorizes federal appellate review of
final state court decisions.” See ante, at 4 n.3. That is because Rooker did not establish a
constitutional (or even prudential) bar to federal review of final state court decisions; instead, it
recognized a statutory bar to such review. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416
(1923) (“Under the legislation of Congress, no court of the United States other than this court
could entertain a proceeding to reverse or modify the judgment for errors of that character.
Judicial Code, § 237, as amended by Act Sept. 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. §
1214). To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the
District Courts is strictly original.” (emphasis added)); cf. Verizon Maryland, Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 644 n.3 (2002) (“The Rooker-Feldman doctrine merely
recognizes that 28 U.S.C. § 1331 is a grant of original jurisdiction, and does not authorize district
courts to exercise appellate jurisdiction over state-court judgments, which Congress has reserved
to this Court, see § 1257(a). The doctrine has no application to judicial review of executive
action, including determinations made by a state administrative agency.”). Thus, it was
completely within Congress’s power to make an exception to the general rule regarding the
power of the district courts to review final state court decisions, and it is clear from the face of
the statute that Congress intended to do so. Judge Birch does not explain why, under these
circumstances, it is of any moment whether Congress provided such an exception in the body of
the Americans with Disabilities Act or the Rehabilitation Act of 1973.
       8
          Congress’s authority over exhaustion requirements was recognized in Patsy v. Board of
Regents of Florida, 457 U.S. 496, 513 (1982) (“[P]olicy considerations alone cannot justify
judicially imposed exhaustion unless exhaustion is consistent with congressional intent.”
(emphasis added)).

                                                 30


458 So.2d 357 (1984)
Norvel Lee DORCH, Appellant,
v.
STATE of Florida, Appellee.
No. AX-254.
District Court of Appeal of Florida, First District.
October 18, 1984.
Rehearing Denied November 28, 1984.
Paul L. Cummings, Pensacola, for appellant.
Jim Smith, Atty. Gen., Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.
MILLS, Judge.
Norvel Lee Dorch appeals from an order denying his motion for a new trial following his conviction of sexual battery, Section 794.011(2), Florida Statutes, and lewd, lascivious, or indecent assault or act upon or in the presence of a child, Section 800.04, Florida Statutes. We affirm.
On 1 July 1983, Dorch had been left in charge of two young girls, C.G. (age 6, the victim) and A.B. (age 7). Dorch, the live-in boyfriend of A.B.'s mother, was watching the children while A.B.'s mother worked. C.G., A.B.'s neighborhood friend, had spent the night with her. The two girls occupied one bedroom and Dorch another. Dorch, nude, went into the bedroom where C.G. and A.B. slept. He had the girls return with him to his bedroom, then remove their clothes. He then rubbed vaseline between the girls' legs and on himself. He referred to the vaseline as "love jelly" or "love cream." Then as Dorch lay on his back, he had the girls sit on top of him "in the middle" where they could feel his penis. Additionally, C.G. testified that Dorch took her hand and made her "go up and down on his thing." Dorch also had both girls put their mouths on his penis and he kissed C.G. between her legs.
Dorch proceeded to trial on 22 November 1983. During jury deliberations, the jury posed two questions to the trial judge. At *358 issue is the second by which the jury requested a definition of "union" within the context of Section 794.011(1)(f), Florida Statutes, which states:
(f) "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.
The trial judge defined "union" to the jury as:
... an alternative to penetration. The offense charged against Mr. Dorch is that of sexual battery by penetrating or having union with the mouth or vagina of [C.G.] with his sexual organ. Union is included within the definition of sexual battery as an alternative to penetration because the coming in contact with the mouth or vagina by the sexual organ of an aggressor is sufficient and does not require penetration.
Union means an act or instance of uniting or joining two or more separate and independent parts or unit, a coming together, combination or a junction.
It is not charged this Defendant orally had union with the sexual organ of [C.G.]. It is charged that by his sexual organ he had penetration or union with the sexual organ of [C.G.]. That is the charge and the only charge you may consider. Union is an alternative to penetration under this Statute, and includes a coming in contact with, a combination with, and does not require penetration.
Dorch now asserts two points of error. First, he urges that the trial court erred by providing any additional instruction as to the meaning of the word "union" outside of the statute itself, inasmuch as this should be left to the common sense interpretation of the jury. He argues that Section 794.011 sets forth definitions of those terms the Legislature felt might need or require specific definitions. We disagree. The Florida Supreme Court has said, "Trial judges must have the discretionary power to further explain or define their instructions if the jury is confused or desires further guidance," Campbell v. State, 306 So.2d 482, at 483 (Fla. 1975).
Dorch then asserts that the definition given was misleading inasmuch as it suggested that a mere "touching" or "coming in contact with" was sufficient to meet the requirements of the statute. He argues that this interpretation is inconsistent with legislative intent and would open the door to convictions for acts falling far short of those contemplated by the Legislature. We disagree. We agree with the trial court that the statute may be violated by means other than penetration.
An analysis of the statute reveals that three distinct classes of behavior are specifically proscribed: firstly, oral, anal, or vaginal penetration by the sexual organ of another; secondly, oral or vaginal penetration of another by any other object; thirdly, and the class to which Dorch's acts attach, oral, anal, or vaginal union with the sexual organ of another.
In this context it is clear that the Legislature intended that "union" mean something other than penetration. We agree with the trial court that contact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.
We agree with Dorch that if the statute were ambiguous the rules of statutory construction would require that the statute be construed against the State and in favor of the accused. However, the statute here is clear and unambiguous, and its application to the facts in this case is precisely that contemplated by the Legislature when adding the term "union with" to the statutory language.
AFFIRMED.
ERVIN, C.J., and ZEHMER, J., concur.


985 So.2d 1101 (2008)
WHITE
v.
STATE.
No. 4D07-2776.
District Court of Appeal of Florida, Fourth District.
August 8, 2008.
Decision without published opinion. Affirmed.


635 F.Supp. 327 (1986)
Barbara Jean PATTON and Billie Patton, Plaintiffs,
v.
WINDSOR RACEWAY, INC., a Canadian corporation, Defendant.
No. 86-CV-71023-DT.
United States District Court, E.D. Michigan, S.D.
May 19, 1986.
*328 Barry J. Goodman, Southfield, Mich., for plaintiffs.
Robert H. Feikens, Detroit, Mich., for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
La PLATA, District Judge.
On May 18, 1984, Barbara Jean Patton (Plaintiff), allegedly was injured in a slip and fall incident that occurred at Windsor Raceway in Windsor, Canada. Claiming that the injury was caused by the Raceway's failure to provide a safe area for its patrons to walk, Plaintiff instituted a personal injury action on January 10, 1986, against it in the Wayne County Circuit Court. Pursuant to 28 U.S.C. § 1441, Defendant caused the matter to be removed to this Court on March 14, 1986.
In an extremely well crafted Motion to Dismiss filed on March 27, 1986, Defendant maintained that this Court lacks both general personal jurisdiction and limited personal jurisdiction over it. Defendant argued that (1) it is not incorporated in the State of Michigan; (2) it has not consented to the jurisdiction of Michigan Courts; (3) it does not maintain a continuous and systematic part of its business activity in Michigan; and (4) the alleged tort did not occur in Michigan.
It is axiomatic that a federal court located in Michigan is governed by the Michigan long-arm statute in determining whether it may exercise personal jurisdiction over a foreign defendant.[1] In regard to a Court's power to exercise general personal jurisdiction over a corporation, the controlling statute, M.C.L.A. § 600.711, prescribes:
The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgments against the corporation.
(1) Incorporation under the laws of this state.
(2) Consent, to the extent authorized by the consent and subject to the limitations provided in section 745.
(3) The carrying on of a continuous and systematic part of its general business within the state.
M.C.L.A. § 600.715 empowers a federal court to exercise limited personal jurisdiction over a corporation on the basis of specified contacts with the State of Michigan, which do not have to be continuous and systematic in nature. When jurisdiction over a non-resident individual or a foreign corporation is based on a single act or a series of acts, a three-prong analysis is applied to determine whether (1) the Defendant intentionally availed itself of the privilege of acting, or causing a consequence, *329 in the forum state; (2) the cause of action arises from the activities of the Defendant within the forum state; and (3) the acts of the Defendant or the consequences caused by him have a sufficiently substantial nexus with the forum to render the exercise of jurisdiction over it reasonable.[2]
In its brief in opposition to the dismissal motion, Plaintiff asserted that Defendant expends at least eighty percent of its advertising budget in the State of Michigan through various media sources. Additionally, she contended that approximately sixty-five percent of the patrons of the race track are citizens of Michigan. Based on the foregoing advertising and sales activities, Plaintiff argues that Defendant conducts a continuous and systematic segment of its business activity in Michigan. While not disputing that it engages in substantial advertising efforts in Michigan, Defendant maintains that the alleged slip and fall injury did not stem from the advertising pursuits, but is solely a tort claim arising in a foreign jurisdiction.
It is beyond contravention that the jurisdictional requirements of M.C.L.A. § 600.715 have not been satisfied. The tortious act was allegedly committed in Canada, causing injury to Plaintiff in Canada.
The only remaining basis for the Court to exercise personal jurisdiction over the foreign corporation is the long-arm statute of the State, on the theory that the corporation engages in a systematic, continuous course of business in Michigan. The Court finds that Plaintiff has failed to state any facts that constitute the sufficient minimum contacts necessary to confer the fair and reasonable jurisdiction of the Court over Defendant. It is offensive to the concepts of due process and reasonableness to conclude that a Michigan resident can require a corporation based in another country, which virtually has no contact with Michigan, to stand trial in Michigan as a consequence of a personal injury occurring in that country. The Court lacks personal jurisdiction over Windsor Raceway, since it does not engage in a systematic, continuous course of business in Michigan within the framework of the Michigan long-arm statute.
In Quartet Manufacturing Co. v. Allied Traders, Ltd.,[3] an American company instituted an anti-trust action in a United States District Court against a Hong Kong corporation, which was not qualified to conduct business in Illinois. The Plaintiff, a manufacturer and distributor of bulletin boards, ordered push pins from the Defendant, a Hong Kong exporting company. The only meeting between the firms occurred in Hong Kong. Determining that the business relationship of the foreign defendant with an Illinois concern was insufficient to impose jurisdiction over the defendant, the Quartet Manufacturing Court made the following specific findings:
Quartet filed this suit and served Allied under the Illinois "long-arm" statute, Ill. Rev.Stat. ch. 110, §§ 16-17. It is undisputed that Allied has its principal place of business in Hong Kong, is not qualified to do business in Illinois, has not consented to service of process in Illinois, is not the parent or subsidiary of any corporation doing business in Illinois, maintains no office in Illinois, does not and has not sent any agents or employees into Illinois, does not own real or personal property in Illinois, did not solicit Quartet's order of push pins, did not have an employee or agent present in Illinois in connection with Quartet's order of push pins and did not contemplate or foresee that it might have to defend a lawsuit in Illinois.[4]
Similarly, in Berks v. Rib Mountain Ski Corp.,[5] an Illinois resident who was injured while skiing in Wausau, Wisconsin, instituted a personal injury lawsuit in Illinois against the ski resort. In view of the fact *330 that Defendant neither maintained an office in Illinois, owned property therein, shipped goods into the State, nor was registered to conduct business in Illinois, Plaintiffs attempted to establish that the Defendant was amenable to the jurisdiction of the Court on account of its numerous means of soliciting business in Illinois, such as newspaper advertisements, radio broadcasts of skiing conditions, and a promotion at a Chicago ski show. In declining to exercise jurisdiction over the ski resort, the District Court held that the "doing business" criterion is not satisfied through the solicitation of business by a non-resident corporation.[6]
In Sanders v. Wiltemp Corp.,[7] the Court held that the mere solicitation of business within a State by a foreign defendant is insufficient to permit a Court to find that the corporation engages in business in the State. While aware that a contrary result was reached in other cases, such as Soares v. Roberts,[8] the Court finds the holdings in Berks, Sanders, and Quartet Manufacturing to be persuasive. Plaintiff elected to patronize an establishment in Canada, which is not connected in any way to the State of Michigan other than through its solicitation of business in the State. Her decision was a volitional one; consequently, she should be required to seek redress for the alleged injury in an appropriate court in Canada, which undoubtedly would have a superior grasp of the applicable law in Canada than this Court possesses.
Therefore, the Court, pursuant to Fed.R. Civ.P. 12(b)(1), GRANTS Defendant's Motion to Dismiss for a Lack of Personal Jurisdiction.
NOTES
[1]  See, for example, Microelectronic Systems Corp. of America v. Bamberger, 434 F.Supp. 168, 169 (E.D.Mich.1977); Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1187 (6th Cir.1980), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980).
[2]  King v. Hailey Chevrolet Co., 462 F.2d 63, 67-68 (6th Cir.1972); C. Wright, Law of Federal Courts, § 64 at 302-304 (3d ed. 1976).
[3]  343 F.Supp. 1302 (N.D.Ill.1972).
[4]  Quartet Manufacturing at 1303.
[5]  571 F.Supp. 500 (N.D.Ill.1983).
[6]  Berks at 502.
[7]  465 F.Supp. 71, 73 (S.D.N.Y.1979).
[8]  417 F.Supp. 304, 308 (D.R.I.1976).


                                                                                ILED
                                                                                COURT OF APPEALS
                                                                                DIVISION II

                                                                               2014 DEC 30       AM 9: 43

                                                                                STATE OF WASHINGTON

                                                                                BY
                                                                                TY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

 STATE OF WASHINGTON,                                                        No. 44365 -1 - II

                                   Respondent,

          v.

 MICHAEL TODD BOSWELL,                                                    PUBLISHED OPINION

                                   Appellant.

         LEE, J. —    A jury found Michael Todd Boswell guilty of two counts of attempted first

degree   murder.     Boswell   appeals,   arguing that ( 1)   double jeopardy bars his conviction for two

counts of attempted murder, (     2) the trial court erred by refusing to instruct the jury on attempted

third degree assault as a lesser included offense, and ( 3) the jury instructions on attempted first

degree   murder omitted an essential         element of    the   crime.   Because we hold that the unit of

prosecution for attempted murder is based on a course of conduct, Boswell' s convictions for two

counts of attempted murder        do   not violate   double   jeopardy. We further hold that third degree

assault is not a lesser included offense of attempted murder and that the jury instructions included

all essential elements of attempted       first degree   murder.   Accordingly,   we affirm.
No. 44365 -1 - II

                                                      FACTS

          Boswell   and   Jessica Fix had been in          a romantic   relationship.     About a month before

November 14, 2011, Fix told Boswell that             she wanted   to   end   their relationship.    Boswell became

very upset and was crying, so Fix decided to stay with him. Just prior to November 14, Fix again

discussed ending their relationship, but Boswell again became upset and Fix did not end the

relationship.

          Early in the morning on November 14, Fix returned home from working the prior evening,

and   Boswell   made      her   peppermint   tea.    After drinking the tea, Fix became nauseous, began

vomiting, and then fell asleep on the living room couch.

          Later, Fix woke up with a loud ringing in her ears and blood dripping from her head. She

saw Boswell sitting on the opposite side of the couch holding a gun. Fix left the house and went

to the hospital. At the hospital, Fix was treated for a brain hemorrhage and liver failure. Doctors

determined that Fix' s head wound was consistent with a gunshot wound and that her liver failure

was caused by an extremely high dose of acetaminophen.

          The State   charged     Boswell    with   two   counts of attempted     first degree     murder.   Count 1

alleged that Boswell " on or about November 14, 2011, with a premeditated intent to cause the

death   of another person ...     did an act which was a substantial step toward the commission of that

crime."    Clerk' s Papers ( CP) at 62. Count 2 alleged that Boswell " on or about November 14, 2011,

at a separate time than the acts charged in Count 1, with a premeditated intent to cause the death

of another person ...      did an act which was a substantial step toward the commission of that crime."

CP at 62.

                                                            2
No. 44365 -1 - II

        At trial, Boswell testified that Fix' s injuries were caused by his failed suicide attempts.

First, Boswell crushed a large amount of Tylenol and methocarbamol in a glass and then used a

second glass as a shaker to help dissolve the pills in the liquid. Then, he inadvertently put Fix' s

tea in the   second     glass   containing a large   amount   of   Tylenol   residue.   He became ill after

consuming the medication he mixed for himself but failed in his suicide attempt. After his failed

suicide attempt with the Tylenol, Boswell decided to attempt to take his own life with a gun.

Boswell' s arm slipped when he attempted to shoot himself, and he accidentally shot Fix in the

head.

        Boswell requested that the trial court instruct the jury on third degree assault as a lesser

included offense of the attempted first degree murder predicated on the shooting. The trial court

concluded that third degree assault was not a lesser included offense of attempted first degree

murder and did not instruct the jury on third degree assault.

        The trial court gave the following " to convict" instruction on the attempted first degree

murder charge in count 1:

                    To convict the defendant of the crime of Attempted Murder in the First
        Degree as charged in Count 1, each of the following elements of the crime must be
        proved beyond a reasonable doubt:
                    1) That on or about November 14, 2011, the defendant did an act that was
        a substantial step toward the commission .of Murder in the First Degree;
                    2) That the act was done with the intent to commit Murder in the First
        Degree; and
                    3) That the act occurred in the State of Washington.
                    If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you have a reasonable
        doubt as to any one of these elements, then it will be your duty to return a verdict
         of not guilty.

                                                       3
No. 44365 -1 - II

CP    at   80.    The " to 'convict" instruction on the attempted first degree murder charge in count 2

contained the same elements. CP at 81.

           The    jury found    Boswell guilty           of   both   counts of attempted        first degree    murder.   Boswell

appeals.

                                                               ANALYSIS

A.         DOUBLE JEOPARDY

           Boswell argues that double jeopardy bars his convictions for two counts of attempted first

degree murder because the unit of prosecution for crimes of attempt is the intent to commit the

crime and not each substantial step toward committing that crime. We disagree.

           The United States        and     Washington Constitutions               prohibit    double   jeopardy.   U. S. CONST.

amend.      V; WASH. CONST.         art   1, §   9. We review alleged double jeopardy violations de novo. State

v.   Villanueva -Gonzalez, 180 Wn.2d 975, 979 -80, 329 P. 3d 78 ( 2014). " The prohibition on double

jeopardy generally means that a person cannot be prosecuted for the same offense after being

acquitted,        be   prosecuted    for the        same        offense after being           convicted,   or   receive   multiple

punishments         for the   same offense."        Villanueva -Gonzalez, 180 Wn.2d at 980.

            Although       Boswell        alleges    a    constitutional          error, .   determining whether Boswell' s

convictions constitute multiple punishments for the same offense requires determination of

legislative intent        and presents a question of               statutory interpretation.         Villanueva -Gonzalez, 180

Wn.2d       at   980. "   The legislature is tasked with defining criminal offenses, and the prohibition on

double     jeopardy imposes [ f]ew, if any,                   limitations'   on   that   power. "'   Villanueva -Gonzalez, 180

Wn.2d at 980 ( quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43

 1978)).

                                                                      4
No. 44365 -1 - II

         When a defendant has multiple convictions under the same statutory provision, we

determine   whether        there is   a   double     jeopardy   violation     by   asking "'   what act or course of conduct

has the Legislature defined               as   the   punishable   act. "'     Villanueva -Gonzalez, 180 Wn.2d at 980

 quoting State      v.   Adel, 136 Wn.2d 629, 634, 965 P. 2d 1072 ( 1998)).                       Boswell was convicted of

two counts of attempted first degree murder under RCW 9A.28. 020 and RCW 9A.32.030.

Therefore, we, must determine what act or course of conduct the legislature intended as the

punishable act under RCW 9A.28. 020 and RCW 9A.32. 030. State v. Turner, 102 Wn. App. 202,

206, 6 P. 3d 1226 ( 2000) ( citing Adel, 136 Wn.2d                    at   634), review denied, 143 Wn.2d 1009 ( 2001).

         RCW 9A.28. 020( 1) states:

         A person is guilty of an attempt to commit a crime if, with intent to commit a
         specific crime, he or she does any act which is a substantial step toward the
         commission of that crime.

And, RCW 9A.32. 030 states, in part:

          1) A person is guilty of murder in the first degree when:
                         a) With a premeditated intent to cause the death of another person, he or
                     she causes the death of such person or of a third person.

Therefore, attempted first degree murder requires ( 1) intent to commit first degree murder and ( 2)

a substantial step toward committing first degree murder.

         Boswell argues that the unit of prosecution for attempted murder is defined by the

defendant' s intent to commit the murder and relies on cases analyzing the unit of prosecution for

other   inchoate    offenses such as solicitation and             conspiracy.         Specifically, Boswell relies on State

v.   Varnell, 162 Wn.2d 165, 170 P. 3d 24 ( 2007) ( unit of prosecution for solicitation) and State v.

Bobic, 140 Wn.2d 250, 996 P. 2d 610 ( 2000) ( unit                         of prosecution for conspiracy) to support his

proposition that a defendant may only be convicted of one count of attempted first degree murder

                                                                  5
No. 44365 -1 - II

for every act taken to further the intent to kill a person.1 These cases, however, do not support
Boswell' s proposition because the unit of prosecution for solicitation and conspiracy is different

than the unit of prosecution for attempted murder.

          Varnell and Bobic did not determine the unit of prosecution for solicitation and conspiracy

based exclusively on the defendant' s intent. Rather, they focus on the actual act that is necessary

to   commit solicitation or        conspiracy.    In -Varnell, the defendant was convicted of five counts of

solicitation to commit murder based on one conversation in which he asked an undercover officer

to kill four   people.    162 Wn.2d at 167 -68. Our Supreme Court reversed, reasoning that the unit of

prosecution for solicitation was the act of promoting or facilitating a crime rather than the crime

the defendant      was   soliciting.   Varnell, 162 Wn.2d at 169. Therefore, the defendant could only be

convicted of one count of solicitation based on one conversation regardless of how many crimes

the defendant      solicited   during that conversation.        Varnell, 162 Wn.2d at 170.

          Similarly, in Bobic the defendants were convicted of one count of conspiracy for each

crime they conspired to commit ( conspiracy to commit first degree theft, conspiracy to commit

first degree possession of stolen property, and conspiracy to commit first degree trafficking in

1 Boswell also relies on State v. Luther, 157 Wn.2d 63, 134 P. 3d 205, cert. denied, 549 U.S. 978
 2006),   for the proposition that our Supreme Court has already established that attempt is defined
by intent rather than action. But, Boswell' s reliance on Luther is misplaced. In Luther, the court
held that there was sufficient evidence to support a conviction for attempted possession of child
pornography if the State provided that the defendant believed he was possessing child pornography
or clearly intended to obtain child pornography, regardless of whether the State proved that the
sexually explicit images were actually children. 157 Wn.2d at 73 -74. A large portion of the Luther
analysis rested on the fact that the defendant' s argument was essentially an impossibility defense
which     the legislature has specifically        stated   is   not a   defense to   criminal   attempt.   Luther, 157
Wn.2d     at   73 -74.   Therefore, Luther provides no guidance in determining the appropriate unit of
prosecution      for   attempted   first degree   murder.
No. 44365 -1 - II

stolen   property).     140 Wn.2d       at   256.    Again, our Supreme Court focused on the act necessary to

commit    conspiracy —an        agreement to engage in a criminal enterprise. Bobic, 140 Wn.2d at 265.

Therefore, our Supreme Court held that the appropriate unit of prosecution for conspiracy is the

agreement to engage in a criminal enterprise, not the number of crimes that could be committed in

the course of carrying out that criminal enterprise. Bobic, 140 Wn.2d at 265.

         Thus, contrary to Boswell' s assertion, Yarnell and Bobic do not stand for the proposition

that the unit of prosecution for all inchoate crimes is based on the defendant' s intent. Rather, they

stand for the proposition that the unit of prosecution for inchoate crimes is the act necessary to

support the inchoate offense, not the underlying crime.

          Boswell argues that if the unit of prosecution for attempt is based on the act rather than the

intent, the State will be able to charge a defendant with one, count for each substantial step taken

toward    commission of        the   crime ( e. g.,    separate counts for each shot fired in an attempt to kill

someone or      procuring      a gun,   driving      to the scene, waiting at the        scene,       etc.).    But, as the State

points   out,   Boswell'   s   interpretation        also    leads to   an   absurd   result.    Under Boswell' s unit of

prosecution analysis, a defendant could only ever be charged with one count of attempted murder

against one victim, regardless of how many attempts the defendant makes on the victim' s life. For

example, as the State points out, Boswell could be released from prison, make another attempt on

Fix' s life, and, as long as he does not succeed, he could not be charged with another count of

attempted    first degree      murder.       It is   clear   that the legislature did     not   intend         such a result.   The

Boeing Co.      v.   Doss, 180 Wn.      App.    427, 437, 321 P. 3d 1270 ( 2014) ( "` We do not interpret statutes

to   reach absurd and     fundamentally unjust results. ") (             quoting Flanigan       v.   Dep 't ofLabor      & Indus.,

 123 Wn.2d 418, 426, 869 P. 2d 14 ( 1994)); State                  v.   J.P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003)

                                                                  7
No. 44365 -1 - II

 We do      not     interpret    statutes   to   reach '   absurd results ') (    quoting State v. Delgado, 148 Wn.2d

723, 733, 63 P. 3d 792 ( 2003)).

            Although we agree with Boswell that the unit of prosecution for attempted first degree

murder should not allow the State to arbitrarily charge an unlimited number of counts based on

each substantial step taken toward the commission of first degree murder, we also agree with the

State that Boswell'         s   interpretation     cannot   be   what     the legislature intended.   Therefore, we adopt

the analysis used to determine the unit of prosecution for offenses that involve a continuing course

of conduct. Under this analysis, double jeopardy does not bar Boswell' s convictions for two counts

of attempted first degree murder.

            State   v.   Hall, 168 Wn.2d 726, 230 P. 3d 1048 ( 2010),               and State v. Chouap, 170 Wn. App.

114, 285 P .3d 138 ( 2012) provide a reasonable analytical structure to determine the appropriate

unit of prosecution             for first degree     attempted murder.         In Hall, the defendant was convicted of

three counts of witness tampering after calling a witness over 1, 200 times in an attempt to convince

her   not   to   testify    against   him.       168 Wn.2d       at   729.   Our Supreme Court held that the unit of

prosecution for witness tampering is the " ongoing attempt to persuade a witness not to testify in a

proceeding." Hall, 168 Wn.2d at 734. Because the defendant' s conduct was continuous, aimed at

a single person, and meant to tamper with her testimony in a single proceeding, there was only one

unit of prosecution. Hall, 168 Wn.2d at 736. However, our Supreme Court noted circumstances

in which multiple units of prosecution could be present:

                   Our determination might be different if Hall, had changed his strategy by,
            for example, sending letters in addition to phone calls or sending intermediaries, or
            if he had been stopped by the State briefly and found a way to resume his witness
            tampering campaign.

Hall, 168 Wn.2d at 737.

                                                                      8
No. 44365 -1 - II

             In Chouap, the defendant was convicted of two counts of attempting to elude a police

vehicle      based    on events   that occurred   during   the   same   evening.   170 Wn.   App.   at   118 -21.   We

determined that the defendant' s convictions did not violate double jeopardy because the " second

pursuit was separated from the first by time, by Chouap' s return to lawful driving, and by different

pursuing       police officers."
                                   Chouap, 170 Wn. App. at 125.

             Reading Hall and Chouap together, the proper analysis to determine the
                                                                                . unit of prosecution

for crimes involving a course of conduct is whether there are facts that make each course of

conduct separate and distinct. Factors that can be considered in addressing whether each course

of conduct is separate or distinct include the method used to commit the crime; the amount of time

between the two courses of conduct; and whether the initial course of conduct was interrupted,

failed, or abandoned. Hall, 168 Wn.2d at 737 -38.

             Here, Boswell engaged in two separate distinct courses of conduct in his attempts to take

Fix'   s   life.   First, he attempted to poison her by crushing pills, mixing them in tea, and giving the

tea to her. After this attempt on Fix' s life failed, there was a period of time before Boswell engaged

in his second course of conduct. Fix was sleeping and Boswell had a period of time to consider

his actions after Fix fell asleep. Then Boswell acquired the gun and shot Fix in the head. Because

Boswell employed different methods of attempting to kill Fix, the attempts were separated by a

period of time and the second attempt began only after the first attempt had failed, Boswell' s two

convictions properly represent two units of prosecution. Even Boswell' s own testimony supports

this analysis.        Boswell admitted that his first plan to take his own life was limited to using the

Tylenol. It was only after that plan failed that Boswell formulated the plan to use the gun. There

                                                            9
No. 44365 -1 - II

was no evidence that Boswell' s original plan included using both the Tylenol and the gun as part

of one continuous plan.

         Using a course of conduct analysis to determine the appropriate unit of prosecution for

attempted first degree murder clearly leads to the most sensible result. It prevents the State from

arbitrarily charging multiple counts based on each conceivable substantial step leading up to the

commission of the crime, and it allows the State to hold defendants accountable for repeated

attempts on one victim' s life. Based on this analysis, we hold that Boswell' s two convictions for

attempted first degree murder do not violate the constitutional prohibition against double jeopardy.

B.           LESSER INCLUDED OFFENSE

             Boswell asserts that the trial court erred by refusing to instruct the jury on third degree

assault as      a   lesser included   offense.   State   v.   Harris, 121 Wn. 2d 317, 849 P. 2d 1216 ( 1993),

resolves      this issue.   However, Boswell argues that the rule in Harris has been implicitly rejected
                                                 Workman2

by   subsequent case        law applying the                   test to determine lesser included   offenses.   We

disagree.

             A defendant is entitled to an instruction on a lesser included offense if two conditions are

met:

             First, each of the elements of the lesser offense must be a necessary element of the
             offense charged.    Second, the evidence in the case must support an inference that
             the lesser crime was committed.

State   v.    Workman, 90 Wn.2d 443, 447 -48, 584 P. 2d 382 ( 1978) ( internal         citations omitted).     We

review the first element of the test, the legal prong, de novo. State v. LaPlant, 157 Wn. App. 685,

2 State v. Workman, 90 Wn.2d 443, 447 -48, 584 P. 2d 382 ( 1978).

                                                              10
No. 44365 -1 - II

687, 239 P. 3d 366 ( 2010).          And, we review the second prong of the test, the factual prong, for an

abuse of discretion. LaPlant, 157 Wn. App. at 687.

             In Harris, our Supreme Court held that assault is not a lesser included offense of attempted

murder       because, the legal prong       of   the Workman test was not met.             121 Wn. 2d   at   321.   The court

explained       that   under   the legal prong " if it is possible to commit the greater offense without

committing the lesser          offense,   the   latter is   not an   included   crime."   Harris, 121 Wn.2d 320 ( citing

State   v.   Bishop,   90 Wn.2d 185, 191, 580 P. 2d 259 ( 1978)).                  The court reasoned that, to commit

attempted murder, the defendant must take a substantial step toward committing the murder, but

that step does not necessarily require the defendant to commit an assault ( obviously an element of

first degree     assault).     Harris, 121 Wn.2d        at   321. Harris controls the outcome of this case, and we

hold that the trial court did not err by refusing to give Boswell' s proposed instruction on third

degree assault as a lesser included offense of attempted first degree murder.

             Boswell argues that the rule in Harris is no longer good law because our Supreme Court

has implicitly abrogated the rule announced in Harris. Boswell cites primarily to State v. Berlin,

133 Wn.2d 541, 947 P. 2d 700 ( 1997), to support his proposition.

             Boswell' s   reliance   on   Berlin is     misplaced.       Boswell reads Berlin as instructing us to

consider the crimes as charged when determining whether a lesser included instruction is

appropriate; therefore, the analysis in Harris is improper because it categorically states that assault

cannot be a lesser included offense of attempted murder. Under Boswell' s application of Berlin,

third degree assault is a lesser included offense of attempted murder in this case because, by

shooting Fix in the head, Boswell necessarily                        committed   third degree   assault.     But Boswell' s

                                                                 11
No. 44365 -1 - II

analysis is based on a misreading of Berlin, a misapplication of the law our Supreme Court

articulated in Berlin, and a conflation of the two prongs of the Workman test.

         In Berlin, the defendant was charged with second degree murder with intentional murder

and   felony murder       charged as alternative means.           133 Wn.2d at 550. Our Supreme Court held that

manslaughter can be a lesser included offense of second degree murder. Berlin, 133 Wn.2d at 551.

In doing so, the court reaffirmed its adherence to the Workman test and clarified the application of

the legal prong of the test. Berlin, 133 Wn.2d at 548, 550 -51.

         The court explained that under the legal prong of the Workman test, the court examines the

statutory   elements of      the   crime charged, not       the    statute as a whole.   Berlin, 133 Wn.2d at 548.

However, this clarification is relevant only so far as the statute under which the defendant is

charged presents alternative means of committing the crime. Berlin, 133 Wn.2d at 548. Therefore,

the rule under Berlin is that when a defendant is charged with an alternative means crime, the court

determines whether a lesser included offense instruction is appropriate based on the alternative

means charged, not          the    statute as a whole.      133 Wn.2d       at   550 ( " We emphasize that both the

statutory language of RCW 10. 61. 006 and the language of Workman necessitate that we examine

the   elements of   the   offense charged").        Attempt is not an alternative means crime. Therefore, the

clarification articulated in Berlin does not apply. Berlin does not change or undermine the analysis

employed by our Supreme Court in Harris.

         Furthermore, nothing in Berlin stands for the proposition that we are required to examine

the   elements of   the    offense    based   on   the   alleged   facts supporting the   charge.   Rather, Berlin is

clear —  when examining the legal prong of the Workman test we look at the statutory elements of

the crime to determine whether each element of the lesser offense is a necessary element of the

                                                              12
No. 44365 -1 - II

charged offense. 133 Wn.2d at 550 -51. We do not examine the facts underlying the charge unless

we reach    the factual prong   of   the Workman test. Berlin, 133 Wn.2d         at   551.   Accordingly, contrary

to Boswell' s assertion, there is nothing in Berlin that supports deviating from the rule or analysis

articulated by our Supreme Court in Harris. We hold that the trial court did not err in refusing to

instruct the jury on third degree assault as a lesser included offense to attempted murder.

C.       JURY INSTRUCTIONS

         Finally, Boswell argues that the " to convict" jury instructions omitted an essential element

of the crime because the jury instruction failed to include the element of premeditation.3 We
disagree.

         We explicitly rejected this argument in State v. Reed, 150 Wn. App. 761, 208 P. 3d 1274,

review   denied, 167 Wn.2d 1006 ( 2009). We held that the essential elements of attempt are ( 1) the

specific    intent to   commit a crime and (     2)    a substantial   step toward committing that     crime.   See

Reed, 150 Wn. App. at 772 -73. As we explained:

                    Reed' s argument conflates the intent necessary to prove an attempt with that
         necessary to      prove first degree         murder.    The State did not charge Reed with
           completed first degree murder; thus, to prove only an attempt to commit first degree
         murder, the State was not required to prove that Reed acted with premeditated intent
         to commit murder, only that he attempted to commit murder.

         Reed, 150 Wn.        App.    at   772 -73.     Reed is controlling.    The jury instruction properly

instructed the jury on the essential elements of attempt. Reed, 150 Wn. App. at 774 -75.

3 Boswell failed to object to the " to convict" instructions at the trial court. Generally, a party may
not raise an issue for the first time appeal.   RAP 2. 5( a)( 3). However, because jury instructions

omitting an essential element relieve the State of its burden to prove each element of the crime
beyond a reasonable doubt, the error is considered a manifest error affecting a constitutional right
that may be raised for the first time on appeal. State v. Chino, 117 Wn. App. 531, 538, 72 P. 3d
256 ( 2003).

                                                            13
No. 44365- 1- II

         Boswell asks us to reconsider the decision in Reed based on State v. Vangerpen, 125 Wn.2d

782, 888 P. 2d 1177 ( 1995).              Boswell alleges that Vangerpen explicitly states that premeditation is

an essential element of attempted first degree murder. We decline Boswell' s request.

             In State   v.   Vangerpen, 71 Wn.        App.     94, 856 P. 2d 1106 ( 1993),   aff'd, 125 Wn.2d 782, 888

P. 2d 1177 ( 1995),          the defendant was charged with attempted first degree murder by an information

that stated:

              T] he defendant Shane Michael Vangerpen in King County, Washington on or
             about July 20, 1991, with intent to cause the death of another person did attempt to
             cause the death of Officer D.C. Nielsen, a human being.

71 Wn. App. at 97 n.1. Our Supreme Court held that the information failed to charge the defendant

with attempted first degree murder because acting with the intent to cause a death is second degree

murder rather than first degree murder. Vangerpen, 125 Wn.2d at 791. In other words, Vangerpen

states that, because ofthe specific language contained in the information, the State failed to charge

the defendant           with   attempted        first degree   murder   when   the information    omitted "   one of the

statutory      elements of      first degree     murder."      125 Wn.2d at 791.

             Vangerpen does not articulate what the essential elements of attempted first degree murder

are. Our Supreme Court has clearly established that the essential elements of criminal attempt are

an intent to commit a specific crime and a substantial step toward committing that crime. See, e. g.,

State   v.   DeRyke, 149 Wn.2d 906, 910, 73 P. 3d 1000 ( 2003).                  Therefore, an instruction on attempt

is not defective for failing to include the essential elements of the attempted underlying crime.

DeRyke, 149 Wn.2d               at   910 -11.    Because Vangerpen addresses whether the language used in the

information in that case properly charged the defendant with attempted first degree murder, not

what all the essential elements of first degree murder are, Vangerpen is not grounds for us to

                                                                   14
No. 44365 -1 - II

abandon our decision in Reed. Accordingly, Boswell' s challenge to the " to convict" instructions

fails.

         We reject Boswell' s contention that the unit of prosecution for attempted first degree

murder   is defined   by   the defendant'   s   intent.   Instead, we hold that the unit of prosecution for

attempted first degree murder is defined by a course of conduct. Under the facts presented here,

Boswell' s convictions for two counts of attempted first degree murder do not violate double

jeopardy. Further, under Harris, third degree assault is not a lesser included offense of attempted

first degree   murder.   And, our decision in Reed continues to be good law; thus, the " to- convict"

instruction did not omit an essential element of the crime. Accordingly, we affirm.

                                                                                Lee, J.
 We concur:

                                                          15


199 P.3d 367 (2008)
STATE
v.
HOOPER.
No. 20080475.
Supreme Court of Utah.
August 6, 2008.
Petition for certiorari denied.