State v. Knight
State v. Knight
Opinion of the Court
¶1 Amanda Christine Knight appeals two convictions for second degree assault against two victims, JS
FACTS
I. Crimes
¶2 Amanda Christine Knight, Joshua Reese, and Kyoshi Higashi were acquaintances, who, with another acquaintance, Clabon Berniard, participated in a home invasion robbery in Lake Stevens in April 2010. Soon thereafter, on April 28, Higashi told Knight that he wanted to commit another robbery; Knight drove her car to Renton to pick up Higashi and then picked up Berniard. Higashi had found a Craigslist wedding ring advertisement posted by James Sanders. Using a nontraceable throw-away cell phone, Knight had contacted Sanders that morning and asked whether she and her boyfriend could see the ring to buy for Mother’s Day. Wanting to arrive after dark, Knight claimed that they were coming from Chehalis and could not be there until that evening.
¶3 Knight drove Higashi, Berniard, and Reese to the Sanderses’ house at 9:00 pm; she drove down the long drive
¶4 Inside, James
¶5 Higashi revealed a large amount of cash and asked, “How is this?” He also pulled out a handgun and threatened, “How about this?” 5 Verbatim Report of Proceedings (VRP) at 580. Charlene and James told Higashi and Knight to take whatever they wanted and to leave. Knight zip tied Charlene’s hands behind her back; Higashi zip tied James’s hands behind his back. Knight removed Charlene’s wedding ring from her finger. Knight or Higashi removed James’s wedding ring from his finger. Higashi and Knight ordered James and Charlene to lie down on their stomachs on the floor.
¶6 Through Knight’s Bluetooth headset connection to Reese and Berniard waiting in her car, they heard that the Sanders adults had been secured; and Knight signaled them to enter. Knight knew that Reese and Berniard possessed loaded guns and that using these guns was part of the group’s plan to carry out the Sanderses’ home invasion robbery. Reese and Berniard went upstairs, brought down the two Sanders boys with their hands behind their heads at gunpoint, and forced them to lie down on their stomachs
¶7 From upstairs, Knight heard the commotion and screams downstairs as her companions assaulted the Sanders family. Berniard held a gun to Charlene’s head, pulled back the hammer, began counting down, and asked her, “Where is your safe?” 5 VRP at 586. Charlene responded that they did not own a safe. Berniard kicked Charlene in the head, called her a “b*tch,” and threatened to kill her and her children. 5 VRP at 586. According to Charlene, “[Berniard] kicked [her] so hard that [her] head went up and then [she] hit down on the ground”; it left a large “goose egg” on her left temple. 5 VRP at 587. Charlene believed she was going to die. Eventually, Charlene told the intruders that they kept a safe in their garage.
¶8 While Berniard was forcing James to the garage, James broke free of his zip ties and began beating Berniard. Berniard shot James in the ear, knocking him unconscious. JS jumped on Berniard, who threw JS off and began hitting him with the butt of his firearm. Reese then dragged James’s body back through the kitchen and into the adjacent living room, where it was out of sight. Either Reese or Berniard shot James multiple times, causing fatal internal bleeding.
¶9 Following the gunshots, the four intruders fled immediately. Charlene went to the living room and found James lying on the floor; his body appeared white, and one of his ears had been shot off. Charlene called 911. The police declared James dead at the scene; autopsy investigators later recovered three bullets from his body. The police also took JS to the hospital, where he was treated for bruising and bleeding around his left ear; the beating left scars that were still visible a year later. In addition to the rings, among the items missing from the Sanderses’ home were a PlayStation, an iPod, and a cellular phone.
¶11 The following morning, Knight, Reese, and Higashi began driving to California and sold the Sanderses’ PlayStation and Knight’s firearm along the way. California police eventually pulled them over and arrested them on unrelated charges. Knight posted bail, pawned James’s wedding band, and purchased a bus ticket to return to Washington. On hearing the news that she was a murder suspect, she turned herself in to the Sumner Police Department.
II. Procedure
¶12 The State charged Knight with (1) first degree felony murder of James (Count I); (2) two counts of first degree robbery,
¶13 In its opening statement, the State explained that it would prove the following: (1) Knight and three accomplices, Higashi, Reese, and Berniard, planned to go to the Sanderses’ house, ostensibly to purchase a ring that James had advertised on Craigslist, “tie everybody up and steal the expensive stuff out of the house . . . ransack the place and take what they could”;
¶14 The jury instructions provided: (1) To elevate the robbery to first degree, the jury was required to find that, during the commission of the crime, “[Knight] or an accomplice [was] armed with a deadly weapon or inflict [ed] bodily injury.” 2 Clerk’s Papers (CP) at 339 (Instruction 12); see also CP at 354 (Instruction 26).
¶16 (3) “A person commits the crime of [a]ssault in the [s]econd [d]egree when she or an accomplice intentionally assaults another and thereby recklessly inflicts substantial bodily harm or assaults another with a deadly weapon.” 2 CP at 347 (Instruction 19).
¶17 (4) “A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.” 2 CP at 334 (Instruction 7).
¶18 During closing argument, the State delineated the elements of each crime as set forth in the court’s jury instructions and summarized the evidence supporting the elements of each crime. The State specifically argued that it had proved the first degree robbery of Charlene, Count IV, with evidence that Higashi had pointed a gun at Charlene, while Knight zip tied Charlene and took her wedding ring, facts that Knight herself later admitted.
¶19 In her closing argument, Knight expressly admitted her participation in the initial robbery of the Sanderses’ rings, including that she had “tie[d] up Charlene Sanders and put her down on the floor” to “secur [e] the people” so the four invaders could “go rob the house.” 7 VRP at 1036,1037. Knight claimed, however, that she had done so under duress from Higashi, who had coerced her to participate in the Sanderses’ home invasion, burglary, and robberies. In contrast, Knight clearly distanced herself from Berniard’s later
¶20 The jury found Knight guilty on all counts. It returned special verdicts on the firearm enhancements, finding that Knight or an accomplice had been armed during the commission of the crimes. It did not return special verdicts finding Knight had committed the crimes with deliberate cruelty to the victims or with a high degree of sophistication.
¶21 At sentencing, Knight moved the court to find that her two assault convictions constituted double jeopardy under the merger doctrine; she also argued that, for sentencing purposes, all of her convictions were based on the same criminal conduct. The trial court denied the motion. Based on an offender score of 10, the trial court imposed high-end standard-sentences on all counts and ran them concurrently; the trial court added firearm enhancements and ran them consecutively.
I. Sufficient Evidence
¶22 Knight argues that there was insufficient evidence to support her two second degree assault convictions, against JS (Count III) and Charlene (CountV). We disagree.
A. Standard of Review
¶23 Evidence is sufficient if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt; evidence is viewed in the light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A defendant claiming that the evidence was insufficient admits the truth of the State’s evidence and all reasonable inferences that may be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
¶24 Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
B. Second Degree Assaults
¶25 To prove that Knight was an accomplice to the assaults on Charlene and JS, the State needed to show that she (Knight) knowingly “promote [d] ” or “facilitate [d]” the commission of these crimes (1) by soliciting, commanding, encouraging, or requesting another person to commit the crimes; or (2) by aiding or agreeing to aid another in the planning or committing of the crimes. RCW
¶26 Knight does not dispute that Berniard’s kicking Charlene in the head and hitting JS with the butt of his firearm satisfied the elements of second degree assault as to each victim. Instead, she argues that she cannot be culpable as an accomplice to the assaults because they occurred while she was upstairs gathering property in the Sanderses’ main bedroom. This argument fails: A person’s physical presence during the offense is not required for accomplice liability. See State v. Trujillo, 112 Wn. App. 390, 398, 408, 49 P.3d 935 (2002) (defendant facilitated commission of murder by knowingly driving the shooters and their weapons to kill rival gang member, despite remaining in van during the shooting).
¶27 Knight is correct that “mere presence at the scene” cannot serve as the basis for accomplice liability. Br. of Appellant at 9 (citing Wilson, 91 Wn.2d at 491-92). But Knight was more than merely a present, uninvolved observer. The State presented the following evidence from which the jury could reasonably infer that Knight knowingly promoted or facilitated the commission of the assaults: (1) Knight called James to arrange a meeting under the pretense of purchasing a wedding ring advertised for sale; (2) she drove Higashi, Reese, and Berniard to the Sanderses’ home; (3) she knew that the plan to obtain the Sanderses’ ring involved using loaded guns; (4) once inside, she tied Charlene’s hands behind her back with zip ties and forced her to the ground; and (5) after Charlene and James were on the ground, Knight used a Bluetooth to signal Reese and Berniard to enter the house, knowing that they
II. Double Jeopardy
¶28 For the first time on appeal, Knight argues that her two second degree assault convictions against Charlene and James
A. Failure To Preserve Jury Instruction Challenge
¶29 Generally, a party who fails to object to jury instructions below waives any claim of instructional error on appeal. State v. Edwards, 171 Wn. App. 379, 387, 294 P.3d 708 (2012), review denied, 176 Wn.2d 1025 (2013). But a defendant does not waive a manifest error affecting a constitutional right by failing to object below RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). The initial burden is on Knight to demonstrate that the error is
¶30 Our Supreme Court has held that a double jeopardy claim is an error of constitutional magnitude. But Knight fails to make any showing that the alleged ambiguous jury instruction error was manifest because she fails to show any prejudice resulting from the jury instruction that she alleges, for the first time on appeal, was ambiguous. State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011); State v. Bertrand, 165 Wn. App. 393, 402, 267 P.3d 511 (2011), review denied, 175 Wn.2d 1014 (2012). We hold, therefore, that she has failed to carry her burden to trigger exercise of our limited discretion under RAP 2.5(a)(3) to entertain a nonpreserved claim of error; thus, we do not address the merits of her instructional challenge. Bertrand, 165 Wn. App. at 402.
B. Merger; Double Jeopardy
¶31 The state and federal double jeopardy clauses provide the same protections. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); see U.S. Const. amend. V; Wash. Const, art. I, § 9. If a defendant’s acts support charges under two statutes, we ask whether the legislature intended to authorize multiple punishments for the crimes in question. State v. Freeman, 153 Wn.2d 765,
¶32 In State v. Calle, our Supreme Court set forth a three-part test for double jeopardy claims. 125 Wn.2d 769, 776, 888 P.2d 155 (1995); see also State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008). First, we search for express or implicit legislative intent to punish the crimes separately; if this intent is clear, we look no further. Calle, 125 Wn.2d at 776. Second, if there is no clear statement of legislative intent, we may apply the “same evidence” Blockburger test, which asks if the crimes are the same in law and in fact. Calle, 125 Wn.2d at 777-78 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Third, we may use the merger doctrine to discern legislative intent where the degree of one offense is elevated by conduct constituting a separate offense. Kier, 164 Wn.2d at 804 (citing Vladovic, 99 Wn.2d at 419). But even if two convictions appear to merge on an abstract level, the State may punish them separately if each conviction has an independent purpose or effect. Kier, 164 Wn.2d at 804; Freeman, 153 Wn.2d at 773.
¶33 Under the merger doctrine, when a criminal act forbidden under one statute elevates the degree of a crime under another statute, the courts presume that the legislature intended to punish both acts through a single conviction for the greater crime. Freeman, 153 Wn.2d at 772-74 (when assault elevates robbery to first degree, generally the two crimes constitute the same offense for double jeopardy
¶34 Knight argues that her convictions for second degree assault and first degree robbery of Charlene (Counts V and IV) should merge.
¶35 The information alleged that Knight was guilty of robbery under RCW 9A.56.190, which provides that a person commits robbery “when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury
¶36 The information also alleged that Knight was guilty of second degree assault in that she “intentionally assaulted] Charlene Sanders, and thereby recklessly inflict [ed] substantial bodily harm, contrary to RCW 9A.36-.021(l)(a), and/or did intentionally assault Charlene Sanders with a deadly weapon, to wit: a handgun.”
An assault is an intentional touching or striking of another person. . . . An assault is also an act done with the intent to create in another apprehension and fear of bodily injury.
and
*955 A person commits the crime of [a]ssault in the [sjecond [d]egree when she or an accomplice intentionally assaults another and thereby recklessly inflicts substantial bodily harm or assaults another with a deadly weapon.
2 CP at 346 (Instruction 18), 347 (Instruction 19). The “to convict” instructions for second degree assault contemplated Knight’s or her accomplices’ using a handgun as the means of proving second degree assault or an unlawful touching or striking, as provided as an alternative means under RCW 9A.36.021(l)(a).
¶37 Knight’s merger argument would be compelling if the second degree assault of Charlene could have involved only Higashi’s pointing Knight’s gun at Charlene when they robbed Charlene of her wedding ring at the beginning of the home invasion; but such were the not the facts here. On the contrary, accomplice Berniard’s later assaults of Charlene (with a different firearm and by kicking her in the head) support the second degree assault conviction, independent of the firearm threat that Knight and Higashi had earlier used to take Charlene’s ring during the robbery. Both the State’s and Knight’s closing arguments support the jury’s treatment of Higashi’s earlier firearm threat while removing Charlene’s wedding ring from her finger as separate from Berniard’s later threatening Charlene by pointing a gun at her head to force her to reveal the location of the safe and kicking her in the head. For example, two main points during Knight’s closing argument were (1) her open admission that she had participated in the initial robbery of Charlene’s ring while Higashi pointed the gun, claiming, however, that the others had forced her to participate in that robbery and the burglary; and (2) she had no prior knowledge of, she had been nowhere near, and she had not in any way participated in Berniard’s later brutal assaults of Charlene, JS, and James.
¶38 As our Supreme Court admonished in Freeman and Mutch, when considering double jeopardy, we take a “hard
¶39 We hold, therefore, that under the facts here, (1) the second degree assault (Count V) and the first degree robbery (Count IV) do not merge; and (2) proof that Knight and/or her accomplices committed the crime of second degree assault was not necessary to elevate the robbery to first degree. Esparza, 135 Wn. App. at 66 (citing Freeman, 153 Wn.2d at 777-78).
¶40 Knight next argues that she received ineffective assistance when her trial counsel allegedly failed to inform the trial court that it could impose an exceptional sentence downward. Knight’s argument fails.
A. Standard of Review
¶41 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) her counsel’s representation was deficient, falling below an objective standard of reasonableness; and (2) the deficient performance prejudiced her. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))). A petitioner’s failure to prove either prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
¶42 A standard range sentence is generally not appealable. RCW 9.94A.585(1). Nevertheless, a defendant may appeal the trial court’s procedure in imposing his sentence. State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986). Here, Knight encompasses her sentencing challenge within an ineffective assistance of counsel claim.
B. No Prejudice Shown
¶43 Even assuming, without deciding, that the trial court could have imposed an exceptional sentence down
IV. Offender Score
¶44 Finally, Knight argues that the trial court erred in calculating her offender score because several of her cur
A. Standard of Review
¶45 Where two or more offenses encompass the same criminal conduct, the sentencing court counts them as a single crime when calculating the defendant’s offender score. RCW 9.94A.589(l)(a). “Same criminal conduct” for offender score calculation purposes means “two or more crimes” that (1) require the “same criminal intent,” (2) were committed at the “same time and place,” and (3) involved the “same victim.” RCW 9.94A.589(l)(a). If any one of these elements is missing, the sentencing court must count the offenses separately in calculating the offender score. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994); see also State v. Dunaway, 109 Wn.2d 207, 216, 743 P.2d 1237, 749 P.2d 160 (1988). But absent an abuse of discretion or misapplication of the law, we may not reverse a trial court’s determination of what constitutes the same criminal conduct for offender score calculation purposes. State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999).
B. Crimes Not Based on Same Criminal Conduct
¶46 Knight argues that the trial court erred in failing to treat the following pairs of crimes as the “same criminal conduct” for offender score purposes because they occurred at the same time and place and her “objective intent throughout the incident never changed from completing the robbery”
[T]he robbery, that is, of the ring, was completed before the assaults and the murder occurred. Therefore, although they occurred in the same place, Counts I and II and IV and V do not occur at the same time. The robbery of James Sanders was completed, as well as the robbery of Charlene Sanders, at the time their rings were stolen. And therefore, the murder and the assaults would not be the same criminal conduct because of that.
In addition, we have a different person involved in the assaults, which is Clabon Berniard, and therefore, it’s a completely separate criminal act for that purpose.
8 VRJP at 1090 (emphasis added). We adopt the trial court’s rationale as it pertains to our offender score analysis here.
1. Robbery and murder of James
¶47 Our Supreme Court has previously addressed and rejected the notion that robbery and murder share the same criminal intent for “same criminal conduct” offender score purposes, holding, “When viewed objectively, . . . the intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone.”
2. Robbery and assault of Charlene
¶48 In our evidence sufficiency analysis, we held that Knight was an accomplice to the assault on Charlene based on Berniard’s kicking Charlene in the head. We rejected her argument that, because this assault occurred while Knight was upstairs gathering property in the Sanderses’ main bedroom, she could not be culpable as an accomplice. The robbery of Charlene was complete once Knight removed the ring from Charlene’s finger while Higashi held the firearm. This later assault — Berniard’s kicking Charlene in the head in an attempt to get the safe— does not constitute the same criminal conduct as the earlier robbery because, as the trial court similarly concluded,
3. Burglary antimerger statute
¶49 Knight’s final argument — that the burglary constituted the same criminal conduct as all of her other convictions — ignores the trial court’s independent legislative authority to punish the burglary separately under the burglary antimerger statute:
Every person who, in the commission of a burglary shall commit any other crime, may be punished therefore as well as for the burglary, and may be prosecuted for each crime separately
RCW 9A.52.050. This statute gives a trial judge discretion to punish a burglary separately, even where the burglary and another crime encompassed the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 781-82, 827 P.2d 996 (1992). The trial court here had authority under RCW 9A.52.050 to impose a separate sentence for Knight’s burglary conviction, regardless of whether the burglary constituted the same criminal conduct as any of her other convictions.
¶50 We hold that Knight fails to show that the trial court abused its discretion in denying her request to treat any of her convictions as the same criminal conduct for offender score calculation purposes under RCW 9.94A.589(l)(a).
V. Remaining SAG Issue: Special Verdict Unanimity
¶51 In her SAG, Knight asserts for the first time that her sentence violated her right to a jury trial under the Washington Constitution, article I, section 21, because the jury was not properly instructed it could vote no on the special verdict forms for her firearm enhancements. SAG at 1. She is incorrect.
¶52 Knight fails to show how this alleged jury instruction error prejudiced her or that it was manifest for pur
¶53 We affirm.
Review denied at 179 Wn.2d 1021 (2014).
It is appropriate to provide some confidentiality in this case. Accordingly, we use initials to identify the juveniles involved.
Knight does not appeal her first degree felony murder and other convictions arising from this same home invasion.
Knight is correct that the information named Charlene as a victim of both robbery (Count IV) and assault (Count V). But Knight mistakenly asserts that the robbery victim named in Count II (Sanders, who was also the murder victim in Count I) was also the assault victim named in Count III (JS), which neither the information nor the facts support. At oral argument, Knight abandoned this latter argument.
We use James and Charlene Sanders’ first names for clarity. We intend no disrespect.
The legislature amended RCW 9A.56.190 in 2011. Laws op 2011, eh. 336, § 379. The amendments added gender neutral language which did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
The State charged Knight’s robbery counts under RCW 9A.56.190, which provides that a person commits robbery “when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person.” The corrected second amended information elevated these robberies to first degree under RCW 9A.56.200(l)(a)(i), alleging that Knight, or an accomplice, had been “armed with a deadly weapon.” 2 Clerk’s Papers at 305-06.
The State charged Knight’s assault counts under RCW 9A.36.021(1), which provides that a person is guilty if he or she “(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or... (c) Assaults another with a deadly weapon.” The legislature amended RCW 9A.36.021 in 2011. Laws op 2011, ch. 166, § 1. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
5 VHP at 517.
5 VBP at 528.
The State also noted that Charlene was kicked and beaten.
7 VRP at 1034.
More specifically Knight argued:
The [S]tate has said that it’s assault with a deadly weapon and causing serious hodily injury, and we know that that’s Berniard. Clabon Berniard was absolutely brutal with what he did to Charlene in the kitchen. He kicked her. That’s an assault. He put the gun to the top of her head and began a countdown. That’s an assault.
7 VRP at 1034. She then went on to argue that she had been in “an entirely different part of the house” and had not been involved in Berniard’s assault of Charlene.
The trial court sentenced Knight as follows: (1) 548 months on Count I (first degree felony murder); (2) 171 months on Count II (first degree robbery of James); (3) 84 months on Count III (second degree assault of JS); (4) 171 months on Count IV (first degree robbery of Charlene); (5) 84 months on Count V (second degree assault of Charlene); and (6) 116 months on Count VI (first degree burglary), to run concurrently. The trial court imposed firearm enhancements of 60 months on Counts I, II, IV, and VI, and 36 months on counts III and V, to run consecutively (apparently to each other) for a total confinement period of 860 months.
The legislature amended RCW 9A.08.020 in 2011. Laws of 2011, ch. 336, § 351. These amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
In her brief, Knight mistakenly refers to James Sanders as the victim of one of the second degree assault convictions, even though the record shows that JS and Charlene were the only assault victims and James was the murder victim in Count I. But at oral argument, Knight withdrew this argument, conceding that she had mistakenly misstated the counts and victims for this part of her argument. Therefore, we do not further consider it.
The State argues that Knight waived her merger claim. But the record shows that Knight timely raised this issue below, thus preserving this error for our review.
Because Knight argues that her convictions constitute double jeopardy under only the merger doctrine, we confine our analysis to that issue. RAP 10.3(a)(6).
The instant case differs from Kier, in which our Supreme Court held that Kier’s first degree robbery and second degree assault convictions merged. Kier, 164 Wn.2d at 801-02. Kier was also charged with being armed with or displaying a deadly weapon. Kier pointed a gun at the assault victims, forced them out of their car, and drove their car away. Id. at 802-03. The court concluded that Kier’s threatened use of force, a necessary element in both the second degree assault and the first degree robbery, as charged and proved, was satisfied by only one act: Kier’s being armed with or displaying a gun. Id. at 805-06. The court explained,
The merger doctrine is triggered when second degree assault with a deadly weapon elevates robbery to the first degree because being armed with or displaying a firearm or deadly weapon to take property through force or fear is essential to the elevation.
Id. at 806 (emphasis added).
Unlike Kier, where the deadly weapon element of the second degree assault conviction necessarily elevated the degree of the robbery (because there were no other acts that the jury could have used to enhance the degree of the robbery), here, the State proved the first degree robbery of Charlene and the second degree assault of Charlene based on separate criminal acts, separated in time and with separate purposes. As we discussed previously, Higashi’s early use of a firearm to steal Charlene’s wedding ring from her finger elevated the robbery to first degree, Count IV; the State proved the second degree assault based on Berniard’s later kicking Charlene in the head, Count V, in an attempt to get her to divulge the location of the safe. Thus, Knight’s second degree assault was not essential to the elevating of her robbery conviction to the first degree.
RCW 9A.56.200(l)(a)(i).
RCW 9A.36.021(1) provides that a person is guilty if he or she “(a) [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm; or .. . (c) [a]ssaults another with a deadly weapon.” (Emphasis added.)
In the absence of a statutory definition of “assault,” Washington courts use common law definitions, which include: “(1) an unlawful touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish it (attempted battery); and (3) putting another in apprehension of harm.” State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009); see also Kier, 164 Wn.2d at 806.
Freeman, 153 Wn.2d at 774.
Mutch, 171 Wn.2d at 664.
As the Supreme Court explained in Mutch:
While the court may look to the entire trial record when considering a double jeopardy claim, we note that our review is rigorous and is among the strictest. Considering the evidence, arguments, and instructions, if it is not clear that it was “manifestly apparent to the jury that the State [was] not seeking to impose multiple punishments for the same offense” and that each count was based on a separate act, there is a double jeopardy violation.
Mutch, 171 Wn.2d at 664 (alteration in original) (quoting State v. Berg, 147 Wn. App. 923, 931, 198 P.3d 529 (2008)).
Prater, 30 Wn. App. at 516.
Overruled on other grounds by Carey v. Musladin, 549 U.S. 79, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).
The legislature has since amended this statute in 2013. Laws of 2013, ch. 256 § 2. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
We agree with the State that defense counsel has no obligation to advocate for an exceptional sentence below the standard range in general, much less in every case.
State v. McGill, 112 Wn. App. 95, 47 P.3d 173 (2002).
A jury convicted McGill of three cocaine-delivery crimes. McGill, 112 Wn. App. at 98. The trial court imposed a low end standard sentence, stating it had “no option but to sentence [McGill] within the range.” McGill’s counsel failed to inform the trial court that there were other permissible bases for imposing an exceptional sentence downward. McGill, 112 Wn. App. at 97. On appeal, Division One held that McGill received ineffective assistance because the trial court’s comments indicated that it would have considered an exceptional sentence had it known it could. McGill, 112 Wn. App. at 100-01.
Moreover, there is nothing in the record to suggest that the court relied on an impermissible basis for refusing to impose an exceptional sentence, as was the case in McGill. McGill, 112 Wn. App. at 100 (citing State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998)).
Br. of Appellant at 31. Knight further argues that (1) she was upstairs when her accomplices committed the violent acts against Charlene and JS; (2) she had been unarmed during the earlier robbery of the Sanderses’ wedding rings; and (3) she never physically harmed any of the victims. This argument, however, has no hearing on the same criminal conduct/offender score issue. As the trial court properly instructed the jury, it could convict Knight based on her accomplice liability for all counts charged; and as we have already explained, the State’s evidence supported her convictions as an accomplice. Because she was culpable for the acts and intentions of her accomplices, her contention that she personally did
As Knight correctly concedes, “[C]rimes against separate victims could not constitute the same criminal conduct.” Br. of Appellant at 31.
Our Supreme Court expressly noted in Dunaway.
*961 Green and Franklin each committed armed robbery and then each attempted to murder his victim. The murders were attempted after receiving the money but before leaving the premises. When viewed objectively, the criminal intent in these cases was substantially different: [T]he intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone. RCW 9A.56.190; RCW 9A.32.030. The defendants have argued that the intent behind the crimes was the same in that the murders were attempted in order to avoid being caught for committing the robberies. However, this argument focuses on the subjective intent of the defendants, while the cases make clear that the test is an objective one. State v. Huff, 45 Wn. App. 474, 478-79, 726 P.2d 41 (1986); State v. Edwards, 45 Wn. App. 378, 382, 725 P.2d 442 (1986); State v. Calloway, 42 Wn. App. 420, 424, 711 P.2d 382 (1985). Additionally, neither crime furthered the commission of the other. While the attempted murders may have been committed in an effort to escape the consequences of the robberies, they in no way furthered the ultimate goal of the robberies. Clearly, the robberies did not further the attempted murders. Accordingly, we hold that these crimes did not encompass the same criminal conduct.
Dunaway, 109 Wn.2d at 216-17.
Even were we to consider the merits of Knight’s challenge to the special verdict instructions, the trial court here gave the proper instruction, as follows:
You will also be given special verdict forms for the [charged crimes]. If you find the defendant not guilty of any of these crimes, do not use the special verdict forms for that count. If you find the defendant guilty of any of these crimes, you will then use the special verdict forms. In order to answer the special verdict forms “yes,” all twelve of you must unanimously be satisfied beyond a reasonable doubt that “yes” is the correct answer. If you do not unanimously agree that the answer is “yes” then the presiding juror should sign the section of the special verdict form indicating that the answer has been intentionally left blank.
2 CP at 365 (Instruction 35). Thus, contrary to Knight’s assertion, the jury instruction properly informed the jury that (1) it should sign the special verdict forms only if it was unanimously satisfied that the answer was yes; and (2) if it was not unanimous, it should leave the form blank. This instruction comports with the instruction approved by our Supreme Court in State v. Guzman Nuñez, 174 Wn.2d 707, 710, 719, 285 P.3d 21 (2012).
See also O’Hara, 167 Wn.2d at 98 (manifest constitutional errors “may still be subject to a harmless error analysis”).
Reference
- Full Case Name
- The State of Washington v. Amanda Christine Knight
- Cited By
- 45 cases
- Status
- Published