                                                                        FILED
                                                               CGII2T WAFYEAI S
                                                                 fikTE CF WASIu-1(J.:
                                                                20171U:Y 15          3-1




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,                                    No. 74054-7-1

                       Respondent,                       DIVISION ONE

               V.

 DARRESON CHESTER HOWARD,                                UNPUBLISHED

                       Appellant.                        FILED: May 15, 2017



       Cox, J. — Darreson Howard appeals his judgment and sentence. There

was sufficient evidence for the jury to convict him as an accomplice to the crimes

of first degree attempted robbery and first degree assault. We do not reach

Howard's challenge to the admission of the res gestae evidence because

Howard failed to object to its admission at trial. There was no violation of the

speedy trial rule, Howard's right to be present during critical stages of the trial, or

his public trial right. The prosecutor's comments, which Howard challenges for

the first time on appeal, were not flagrant and ill-intentioned. Accordingly, these

comments do not provide a basis for reversal. There was no double jeopardy

violation in sentencing him for first degree assault and attempted first degree

robbery. We affirm.
No. 74054-7-1/2

       Around 11:15 p.m. on April 1,2013, Richard Powell, a town car driver,

dropped off a customer in West Seattle. He then drove to a nearby location and

stepped out of the car to have a cigarette and to call dispatch for his next

customer.

       A car passed by him and two people, possibly men, exited the car and

approached him. One pulled out a gun and told Powell to empty his pockets.

The other stood closely nearby.

       Powell responded by drawing his own gun, for which he had a concealed

weapons permit. Juan Garcia-Mendez, the person with the gun and who had

ordered Powell to empty his pockets, shot Powell three times in the chest.

Powell had fired two shots.1 Garcia-Mendez and the other person with him fled.

Powell managed to call 911. Police responded to the scene. Powell required

significant medical treatment to survive and recover.

       Surveillance video from the scene was shown to the jury at trial. It

showed this encounter and the exchange of gunfire.

       Shortly after this incident, Garcia-Mendez approached a police officer near

the scene. Garcia-Mendez had sustained gunshot wounds. The police also

discovered a silver KIA Spectra near the scene with blood in the rear seat.

       Following an investigation, the State charged three individuals based on

these events: Sophia Delafuente, Garcia-Mendez, and Howard. Specifically, the

State charged Howard, as an accomplice, with one count of first degree assault




       1 Report of Proceedings Vol. 17(August 19, 2015) at 681, 683; Report of
Proceedings Vol. 19(August 26, 2015) at 1061-64, 1072, 1074.
                                             2
No. 74054-7-1/3

and one count of attempted first degree robbery. A jury found him guilty as

charged.

        The trial court denied Howard's motion to vacate, on double jeopardy

grounds, the attempted first degree robbery conviction. The court entered its

judgment and sentence on the jury verdicts.

       Howard appeals.

                                    SUFFICIENCY

       Howard argues that insufficient evidence supports his conviction as an

accomplice to attempted first degree robbery. The record is sufficient to support

this conviction.

       Due process requires the State to prove every element of a crime beyond

a reasonable doubt.2 An insufficient evidence claim "admits the truth of the

State's evidence and all reasonable inferences from that evidence."3 The critical

inquiry is "whether the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt."4 "[W]e view the 'evidence in the light most

favorable to the prosecution and determine whether any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt.'"5




      2 State v. Rodriguez, 187 Wn. App. 922, 930, 352 P.3d 200, review denied, 184
Wn.2d 1011 (2015).

       3 Id.

       4Id. (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979)).

       5State v. Garcia, 179 Wn.2d 828, 836, 318 P.3d 266(2014)(quoting State v.
Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009)).

                                               3
No. 74054-7-1/4

       Circumstantial evidence can be as reliable as direct evidence.6 But

"inferences based on circumstantial evidence must be reasonable and cannot be

based on speculation."7

       We defer to the jury on questions regarding conflicting evidence, witness

credibility, and the persuasiveness of evidence.8

       Here, the trial court gave the jury the following unchallenged accomplice

instruction:

             A person is guilty of the crime if it is committed by the
       conduct of another person for which he or she is legally
       accountable. A person is legally accountable for the conduct of
       another person when he or she is an accomplice of such other
       person in the commission of the crime.

              A person is an accomplice in the commission of a crime if,
       with knowledge that it will promote or facilitate the commission of
       the crime, he or she..

             (2) aids or agrees to aid another person in planning or
       committing the crime.

              The word "aid" means all assistance whether given by
       words, acts, encouragement, support, or presence. A person who
       is present at the scene and ready to assist by his or her presence is
       aiding in the commission of the crime. However, more than mere
       presence and knowledge of the criminal activity of another must be
       shown to establish that a person present is an accomplice.
                     [9]




       6   Rodriquez, 187 Wn. App. at 930.

       7   State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).

       8   Rodriquez, 187 Wn. App. at 930.

      9 Report of Proceedings Vol. 22(September 1, 2015) at 1499-1500(emphasis
added).

                                               4
No. 74054-7-1/5

      The trial court also gave the following unchallenged attempted first degree

robbery instruction:

              To convict defendant Darreson Howard of the crime of
      attempted robbery in the first degree as charged in Count 2, each
      of the following elements of the crime must be proved beyond a
      reasonable doubt:(1)that on or about April 1, 2013, Darreson
      Howard or an accomplice did an act that was a substantial step
      toward the commission of a robbery in the first degree;(2)that the
      act was done with the intent to commit robbery in the first degree;
      and (3)that the act occurred in the state of Washington.

             A person commits the crime of robbery when he unlawfully
      and with intent to commit theft thereof takes personal property from
      the person or in the presence of another person, that person's role
      by the use of or threatened use of immediate force, violence, or
      fear of injury to that person. A threat to use immediate force or
      violence may be either expressed or implied. Force or fear must be
      used to obtain or retain possession of the property which would
      prevent or overcome resistance to the taking, in either of which
      cases the degree of force is immaterial.[10]

       Howard challenges the sufficiency of evidence for accomplice liability in

three ways. None is persuasive.

         Howard's Presence at the Scene During the Attempted Robbery

       He argues there was insufficient evidence to place him at the scene of the

crime when it occurred. We disagree.

      The parties stipulated that the judge read to the jury a joint statement

regarding certain evidence. The jury heard evidence from this stipulation that

prior to this shooting, government officials asked Howard for his cell phone

number, which he provided.




       10 Id. at 1502-03.

                                            5
No. 74054-7-1/6

       During the investigation of this shooting, police obtained cell phone tower

data regarding usage of the cell phone with the number Howard previously

provided. That usage was for the period from April 1, 2013 at 11:49 p.m. through

April 2, 2013 at 12:56 a.m.

      A detective testified that during the above time frame, Howard's cell phone

"ping[ed]" off two cell phone towers, which means the phone was located in the

area of the cell towers. On April 1 at 11:49 p.m., the phone pinged near the

location of Powell's shooting.

      Shortly after midnight, calls were made from the phone six to eight blocks

away from the scene and pinged a different cell phone tower. This tower is

closest to the 5600 block on Delridge Way in West Seattle. Celia Galindo,

Howard's "romantic interest," resided in this area at the time.

      That night at 11:50 p.m., Galindo called 911 to report that Garcia-Mendez

had been shot. Her daughter later told police that two men, meeting Garcia-

Mendez's and Howard's description, were in Galindo's apartment on that date.

      Additionally, police found a KIA Spectra parked in the area. Howard's

finger print was on an outside window and his palm print was on the truck lid. His

DNA, mixed with Garcia-Mendez's DNA, was also found on the front passenger

door handle. Significantly, police found blood and bloody tissue inside the car.

       In that same area, police also found a garbage can containing bloody

clothing, bloody tissue, and a black glove. The glove contained a DNA mixture

from Garcia-Mendez, Howard, and Delafuente.




                                            6
No. 74054-7-1/7

       Police also found two red bandanas on the street covered with blood. The

bandanas contained a DNA mixture from both Garcia-Mendez and Howard.

Notably, the jury also watched a store surveillance video of Howard purchasing a

red bandana at a mini-mart near Delridge in West Seattle the morning of Powell's

shooting.

       After Howard's arrest, a detective asked him if he knew the purpose of

their conversation. In response, Howard replied that Garcia-Mendez got shot but

claimed that he was not there. When the detective asked Howard about his cell

phone number, he claimed that the number the detective mentioned was not his.

This conflicted with his previous statement to government officials that the cell

phone number that he previously supplied was his.

       At trial, Howard attempted to rebut the cell tower evidence regarding the

proximity of the phone to the scene of the crime. He claimed that he was not at

the crime scene because he was at Galindo's apartment, which was near one of

the cell phone towers.

       A jury could find beyond a reasonable doubt that Howard was at the scene

of the crime during the relevant time period. The cell tower evidence shows that

a cell phone, using his phone number, was near the crime scene at the relevant

time periods. Although after his arrest he denied that the cell phone number was

his, this conflicts with his earlier statement that the number was his. And despite

Howard's alternative explanation for the evidence, the jury was entitled to decide

which statement was credible and which was not. We will not overturn that

credibility determination.


                                             7
No. 74054-7-1/8

       The DNA and blood evidence also tie Howard to the crime. That Garcia-

Mendez was bleeding after being shot is consistent with the evidence that Powell

fired his gun during the encounter. The timing of Galindo's 911 call reporting

Garcia-Mendez's injuries is also consistent with Powell having shot him during

the attempted robbery.

       Likewise, Howard's DNA was on the car containing some of the blood

evidence. That Howard purchased a red bandana that matched the description

of the bloody bandana found at the crime scene links him further to the crime.

       The jury also watched surveillance footage of the encounter and gunfire

exchange. A detective analyzed the video and testified about his analysis. He

went through the video frames and described the sequence of the gunshots for

the jury.

       The jury was entitled to decide based on this video and the other evidence

that Howard was the other person next to Garcia-Mendez in the video.

       Based on this evidence, a jury could find beyond a reasonable doubt that

Howard was present at the scene of the crime at the relevant time.

       Howard argues that the cell tower evidence did not establish his presence

at the relevant time because it provided only which cell phone tower the phone

used, not the phone's exact location or the phone's user." He concedes that this

evidence, at best, establishes that the phone was used in the vicinity of the

tower. But that is the point of this circumstantial evidence. The jury was entitled




       11 Appellant's Opening Brief at 35.
                                             8
No. 74054-7-1/9

to consider this evidence and other direct and circumstantial evidence in

determining that Howard was at the crime scene at the relevant time.

       Howard also argues that while the DNA evidence from the KIA Spectra

and the bandana establish that he had contact with both items, it does not

establish when that contact occurred. Again, the jury was entitled to consider

this circumstantial evidence together with other evidence to determine whether

Howard was present at the scene of the crime at the relevant time.

       Finally, although Howard offered alternative explanations for the evidence,

the jury was not required to accept them. Rather, the jury was entitled to

reasonably infer based on the facts and evidence presented that he was present

at the crime scene at the relevant time.

                 Garcia-Mendez's Intent to Commit Attempted Robbery

       Without citation to authority, Howard also argues there was insufficient

evidence that Garcia-Mendez intended to commit robbery to establish that

Howard acted as an accomplice.12 This argument is unpersuasive.

       First, nowhere in the unchallenged jury instruction on accomplice liability is

there any requirement to prove Garcia-Mendez's intent to commit attempted

robbery. Thus, the premise of this argument is false. There simply was no

requirement in the jury instructions to prove any intent of Garcia-Mendez in order

to establish Howard's accomplice liability.

       Second, more importantly, both the accomplice liability instruction in this

case and relevant case law make clear that it is sufficient to show general


       12   Id. at 33-34.

                                              9
No. 74054-7-1/10

knowledge of the charged crimes to establish accomplice liability. In

Washington, an accomplice is not required to "'have specific knowledge of every

element of the crime committed by the principal, provided he has general

knowledge of that specific crime.'"13 Further, "[t]he crime' means the charged

crime, but because only general knowledge is required, even if the charged crime

is aggravated, premeditated first degree murder ... ,'the crime'for purposes of

accomplice liability is murder, regardless of degree."14

       Here, the jury could reasonably infer that Howard had knowledge of the

robbery. As we previously discussed in this opinion, a jury could find beyond a

reasonable doubt that Howard was the other person with Garcia-Mendez at the

crime scene at the relevant time. The jury watched the video footage that

showed two individuals approach Powell, get very close to him, and remained

close to him before the shooting. Based on this evidence, the jury could

reasonably infer that Howard saw Garcia-Mendez point a gun at Powell and

heard Garcia-Mendez demand that Powell empty his pockets. Thus, the jury

could also reasonably infer that Howard had knowledge of the robbery.

       Additionally, during trial, Leon Gordon testified about his interaction with

two individuals shortly before Powell's shooting. After a car drove by him and

parked, two people exited the vehicle and approached Gordon. They were

completely covered and wore dark clothing, including scarfs or bandanas around



       13 In re Pers. Restraint of Domingo, 155 Wn.2d 356, 365, 119 P.3d 816(2005)
(quoting State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713(2000)).
       14   In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 835, 39 P.3d 308(2001).

                                               10
No. 74054-7-1/11

their heads. One of the two individuals, had a "strange" hairstyle where the hair

appeared shorter in the front and longer in the back. That individual was shorter

than the other, had a male voice, and asked Gordon if he was "gang banging."

Gordon responded "No" and walked away towards a bus stop. He did not see

any weapons but watched the car drive off.

       Shortly after, two men approached Powell and one of them shot him after

he pulled a gun in response to the demand to empty his pockets. A police officer

responding to Powell's shooting saw Gordon across the street from the scene

and contacted him. Gordon testified that he came into contact with the police

within "five minutes or less" after his encounter with the two individuals. The day

after the shooting, Gordon identified Garcia-Mendez from a photo montage as

one of the individuals.

       The record shows that on the day of these incidents, both Howard and

Garcia-Mendez had "unusual haircuts in which their heads were shaved at the

front of the ears and the hair was very long in the back." Howard is also four

inches shorter than Garcia-Mendez. Based on this evidence, the State

demonstrated, by a preponderance of the evidence, Howard's involvement in the

Gordon incident.

       At trial, the State argued that Howard and Garcia-Mendez went "looking

for a target, starting with. . . Gordon," and later picked Powell as their target.

The evidence of the Gordon encounter showed that Howard and Garcia-Mendez

previously acted together in an incident close in proximity and time to the robbery




                                             11
No. 74054-7-1/12

and Powell's shooting. From this evidence, the jury could reasonably infer that

Howard had knowledge of the robbery.

                        Howard Aids in the Attempted Robbery

       Howard lastly argues that the evidence was insufficient to show that he

acted in any way to facilitate the attempted robbery. We disagree.

       Here, as we previously discussed in this opinion, the video footage shows

that both individuals approached Powell, got very close to him, and remained

close to him before the shooting. From the short amount of time that passed

between the approach and the shooting, the jury could reasonably infer that

Howard remained next to Garcia-Mendez in order to assist in the robbery. The

jury could also reasonably infer that Howard saw Garcia-Mendez point a gun at

Powell and heard Garcia-Mendez demand that Powell empty his pockets. Thus,

the evidence was sufficient for the jury to find that Howard acted with the

knowledge that his actions would promote or facilitate the commission of the

attempted robbery.

                                     ER 404(b)

       Howard argues that the trial court abused its discretion by admitting

evidence of his alleged prior bad acts—specifically, the Gordon incident. He did

not object to admission of the evidence of the prior incident, and there is no

showing of a manifest error affecting a constitutional right.15 Accordingly, we do

not address his challenge to the admissibility of the res gestae evidence.




       15   See RAP 2.5(a).

                                            12
No. 74054-7-1/13

       Pretrial, Howard moved to exclude any evidence or mention of gang

membership or affiliation. The trial court prohibited any such mention. But there

was no motion or other objection to the admission of evidence describing the

incident with Gordon. Accordingly, Howard did not preserve this issue for review.

He does not argue to the contrary in his briefing on appeal.

                                 SPEEDY TRIAL RIGHT

       Howard argues he is entitled to dismissal because the trial court violated

his speedy trial right. There was no such violation in this case.

       CrR 3.3 protects a defendant's constitutional right to a speedy tria1.16 CrR

3.3(b)(1)(i) provides that a defendant detained in jail shall be brought to trial

within 60 days of arraignment.17

       We review for abuse of discretion a trial court's decision to grant a

continuance.18

       Here, Howard's argument focuses on the two trial court orders continuing

his trial. It is undisputed that Howard's speedy trial "[e]xpiration date" was set for

September 4, 2015. The two continuance orders were entered on August 5th

and 6th of 2015. Howard's trial began on August 10th, 2015, before the

expiration date.

       Because the trial court did not continue Howard's trial beyond the speedy

trial expiration date, there was no violation of his right to a speedy trial.


       16   State v. Kenyon, 167 Wn.2d 130, 136, 216 P.3d 1024 (2009).

       17   State v. 011ivier, 178 Wn.2d 813, 823, 312 P.3d 1 (2013).

       16   Id. at 822-23.

                                                 13
No. 74054-7-1/14

       Howard relies on State v. Kenyonl° to argue that the trial court violated his

speedy trial right by failing to provide required details regarding the lack of

judicial availability. But that case is distinguishable because the trial court in that

case continued the trial past the speedy trial deadline.20 Thus, it was required to

document the availability of pro tempore judges and unoccupied courtrooms but

failed to do so.

       That is not the case here. The continuances did not continue Howard's

trial beyond the speedy trial expiration date.

                                RIGHT TO BE PRESENT

       Howard argues that the trial court violated his right to be present at trial.

There was no such violation.

       As a matter of due process, criminal defendants have a fundamental right

to be present at all critical stages of the tria1.21 "A 'critical stage' is one at which

the defendant's presence 'has a relation, reasonably substantial, to the fullness

of his opportunity to defend against the charge.'"22

       Whether a defendant's constitutional right to be present has been violated

is a question of law we review de novo.23



       19   167 Wn.2d 130, 216 P.3d 1024(2009).
       29 1c1   at 135.
       21 State v. Zvion Houston-Sconiers, No. 92605-1, slip op at 31 (Wash. Mar. 2,
2017), http://www.courts.wa.goviopinions/pdf/926051.pdf.
       22jst (internal quotation marks omitted)(quoting State v. Irbv, 170 Wn.2d 874,
881, 246 P.3d 796(2011)).
       23   Liao , 170 Wn.2d at 880.

                                               14
No. 74054-7-1/15

       A defendant's right to be present is not absolute.24 In In re Personal

Restraint of Benn, the supreme court held that Gary Benn did not have a right to

be present at a continuance hearing.25 This is because his absence during the

hearing "did not affect his opportunity to defend the charge. The motion for

continuance involved no presentation of evidence, nor was the purpose of the

hearing... to determine the admissibility of evidence or the availability of a

defense.          ."26   The court also determined that if any such right existed, Benn's

absence was harmless.27

       Here, according to Benn, Howard did not have a right to be present when

the court entered the orders continuing his trial. Thus, the trial court did not

violate Howard's right to be present during a critical stage.

       Howard relies on State V. Rupe28 to argue that a trial court's

Icionsideration of the time for setting the trial is a critical stage." He also argues

that the trial court's error is not harmless because his absence deprived him of

the opportunity to object to the continuances as CrR 3.3 requires.

       Rupe is distinguishable because the issue in that case was whether the

defendant was entitled to counsel when the trial court set his resentencing trial




       24 State v. Thompson, 190 Wn. App. 838, 843, 360 P.3d 988(2015), review
denied, 185 Wn.2d 1012(2016).

       25   134 Wn.2d 868, 920, 952 P.2d 116(1998).
       26   id.

       27   Id. at 921.

       28   108 Wn.2d 734, 741,743 P.2d 210(1987).

                                                   15
No. 74054-7-1/16


date.29 That was not the case here. Thus, Howard's reliance on that case is

misplaced.

                               RIGHT TO PUBLIC TRIAL

       Howard argues that the trial court violated his right to a public trial. There

was no such violation.

       Defendants have a constitutional right to a public tria1.39 The public has a

complementary right to open proceedings under the federal and state

constitutions.31

       Before determining whether a violation occurred, Washington courts apply

the experience and logic test to determine whether a particular proceeding

implicates a defendant's public trial right.32 Under the experience prong, the

court asks "whether the place and process have historically been open to the

press and general public."33 Under the logic prong, the question is "whether

public access plays a significant positive role in the functioning of the particular

process in question.'"34




       29   Id. at 741-42.
       30 See Const. art. I, § 22; U.S. Const. amend. VI.

       31   State v. Rainey, 180 Wn. App. 830, 837, 327 P.3d 56(2014).

       32 State v. Sublett, 176 Wn.2d 58, 72-73, 292 P.3d 715(2012)(C. Johnson, J.,
lead opinion); see also id. at 136, 142(Stephens J., concurring).

       33   Id. at 73.

       34 Id. (quoting Press-Enter. Co. v. Superior Court of CA for Riverside County, 478
U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).

                                               16
No. 74054-7-1/17

       If the answer to both questions is affirmative, "experience and logic

counsel that a particular proceeding must be open."35 The defendant bears the

burden of establishing a public trial right violation.36

       Whether a defendant's public trial right has been violated is a question of

law we review de novo.37

                                   Experience Prong

       Howard argues that "continuance hearings have historically been held in

open court." Because Howard failed in his burden to satisfy the experience

prong, we disagree.

       Howard fails to provide any authority showing that a trial court's entry of

orders continuing trial within the speedy trial period has historically been open to

the press and general public. We assume that he has found none.

       He cites article 1, section 22 of Washington's constitution and Kenvon35 to

support his argument. Washington's constitution states that an accused has the

right "to have a speedy public trial."39 But it says nothing about continuance

hearings or how often they occur in open court.




       35   State v. Nionge, 181 Wn.2d 546, 554, 334 P.3d 1068 (2014).

       36   See State v. Jones, 185 Wn.2d 412, 422-24, 372 P.3d 755(2016).

       37   Id. at 421.

       38   167 Wn.2d at 136.

       33   Const. art. I, § 22.

                                               17
No. 74054-7-1/18

       Kenyon does not support this argument for the same reason. The focus of

that case was the speedy trial right, not the public trial right. Thus, Howard failed

in his burden to satisfy the experience prong.

       Because he must establish both prongs and fails to show that the

experience prong supports his argument, we need not address the logic prong.

                          PROSECUTORIAL MISCONDUCT

       Howard argues that the prosecutor committed misconduct. We decline to

reach the issue because he did not object below and the comment is neither

flagrant nor ill-intentioned.

       To prevail on a claim of prosecutorial misconduct, the defendant must

establish that the prosecutor's conduct was both improper and prejudicial.°

IM]isconduct is to be judged not so much by what was said or done as by the

effect which is likely to flow therefrom."'"

       A defendant waives the misconduct issue by failing to object or request a

curative instruction at trial, "unless the conduct was so flagrant and ill-intentioned

that an instruction could not have cured the resulting prejudice."42 This

heightened standard requires that a defendant "show that(1)`no curative

instruction would have obviated any prejudicial effect on the jury' and (2) the




       40   State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653(2012).

       41   Id. at 762(quoting State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208
(1936)).

       42 State   v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014).

                                               18
No. 74054-7-1/19

misconduct resulted in prejudice that'had a substantial likelihood of affecting the

jury verdict."43

        When the defendant fails to object, it "strongly suggests to a court that

the argument or event in question did not appear critically prejudicial to an

appellant in the context of the trial.'"44

                                   Closing Argument

        Howard argues that the prosecutor committed misconduct during closing

argument. But he did not object. Thus, this argument is not preserved for review

unless the comment was flagrant and ill-intentioned.45

       "In closing argument, a prosecutor is afforded   wide latitude to draw and
express reasonable inferences from the evidence."46 But "[it is improper for

prosecutors to 'use arguments calculated to inflame the passions or prejudices of

the jury.'"47

       In State v. Davis, the supreme court was faced with a prosecutor's

comment during closing argument that the defendant was the victim's "judge,




      43 Emery, 174 Wn.2d at 761 (quoting State v. Thorqerson, 172 Wn.2d 438, 455,
258 P.3d 43(2011)).

       44 State v. McKenzie, 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006)(quoting State
v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).

       45   Lindsay, 180 Wn.2d at 430.

       46   State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203(2012).

       47 Statev. Thierrv, 190 Wn. App. 680, 690, 360 P.3d 940(2015)(internal
quotation marks omitted)(quoting In re Pers. Restraint of Glasmann, 175 Wn.2d 696,
704, 286 P.3d 673(2012)), review denied, 185 Wn.2d 1015 (2016).

                                              19
No. 74054-7-1/20

jury[d and executioner.'"45 The supreme court specifically concluded that nothing

in the record "indicate[d] the comment was intended to inflame the jury."49

       Here, during trial, a police officer testified that Powell "had passed on"

when the officer arrived and that he tried to bring Powell "back to life." An

emergency physician also testified that Powell "would have definitely died"

Without medical intervention.

       During closing argument, the prosecutor stated:

               Without the heroic efforts of the first responding officers, the
       first responding medics, and Harborview Medical Center, you would
       be sitting here on a homicide trial. But for medical intervention, the
       defendants would have successfully executed Mr. Powell.[59]

       Howard did not object but now challenges the above emphasized

language for the first time on appeal.

       As in Davis, nothing in this record indicates that the prosecutor made this

comment to inflame the passions or prejudices of the members of the jury.

Although this statement may have been a strong characterization of the evidence

presented, it was not improper and, thus, was not flagrant and ill-intentioned.

       Howard argues that the prosecutor improperly appealed to the jurors' bias.

To support this argument, Howard cites a supreme court case that discusses

how a prosecutor injected racial prejudice into the tria1.51 But the characterization


       48 175 Wn.2d 287, 337, 290 P.3d 43(2012)(internal quotation marks omitted)
(quoting State v. Davis, 141 Wn.2d 798, 873, 10 P.3d 977(2000)).

       49   Davis 141 Wn.2d at 873.

       59   Report of Proceedings Vol. 22(September 1, 2015) at 1509(emphasis added).

       51   See State v. Monday, 171 Wn.2d 667, 676-81, 257 P.3d 551 (2011).

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No. 74054-7-1/21

of Powell's condition, consistent with the evidence in the record, does not equate

to racial prejudice.

       Lastly, Howard argues that the prosecutor's statement "improperly implied

[that] the State spared Mr. Howard" from a more serious charge of murder. Not

so. The prosecutor's statement that "the defendants would have successfully

executed Mr. Powell" merely reflects the State's characterization of the evidence

presented to the jury.

                                  DOUBLE JEOPARDY

       Howard argues that the trial court improperly denied his motion to vacate

his attempted robbery conviction. Because there is no double jeopardy violation,

we disagree.

       In a single proceeding, the prosecution may bring, and the jury may

consider, multiple charges arising from the same criminal conduct.52 But courts

offend double jeopardy by entering multiple convictions for the same offense.53

       The legislature defines offenses and sets punishments.54 "'Where a

defendant's act supports charges under two criminal statutes, a court weighing a

double jeopardy challenge must determine whether, in light of legislative intent,

the charged crimes constitute the same offense.'"55



       52 State   v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753(2005).

       53   Id.

       54   Id. at 771.

       55   Id. (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291
(2004)).

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No. 74054-7-1/22

       State v. Freeman56 controls here. In that case, the supreme court held

that the legislature "did intend to punish first degree assault and first degree

robbery separately, as the 'lesser' crime [first degree assault] has the greater

standard range sentence."57

       Here, the motion before the trial court was to "vacat[e] the attempted

robbery conviction on double jeopardy grounds."58 The theory underlying this

request is not repeated on appeal. So, we consider that theory abandoned.59

       The trial court denied this motion on the basis that it was "not supported in

the law."69 In doing so, the court relied on the "same elements" or "same

evidence" test articulated in Blockburger v. United States61 and State v. Calle.62

       After some further discussion with counsel, the trial court inquired whether

Howard wished "to make any additional argument.i"63 Howard's counsel replied

"No, your Honor."




       56   153 Wn.2d 765, 108 P.3d 753(2005).

       57   Id. at 779-80.

       58 Clerk's Papers at 81; see also Report of Proceedings Vol. 26(October 2,
2015) at 1629-30.

       59 See   Prostov v. Dep't of Licensing, 186 Wn. App. 795, 823, 349 P.3d 874
(2015).

       69   Report of Proceedings Vol. 26(October 2, 2015) at 1631.

       61   284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).

       62 125 Wn.2d  769, 777-78, 888 P.2d 155(1995); Report of Proceedings Vol. 26
(October 2, 2015) at 1631.

       63   Report of Proceedings Vol. 26(October 2, 2015) at 1632.

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No. 74054-7-1/23

       Despite having not made any additional argument about double jeopardy

below, Howard now argues that the trial court should not have decided that the

same elements test legally barred the application of double jeopardy. Rather, he

now urges that this "assault committed in the furtherance of [this] robbery"

invokes double jeopardy. Not so.

       First, the supreme court expressly held to the contrary in Freeman.

Specifically, the court held that the legislature "did intend to punish first degree

assault and first degree robbery separately, as the 'lesser' crime [first degree

assault] has the greater standard range sentence?"

       Second, the essence of Howard's argument is that a double jeopardy

analysis may, nevertheless, apply where the focus is on the facts of the individual

case, not legislative intent. Specifically, he asserts this is so where the violence

in an assault does not have an independent purpose.65 For support, he relies on

In re Personal Restraint of Francis.66

       That case is distinguishable because, there, the State relied on Shawn

Francis's second degree assault charge to elevate his attempted robbery

charge to the first degree.67 The supreme court in Freeman determined "that the

legislature [did not] intend[] to punish second degree assault separately from




       64   Freeman, 153 Wn.2d at 779-80.

       65 Appellant's   Opening Brief at 43.

       66   170 Wn.2d 517, 242 P.3d 866 (2010).

       67   Id. at 521 (emphasis added).

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No. 74054-7-1/24

first degree robbery when the assault facilitates the robbery."68 Thus, the Francis

court, relying on Freeman, concluded that the second degree assault conviction

merged into the first degree attempted robbery conviction.69

       First degree assault, not second degree assault, was the charge on which

the jury convicted Howard in this case. Freeman expressly held there was no

double jeopardy violation for these charges.

       Moreover, Francis involved the merger doctrine. This case does not, and

Howard does not argue otherwise. Thus, Howard's reliance on Francis is

misplaced.

       We also note that it is, at least, arguable that there was an independent

purpose for the violence in this case. In Freeman, the supreme court stated that

two convictions, which appear to be for the same crime, may be punished as

separate offenses "if there is an independent purpose or effect to each."79

       Here, Garcia-Mendez fired the first shot at Powell after he pulled out his

own gun in response to the demand to empty his pockets. Powell fired in self-

defense. Thus, Garcia-Mendez's shooting of Powell had the independent

purpose of trying to prevent Powell from shooting him. That Garcia-Mendez's

shooting of Powell proved unsuccessful—Powell wounded Garcia-Mendez in the

exchange of gunfire—does not alter the analysis in this case.




      68    Freeman, 153 Wn.2d at 776(emphasis added).

      69    Francis, 170 Wn.2d at 524-27.

       79   Freeman, 153 Wn.2d at 773.
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      In sum, the trial court's analysis of the double jeopardy issue was correct.

The new argument on appeal does not alter our conclusion that the trial court

properly rejected the double jeopardy claim.

      We affirm the judgment and sentence.




WE CONCUR:


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