     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,                             No. 70858-9-1

                     Respondent,

       v.



EDMOND MAYNOR,                                   UNPUBLISHED OPINION

                     Appellant.                  FILED: October 12, 2015


       Verellen, A.C.J. — Edmond Maynor appeals his convictions for first degree

robbery, second degree assault, and two counts of first degree assault. He contends

the robbery and second degree assault convictions violate double jeopardy, that a

mistrial was warranted when the prosecutor referred to a prior incident that was not in

evidence, and that his attorney was ineffective for failing to challenge his offender score

based on same criminal conduct. As charged and proven, the State established

robbery based on fear or apprehension resulting from Maynor pointing a gun at a store

clerk to obtain jewelry or shooting the gun in the store to retain the jewelry. The State

did not make an election. Because either pointing or shooting the gun constituted

second degree assault and was necessary to elevate the robbery to first degree

robbery, the merger doctrine of double jeopardy precludes entry of both convictions.

And because the trial court's curative instruction and Maynor's testimony remedied any

potential prejudice from the prosecutor's improper question, a mistrial was unwarranted.
No. 70858-9-1/2



Finally, Maynor fails to show that he was prejudiced by his attorney's failure to raise the

same criminal conduct objection to his offender score. Accordingly, we reverse the

second degree assault conviction but otherwise affirm.

                                       BACKGROUND

       On September 21, 2012, Maynor entered Westlake Center in downtown Seattle

and went into the Express Jewelry store. He was wearing a mask, sunglasses, and a

hat. Maynor approached the counter and told Tu Huynh, the only employee in the

store, that he was looking for a diamond engagement ring priced at $7,000 to $15,000.

Huynh responded that the store did not carry such expensive jewelry, but had a $5,000

engagement ring. He then took a ring out of a tray of about 18 other rings and showed it

to Maynor.

      At this point, Maynor pulled out a gun, pointed it at Huynh, and demanded the

whole tray of rings. Maynor told Huynh he would shoot him if he did not give him the

tray. When Huynh pulled out the tray, Maynor grabbed it and ran. After running just a

few steps, Maynor stopped, turned around, and shot at Huynh. The bullet nearly struck

Huynh, tearing a hole in his shirt sleeve. The bullet continued through the wall and into

the back of the neighboring store, nearly hitting the store manager.

       Maynor fled. Huynh chased him through the mall until they reached the stairs to

the Fourth Avenue entrance. Maynor jumped down the stairs and fell, but got up with

the gun in his hand, pointed it at Huynh, and fired two more shots. Huynh ducked and

avoided being struck by the bullets.

       Roberto Sandoval, a bell caption at a nearby hotel, saw Maynor running down

the street in a mask. Sandoval chased Maynor and pushed him. Maynor tried to hit
No. 70858-9-1/3



Sandoval, but Sandoval pushed him down. Maynor then pulled out the gun and pointed

it at Sandoval. Sandoval threw himself down on Maynor and began fighting for the gun.

Three shots were fired, and one bullet struck Sandoval's right hand and arm. Sandoval

continued to try to grab the gun, and Maynor hit him three times on the head with it.

Sandoval yelled for help, and the gun was thrown out of reach. Several bystanders

came to his aid, including a U.S. Marshal, who handcuffed Maynor and waited for

Seattle police.

       Seattle police arrived and took Maynor into custody. On the ground near the

scene, police recovered the handgun, mask, sunglasses, and a small purse. Inside the

purse was a notebook containing what appeared to be Maynor's robbery plans.

       The State charged Maynor with one count of first degree robbery, alleged to have

been committed with a deadly weapon, and three counts of first degree assault (two

counts involving Huynh and one count involving Sandoval). Maynor testified and

admitted to firing one shot in the store, but claimed that he did not intend to hurt Huynh

and was only trying to scare him into letting go of the jewelry. He also admitted to firing

additional shots at Huynh while fleeing, but claimed he was only trying to keep Huynh

from following him. Finally, Maynor admitted that his gun discharged three times during

his struggle with Sandoval, but claimed he did not purposely shoot the gun.

       The jury found Maynor guilty of first degree robbery, two counts of first degree

assault (one count involving Huynh and one count involving Sandoval), and one count

of the lesser included offense of second degree assault (on the other assault count

involving Huynh). By special verdict, the jury also found that Maynor was armed with a

firearm on each count. The court sentenced Maynor to 474 months of confinement.
No. 70858-9-1/4



                                         DISCUSSION

                                      Double Jeopardy

       Maynor first contends that because the robbery and second degree assault

convictions were for the same offense, entry of both convictions violates double

jeopardy. Under the existing merger case law, we agree.

      A court that enters multiple convictions for the same offense violates both the

federal and state constitutional guaranty against double jeopardy.1 Whether two

offenses are considered separate offenses hinges upon legislative intent.2 To

determine legislative intent, we first consider any express or implicit representations of

legislative intent.3 In the case of first degree robbery and second degree assault, our

courts have recognized that this inquiry "is a dead end; the relevant statutes provide no

express or implicit representations."4

       We next consider the Blockburger test, the merger doctrine, and whether there

was an independent purpose or effect for each offense.5 This inquiry is conducted as to

first degree robbery and second degree assault on a case by case basis, taking a "hard

look at each case."6 We do not consider the elements of the crimes on a hypothetical or

abstract basis but view the offenses as actually charged and proved.7


       1 State v. Freeman. 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005).
       2 In re Pers. Restraint of Francis. 170 Wn.2d 517, 523, 242 P.3d 866 (2010).
       3Jd


       5 Freeman, 153 Wn.2d at 772-73 (citing Blockburger v. United States. 284 U.S.
299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
       6 ]d at 774.
       7 Francis. 170 Wn.2d at 523.
No. 70858-9-1/5



      Maynor does not argue that the offenses are the same under the Blockburger

test. We need not perform this analysis.8

      Instead, Maynor argues that the offenses as charged and proved are the same

under the merger doctrine and therefore amount to double jeopardy. "Under the merger

doctrine, when the degree of one offense is raised by conduct separately criminalized

by the legislature, we presume the legislature intended to punish both offenses through

a greater sentence for the greater crime."9 Thus, an assault committed in furtherance of

a robbery merges with the robbery.10

      Here, the to convict instruction set forth the required proof as charged in the first

degree robbery count:

             (3) That the taking was against the person's will by the defendant's
      use or threatened use of immediate force, violence or fear of injury to that
      person or to that person's property . . . ;

            (4) That force or fear was used by the defendant to obtain or retain
      possession of the property; [and]

             (5) That in the commission of these acts or in immediate flight
      therefrom, the defendant was armed with a deadly weaponP1]




       8 See id. ("These considerations fBlockburger test, merger doctrine,
determination of independent purpose or effect of each offense] inform but do not
compel our outcome."); Freeman. 153 Wn.2d at 777 (recognizing that "'Blockburger is
not dispositive of the question whether two offenses are the same'" (quoting In re Pers.
Restraint of Percer. 150 Wn.2d 41, 50-51, 75 P.3d 488 (2003))).
      9 Freeman. 153 Wn.2d at 772-73.
       10 ]d. at 778 (merger does not apply to first degree assault because first degree
assault carries a greater sentence than first degree robbery)
       11 Clerk's Papers (CP) at 92 (emphasis added).
No. 70858-9-1/6



      The to convict instruction on the lesser included offense of second degree

assault required proof that "the defendant assaulted Tu Huynh with a deadly weapon."12

The instructions defined "assault" as:

             An assault is an intentional shooting of another person, with
       unlawful force, that is harmful or offensive regardless of whether any
       physical injury is done to the person.

              An assault is also an act, with unlawful force, done with intent to
       inflict bodily injury upon another, tending but failing to accomplish it and
       accompanied with the apparent present ability to inflict the bodily injury if
       not prevented. It is not necessary that bodily injury be inflicted.

              An assault is also an act, with unlawful force, done with the intent to
      create in another apprehension and fear of bodily injury, and which in fact
      creates in another a reasonable apprehension and imminent fear of bodily
       injury even though the actor did not actually intend to inflict bodily injury.[13]

      The State contends that, as charged, the robbery and assault did not merge

because proof of the second degree assault was not required to establish the robbery.

The State asserts the robbery charge was based on Maynor's act of pointing the gun at

Huynh and threatening to shoot if he did not give up the jewelry and the second degree

assault charge was based on the shot Maynor fired at Huynh in the store after he

obtained the jewelry and began to flee. Thus, the State contends the charged assault

(the shooting) was not required to establish the robbery (achieved by the gun pointing).

       But the instructions did not narrow the charges in the manner suggested by the

State. To convict Maynor of first degree robbery, the jury had to find that he "use[d] or

threatened use of immediate force" and was armed with a deadly weapon "in the




       12 CP at 104.
       13 CP at 96.
No. 70858-9-1/7



commission of these acts or in immediate flight therefrom."14 And to convict of second

degree assault, the jury had to find that he intentionally assaulted Huynh with a deadly

weapon. As proved, there was no threatened use of force until Maynor displayed the

gun and pointed it at Huynh. There was no use of force until he shot the gun just before

he fled from the store. To find Maynor guilty of robbery as charged and proven, the jury

had to find that either Maynor threatened use of force to obtain the property while armed

with or displaying a deadly weapon by pointing the gun at Huynh and demanding the

tray of rings or that he used force to retain the property while armed with or displaying a

deadly weapon by shooting at him in the store after he took the jewelry. Both of these

acts amount to a second degree assault. Under the merger doctrine, because the

second degree assault elevated the crime to first degree robbery, the convictions were

for the same offense.

       The State argues it clearly elected the shooting as the act constituting the assault

charge. To withstand a double jeopardy challenge, it must be manifestly apparent that

the jury based each conviction on a separate act.15 "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



       14 CP at 92 (emphasis added).
       15 State v. Mutch. 171 Wn.2d 646, 664, 254 P.3d 803 (2011); seeajso Stetej/,
Carson. No. 90308-5, 2015 WL 5455671, at *9 (Wash. Sept. 17, 2015) ("[A]n election
can be made by the prosecuting attorney in a verbal statement to the jury as long as the
prosecution 'clearly identified] the act upon which' the charge in question is based."
(alteration in original) (quoting State v. Thompson. 169 Wn. App. 436, 474-75, 290 P.3d
996(2012))).
No. 70858-9-1/8



violation."16 Here, the prosecutor's closing argument regarding first degree robbery
referred to Maynor's testimony admitting that he was armed with a deadly weapon when

he entered the store "threatening to use his weapon."17 But in the very next breath, the

prosecutor argued, "And he fired a round in the store."18 The prosecutor's reference to

both being armed with and shooting the gun in the context of first degree robbery did

not make it manifestly apparent to the jury that the State was relying only on being

armed with a firearm and not upon shooting the firearm as the basis for first degree

robbery.

       Additionally, "we cannot consider the closing statement in isolation."19 The

evidence and the instructions allowed the jury to find that either assault established the

robbery. The instructions did not require that the assault be based on an act separate

and distinct from that which formed the basis for the robbery.20 Accordingly, "[t]his

creates an ambiguity in the jury's verdict, which, under the rule of lenity, must be

resolved in the defendant's favor."21




       16 Mutch. 171 Wn.2d at 664 (emphasis omitted) (alteration in original) (quoting
State v. Berg. 147 Wn. App. 923, 931, 198 P.3d 529 (2008)).
       17 Report of Proceedings (RP) (June 18, 2013) at 279.
       18 jd,
       19 State v. Kier. 164 Wn.2d 798, 813, 194 P.3d 212 (2008).
       20 The instructions stated only that the jury had to find that the assault charged in
count II occurred "on an occasion separate and distinct from [c]ount IV," the other first
degree assault charge involving Huynh. CP at 98, 104.
       21 Kier, 164 Wn.2d at 811 (despite State's election in closing argument of
different victims for the two offenses, evidence and instructions allowed jury to convict if
it found that victim was the same for both counts).
No. 70858-9-1/9



       State v. Kier controls the merger analysis.22 In a carjacking, Kier pointed a gun
at the driver of a car, who was able to run away. Kier then pointed the gun at the

passenger in the car and directed the passenger to get out of the car. Kier and others

drove away with the car. The State charged Kier with first degree robbery, identifying

the driver and the passenger as victims of the carjacking. The State also charged Kier

with second degree assault, specifying the passenger as the victim. In closing

argument, the State referred to the driver as the victim of the robbery and the passenger

as the victim of the assault. As the court explained:

             When the definitions of first degree robbery and second degree
      assault are set side by side, it is clear that both charges required the State
      to prove that Kier's conduct created a reasonable apprehension or fear of
      harm. Because Kier was also charged with being armed with or displaying
      a deadly weapon, this was the means of creating that apprehension or
      fear. 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.1231

      This analysis applies equally here. When the definitions of first degree robbery

and second degree assault are considered side by side, both charges required the

State to prove that Maynor's conduct created reasonable apprehension or fear of harm.

Although charged with being armed with a deadly weapon, as proved, Maynor both

displayed and discharged the deadly weapon as the means of creating apprehension or

fear. Stated another way, the apprehension or fear of harm was proved both when

Maynor displayed and discharged the gun in the store. Being armed with or displaying




      22 164 Wn.2d 798, 194 P.3d 212 (2008).
      23 \± at 806 (emphasis added).
No. 70858-9-1/10



the firearm to take or retain property through force or fear was essential to the elevation

of robbery to first degree. Merger applies.

       The State's reliance on State v. Esparza is misplaced.24 There, the court held

that convictions for attempted first degree robbery and second degree assault did not

violate double jeopardy because proof of the assault was not necessary to establish the

substantial step taken towards the attempted robbery.25 Esparza had entered a store,

pointed a gun at customers and employees and announced that it was a robbery. He

also approached an employee and pointed a gun at him, but was shot by that employee

and never completed the robbery. Esparza was found guilty of attempted first degree

robbery and second degree assault.

       On appeal, Esparza claimed that the assault was the substantial step necessary

to establish the attempted robbery and therefore merged with the attempted robbery

conviction. The court disagreed, noting that there was other conduct proven at trial that

could have established that Esparza took a substantial step toward commission of the

robbery and that as charged, there were no specific allegations as to what constituted

the substantial step.26 The court noted that Esparza's entry into the store wielding a

gun and announcing the robbery would have been sufficient to establish a substantial

step toward the commission offirst degree robbery, without proof ofthe assault.27 The




       24 135 Wn. App. 54, 143 P.3d 612 (2006).
       25 \± at 64.

       26 Id, at 63.
       27 Id. at 64.



                                              10
No. 70858-9-1/11



State was not required to prove the second degree assault to establish the attempted

first degree robbery.28

       The State asserts that Esparza is indistinguishable from this case. But Esparza

involved an attempted first degree robbery, which required only proof of a substantial

step toward carrying out an intent to commit a robbery, with no specific conduct charged

as the substantial step. Here, the charge was a completed first degree robbery, which

required proof of the use or threatened use of force to obtain or retain property while

armed with a deadly weapon. Unlike Esparza. there was no other unspecified conduct

that could have supported the first degree robbery charge. Rather, the use or

threatened use of force while armed with a deadly weapon was proved by Maynor's

pointing the gun to obtain the jewelry or the shooting to retain the stolen jewelry. The

use of the weapon was the means of force or threat of force used to accomplish the

robbery and also amounted to an assault. Proof of either assault was therefore

necessary to establish the completed robbery.

       In Kier, the court rejected a similar reliance on Esparza. stating:

               Importantly, the elevated charge at issue in Esparza was attempted
       first degree robbery. Proof of an attempted robbery requires only proof of
       intent to commit robbery and a substantial step toward carrying out that
       intent. The Court of Appeals recognized that any number of actions
       proved at Esparza's trial constituted a substantial step toward the
       attempted robbery and, thus, the assault was not necessary to elevate the
       charge to first degree.1291

       For similar reasons, the State's reliance on In re Personal Restraint of Francis is

also misplaced. A footnote in Francis distinguished Esparza on this same ground:


       28 id,
       29 Kier, 164 Wn.2d at 807 (citation omitted).



                                             11
No. 70858-9-1/12



       Esparza held that when the State charges a defendant with an attempt
       crime but does not specify what the substantial step is, for double
       jeopardy analysis, the court need not assume the assault conduct is the
       substantial step when other conduct would also satisfy that requirement.
       But here the State charged Francis with specific conduct—inflicting bodily
       injury on Jacobsen—to satisfy the statutory element to raise the attempted
       robbery to the first degree. The second degree assault conduct is
       inseparable from the attempted first degree robbery as it was
       charged.[30]The State contends Francis supports a conclusion that there
       was no merger here because the first degree robbery charge only required
       that Maynor be armed with a deadly weapon, not that he inflicted bodily
       injury, as in Francis. But again, the State's argument ignores the fact that
       Francis addressed merger in the context of attempted first degree robbery,
       proof of which differs from that of a completed robbery and involves a
       different merger analysis. As explained in Kier, in the context of a
       completed first degree robbery, the merger doctrine applies whether the
       assault was with a deadly weapon or by the infliction of substantial bodily
       harm:
       Kier was convicted of completed first degree robbery, which required more
       than a substantial step. That the assault here involved assault with a
       deadly weapon, rather than by the infliction of substantial bodily harm,
       does not defeat application of the merger doctrine. The fact remains that
       the completed assault was necessary to elevate the completed robbery to
       first degree.'311

The result is the same here.

       Finally, the State argues that even if merger otherwise applies, we should

conclude that the shot fired at Huynh in the store had a separate and distinct purpose or

effect from the robbery. But the evidence at trial did not identify any purpose or effect of

that assault other than to effectuate the robbery. Additionally, we have adopted the

"transactional" view of robbery, that "[t]he taking is ongoing until the assailant has

effected an escape [and that] [t]he definition of 'robbery' therefore includes 'violence




       30 Francis. 170 Wn.2d at 526 n.5 (citations omitted).
       31 Kier, 164 Wn.2d at 807.



                                             12
No. 70858-9-1/13



during flight immediately following the taking.'"32 Similarly, shooting a gun during flight

from the store does not, in itself, establish a separate or distinct purpose from the

robbery.

       From a broad policy perspective, it is troublesome that an individual who commits

first degree robbery by both pointing a gun to force an individual to hand over property

and subsequently shooting the gun to retain that same property faces no greater

penalty than an individual who merely points the gun. But a valid election could have

been accomplished by an instruction requiring the jury to base the first degree robbery

only on conduct other than shooting the gun in the jewelry store. No such instruction

was requested or given here.

       Under existing case law, notably the merger analysis in Kier. we conclude that

Maynor's convictions for first degree robbery and second degree assault violate double

jeopardy. Accordingly, we remand to vacate the second degree assault conviction.

                                 Prosecutorial Misconduct

       Maynor next argues he was denied a fair trial when during cross-examination,

the prosecutor falsely accused him of planning a similar attack in the past. He contends

the trial court abused its discretion by failing to grant a mistrial because a curative

instruction could not have remedied the prejudicial effect of the prosecutor's improper

question. We disagree.




       32 State v. Truong. 168 Wn. App. 529, 535-36, 277 P.3d 74 (2012) (citation
omitted).



                                             13
No. 70858-9-1/14



       We review a denial of a motion for a mistrial based on improper statements made

at trial for abuse of discretion.33 In ruling on a motion for mistrial, "[c]ourts look to three

factors to determine whether a trial irregularity warrants a new trial: '(1) the seriousness

of the irregularity; (2) whether the statement was cumulative of evidence properly

admitted; and (3) whether the irregularity could be cured by an instruction.'"34

       Maynor testified that he was having an emotional breakdown and was suicidal at

the time of the offense and that when he set out to commit the robbery, he "didn't want

to see the end of the day."35 During cross-examination, the prosecutor questioned

Maynor about his planning and preparation and asked, "This is not the first time that you

had contemplated hurting others in [an] effort to be shot by police, was it?"36 Maynor

responded, "What do you mean?"37 Defense counsel objected and asked for a sidebar.

       The court excused the jury and asked the prosecutor if he had evidence of a prior

incident. The prosecutor referred to Maynor's notebook found in a purse near the crime

scene, which had already been admitted as evidence. The prosecutor asserted that the

notebook contained information about a plan, either another robbery with a sniper rifle

or a sniper attack, and Maynor's efforts to buy a sniper rifle, use a suppressor, and use

different disguises. Maynor contended this was an improper attempt to introduce

ER 404(b) evidence excluded by the trial court's ruling in limine and was impermissible



       33 State v. Perez-Valdez. 172 Wn.2d 808, 814, 265 P.3d 853 (2011).
       34 Id, at 818 (quoting State v. Post. 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d
599(1992)).
       35 RP (June 17, 2013) at 177.
       36 ]d, at 183.
       37 Id.



                                               14
No. 70858-9-1/15



evidence of propensity. The prosecutor argued that these entries were relevant to show

Maynor's intent to hurt other people in the past:

       Essentially, what the evidence in this case will be is that he would hurt as
       many people along the way, and hoped to be shot by police. That's his
       testimony. There is evidence that bears that out. He made preparations
       for that along the way[,] from the time he purchased that gun in April of
       2012 until he tried to complete his plan, albeit not successfully, on
       September 21, 2012.t381

The court ruled that the evidence was inadmissible and that "[i]ts likely prejudicial effect

outweighs the probative value, that it's being offered to show that he is the sort of

person who wants to go out and kill other people."39

       The court then ruled on the mistrial motion. The court noted that the notebook

was "admitted without limitation."40 Maynor pointed out that there was nothing in the

notebook about plans to commit some other crime other than this robbery and that,

while it referred to other robberies he might have researched in preparing for this one,

there was nothing about him planning to hurt other people. The prosecutor responded

by recasting the question based not on a prior act but on Maynor's planning of this

robbery, evidence of which was contained in the notebook.

       The trial court agreed that the evidence of planning in the notebook was not

about a prior act and that the form of the prosecutor's question suggested there was

some evidence in the notebook that Maynor intended to harm people. But the court

also noted that this could be corrected through cross-examination and the jury's own

review of the notebook. The court denied the motion for mistrial.



       38 Id, at 185.
       39 Id, at 187.
       40 Id. at 189.



                                             15
No. 70858-9-1/16



       Maynor then pointed out that the jury did not know that the prosecutor's question

referred to statements in the notebook and that they still might think there was another

prior incident. The court offered to require the prosecutor to clarify on the record with

Maynor that he was being questioned about references in the notebook. Maynor did not

accept this suggestion but proposed a curative instruction, which the court adopted.

When the jury returned, the court instructed them, "Jury, the last question from the

prosecutor is stricken. You are instructed to disregard that question and any inferences

from that question."41 The prosecutor then resumed cross-examination, questioning

Maynor about the contents of the notebook.

       Maynor fails to show that the trial court abused its discretion by denying his

motion for a mistrial. While the prosecutor's question alluding to facts not contained in

the notebook was troubling, the notebook was admitted in its entirety. The jurors had

the opportunity to view it themselves and determine whether there were prior incidents

mentioned. Additionally, Maynor was able to clarify any mischaracterization of the

contents of the notebook or his efforts to plan the charged crime during cross-

examination. Indeed, the prosecutor specifically questioned him about entries that

potentially referred to other incidents:

       Q.     You contemplated here robbing a bank, you have notation of a
              bank, and you contemplated robbing an armor[ed] truck, am I
              correct?

       A.     That is stuff I looked at online. I wrote down notes so that I could,
              you know, look at videos and stuff like that online.'421



       41 jd, at 202.
       42 Id. at 206.



                                             16
No. 70858-9-1/17



The prosecutor also questioned him about entries related to the charged crime:

       Q.     And this notebook reflects many of the things that you were
              contemplating and thinking, leading up to the events of
              September 21, 2012, correct?
      A.      I was thinking about some of the journal notes, but not all of them.'431

       Q.     You contemplated the type of ammunition, in addition to figuring out
              the shotgun, a rifle slug will go through glass, you contemplated
              some other ammunition that might be of use to you in the events of
              September 21, 2012, correct? For example, here you have
              notations about armor piercing rounds, shadow rounds, correct?

      A.      Yes.




       Q.     ... This was all leading up to the September 21, 2012 robbery that
       you did commit, that you did choose to commit, correct?

       A.     Yes.'441

       Finally, the trial court gave the curative instruction proposed by Maynor. While

Maynor persistently argues that "the bell cannot be unrung," he fails to show on this

record that the prosecutor's question was so prejudicial that a mistrial was required.

Maynor admitted to the robbery and the shootings. The facts before the jury were

largely uncontroverted and based on eyewitness testimony of several independent

witnesses. Maynor fails to show that the trial court abused its discretion by denying his

motion for a mistrial.




       43 jd, at 203.
       44 Id. at 206.



                                             17
No. 70858-9-1/18



                            Ineffective Assistance of Counsel

       Finally, Maynor claims he was denied effective assistance of counsel by his

attorney's failure to argue for an offender score calculation based on same criminal

conduct. We disagree.

       By affirmatively agreeing to his offender score, Maynor waived a challenge to his

offender score based on same criminal conduct. Instead, Maynor contends his

attorney's failure to raise this issue amounts to ineffective assistance of counsel. He

contends that the robbery conviction and the assault convictions involving Huynh

encompassed the same criminal conduct because they were committed at the same

time, in the same place, and with the same intent, involving the same victim. Because

we reverse his second degree assault conviction on double jeopardy grounds, we

address his argument only in terms of the first degree robbery and the first degree

assault charges involving Huynh.

      To prevail on a claim of ineffective assistance of counsel, the defendant must

show that trial counsel's performance was deficient and that prejudice resulted from the

deficiency.45 Maynor must show that it was objectively unreasonable for his attorney to

not make the same criminal conduct argument and that the argument would have been

successful.

      To prevail on a same criminal conduct claim, the defendant must prove that the

convictions required the same criminal intent, were committed at the same time and




      45 State v. Thomas. 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (quoting
Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed .2d 674 (1984)).



                                            18
No. 70858-9-1/19



place, and involved the same victim.46 The defendant bears the burden of proving that

his convictions encompass the same criminal conduct.47 We construe these

requirements narrowly "to disallow most claims that multiple offenses constitute the

same criminal act."48

       Maynor contends that the crimes occurred in the same place and at the same

time, citing State v. Porter49 and State v. Davis.50 The State argues they occurred in

different places and with different intent, citing State v. Stockmver51 and State v.

Dunawav.52 As these cases highlight, there is a range of fact patterns present in same

criminal conduct case law. Our courts have recognized that the trial court has

considerable discretion in making these determinations as they turn on the specific facts

of each case. "The trial judge [is] in the best position to evaluate the sequence of



       46RCW9.94A.589(1)(a).
       47 State v. Graciano. 176 Wn.2d 531, 539, 295 P.3d 219 (2013).
       48 State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
       49133 Wn.2d 177, 183, 942 P.2d 974 (1997) (two drug sales occurred at the
same time because they "were part of continuous, uninterrupted sequence of conduct
over a very short period of time").
       50174 Wn. App. 623, 644, 300 P.3d 465 (2013) ("Where, as here, the different
physical locations are adjacent and within a short distance of each other, we cannot say
that the trial court abused its discretion by finding them to be the same place.").
       51 136 Wn. App. 212, 219, 148 P.3d 1077 (2006) (unlawful possession of multiple
guns in three different rooms in the same house did not constitute same criminal
conduct; "multiple guns in different rooms in felons' homes increase the peril to both law
enforcement and the general public in that they provide felons with easier and more
ready access to guns in the home, thus increasing the possibility of harm to others").
       52109 Wn.2d 207, 217, 743 P.2d 1237, 749 P.2d 160 (1987) (where defendant
robbed a restaurant employee and then attempted to kill the employee before fleeing,
objective intent of robbery and attempted murder was substantially different; "[w]hile 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").



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events and to determine whether these locations were separate places for the purposes

of the same criminal conduct analysis."53 Accordingly, it is difficult to conclude "as a

matter of law that the locations involved were the same place for same criminal conduct

purposes."54

       We conclude that Maynor does not establish that his attorney's conduct fell

below an objective standard of reasonableness and resulted in prejudice. While the first

degree robbery and first degree assault of Huynh did occur in the course of his actions

in the store and subsequent flight from the store, in view of the discretion granted the

trial court, there is a reasonable probability that the court would have rejected a same

criminal conduct argument. Maynor's claim of ineffective assistance of counsel fails.

                                      CONCLUSION


      We affirm the convictions for first degree robbery and first degree assault. We

reverse the conviction for second degree assault and remand for resentencing.




WE CONCUR:




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      53 Davis, 174 Wn. App. at 643-44.
       54 Id. at 643.



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