                                                                                                              FILED
                                                                                                       COURT OF APPEALS
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGT&                                                      IISIO'i II
                                                                                                      2015 JUN —4
                                                  DIVISION II                                                     Ati 8: 34
                                                                                                      STA              aGT OPd
 STATE OF WASHINGTON,


                                        Respondent,
                                                                                  No. 43762 -7 -II
                                                                                 consolidated with

                                                                                  No. 45418 -1 - II
                                                                                                       Y    Ult
                                                                                                             EPU


           v.



 LA' JUANTA LE' VEAR CONNER,                                               UNPUBLISHED OPINION


                                        Appellant.


          MELNICK, J. —          La'Juanta Le'Vear Conner appeals his 24 convictions based on, or related


to,   a series of     home invasion    robberies and    burglaries.'   Conner argues ( 1) the trial court abused


its discretion when it allowed the State to exercise a peremptory challenge after the trial started,

 2) the trial    court erred   by   allowing improper    opinion   testimony, ( 3) his attorney' s failure to object

to improper       opinion   testimony    provided    him ineffective   assistance of counsel, (   4) the trial court


erred when       it   provided a    missing   witness   instruction to the   jury, ( 5) the trial court improperly

commented on the evidence, and ( 6) the trial court erroneously imposed a fourteenth firearm

enhancement related         to   a charge of which      Conner   was acquitted.    In his statement of additional


grounds (      SAG), Conner asserts insufficient evidence exists to support his convictions of unlawful


possession       of a   firearm     and possession    of a stolen   firearm.    He further asserts prosecutorial


misconduct.




          Conner filed a personal restraint petition (PRP) that is consolidated with this direct appeal.

In his PRP, Conner argues ( a) the State' s second amended information is invalid because the State




1 Conner was convicted of one count of conspiracy to commit burglary in the first degree, two
counts of unlawful possession of a firearm in the second degree, two counts of possession of a
stolen firearm, eight counts of robbery in the first degree, five counts of burglary in the first degree,
four counts of theft in the second degree, one count of theft in the third degree, and one count of
theft   of a   firearm.
43762 -7 -II / 45418 -8 -II



did   not   file   an amended statement of probable cause, (       b) the jury instructions relieved the State of

its burden to       prove all elements of    the crimes beyond     a reasonable    doubt, ( c)   the State vindictively

prosecuted         him, (   d) the trial court erred when it sentenced him by imposing an exceptional

sentencing without findings, by failing to conduct a same criminal conduct analysis, and by

violating his double jeopardy rights.

            We hold that the trial court erred when it allowed the State to exercise a peremptory

challenge after the jury was sworn, but that the error did not prejudice Conner. We also hold that

the trial court erred by instructing the jury using a missing witness instruction, but that the error

was    harmless.       We vacate Conner' s theft in the third degree conviction because it violates the

prohibition against          double   jeopardy.   We   affirm   Conner'   s   remaining   convictions.   Additionally,

we hold that the trial court erroneously sentenced Conner on one firearm enhancement related to

a charge of which           he   was acquitted.   We remand for resentencing on the remaining convictions

and twelve firearm enhancements.

                                                         FACTS


I.          HOME INVASIONS AND ARREST


            The State, by second amended information, charged Conner with 26 separate offenses
based on a series of home invasion robberies and burglaries in Kitsap County, 14 of which included

firearm enhancements.


            A.        Twelfth Street ( I)


            On September 15, 2010, Robert and Aaron Dato were present at their apartment on Twelfth

Street in Bremerton that they shared with Thomas Harveson, who was not home at the time.

Conner, Kevion Alexander, Anthony Adams, and Troy Brown entered the apartment wearing

bandanas, carrying            guns,   and   making demands for      property. They took the Datos' personal



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property from their persons or in their presence, and they took property that belonged to Harveson.

Conner carried a Hi -Point .40 pistol during the commission of this crime. Based on this incident,

the State charged Conner with two counts of robbery in the first degree, one count of burglary in

the   first degree,   and one count of   theft in the second   degree.   The State alleged three firearm


enhancements.




         B.      Twelfth Street ( II)


         On September 28, 2010, the Datos and a friend, Jeffrey Turner, were at the Twelfth Street

apartment in Bremerton. Harveson was not at home. Conner, Alexander, and Adams entered the


apartment wearing bandanas, carrying guns, and making demands for money. They took personal

property from the Datos. They also took personal property belonging to Harveson. Based on this

incident, the State charged Conner with three counts of robbery in the first degree, one count of

burglary   in the first degree,   and one count of   theft in the   second   degree.   The State alleged four


firearm enhancements.


         C.       Shore Drive


         On September 28, 2010, Brett Cummings was in his studio apartment on Shore Drive in

Bremerton.     Conner stood outside while Alexander and Adams entered Cummings' s apartment


carrying   guns and    making demands for property.        Either Alexander or Adams pushed Cummings


to the ground and Conner and Adams hit him over the head with the butt of their guns. They took

Cummings'     s personal   property.    Conner carried a Hi -Point . 40 pistol during the commission of

this home invasion.      Based on this incident, the State charged Conner with one count of robbery

in the first degree, one count of burglary in the first degree, and one count of theft in the third

degree. The State alleged two firearm enhancements.




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         D.           Weatherstone Apartments


         On the night of October 2, 2010, Conner, Alexander, Adams, and Jerrell Smith entered


Kimberly       Birkett'    s   apartment at   the Weatherstone Apartments.                    They took Birkett' s personal

property. Conner carried a Hi -Point .40 pistol. Based on this incident, the State charged Conner


with one count of          burglary   in the first degree        and one count of         theft in the   second   degree.   The


State alleged one firearm enhancement.


         E.           Wedgewood Lane


         On the night of November 3, 2010, Aaron Tucheck, Ann Tucheck, and Keefe Jackson,


were at their residence on Wedgewood Lane. Conner, Alexander, and Brown entered the residence


carrying      guns,   making demands for property,                and       ordering Aaron to        open   a safe.   They took

personal property, including a firearm and a debit card, belonging to the Tuchecks and Jackson.

Conner     carried     a   Hi -Point . 40   pistol   during     the    commission       of   these   crimes.   A co- defendant


carried a Taurus . 44 revolver during the commission of the Wedgewood Lane home invasion.

Based on this incident, the State charged Conner with two counts of robbery in the first degree,

one count of burglary in the first degree, one count of theft of a firearm, and one count of theft of

an access device in the second degree. The State alleged three firearm enhancements.


         F.           Arrest


         On November 17, 2010, the police arrested Conner during a high -risk traffic stop. Conner

was a passenger        in the truck    occupied      by   two    of   his   co-   defendants.   Prior to the stop, Conner sat

in the   passenger seat when          the   driver   of   the   vehicle said, "[      W] e got two gats locked and loaded


ready to   go."    VI Report of Proceedings ( RP) at 869. Law enforcement executed a search warrant


on the truck and found a bag in the bed of the truck containing two loaded firearms, a Hi -Point .40

pistol with a     filed    off serial number and a         Taurus . 44        revolver.   Law enforcement also located a




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43762 -7 -II / 45418 -8 -II



baggies of marijuana in the cab of the truck where a co- defendant had been sitting. Based on this

incident, the State charged Conner with one count of conspiracy to commit burglary in the first

degree, two counts of unlawful possession of a firearm in the second degree, two counts of


unlawful possession of a stolen              firearm,    and one count of possession of marijuana.        The State


alleged one firearm enhancement.


          Law enforcement subsequently searched the apartment of Conner' s romantic partner,

Rachel Duckworth,          and   found     stolen    property from the   crimes   described   above.   Based on this


search and seizure, the State charged Conner with one count of possession of stolen property in

the third degree.


II.       TRIAL


          A.        Peremptory Challenge

          After the parties selected a jury but before the court swore them in, juror 4 stated that she

remembered that the judge had presided over the trial where her son was convicted of attempted


murder.    The State asked the trial court, but not the juror, whether the juror testified at her son' s


trial. The trial court replied in the negative. Following additional questioning, the trial court found

that juror 4 showed no bias           or prejudice.        The State neither challenged the juror for cause nor


exercised. its    remaining peremptory              challenge.   The judge swore in juror 4 with the rest of the


panel.




          The State began its         case     in   chief and presented witnesses.     Two days later, the State


informed the trial court it learned juror 4 had testified in her son' s trial and that the prosecutor had

accused her of lying and manipulating testimony. The State also asserted that the juror indicated

she had talked to a family member about Conner' s trial, which caused her to remember that the

judge    presided   over   her   son' s   trial.    The State moved to excuse the juror, but the trial court ruled




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43762 -7 -II / 45418 -8 -II



that the juror        had   not   clearly     violated     the trial    court' s orders and       that it "[ could not] excuse her for


cause based upon answers to questions that she provided earlier because we had already addressed

that issue before impaneling her."                        VI RP    at   651.    The trial court took the State' s motion under


advisement.




              The next day, the State asked to exercise its remaining peremptory challenge to excuse

juror 4. Conner objected. The State argued that it relied on the trial court' s faulty recollection that

the juror had not been a witness in her son' s trial and it would have struck her if the State had been

aware she          testified.   Relying       on   State   v.   Williamson, 100 Wn.           App.   248, 996 P. 2d 1097 ( 2000), the


trial court allowed the State to exercise its remaining peremptory challenge and it excused juror 4.

Following this juror' s excusal, 12 jurors and one alternate remained.

              B.        Opinion Testimony

              Detective Mike Davis testified about his post- arrest questioning of Conner. During cross -

examination, Conner elicited from Detective Davis that he used a " ruse" when questioning Conner.

V RP at 605. On redirect, Detective Davis explained he employs a ruse when questioning suspects

  t]o elicit the truth" and when he " believe[ s] that [ the facts say] otherwise what the person is

telling       me."    VI RP       at   730.   Detective Davis           said   he   uses a ruse "    to   get   the   facts. That is what I


am   is   a   fact -finder." VI RP            at   730.   Conner did not object to this testimony.

              C.        Missing Witness Instruction

              The State presented evidence that Duckworth exhibited hostility towards Detective Davis.

The State also played recordings of jail calls between Conner and Duckworth in which Conner

made      many       comments          including that he        was "   done with      all   that [ explicative]"      and " changing [ his]

ways."         Supp.     Clerk' s Papers ( CP)             at   355, 360.      Conner testified that the recordings meant he


would be leaving the streets behind and quit selling drugs.



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43762 -7 -II / 45418 -8 -II




         The State requested a missing witness instruction. It argued that Duckworth, identified as

a defense witness, exhibited hostility to law enforcement, could have supported Conner' s version

of the jail calls, and could have testified regarding the stolen property found in her apartment.

Conner argued that the State could have called Duckworth.


         The trial court found that Duckworth' s testimony would have been material and not

cumulative, Duckworth' s absence was not adequately explained, Duckworth was particularly

within   Conner'    s   control;   Conner   did    not     adequately      explain   Duckworth'   s   absence,   and




Duckworth' s testimony would neither have infringed on Conner' s constitutional rights to remain

silent nor shifted the burden to Conner to prove his innocence. Thus, the trial court instructed the


jury using a missing witness instruction and permitted the State to argue Duckworth' s absence in

its closing argument.

         D.      Closing Argument

         During closing argument, Conner argued that the police and prosecutor' s office coached

witnesses regarding their testimony. The State objected:

          DEFENSE COUNSEL:] Mr. Smith is                    no   fool.   Like any kid, he' s just been told
         what direction to take with his lies. Mook Alexander went through the same thing,
         whether he got it from the prosecutor' s office, when they interviewed him from the
         detectives, from his own lawyer —
          PROSECUTOR]: Objection, Your Honor. These are facts not in evidence.
         THE COURT: Sustained. Move               on, [   Defense Counsel].
          DEFENSE COUNSEL]:         Mr. Alexander knew which way that he needed to go. At
         the time that he came forth in March, and they needed to cut his sentence way down,
         he knew, and in trial the only person that they had to get was Mr. Conner.
          PROSECUTOR]: Objection, Your Honor. Move to strike.
         THE COURT: Members of the jury, you will disregard the last argument of
         Counsel.
          DEFENSE COUNSEL]:       Mr. Conner was the person left that they did not have the
         evidence that they needed, and Mook Alexander —
          PROSECUTOR]: Objection, Your Honor. Move to strike.
         THE COURT: Sustained. Move               on, [   Defense Counsel].




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43762 -7 -II / 45418 -8 -II




XVII RP       at   2590 -91. Conner later argued that Smith and Alexander changed their stories because


they are experienced liars. The State objected:

             DEFENSE COUNSEL:] Once                   lying, they don' t stop lying....
                                                            they   start                So they
             are very quick, and they move very quick.     So it' s almost like shadow boxing
             because they know how to do it because they are experienced in it. They have been
             doing it a long time.
             PROSECUTOR]: Objection, Your Honor.
             THE COURT: Sustained. Move on.
             DEFENSE COUNSEL]: I submit that the evidence shows that when you look in
             your record in terms of what Mr. Mook Alexander' s record is, that he talks about
             on the stand —
             PROSECUTOR]: Objection, Your Honor. Facts not in evidence.


XVIII RP at 2613 -2614.


             Outside ofthe jury' s presence, the State argued that the record contained nothing to suggest

Alexander has been               a   liar for   a    long   time.     Conner argued that Alexander' s prior crimes of


dishonesty meant that he was an experienced liar. The trial court sustained the objection because

the    statement "'    they have been lying for a long time' is improper argument based upon the facts

that   are   in   evidence."     XVIII RP at 2616. The trial court noted that Smith had no prior convictions


and    that "     one can   be   a   theft [ sic],   which   is dishonest,   and one can   be   a   liar."   XVIII RP at 26.15-


16. The trial court sustained the objection and instructed the jury to disregard Conner' s counsel' s

last remarks.


             E.       Verdict and Sentencing

             The jury found Conner guilty on all counts except possession of marijuana and possession

of stolen property in the third degree. Additionally, the jury specially found that Conner was armed

with a firearm on all but one count alleged. The trial court imposed a standard range sentence of


1148. 5 months. Conner appeals. He also filed a PRP that is consolidated with this direct appeal.




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                                                     ANALYSIS


I.      PEREMPTORY CHALLENGE


        Conner argues that the trial court erred by allowing the State to exercise a peremptory

challenge after the jury had been sworn and witnesses had testified. He argues that the trial court

did not follow proper procedures. We hold that the trial court abused its discretion by allowing to

State to exercise its remaining peremptory challenge on juror 4, but no prejudice resulted.

        We review a trial court' s decision to excuse a juror for abuse of discretion. State v. Elmore,

155 Wn.2d 758, 768, 781, 123 P. 3d 72 ( 2005);              State v. Ashcraft, 71 Wn. App. 444, 461, 859 P. 2d

60 ( 1993). "   A discretionary determination will not be disturbed on appeal without a clear showing

of abuse of discretion, that is, discretion that is manifestly unreasonable or exercised on untenable

grounds, or     for   untenable reasons."   State v. Smith, 90 Wn. App. 856, 859 -60, 954 P. 2d 362 ( 1998).

A trial court abuses its discretion if its decision is based on a misunderstanding of the underlying

law. State v. Burke, 163 Wn.2d 204, 210, 181 P. 3d 1 ( 2008).


         CrR 6. 4( e) sets forth the procedures for exercising peremptory challenges in criminal trials.

 After prospective jurors have been passed for cause, peremptory challenges shall be exercised

alternately."    CrR 6. 4( e)( 2).   Once a party accepts the jury as presently constituted, that party may

only peremptorily        challenge   jurors later   added   to that group. CrR 6. 4( e)( 2). Here, the parties had



already accepted the jury; therefore, the State could not use a peremptory challenge on juror 4.

Because the trial court misapplied the court rule, it abused its discretion.2




2 The trial court relied on Williamson, 100 Wn. App. at 253. In that case, unforeseen circumstances
existed to justify the court' s action because a juror did not disclose that she knew the victim until
after the trial court swore in the jury and the State' s first witness began to testify. Williamson, 100
Wn. App. at 252. We do not have unforeseen circumstances in this case because juror 4 informed
the trial court that the judge presided over her son' s trial before the sworn jury started hearing the
case.




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             However, the trial court' s error caused no prejudice. The Sixth Amendment of the United

States Constitution and article 1, section 22 of the Washington Constitution guarantee a defendant


the right to a fair trial by an impartial jury. State v. Latham, 100 Wn.2d 59, 62 -63, 667 P. 2d 56
 1983).       But the "[   d] efendant has no right to be tried by a particular juror or by a particular jury."

State   v.   Gentry,   125 Wn.2d 570, 615, 888 P. 2d 1105 ( 1995).                 The constitutional requirement of a


randomly selected jury is " satisfied by the initial random selection of jurors and alternate jurors

from the      jury pool."       State v. Coe, 109 Wn.2d 832, 842, 750 P. 2d 208 ( 1988).


             If a juror becomes unable to perform his or her duty after formation of the jury, the trial

court   may discharge the juror.             CrR 6. 1(   c).    In such instance, an alternate juror may replace the

discharged juror. CrR 6. 5. Here, following juror 4' s excusal, 12 jurors plus an alternate remained.

The State and Conner selected all of the jurors and alternate jurors. Conner makes no showing and

does    not argue      that a   biased    jury   heard his     case.    Therefore, no violation of Corner' s right to an


impartial jury occurred and he has demonstrated no prejudice that resulted from the excusal of

juror 4. The error was harmless.


II.          OPINION TESTIMONY


             Conner argues that the trial court erred by admitting Detective Davis' s testimony regarding

his use of a ruse. He argues that this testimony prejudiced him by allowing opinion testimony on

an ultimate issue for the jury and therefore his guilt. Conner initially elicited the testimony on use

of a ruse. Additionally, Conner did not object, move to strike, or ask that the jury be instructed to

disregard Detective Davis'            s    testimony     on redirect.       Therefore, Conner failed to preserve any

challenge to this testimony and we decline to review it. RAP 2. 5( a).




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III.         INEFFECTIVE ASSISTANCE OF COUNSEL


             Conner contends that he received ineffective assistance of counsel because his attorney did

not object        to   Detective Davis'      s   testimony regarding his       use of a ruse.       He argues that this failure


to object resulted in prejudice because " there was nothing preventing the jury from considering

that   opinion [ that         Conner     was untruthful] when       evaluating Conner'        s   credibility." Appellant' s Br.


at 40. We disagree and hold that Conner did not receive ineffective assistance of counsel.

             A.          Standard of Review


             Ineffective assistance of counsel is a mixed question of law and fact we review de novo.


Strickland        v.    Washington, 466 U. S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                             A


defendant claiming ineffective assistance of counsel has the burden to establish that ( 1) counsel' s

performance was               deficient   and (   2) the   performance prejudiced       the   defendant'    s case.   Strickland,


466 U. S.      at      687.   Failure to establish either prong is fatal to an ineffective assistance of counsel

claim. Strickland, 466 U.S. at 700.


             An attorney'        s    performance      is deficient if it falls " below an objective standard of


reasonableness            based      on consideration of all     the   circumstances."   State v. McFarland, 127 Wn.2d


322, 334 -35, 899 P. 2d 1251 ( 1995).                      Deficient performance prejudices a defendant if there is a

 reasonable            probability that, but for             counsel' s   deficient   performance,        the   outcome   of the


proceedings would              have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


Our scrutiny of counsel' s performance is highly deferential; we strongly presume reasonableness.

State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).                    To rebut this presumption, a defendant


bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s

performance. Grier, 171 Wn.2d at 33.




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            B.        No Ineffective Assistance of Counsel


            Even assuming, without deciding, that Detective Davis' s opinion testimony went to an

ultimate issue for the jury, Conner has not established the absence of any legitimate trial tactic to

explain     his    counsel' s performance.           Conner' s lawyer first raised Detective Davis' s use of a ruse


on cross -examination. He asked Detective Davis if he lied to Conner when he told him that Smith


and Perez accused Conner of handling the Hi -Point .40 pistol. Detective Davis responded that he

used a ruse.        Conner'    s counsel   followed up        by   asking, "   That is something that you do in police

work ...         you make people       think that     you   have something       when you   don' t have something ?" V


RP    at   608. Detective Davis answered, " That is               correct."   V RP at 608. On redirect, the State asked


Detective Davis to define ruse, and Conner' s counsel did not object. Conner fails to show that no

conceivable         legitimate trial tactic     explains    his    counsel' s performance.    See Grier, 171 Wn.2d at


33.    In fact, this line of questioning was consistent with Conner' s overall defense strategy of

denying his involvement in the crimes while implying that Conner became a target of the police.

Conner cannot demonstrate deficient performance; therefore, we need not address the second


prong. See Grier, 171 Wn.2d at 33.

IV.         MISSING WITNESS INSTRUCTION


            Conner argues that his convictions should be reversed because the trial court misapplied


the missing witness doctrine and improperly instructed the jury. He also argues that the trial court

improperly         permitted    the    prosecutor     to   argue   this doctrine.    We hold that that the trial court


misapplied the missing witness doctrine, but the error was harmless.

            A.        Standard of Review


                 W] hether legal error in jury instructions could have misled the jury is a question of law,

which we review          de   novo."    State   v.   Montgomery,        163 Wn.2d 577, 597, 183 P. 3d 267 ( 2008). We




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43762 -7 -II / 45418 -8 - II




review a trial court' s rulings on improper prosecutorial argument for abuse of discretion.


Montgomery,       163 Wn. 2d       at   597. "   A discretionary determination will not be disturbed on appeal

without a clear showing of abuse of discretion, that is, discretion that is manifestly unreasonable

or exercised on untenable grounds, or               for   untenable reasons."      Smith, 90 Wn. App. at 859 -60.

          B.      Missing Witness Doctrine

          In general, the State may not comment on the defendant' s lack of evidence because the

defendant has     no   duty   to   present evidence.        State v. Cheatam, 150 Wn.2d 626, 652, 81 P. 3d 830

 2003).    The missing witness doctrine is an exception: it applies where a party failed to produce a

witness particularly within its control. State v. Blair, 117 Wn.2d 479, 485 -86, 816 P. 2d 718 ( 1991).

When applicable, this doctrine permits both a prosecutor to comment on a defendant' s failure to


produce evidence and a jury to infer that the missing evidence or testimony would have been

unfavorable to the party who failed to produce it. Blair, 117 Wn.2d at 485 -86.

          The missing     witness        doctrine   applies   in    a criminal case when: (     1) the absent witness is


particularly    within   the defense' s ability to            produce, (      2) the missing testimony is not merely

cumulative, (    3) the witness' s absence is not otherwise explained, (4) the witness is not incompetent

or   her testimony       privileged,        and (   5)    the testimony does . not infringe on the defendant' s

constitutional rights.        Cheatam, 150 Wn. 2d             at   652 -53.    The doctrine does not apply where the

missing witness' s testimony, if favorable to the party who would naturally have called the witness,

would     necessarily be      self -    incriminatory.      Blair, 117 Wn.2d        at   489 -90.   The State may only

comment on the defendant' s failure to call a witness where the defendant has unequivocally

implied that the missing witness would have corroborated his theory of the case and it is clear the

defendant      could produce       the witness.      State v. Contreras, 57 Wn. App. 471, 476, 788 P. 2d 1114

 1990)..
43762 -7 -II / 45418 -8 -II



            C.          The Trial Court Misapplied the Missing Witness Doctrine

            Over Conner' s objection, the trial court allowed the State to argue that Duckworth would


have provided unfavorable testimony and it gave a missing witness instruction to that effect. The

trial court misapplied the missing witness doctrine.3

            Conner never unequivocally implied that Duckworth would have corroborated his theory

of   the   case or     his   version of   the   recorded    jail   phone calls.      The record does not demonstrate that


Duckworth            was     peculiarly   within    the defendant'        s   ability to   produce.     Despite her romantic


relationship with Conner and hostility towards the State, the record contains no evidence that the

State could not have called her as a witness. The record also does not demonstrate that Duckworth

could provide material             testimony. Although she could have testified about what Conner meant

when       he    stated    he   was "   done    with all   that"    and "     changing [ his]   ways"   in the jail calls with


Duckworth,            she could    have only testified      as   to her understanding of Conner' s         statements.   Supp.

CP    at   355, ,360.      Duckworth' s absence was adequately explained: she did not want to incriminate

herself.         Therefore, relying on all the Cheatam factors, the trial court misapplied the missing

witness doctrine and erred by instructing the jury using the missing witness instruction. 150 Wn.2d

at 652 -53.




3 The parties both argue that the trial court based its ruling in part on a mistaken belief that Conner' s
counsel stated          in opening that Duckworth             would       testify. While the trial court did ask Conner' s
counsel why he said Duckworth was going to testify, implying a mistaken belief that he had done
so, the trial court' s ruling the next day does not indicate that this was a factor in its decision. The
trial court stated:



                Conner' s counsel] argued in his opening statement that the jury would hear about
            Rachel Duckworth and would hear about the safe that was found in her apartment.

XVI RP          at   2415 -16 (   emphasis added).         From this statement, it is clear that the trial court did not
actually base its ruling on a mistaken beliefthat Conner' s counsel argued Duckworth would testify.

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          D.        The Error is Harmless


          Although the trial court erred by allowing the missing witness instruction, the error was

harmless.      As long as the jury is properly instructed on the State' s burden, an improper jury

instruction may be harmless              error.   Montgomery,          163   Wn.2d   at   600. '   An erroneous instruction


is harmless if from the record in [ the] case, it appears beyond a reasonable doubt that the error


complained of       did   not contribute      to the     verdict obtained.'         Whether a flawed jury instruction is

harmless    error   depends      on   the facts   of a particular case."       Montgomery, 163 Wn.2d at 600 ( quoting

State v. Carter, 154 Wn.2d 71, 81, 109 P. 3d 823 ( 2005)).


          Here, the trial        court    properly instructed the            jury   on    the   State'   s    burden.     The State


emphasized its burden during closing arguments. And the State did not make repeated references

to Duckworth' s absence.


          Because other evidence tied Conner to each of the home invasion robberies and burglaries,

                                                              4
we   hold the instructional           error was   harmless.       It did     not contribute     to the       verdict.   Conner' s co-


defendant, Alexander, testified about Conner' s involvement in the Twelfth Street ( I) and ( II)


crimes. Alexander testified Conner wore a bandana and carried a Hi -Point .40 pistol during both

incidents.     Another co- defendant, Smith, testified that Conner stored stolen property from both

incidents with Smith. Though the victims did not identify Conner at trial, one of them corroborated

Alexander' s testimony.




4
    We   summarized       only   a portion of      the   evidence   that inculpates Conner.              Additional evidence of
Conner' s guilt also exists in the record.


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         Alexander also testified as to Conner' s involvement in the Shore Drive crime. He related

how Conner     participated        in using force      against   Cummings. Smith also testified that Conner told


him about the incident and how it did not go as planned because the victim was home. Although


Cummings did not identify Conner at trial, he corroborated the events.

         Smith testified that he participated in the crime at the Weatherstone Apartments at Conner' s

invitation.   Alexander related that they targeted this residence because Conner knew the victim,

and that Conner carried the victim' s personal property from the apartment.

         Alexander     also      testified   about    Conner' s involvement in the Wedgewood Lane          crime.   He


related that Conner helped plan the crime and that Conner participated by scoping out the

apartment earlier      in the     day. Conner wore a black hoodie and bandana, and carried the Hi -Point

40 pistol. The victims corroborated this testimony. The record contains overwhelming evidence

of Conner' s guilt, and the erroneous instruction did not contribute to the verdict.

V.       COMMENT ON THE EVIDENCE


         Conner argues that the trial court improperly commented on the evidence when it sustained

some of the State' s objections during closing arguments. We disagree.

         A.         Judicial Comments on the Evidence Prohibited


         Article 4, section 16 of the Washington Constitution prohibits judges from commenting on

the   evidence.     State   v.   Swan, 114 Wn.2d 613, 657, 790 P. 2d 610 ( 1990), cert. denied, 498 U. S.


1046 ( 1991). "      A statement by the court constitutes a comment on the evidence if the court's

attitude toward the merits of the case or the court's evaluation relative to the disputed issue is

inferable from the      statement."      State   v.   Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995). A court' s


conduct violates      the   constitution      only if its   attitudes are "`   reasonably inferable from the nature or

manner of     the   court' s statements. "'       State v. Elmore, 139 Wn.2d 250, 276, 985 P. 2d 289 ( 1999)




                                                                 16
43762 -7 -II / 45418 -8 - II




quoting State          v.   Carothers, 84 Wn.2d 256, 267, 525 P. 2d 731 ( 1974)). " A court does not comment


on    the   evidence        simply     by   giving its   reasons   for   a   ruling."       In re Det. ofPouncy, 144 Wn. App.

609, 622, 184 P. 3d 651 ( 2008),                alld, 169 Wn.2d 382 ( 2010).

            B.          No Comment on the Evidence


            Conner argues that there are two instances where the trial court commented on the evidence


when it sustained the State' s objections during Conner' s closing argument. First, Conner argued

to the jury that the police and prosecutor' s office directed Conner' s co- defendants to lie. The State

objected         and   the trial court sustained the objection.                       In ruling, the trial court simply stated,

 Sustained.            Move    on, [   Conner'   s counsel]."       XVII RP           at   2591.    Following this ruling, Conner

almost immediately made another argument that implied the State manipulated a co- defendant' s

testimony.         In ruling      on    that   objection,   the trial        court stated, "       Members of the jury, you will

disregard the last          argument of [c] ounsel."         XVII RP          at   2591. Because the trial court judge did not


convey to the jury her personal opinion regarding the truth or falsity of any evidence introduced at

trial, it did     not   impermissibly          comment on     the   evidence.          See Lane, 125 Wn.2d           at   838.   The trial


court merely ruled on the objections.

            Second, the trial court sustained the State' s objection to Conner' s argument that two of the


co-   defendants were          experienced        liars.   In ruling     on    that   objection,     the trial   court stated, "   I have


sustained        the   objection, and you are         instructed to disregard the last              remarks of [c] ounsel."        XVIII


RP at 2616 -17.             Again, the trial court did not convey to the jury its personal opinion regarding

merits of        the   case or   its    evaluation of      disputed      evidence.          We hold that the trial court did not




                                                                    17
43762 -7 -II / 45418 -8 -II




impermissibly comment on the evidence and, therefore, did not violate Conner' s constitutional

rights.5

VI.        Firearm Enhancement on Weatherstone Apartment Incident


           Conner argues, and the State concedes, that the trial court erred when it imposed a 60 month


firearm enhancement on his burglary in the first degree conviction arising from the Weatherstone

Apartment incident. The jury did not find beyond a reasonable doubt that Conner was armed with

a firearm during the commission of burglary in the first degree of the Weatherstone Apartment;

therefore, we accept the State' s concession and remand to the trial court to strike the firearm

enhancement and to resentence Conner.


VII.       STATEMENT OF ADDITIONAL GROUNDS


           In his SAG, Conner asserts that insufficient evidence exists to support two convictions for

unlawful possession of a firearm in the second degree and two convictions for possession of a

stolen   firearm.   He also asserts the prosecutor committed misconduct by relying on coerced and

false testimony. We hold that sufficient evidence exists for the unlawful possession of a firearm

convictions and the possession of a stolen firearm convictions and that the prosecutor did not

commit misconduct.



           A.       SUBSTANTIAL EVIDENCE


           Conner asserts that his convictions for unlawful possession of a firearm in the second

degree ( Hi -Point . 40    pistol),   possession   of   a   stolen   firearm ( Hi -Point . 40   pistol),   unlawful




possession of a      firearm in the   second   degree ( Taurus . 44     revolver), and possession of a stolen




5 To the extent that Conner argues that the trial court' s rulings on the State' s objections amounted
to instructing the jury to disregard Conner' s defense theory, this claim is without merit. The trial
court instructed the jury only to disregard an improper statement by defense counsel during closing
argument, not to disregard the defendant' s theory of the case.


                                                        18
43762 -7 -II / 45418 -8 - II



firearm ( Taurus . 44         revolver) are not supported             by   substantial evidence.   Specifically, he argues

that sufficient evidence does not support the jury' s finding that he possessed the firearms or that

he knew they were stolen. Viewed in the light most favorable to the State, the evidence is sufficient

to convince the jury beyond a reasonable doubt that Conner possessed the Hi Point .40 pistol and

the Taurus . 44 revolver, and that Conner knew both firearms were stolen.


                     1.         Standard of Review


              The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond        a reasonable     doubt."      State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "         A


claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably

can   be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence


are   equally     reliable.    State   v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "              Credibility

determinations       are    for the trier   of   fact    and cannot   be   reviewed on appeal."    State v. Camarillo, 115


Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

                     2.         Possession


              Conner first asserts that the State failed to prove beyond a reasonable doubt that he


possessed both firearms. Possession can be actual or constructive. State v. Staley, 123 Wn.2d 794,

798, 872 P. 2d 502 ( 1994).                 Actual possession means the firearms were in Conner' s personal


custody. Staley, 123 Wn.2d at 798. Constructive possession means that Conner had dominion and

control over       the    firearms.    Staley, 123 Wn.2d at 798; State v. Summers, 107 Wn. App. 373, 384,

28    P. 3d   780 ( 2001).     Dominion and control over the premises where the item was found creates a

rebuttable inference of dominion and control over the item itself. State v. Cantabrana, 83 Wn.

App.    204, 208, 921 P. 2d 572 ( 1996).                  The State must show more than mere proximity, but need



                                                                  19
43762 -7 -II / 45418 -8 -II



not    show exclusive control.               State v. George, 146 Wn. App. 906, 920, 193 P. 3d 693 ( 2008).

However, knowledge of the presence of contraband, without more, is insufficient to show


dominion and control to establish constructive possession. State v. Hystad, 36 Wn. App. 42, 49,

671 P. 2d 793 ( 1983).              The trial      court   instructed the   jury,   without    objection,   that "[ a] ctual



possession occurs when the item is in the actual physical custody of the person charged" and that

  c] onstructive possession occurs when ...                  there   is dominion    and control over   the item."    CP at


258.


                              a.         Hi -Point .40 Pistol


          To convict Conner of unlawful possession of the Hi -Point . 40 pistol, the State needed to

prove    that   he   possessed     it " on   or   between September 15, 2010         and   November 17, 2010."       CP at


262.    Viewed in the light most favorable to the State, any rational trier of fact could have found

beyond a reasonable doubt that Conner actually possessed the Hi -Point . 40 pistol between

September 15 and November 17. Testimony established that Conner carried the Hi -Point .40 pistol

on his person during the commission of four of the home invasion robberies and burglaries.

Therefore, sufficient evidence exists to uphold this conviction.


                              b.         Taurus . 44 Revolver


          To convict Conner of unlawful possession of the Taurus . 44 revolver, the State needed to

prove    that Conner       possessed    it "on     or   between November 1, 2010       and    November 17, 2010."       CP


at 264. Viewed in the light most favorable to the State, any rational trier of fact could have found

beyond a reasonable doubt that Conner actually possessed the Taurus . 44 revolver between

November 1           and   November 17.           The State presented evidence that the Taurus . 44 revolver was


stolen on       November 1.         Testimony established that Conner actually possessed and handled the

Taurus .44 revolver on numerous occasions, including when Adams initially showed it to him after



                                                                20
43762 -7 -II / 45418 -8 -II




it was stolen and when Conner held it while sitting in the front seat of Adams' s truck. Therefore,

sufficient evidence exists to uphold this conviction.


                   3.         Knowledge that the Firearms were Stolen


          Conner next asserts that the State failed to prove beyond a reasonable doubt that he knew


both firearms      were      stolen. "   Knowledge"        means      that    a person "   is aware of a fact, facts, or


circumstances or result            described   by   a statute   defining     an offense; or ...   has information which


would lead a reasonable person in the same situation to believe that facts exist which facts are

described   by   a statute    defining      an offense."   RCW 9A.08. 010( 1)( b).


                              a.         Hi -Point .40 Pistol


          Viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found beyond a reasonable doubt that Conner knew the Hi -Point .40 pistol was stolen. The


firearm' s true owner testified that the firearm went missing after Brown and Conner visited his

home. Alexander testified that the Hi -Point .40 pistol was " stolen" and that another co- defendant

gave   it to Conner     on   September 5       as " payment"     for broken property. XII RP         at   1683, 1685. The


serial number was filed off. Detective Davis testified that in his training and experience, the only

reason to file a serial number off any weapon is to conceal its stolen identity. Conner carried this

firearm   during   the majority        of   the home invasion         robberies and    burglaries.   The State produced


sufficient evidence to convince a rational jury beyond a reasonable doubt that Conner had

knowledge the firearm was stolen at the time he possessed it.


                              b.         Taurus .44 Revolver


          Viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found beyond a reasonable doubt that Conner knew the Taurus .44 revolver was stolen. The

firearm' s true owner testified that the firearm went missing after his home was burglarized on



                                                                 21
43762 -7 -II / 45418 -8 -II



November 1.          The firearm' s true owner also identified the firearm at trial by its appearance and

serial number. Alexander testified that Conner was present when Adams discussed acquiring the

Taurus . 44       semiautomatic         by   stealing it in " a lick [ which is] .... [               a] burglary or robbery, some

type    of   breaking      and    entering."      XII RP        at   1685.       The State produced sufficient evidence to


convince a rational jury beyond a reasonable doubt that Conner had knowledge the firearm was

stolen at the time he possessed it.


             C.       PROSECUTORIAL MISCONDUCT


             Conner   asserts     the   prosecutor       committed misconduct                  by    relying   on   Smith' s " false and

                                                                             6
coerced      testimony"     and    Alexander'      s    false testimony.          SAG     at   11.    We disagree and hold that no


prosecutorial misconduct occurred.



             The due process clause of the Fourteenth Amendment to the United States Constitution


imposes on prosecutors a duty not to introduce perjured testimony or use evidence known to be

false to     convict a   defendant. State          v.   Finnegan, 6 Wn.           App.   612, 616, 495 P. 2d 674 ( 1972). This


duty requires the prosecutor to correct State witnesses who testify falsely. Finnegan, 6 Wn. App.

at   616 ( citing Napue      v.   Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 ( 1959)). To succeed


on    his   claim   that the     prosecutor used        false   evidence     to    convict     him, Conner          must show   that "( 1)



the   testimony ( or     evidence) was         actually false, ( 2) the prosecutor knew or should have known that


the   testimony      was   actually false,       and (   3) that the false testimony                was material."     United States v.


Zuno Arce, 339 F. 3d 886, 889 ( 9th Cir. 2003).                        Conner fails to make the necessary showing for

the first of these elements regarding both Smith' s and Alexander' s testimony.




6
     Additionally,    Conner       argues     that the    police coerced          Smith into making            a statement.     Any fact
related      to Smith'   s custodial     interrogation is        outside of       this   record on appeal.           We do not address
issues relying on facts outside the record on direct appeal. McFarland, 127 Wn.2d at 338 n.5.

                                                                      22
43762 -7 -II / 45418 -8 - II




          The record does not support any of Conner' s assertions that the State relied on false

testimony.       Conner offers no evidence to demonstrate the falsity of Smith' s or Alexander' s

testimony      other   than   his   own version of events.    Conflicting testimony is not evidence of falsity.

See Camarillo, 151 Wn.2d at 71 ( Credibility determinations are for the trier of fact and are not

subject   to   review.).      Because there is no support in the record that the State introduced false


testimony, Conner' s assertion relating to prosecutorial misconduct is without merit.

VI        PERSONAL RESTRAINT PETITION


          In his PRP, Conner argues ( a) the State' s second amended information is invalid because


the State did not file an amended statement of probable cause, ( b) the jury instructions relieved the

State   of   its burden to     prove all elements of    the   crimes   beyond   a• reasonable   doubt, ( c) the State


vindictively prosecuted. Conner, and ( d) the trial court erred by imposing an exceptional sentence

without findings, by failing to conduct a same criminal conduct analysis, and by violating his

double jeopardy rights. We vacate Conner' s theft in the third degree conviction on double jeopardy

grounds and remand for resentencing, but hold that the remainder of his claims are without merit.

Because we remand for resentencing, we do not reach Conner' s same criminal conduct claim.

          A.       Standard of Review


          We consider the arguments raised in a PRP under one of two different standards, depending

on whether      the    argument      is based   on constitutional   or nonconstitutional grounds.        In re Pers.


Restraint of Davis, 152 Wn.2d 647, 671 - 72, 101 P. 3d 1 ( 2004).               A petitioner raising constitutional

error must show that the error caused actual and substantial prejudice. Davis, 152 Wn.2d at 672.


In contrast, a petitioner raising nonconstitutional error must show a fundamental defect resulting

in   a complete miscarriage of          justice.   In re Pers. Restraint ofElmore, 162 Wn.2d 236, 251, 172

P. 3d 335 ( 2007).       Additionally, Conner must support his claims of error with a statement of the




                                                             23
43762 -7 -II / 45418 -8 -II



facts on which his claim of unlawful restraint is based and the evidence available to support his

factual      allegations.   RAP 16. 7( a)( 2);   In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759

P. 2d 436 ( 1988);      see also In re Pers. Restraint of Cook, 114 Wn.2d 802, 813 -14, 792 P. 2d 506

 1990).      Conner must present evidence showing his factual allegations are based on more than mere

speculation, conjecture, or           inadmissible   hearsay. In re Pers. Restraint of Rice, 118 Wn.2d 876,

886, 828 P. 2d 1086,        cert.   denied, 506 U. S. 958 ( 1992).       Bald assertions and conclusory allegations

are not sufficient. Rice, 118 Wn.2d at 886.


             B.      Probable Cause


             Conner argues that the State' s second amended information is invalid because the State did

not   file    an   amended    statement    of probable   cause.         Conner fails to cite any authority for this

proposition,       and we could       find none.     Thus, Conner cannot demonstrate a fundamental defect


resulting in a complete miscarriage ofjustice.

             C.      Jury Instructions

             Conner argues that the " to convict" instructions relieved the State of its burden to prove all

elements of the crimes beyond a reasonable doubt because some instructions lacked the specific

names of co- conspirators, names of victims, and addresses. We disagree.

             We review de novo allegations of constitutional violations or instructional errors. State v.

Lynch, 178 Wn.2d 487, 491, 309 P. 3d 482 ( 2013);                 State v. Brown, 132 Wn.2d 529, 605, 940 P. 2d

546 ( 1997).       Jury instructions suffice where, when taken as a whole " they correctly state applicable

law,   are not     misleading,   and permit counsel     to   argue   their   theory   of   the   case."   Brown, 132 Wn.2d


at 618.


             Conner first .argues that instruction 10, the " to              convict"      instruction for conspiracy to

commit        burglary,     is defective because it does          not   name    co- conspirators.          We disagree.   A




                                                             24
43762 -7 -II / 45418 -8 -I1




conspiracy instruction may not be more far -reaching than the charge in the information. State v.

Brown, 45 Wn.          App.     571, 575 -76, 726 P. 2d 60 ( 1986).          The naming of co- conspirators is not an

element of the crime. See RCW 9A.28. 040. Therefore, the instruction need not name specific co-

conspirators. The instruction included all of the elements.


         Conner next argues that several of the instructions for burglary and theft are deficient

because      they do    not name         the   victims or contain addresses.      We disagree.      The names of victims


and addresses        are not essential elements of           the   crimes charged.       Therefore, we hold that these


claims are without merit.




         D.          Prosecutorial Vindictiveness


         Conner argues that the prosecutor acted vindictively and retaliated against Conner by

adding   charges       in the       second amended      information. The crux of Conner' s argument is that the


prosecutor deprived of him of his right to a fair trial because adding additional criminal counts and

sentencing enhancements amounted to prosecutorial vindictiveness. We disagree.

         We will reverse a conviction due to prosecutorial misconduct only if the defendant

establishes that the conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667,

675,    257    P. 3d    551 ( 2011). "            Constitutional due process principles prohibit prosecutorial


vindictiveness."            State   v.   Korum, 157 Wn.2d 614, 627, 141 P. 3d 13 ( 2006). "` [ A] prosecutorial


action is vindictive only if designed to penalize a defendant for invoking legally protected rights.'

Korum, 157 Wn.2d at 614 ( quoting United States v. Meyer, 810 F.2d 1242, 1245 ( D.C. Cir. 1987).

Actual vindictiveness must be shown by the defendant through objective evidence that a prosecutor

acted   in   order     to    punish      him for standing    on    his legal   rights.   Meyer, 810 F. 2d     at   1245.   A


presumption of vindictiveness arises when a                   defendant     can prove    that '   all of the circumstances,


when    taken together,         support a realistic     likelihood     of vindictiveness. '   Korum, 157 Wn.2d at 627




                                                                  25
43762 -7 -I1 / 45418 -8 - II




 quoting Meyer, 810 F. 2d         at   1245).   The mere filing of additional charges after a defendant refuses

a guilty plea cannot, without more, support a finding of vindictiveness. Korum, 157 Wn.2d at 629,

631.


         Here, the State' s filing of the amended information does not support Conner' s assertion of

vindictiveness.          The prosecutor has discretion to determine the number and severity of charges to

bring   against a   defendant. State       v.   Rice, 174 Wn.2d 884, 901, 279 P. 3d 849 ( 2012).      Conner has


failed to   show    the State    acted   vindictively   by filing   additional charges.   Therefore, we hold that


the prosecutor did not act vindictively or retaliate against Conner.

         E.         Sentencing

                    1.         Exceptional Sentence


         Conner argues that the trial court imposed an exceptional sentence without entering written

findings in   support of        that   exceptional   sentence.      However, the trial court did not impose an


exceptional sentence.          Conner' s sentences were within the standard range, and the trial court ran


the underlying offense sentences concurrent with each other. Because the trial court did not impose

an exceptional sentence, no findings were required and this claim is without merit.


                    2.         Double Jeopardy

         Conner argues that the trial court violated his right to be free from double jeopardy under

the United States Constitution and the Washington Constitution. The State correctly concedes that

the robbery and theft from Cummings, during the Shore Drive incident, were the same in law and

fact. We accept the State' s concession, reverse Conner' s conviction of theft in the third degree,


and remand for resentencing. We disagree with Conner regarding to all other charges.




7 Conner also argues that the trial court erred by not conducting a same criminal conduct analysis.
Because we remand for resentencing, we do not address this issue.

                                                            26
43762 -7 -II / 45418 -8 -II




          Double jeopardy violations are questions of law we review de novo. State v. Womac, 160

Wn.2d 643, 649, 160 P. 3d 40 ( 2007).               The federal and state constitutions prohibit being punished

twice   for the   same crime.      U. S. CONST.        amend.   V; WASH. CONST.          art.   I, § 9; State v. Freeman, 153


Wn.2d 765, 770 -71,          108 P. 3d 753 ( 2005).             Multiple convictions whose sentences are served


concurrently may still violate the rule against double jeopardy. State v. Turner, 169 Wn.2d 448,

454 -55, 238 P. 3d 461 ( 2010).             Absent clear legislative intent to the contrary, two convictions

constitute double jeopardy when the evidence required to support a conviction for one charge is

also sufficient to support a conviction for the other charge, even if the more serious charge has

additional elements.        See Freeman, 153 Wn.2d               at   776 -77.      Thus, two convictions constitute the


same offense if they are the same in law and in fact. State v. Calle, 125 Wn.2d 769, 777, 888 P. 2d

155 ( 1995).      If each conviction includes elements not included in the other, or requires proof of a


fact that the other does not, the offenses are different. Calle, 125 Wn.2d at 777.


          Conner first argues that his burglary convictions should be reversed because they were the

same    in law    and   in fact   as   the thefts   and robberies.      We disagree.        A trial court does not violate


double jeopardy protections if it enters convictions for multiple crimes that the legislature

expressly intends to        punish      separately.     State v. Elmore, 154 Wn. App. 885, 900, 228 P. 3d 760

 2010).     The legislature enacted the burglary antimerger statute that expressly allows for a

defendant to be convicted and punished separately for burglary and all crimes committed during

that burglary. RCW 9A.52.050; Elmore, 154 Wn. App. at 900. The fact that the State can establish

multiple    offenses      with    the same      conduct     does      not   alone    violate    double   jeopardy.   State v.


Mandanas, 163 Wn. App.             712, 720    n. 3,   262 P. 3d 522 ( 2011).        Therefore, the trial court may punish

burglary separately from other crimes because of the plain language of RCW 9A.52. 050.




                                                                 27
43762 -7 -II / 45418 -8 -II



Accordingly, the trial court did not violate Conner' s right to be free from double jeopardy when it

treated the burglaries as separate criminal conduct for sentencing purposes.

           Conner next argues that we should vacate his separate convictions of three counts of theft


in the second degree and one count of theft in the third degree because they were the same in law

and   in fact    as   his    convictions        of eight counts of         robbery in the first degree.           We vacate only

Conner' s conviction of theft in the third degree because this theft was the functional equivalent of


a lesser included of robbery in the first degree of Cummings.

           A person is guilty of robbery in the first degree if

           i] n the   commission of a           robbery    or of   immediate flight therefrom, he . [             i] s armed

           with a deadly weapon; or [ d] isplays what appears to be a firearm or other deadly
           weapon; or [ i] nflicts bodily injury.

RCW 9A. 56. 200. RCW 9A.56. 190 defines " robbery," in pertinent part, as follows:


           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 or his
           or   her property        or   the   person or   property       of anyone.    Such force or fear must be
           used to obtain or retain possession of the property, or to prevent or overcome
           resistance to the taking; in either of which cases the degree of force is immaterial.

           A person is guilty of theft in the second degree if he commits theft of property which

exceeds $       750 in      value        but does   not    exceed $       5, 000 in   value,   or   an   access    device.     RCW


9A.56. 040( 1)(       a)   and (   d).    A person is guilty of theft in the third degree if he commits theft of

property that does           not exceed $       750 in    value.     RCW 9A.56. 050.           RCW 9A. 56. 020( 1)( a) defines


 theft,"   in pertinent part, as follows:


           To wrongfully obtain or exert unauthorized control over the property or services of
           another or the value thereof, with intent to deprive him or her of such property or
           services.




A person is guilty of theft of a firearm if he commits a theft of any firearm, regardless of the value

of the firearm. RCW 9A.56. 300.



                                                                     28
43762 -7 -II / 45418 -8 -II



            Conner' s convictions arising from the Twelfth Street, (I) incident were robbery in the first

degree      and   theft in the   second   degree.   Conner' s convictions do not constitute double jeopardy.

Although both crimes require the taking of another person' s property, the victims in this incident

were different. Robert Dato and Aaron Dato were both victims of the robberies. Harveson, who


was not present during the home invasion, was not a robbery victim. However, because Conner

took Harveson' s property, he was a theft victim. The crimes were different in fact because proof

of one offense would not necessarily prove the other. State v. Lust, 174 Wn. App. 887, 891, 300

P. 3d 846 ( 2013);      State v. Smith, 124 Wn. App. 417, 432, 102 P. 3d 158 ( 2004) affd, 159 W.2d 778

 2007) (    for purposes of double jeopardy analysis, the same criminal conduct cannot occur where

there   are multiple victims).        We hold that these convictions do not constitute double jeopardy.

            Conner' s convictions from the Twelfth Street ( II) incident, robbery in the first degree and

theft in the second degree do not constitute double jeopardy because, again, the victims were

different. Robert Dato, Aaron Dato, and Turner, were robbery victims. Harveson, a victim of theft

but   not   robbery,    was not present      during   the home invasion.        The crimes were different in fact


because proof of one offense would not necessarily prove the other. We hold that these convictions

do not constitute double jeopardy.

            The State concedes that Conner' s convictions from the Shore Drive incident, robbery in

the   first degree     and   theft   in the third degree,   constituted   a   violation of   double   jeopardy.   Even


though the statutory elements differ, under the facts of this incident, both crimes involved the

taking of property from the same victim at the same time. We accept the State' s concession and

reverse the theft in the third degree conviction.


            Conner' s convictions from the Wedgewood Lane incident, robbery in the first degree, theft

of a firearm, and theft in the second degree by taking a debit card, do not constitute a violation of



                                                            29
43762 -7 -II / 45418 -8 -II




double jeopardy. Different people were victims. Aaron Tucheck and Keefe Jackson were robbery

victims. Conner took Ann Tucheck' s property, the firearm and debit card, but not in her presence,

and not with    force   or   the threatened   use   of force.   Therefore, she was a theft victim and not a


robbery victim. Additionally, theft of a firearm and theft of a debit card are neither factually nor

legally identical because proof of one offense would not necessarily prove the other. We hold that

these convictions do not constitute double jeopardy.

        We vacate Conner' s theft in the third degree conviction and affirm his remaining

convictions.    We remand for resentencing on the remaining convictions and twelve firearm

enhancements.




        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




                                CJ
             rgen,      C. J.




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