    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                        No. 67924-4-1
                    Respondent,
                                                        DIVISION ONE
             v.

                                                        PUBLISHED OPINION
DAVID V. CHESNOKOV,

                    Appellant.                          FILED: July 8, 2013


       Appelwick, J. — Chesnokov was convicted of first degree robbery and three

counts of second degree assault. The robbery "to convict" instruction listed the victim

as Venneti or Dickey, one assault instruction listed Venneti as the victim, and one

assault instruction listed Dickey as the victim.    Chesnokov argues that his assaults

against Venneti and Dickey both merge into his robbery conviction, because the

conduct constituting the assaults was necessary to elevate robbery to the first degree.

The State argues neither assault conviction should merge with the robbery conviction,

We hold that the merger doctrine applies, but only one assault convictiefi wis;
                                                                               <=    «o
necessary to elevate robbery to the first degree. We vacate only one assault convicti9a-
                                                                                CO   =u-n


and remand for resentencing.                                                    =J ;£•£
                                        FACTS                                   ^    -^
       On the evening of February 20, 2011, David Chesnokov and Mark Shtefanio

went into an AT&T store in Mount Vernon.           A surveillance video shows that they

wandered around the store for about 20 minutes looking at various phone and tablet

displays.

       The next morning, Morgan Venneti and Lupe Dickey were working at the front

counter when Chesnokov and Shtefanio reentered the store. This time, Chesnokov and
No. 67924^-1/2




Shtefanio were wearing bandanas over the lower portion of their faces and Chesnokov

was holding what about appeared to be a gun. Unknown to Venneti and Dickey at the

time, the gun was actually a BB gun. Chesnokov pointed the gun at Venneti's head and

told her and Dickey to get on the ground. Shtefanio began grabbing phones.

      Melissa Suarez was working in the store's back room. After hearing loud voices

from the sales floor, she walked out and saw Chesnokov pointing a gun at Venneti and

Dickey. When Chesnokov saw Suarez, he ran toward her, told her to get on the floor,

and pointed the gun at her head.      Chesnokov and Shtefanio left the store with two

phones and a tablet.

      Police officers   executed   search   and   arrest warrants   on   Chesnokov and

Shtefanio. Police discovered the stolen tablet, clothes and bandanas that Chesnokov

and Shtefanio wore during the robbery, and a BB gun that looked like the one used in

the robbery.

      The State charged Chesnokov with robbery in the first degree and three counts

of assault in the second degree. The three assault charges were based on his assault

of Suarez, Venneti, and Dickey. It also charged him with tampering with a witness,

based on a phone call from jail in which he told Shtefanio's girlfriend to "[t]ell them we

didn't show you anything."

      After Chesnokov was convicted on all charges, he argued that the assault

charges should merge into the robbery conviction. The State argued that the assault

against Suarez did not merge because she was not named as a victim of the robbery,

and that the assaults against Venneti and Dickey did not merge because the assaults
No. 67924-4-1/3




were not necessary to elevate the robbery to first degree. The trial court agreed with

the State and concluded that none of the assault charges merged.

                                     DISCUSSION


       The State may bring multiple charges arising from the same criminal conduct in a

single proceeding.   State v. Michielli. 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997).

However, state and federal constitutional protections against double jeopardy prohibit

multiple punishments for the same offense. State v. Kier, 164 Wn.2d 798, 803, 194

P.3d 212 (2008).     Where a defendant's act supports charges under two criminal

statutes, a court weighing a double jeopardy challenge must determine whether, in light

of legislative intent, the charged crimes constitute the same offense. State v. Freeman,

153 Wn.2d 765, 771, 108 P.3d 753 (2005). The court engages in a three-part test to

determine whether the legislature intended multiple punishments in a particular

situation.   Kier, 164 Wn.2d at 804.    First, the court searches the criminal statutes

involved for any express or implicit legislative intent. State v. Calle, 125 Wn.2d 769,

776, 888 P.2d 155 (1995). Second, if the legislative intent is unclear, the court turns to

the "same evidence" Blockburger test, which asks if the crimes are the same in law and

in fact. ]a\ at 777-78 (citing Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct.

180, 182, 76 L. Ed. 2d 306 (1932)).      Third, the merger doctrine may be an aid in

determining legislative intent. Freeman, 153 Wn.2d at 772-73. Even if two convictions

would appear to merge on an abstract level under this analysis, they may be punished

separately if the defendant's particular conduct demonstrates an independent purpose

or effect of each.   Kier, 164 Wn.2d at 804.    The usual remedy for violations of the

prohibition of double jeopardy is to vacate the lesser offense. State v. Hughes, 166
No. 67924-4-1/4




Wn.2d 675, 686 n.13, 212 P.3d 558 (2009). The court's review is de novo. Freeman,

153Wn.2dat770.


  I.    Merger Doctrine

        Chesnokov argues that two of his assault convictions, against Venneti and

Dickey, merge into his first degree robbery conviction. Under the merger doctrine, when

the degree of one offense is raised by conduct separately criminalized by the

legislature, the court presumes the legislature intended to punish both offenses through

a greater sentence for the greater crime. Freeman, 153 Wn.2d at 772-73. For instance,

the doctrine applies when, to prove first degree rape, the State must prove not only that

a defendant committed rape, but also that the rape was accompanied by an act defined

as a crime elsewhere in the criminal statutes, such as assault or kidnapping. JcL at 777-

78 (quoting State v. Vladovic. 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983)).

        There is no per se rule that assault in the second degree merges into robbery in

the first degree. jg\ at 774. Rather, a case by case approach is required. ]d But, the

Supreme Court has repeatedly determined that second degree assault merges into first

degree robbery when there is no independent purpose for each crime.

        Freeman involved the consolidated cases of State v.      Freeman and State v.


Zumwalt. ]d at 765. Freeman and his accomplices were supposed to be driving an

acquaintance to a party. Id. at 769. Instead, they stopped on a dark, dead-end street.

kL     Freeman got out of the vehicle, walked around to the acquaintance's car door,

ordered him to hand over valuables, and shot him when he did not immediately comply.

]a\ Freeman and his accomplices then robbed the acquaintance and left him. ]d A jury

convicted Freeman of first degree assault and first degree robbery. Jd. The trial court
No. 67924-4-1/5




determined that the two convictions were not the same for double jeopardy purposes.

li

         Zumwalt offered to sell drugs to a woman he met at a casino. jd at 770. When

they met in the parking lot to conclude the transaction, Zumwalt decided not to sell her

drugs.     ]d    Instead, he punched her hard enough to knock her to the ground and

fracture her eye socket, Jd He then robbed her of approximately $300 in cash and

casino chips. ]d He was convicted of second degree assault and first degree robbery.

]d The trial court determined that the two convictions were not the same for double

jeopardy purposes. ]d

         Going through the three-part test, the Supreme Court first noted that the standard

sentence for first degree assault is substantially longer than the penalty for first degree

robbery.    ]d at 775-76.     It concluded that vacating Freeman's first degree assault

charge would have produced a windfall and could not have been what the legislature

intended.       ]d at 776.   Rather, the disparate sentences were evidence that the

legislature intended to punish first degree assault and first degree robbery separately.

]d As to Zumwalt, it found no evidence in the statutes themselves that the legislature

intended to punish second degree assault and first degree robbery separately. Id The

supreme court did not apply the Blockburger test because the parties seemed to agree

that the crimes were not the same at law. ]d at 777.

         The court then turned to the merger doctrine.     It explained that, "to prove first

degree robbery as charged and proved by the State, the State had to prove the

defendants committed an assault in furtherance of the robbery." ]d at 778. "[Wjithout

the conduct amounting to assault, each would be guilty of only second degree robbery."
No. 67924-4-1/6




Id It determined that, "[ujnder the merger rule, assault committed in furtherance of a

robbery merges with robbery" unless an exception applies or there is other evidence of

contrary legislative intent.   Jd   Thus, Zumwalt's second degree assault conviction

merged into his first degree robbery conviction, but Freeman's first degree assault

conviction did not merge with his first degree robbery conviction, because there was

other evidence of contrary legislative intent. Jd The court stated that generally first

degree robbery and second degree assault "will merge unless they have an

independent purpose or effect." Jd at 780.

       In Kier, Qualgine Hudson was driving home and his cousin, Carlos Ellison, was in

the passenger seat. 164 Wn.2d at 802. Three men in another car honked their horn at

Hudson. Id He pulled over, got out of the car, and began talking to one of the men. Id

Kier got out of the other car and pointed a gun at Hudson. Jd. Hudson ran away. Jd

Kier then approached Ellison, who was still in Hudson's car, and pointed the gun at him.

Jd He ordered Ellison to get out of the car. Jd After Ellison got out, Kier and his two

accomplices drove away with both cars. Id at 803. A jury found Kier guilty of second

degree assault and first degree robbery. Jd

       Kier was convicted of first degree robbery under RCW 9A.56.200(1 )(a)(i-ii), which

provides that robbery is elevated to the first degree if the defendant is armed with a

deadly weapon or displays what appears to be a firearm or other deadly weapon in the

commission of the robbery or in immediate flight from the robbery. Jd. at 805. Robbery

itself requires the taking of property by the use or threatened use of immediate force,

violence, or fear of injury to a person or his property. Jd at 805-06. The robbery to

convict instruction required the State to prove that, in addition to using fear or force, Kier
No. 67924^-1/7




'"was armed with a deadly weapon or displayed what appeared to be a deadly

weapon.'" Jd at 808-09.      Kier was convicted of second degree assault under RCW

9A.36.021(1)(c), which provides that a person is guilty of second degree assault if he

"assaults another with a deadly weapon." Jd at 806. Assault involves putting another in

apprehension or fear of harm, regardless of whether the actor intends to inflict or is

incapable of inflicting such harm. Jd The to convict instruction required the State to

prove that Kier assaulted Ellison "'with a deadly weapon.'" Jd at 809. The trial court

denied Kier's motion to vacate his second degree assault conviction. Jd. at 803.

      The Supreme Court concluded that "the completed assault was necessary to

elevate the completed robbery to first degree." Id at 807. It explained, "The merger

doctrine is triggered when second degree assault with a deadly weapon elevates

robbery to the first degree because being armed with or displaying a firearm or deadly

weapon to take property through force or fear is essential to the elevation." Id at 806.

       In this case, Chesnokov was charged with first degree robbery pursuant to RCW

9A.56.200(1)(a). Specifically, the trial court instructed the jury that to convict, it needed

to find that in the commission of robbery or in the immediate flight therefrom,

Chesnokov or an accomplice "display[ed] what appealed] to be a firearm." It instructed

the jury that, to convict Chesnokov of assault in the second degree, it needed to find

that he assaulted "another with a deadly weapon."

       The State argues that Chesnokov's convictions do not merge, because the jury

could have concluded that Chesnokov displayed what appeared to be a firearm, the BB

gun, but that the BB gun was not a deadly weapon. In that scenario, the jury could have

convicted for first degree robbery but not for second degree assault. Essentially, the
No. 67924-4-1/8



State argues that proving second degree assault was sufficient, but not necessary, to

elevate the robbery conviction to the first degree.

      The only reference to weapons in the definition of second degree assault is

"[ajssaults another with a deadly weapon." RCW 9A.36.021(1)(c). In contrast, robbery

can be elevated to the first degree when the defendant "[i]s armed with a deadly

weapon" or "[displays what appears to be a firearm or other deadly weapon." RCW

9A.56.200. The State argues that, by charging under the more lenient "[displays what

appears to be a firearm or other deadly weapon," it avoids double jeopardy concerns.

(Quoting RCW 9A.56.200.)

       We reject the State's argument. First, although the State frames its argument in

terms of "merger" and "elevation," it is really applying the Blockburger test. Under that

test, crimes may not be punished separately "if the crimes, as charged and proved, are

the same in law and in fact." Freeman, 153 Wn.2d at 777 (citing Blockburger, 284 U.S.

at 304). "[T]he mere fact that the same conduct is used to prove each crime is not

dispositive." Freeman, 153 Wn.2d at 777. The State makes that precise argument

here, contending that it is not dispositive that the same conduct was used to prove first

degree robbery and second degree assault, because the second degree assault charge

required an additional finding that the BB gun was a deadly weapon. But, Chesnokov

does not rely on the Blockburger test. The merger doctrine is a different consideration.

Indeed, in Freeman the appellants agreed that the crimes were not the same at law and

the court nevertheless reached the conclusion that Zumwalt's second degree assault

conviction merged with his first degree robbery conviction. Jd at 777-78.
No. 67924-4-1/9




      Second, although the State is correct that the merger doctrine applies to a case

as charged, the prosecutor's charging decisions and careful statutory parsing do not

override the legislative intent to treat these crimes as the same.       Chesnokov was

charged with crimes that required the State to prove that he was armed with a deadly

weapon or displayed what appeared to be a firearm or other deadly weapon.             The

conduct and evidence used to establish those elements in the robbery and assault

charges was the same: Chesnokov brandished a BB gun that looked like a real gun and

pointed it at the victims. It was not disputed that the BB gun looked like a real gun, and

it was not disputed that the BB gun was in fact a deadly weapon.

      Third, the State attempts to distinguish this case from Kier where there is no

meaningful distinction to be made.      In Kjer, the second degree assault instruction

required the jury to find that the assault involved a deadly weapon, but the first degree

robbery instruction only required the jury to find '"the defendant was armed with a

deadly weapon or displayed what appeared to be a deadly weapon.'" 164 Wn.2d at 809

(emphasis added). Just as in this case, the jury could have hypothetically determined

that the defendant "displayed what appeared to be a deadly weapon," but was not

actually armed with a deadly weapon.

       Kier is directly on point. The Kier court stated, "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." Jd at 806. Although we recognize

that there is no per se rule that second degree assault merges with first degree robbery,

the State has not identified any unique characteristic of this case that warrants reaching


                                                9
No. 67924-4-1/10



a different result.


II.    Remedy

       Chesnokov argues that, because the merger doctrine applies, we must vacate

both his assault committed against Venneti and his assault committed against Dickey.

We disagree.

       The merger doctrine applies at the time of sentencing and its purpose is to

correct violations of the prohibition of double jeopardy. See, e.g.. State v. Parmelee,

108 Wn. App. 702, 711, 32 P.3d 1029 (2001).            As such, it is a doctrine aimed at

providing remedies.      The touchstone of determining the appropriate remedy is

legislative intent. Freeman, 153 Wn.2d at 771-72.

       The jury found Chesnokov guilty of assaulting both Venneti and Dickey, but only

one of those convictions was essential to elevate robbery to the first degree. It does not

violate the merger doctrine for Chesnokov to be punished for the remaining assault

count where the State has proven two counts and one of those counts merges with the

robbery conviction. The second conviction was not essential and does not merge. A

contrary interpretation would produce an absurd result: a defendant convicted of 100

counts of second degree assault and one count of first degree robbery encompassing

100 potential victims would receive the same punishment as a defendant who

committed first degree robbery and second degree assault against one victim.

       At oral argument, appellate counsel argued that both convictions must merge

pursuant to Kier. In Kier, the to convict instruction for second degree assault specified

Ellison as the victim, but the to convict instruction for first degree robbery did not specify

a victim.    164 Wn.2d at 812.       The jury could have determined that the robbery


                                                 10
No. 67924-4-1/11



instruction applied to Ellison, Hudson, or both. Jd The State argued that the assault

against Ellison did not merge, because it specified in closing that Hudson was the victim

of the robbery. Jd at 813. The Supreme Court concluded that it was unclear whether

the jury found that Ellison was a victim of the robbery as well as the assault, which

created an ambiguity. Jd at 811-12. Under the rule of lenity, ambiguous jury verdicts

must be resolved in the defendant's favor. Jd at 811. Thus, it ruled that the assault

conviction merged into the robbery conviction. Jd at 814.

       As in Kier, it is unclear in this case whether the jury found that robbery was

committed against Venneti, Dickey, or both. But, in Kier there was only one assault

conviction.   Here, the jury found Chesnokov guilty of assaulting both Venneti and

Dickey. To elevate robbery to the first degree, the State only had to establish the

conduct constituting assault against Venneti or Dickey. Regardless of whether the jury

elevated robbery to the first degree based on the assault of Venneti, Dickey, or both, the

fact remains that only one assault conviction was necessary. In other words, there is no

resolution of the ambiguity that favors Chesnokov and the rule of lenity does not apply.

       We vacate one of Chesnokov's assault convictions and remand for resentencing.




WE CONCUR:




     >4~/^ ,/

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