                                                         Filed
                                                   Washington State
                                                   Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    Division Two

                                         DIVISION II                                       October 6, 2015


 STATE OF WASHINGTON,                                                No. 45772-5-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

 MICHAEL ANTHONY BRUCE,

                                Appellant.


       BJORGEN, J. — The State charged Michael Anthony Bruce with first degree burglary,

third degree theft, residential burglary, and several violations of a domestic violence court order,

based on conduct against his former intimate partner Heather Reid. A jury returned guilty

verdicts on all counts. Bruce appeals, arguing that the trial court erred by (1) joining certain of

the charges for trial and denying his subsequent motion to sever those charges and (2) entering

convictions for both first degree burglary and residential burglary based on a single unlawful

entry into Reid’ s apartment, thus putting Bruce in double jeopardy. Accepting the State’ s

concession, we reverse the residential burglary conviction on double jeopardy grounds, but

otherwise affirm.

                                              FACTS

       Bruce and Reid had a dating relationship for two or three years during which Bruce lived

at Reid’ s ground-level apartment in Vancouver, Washington for about six months. Reid broke

up with Bruce in October 2012, and Bruce moved out of Reid’ s apartment. Reid broke off the

relationship completely in January 2013. Bruce refused to accept her decision to terminate the

relationship.
No. 45772-5-II


       On January 17, 2013, the District Court of Clark County entered an order prohibiting

Bruce from contacting Reid or knowingly coming within 250 feet of her residence, and the same

court entered a similar order on April 5. Both orders bore Bruce’ s signature and by their terms

remained in effect for two years from the date of entry with the court.1

1.     The Events of June 28 to 30, 2013

       On the night of June 28, Bruce showed up at Reid’ s apartment after her children had gone

to bed. Reid told him to leave, but let him in after he threatened to “ make a scene.” 1 Verbatim

Report of Proceedings (VRP) at 68. Bruce asked if Reid’ s children would be at her apartment

the following night, and Reid said they would not. Reid and Bruce argued, but Bruce stayed at

Reid’ s apartment until the morning.

       The following night, June 29, Reid awoke to Bruce touching her arm. Bruce told Reid to

be quiet and not get mad.    Bruce grabbed Reid’ s wrists, held her down, and covered her nose

and mouth with his hand to stop her from yelling. Reid could not breathe, so she stopped

yelling, hoping that Bruce would remove his hand from her mouth.

       Bruce released her, and Reid jumped out of bed, again yelling for him to leave. At some

point, Reid turned on the bedroom light and could clearly see Bruce. Bruce then cornered Reid

in the bathroom adjoining her bedroom, telling her to stop yelling and to be quiet. When Reid

did not stop yelling, Bruce punched her in the jaw. Reid began crying, and Bruce finally left the

apartment.




1
  The trial court admitted certified copies of the orders at trial, but they do not appear in the
record. These facts come from the trial testimony of the district court office manager, who
authenticated the certified copies. Bruce did not dispute at trial that the orders existed or that he
knew of them.

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No. 45772-5-II


       In the morning, Reid could not find her cell phone, but did find a vase of flowers in her

bathroom that she did not recognize. She later found flowers in various other places around her

apartment, including in her daughter’ s bedroom.

       Reid used her mother’ s cell phone to send text messages to her own phone number,

demanding return of the phone and threatening to call the police if not returned. She did not

receive a reply, so she called the police. Clark County Sheriff’ s Deputy Doug Paulson met Reid

at her apartment and interviewed her and her mother. Paulson noticed “ some light bruising” on

Reid’ s right wrist. 1 VRP at 36.

       Reid’ s missing cell phone had a Facebook application that allowed the user to access

Reid’ s account without entering a password. Reid discovered that someone had sent messages

from her Facebook account, time stamped after her cell phone went missing, to four men on her

contact list. The content of the messages included, for example, “ I told you to stop talking to

Heather,” “ I can’ t believe you would do this,” “ I thought you were the [ sic] homie,” 1 VRP at

48, “ How could you do this?” 1 VRP at 49, and demands that the recipients leave Reid alone.

       Similarly, Reid’ s cousin Shayleen Migneault received a text message from Reid’ s cell

phone number the next day, July 1, stating, “ I’m not okay. I need mental help. I need help.”

1 VRP at 111. The following day, July 2, Migneault received an angry, threatening call that her

phone identified as originating from Reid’ s cell phone number, but recognized Bruce as the

caller by his voice, with which she was familiar.




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No. 45772-5-II


2.     The Events of September 5, 2013

       In the early afternoon of September 5, a witness observed Bruce knocking on the door of

Reid’ s residence. Linda McCluskey, who was supervising one of Reid’ s children, heard the

knocking but did not answer. Bruce kept knocking and started ringing the doorbell over and

over until McCluskey answered the door. She told Bruce that he was not supposed to be there

and that she was going to call 911. Bruce swore at her and left. McCluskey called the police and

gave a statement.

       Bruce returned to Reid’ s residence later that evening, after Reid had arrived home. He

knocked on the window and asked to come in. Reid told him to leave. Bruce started continually

ringing the doorbell and demanding to come in, at which point Reid called 911. When officers

arrived they arrested Bruce outside Reid’ s apartment building.

       When Clark County Sheriff’ s Deputy Daniel Fronk, one of the responding officers,

questioned Bruce about his activities on June 29 and 30. Bruce denied visiting Reid’ s apartment

on those occasions and claimed to have an alibi. Bruce told Fronk that he had been at Cathedral

Park, but did not identify anyone who could corroborate his alibi.

3.     September to October Postcards

       A few days after the September 5 incident, Reid received a handwritten postcard from

Bruce addressed to Bruce’ s daughter at Reid’ s mailing address. Reid received another six such

postcards over the next month. On October 23, Reid called 911 to report the postcards and

eventually turned them over to police.

       Clark County Sheriff’ s Deputy Robert Anderson responded to the call and questioned

Bruce, who admitted to sending the postcards, but told Anderson that he had sent them to his

daughter. When Anderson pointed out that Bruce had sent the letters to Reid’ s address, Bruce



                                                4
No. 45772-5-II


responded, “ I wasn’ t trying to violate no order or anything.” 2 VRP at 168-69. Bruce also

claimed to have mistakenly addressed the postcards to Reid and claimed that his daughter lived

at Reid’ s apartment when he sent the postcards.

                                    PROCEDURAL HISTORY

       In September 2013, the State filed charges against Bruce for first degree burglary, felony

domestic violence court order violation, and third degree theft based on the June 29 and 30, 2013

incident at Reid’ s apartment. On November 21 the State filed a motion to consolidate these

charges with Bruce’ s four counts of misdemeanor violations of a domestic violence court order,

based on his September 2013 visit to Reid’ s residence and the subsequent postcards. After

considering Bruce's memorandum in opposition, the trial court granted the motion to consolidate

the charges. The State amended the information accordingly and added a domestic violence

residential burglary charge.

       Bruce pled not guilty and proceeded to a jury trial. The State called Reid, Kraft,

Migneault, McCluskey, and various law enforcement officers, who testified to the facts as set

forth above. Reid testified also that Bruce’ s daughter had never lived at Reid’ s residence.

       A number of inconsistencies in Reid’ s statements also emerged at trial. Clark County

Sheriff’ s Deputy Doug Paulson, one of the investigating officers, testified that Reid initially told

him that Bruce was left-handed and had hit her on the right side of her face. At trial, Reid

testified that she did not remember whether Bruce was right or left-handed. Reid also admitted

that she initially told police and the defense investigator that she had not seen Bruce for some

time prior to the night of July 29. Reid explained that she lied because she was embarrassed,

thought she “ would get in trouble” for violating the no contact orders, and “ wanted to say




                                                   5
No. 45772-5-II


whatever it took to make sure that . . . an incidence [sic] like this d[id] not happen to [her]

children ever again.” 1 VRP at 94.

       Following Reid’ s testimony, Bruce moved to sever the four counts arising out of the

September 2013 events, pointing out that Reid had testified that Bruce's pattern of behavior on

June 30 was the same as his behavior on September 5 and arguing that severance was justified by

the risk the jury would decide guilt concerning the latter incident based on evidence of the

former. The trial court denied the motion, stating that it was familiar with the issue from the

previous hearing and argument and didn't see anything new presented.

       After the State rested, Douglas and Michelle Schmer, friends of Bruce’ s with whom he

lived from January to mid-August 2013, testified that they remembered the weekend of June 28

to 30 because they were preparing for their twins’ birthday party. They admitted, however, that

they did not become aware of the significance of the weekend until the following September.

The Schmers testified that Bruce was at their house on June 28 until dark and that they all

watched movies together before going to bed.

       Douglas Schmer testified that on June 29, he and Bruce attended a friend’ s party at

Cathedral Park, returned to the Schmers’ home together, then went to bed sometime after 11:00

p.m. or 12:00 a.m. that night. Reid’ s mother, Laura Sweider, testified that she attended the party

and saw Bruce and Douglas there. The Schmers testified that Bruce could not have left their

house without setting off the security alarm, which did not go off.

       Bruce testified on his own behalf, averring that he did not leave the Schmers’ house or go

to Reid’ s apartment on June 28. Bruce denied going to Reid’ s apartment on the night of June 29,

as well, testifying consistently with Douglas’ s account.




                                                  6
No. 45772-5-II


          Bruce also called defense investigator Steven Teply. Teply testified that Reid made

various statements to him that were inconsistent with her trial testimony and statements to police.

For example, Reid told Teply that her relationship with Bruce ended much later than she

adverted to in her trial testimony: Reid told the investigator that she had broken off the

relationship a week before the events of June 29 and 30, 2013, and later told him it ended two

weeks or a month before those events.2 Teply also testified that, when he interviewed Reid, she

told him that she believed Bruce was right-handed.3

          With respect to the multiple charges, the court instructed the jury as follows: “A separate

crime is charged in each count. You must decide each count separately. Your verdict on one

count should not control your verdict on any other count.” Clerk’ s Papers ( CP) at 134. The jury

returned guilty verdicts on all counts. The court entered convictions on all charges, including

third degree theft, residential burglary, and first degree burglary, and imposed the maximum

standard range sentence. Bruce appeals.

                                              ANALYSIS

          We first address Bruce’ s claim that consolidating the charges arising out of the June

incident with those arising out of the September incident and the subsequent postcards deprived

him of a fair trial. We then consider whether entry of convictions for both first degree burglary

and residential burglary placed him in double jeopardy.




2
    Reid testified at trial that she broke off her relationship with Bruce in January 2013.

3
  Paulson testified that Reid initially told him that Bruce was left-handed and had hit her on the
right side of her face.

                                                    7
No. 45772-5-II


                                 I. CONSOLIDATION OF THE CHARGES

         Bruce argues that the trial court erred by (1) granting the State’ s motion to join the four

charges arising from the June incident with the remaining charges and (2) denying his

subsequent severance motion. The State maintains that the trial court did not abuse its

discretion. We agree with the State.

         Washington’ s liberal joinder rule allows charges to be consolidated in a charging

document if they are “ based on the same conduct or on a series of acts connected together or

constituting parts of a single scheme or plan.” CrR 4.3(a)( 2); State v. Thompson, 88 Wn.2d 518,

525, 564 P.2d 315 (1977), overruled on other grounds by State v. Thornton, 119 Wn.2d 578, 835

P.2d 216 (1992). A statute similarly provides in relevant part that, “[ w]hen there are several

charges against any person . . . for two or more acts or transactions connected together, or for

two or more acts or transactions of the same class of crimes or offenses, which may be properly

joined, . . . the court may order such indictments or informations to be consolidated.” RCW

10.37.060. We construe the joinder rule expansively to promote the public policy of conserving

judicial and prosecutorial resources. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004

1998).

         We review a trial court’ s denial of a motion to sever for a manifest abuse of discretion.

Bryant, 89 Wn. App. at 864. The trial court abuses its discretion if its decision is manifestly

unreasonable or based upon untenable grounds or reasons. State v. Blackwell, 120 Wn.2d 822,

830, 845 P.2d 1017 (1993). Untenable grounds or reasons exist where the trial court relied on

facts unsupported in the record, applied the wrong legal standard, or adopted a view that “‘ no

reasonable person would take.’” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)

quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).



                                                   8
No. 45772-5-II


A.     Joinder

       We have held that connections between charged offenses much less substantial than those

presented here sufficient to justify joinder. E.g., State v. Gatalski, 40 Wn. App. 601, 606, 699

P.2d 804 (1985), overruled on other grounds as stated in State v. Harris, 121 Wn.2d 317, 849

P.2d 1216 (1993); State v. Weddel, 29 Wn. App. 461, 465, 629 P.2d 912 (1981). Notably, in

Gatalski, where the State charged the defendant with attempted rape and attempted kidnapping

based on incidents five months apart and involving different victims, we held joinder proper

because both involved use of force against female victims, sexual connotations, and the victims

allegedly made voluntary romantic overtures toward the defendant. Gatalski, 40 Wn. App. at

603-06.

       All the charges here stemmed from conduct involving the same victim and, as shown by

the facts recited above, were animated by the same motive: that of attempting to reestablish

contact after a failed relationship. Thus, under CrR 4.3(a)( 2) and implementing case law, noted

above, they were sufficiently connected to warrant joinder. Consequently, even though the trial

court's order on consolidation did not express its reasoning, it met the governing standards and

cannot be deemed a manifest abuse of discretion.

B.     Severance

       CrR 4.4 gives a trial court discretion to sever counts joined or consolidated under CrR 4.3

if it “determines that severance will promote a fair determination of the defendant’ s guilt or

innocence of each offense.” CrR 4.4(b); State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154

1990). A defendant seeking severance of charges must demonstrate that a joint trial would be

 so manifestly prejudicial as to outweigh the concern for judicial economy.” Bythrow, 114

Wn.2d at 718. Circumstances posing a risk of prejudice sufficient to merit severance include



                                                 9
No. 45772-5-II


those where (1) the defendant “ may become embarrassed or confounded in presenting separate

defenses,” or the jury (2) may “ cumulate the evidence of the various crimes charged and find

guilt when, if considered separately, it would not so find,” or (3) infer a criminal disposition

from evidence presented on some charges, then rely on that inference to find the defendant guilty

of others. Bythrow, 114 Wn.2d at 718 (internal quotation marks omitted).

       Our Supreme Court has identified four considerations in determining whether charges

should be severed to avoid prejudice to a defendant: “‘( 1) the strength of the State’ s evidence on

each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to

consider each count separately; and (4) the admissibility of evidence of the other charges even if

not joined for trial.’” State v. Sutherby, 165 Wn.2d 870, 884-85, 204 P.3d 916 (2009) (quoting

State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). We address each factor in turn in

determining whether the trial court abused its discretion in denying Bruce's motion to sever.

       1. Relative Strength of the State’ s Evidence on Different Counts

       Where the State presents “ strong [ evidence] on each count, there is no necessity for the

jury to base its finding of guilt on any one count on the strength of the evidence of another.”

Bythrow, 114 Wn.2d at 721-22. But a disparity in the strength of the evidence on various

charges favors severance if “a jury is likely to be influenced in its determination of guilt or

innocence in the weak cases by evidence in the strong case.” State v. Hernandez, 58 Wn. App.

793, 801, 794 P.2d 1327 (1990).

       In State v. Kalakosky, 121 Wn.2d 525, 538-39, 852 P.2d 1064 (1993), for example, our

Supreme Court upheld a trial court’ s refusal to sever five rape charges, each involving a different

victim, in part because strong physical evidence corroborated each victim’ s account. In

Hernandez, on the other hand, the State presented only uncorroborated testimony from a single



                                                  10
No. 45772-5-II


eyewitness on two of three robbery counts, while three eyewitnesses independently identified

Hernandez with a high degree of confidence as the perpetrator of the crime charged in the

remaining count. 58 Wn. App. at 800-01. We reversed two of the three robbery convictions

because the “ jury [was] likely to be influenced in its determination of guilt or innocence in the

weak cases by evidence in the strong case.” Hernandez, 58 Wn. App. at 801.

       Here, Bruce admitted to the jury that he went to Reid’ s apartment twice on September 5,

2013, and subsequently sent her the postcards. Thus, the evidence that he committed the crimes

charged in the counts relating to those incidents could hardly be stronger.

       The evidence with respect to the charges arising from the June 30 incident is weaker.

The State’ s case relied primarily on the testimony of Reid, the only eyewitness to that incident.

As Bruce points out, inconsistencies between Reid’ s trial testimony and her prior statements cast

doubt on her credibility as a witness. Reid admitted she had lied to police because she would

 say whatever it took to make sure that . . . an incidence [sic] like this d[id] not happen to [her]

children ever again.” 1 VRP at 94.

       Some physical evidence tended to corroborate Reid’ s version, such as the bruises visible

on her arm and the flowers around her apartment, although it did not specifically point to Bruce

as the perpetrator. Migneault’ s testimony, that she received a call from Bruce of which her caller

identification service identified as originating from Reid’ s missing cell phone, more directly

implicated Bruce. On the other hand, two witnesses corroborated Bruce’ s alibi for the night in

question.

       Although the State presented substantial evidence as to the charges stemming from the

June incident, it had a much stronger case with respect to the charges based on the September

incident and the postcards. Thus, a joint trial posed some risk that the jury would find Bruce



                                                  11
No. 45772-5-II


guilty of the former charges based on the evidence presented on the latter. This factor weighs in

favor of severance.

          2. Clarity of Defenses

          The second factor concerns the possibility that failure to sever charges will force

defendants to present antagonistic defenses. The defendant bears the burden of showing

    specific prejudice” from any possible antagonistic defenses. State v. Grisby, 97 Wn.2d 493,

507, 647 P.2d 6 (1982).

          Bruce presented an alibi defense for the charges arising from the June 30 events, but

admitted to the remaining charges.4 Bruce argues that the presentation of his admission to some

charges together with his denial and alibi defense to the others likely confused the jury.

          In Russell, the defendant denied committing all the charged crimes and argued on appeal

that the trial court should have severed the counts. 125 Wn.2d at 64-65. In holding that the

clarity-of-defenses factor weighed against severance, our Supreme Court noted that “[ t]he

likelihood that joinder will cause a jury to be confused as to the accused’ s defenses is very small

where the defense is identical on each charge” and quoted with approval the trial court’ s

distinction between Russell’ s case and one where “ there will be an admission of one [ charge

and] denial of another.” Russell, 125 Wn.2d at 64-65.

          Here, however, we see little likelihood of jury confusion from these clearly differentiated

defenses. Further, Bruce’ s admission as to one set of charges and denial as to the other do not

qualify as irreconcilable so as to make severance mandatory: accepting Bruce’ s concession as to

one set of charges does not of logical necessity require the jury to reject his alibi defense to the



4
 At the hearing on the State’ s joinder motion, Bruce informed the court that he did not anticipate
calling any witnesses in defense against the charges arising from the September incident and the
subsequent postcards.

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No. 45772-5-II


others. See State v. Johnson, 147 Wn. App. 276, 285, 194 P.3d 1009 (2008) (“ For defenses to be

irreconcilable, they must be ‘ mutually exclusive to the extent that one [defense] must be believed

if the other [defense] is disbelieved.’”) ( quoting State v. McKinzy, 72 Wn. App. 85, 90, 863 P.2d

594 (1993)). On the other hand, where a defendant admits to certain charges while denying

others, the jury may improperly rely on the admission to find the denial incredible.

       The clearly differentiated and reconcilable nature of these defenses weighs against

severance, while the risk that the jury would rely on Bruce’ s admission to the latter charges to

reject his alibi defense to the June charges weighs in favor of severance. This criterion does not

clearly weigh in either direction.

       3. Instruction To Decide Each Count Separately

       The third factor concerns the trial court’ s instructions. As discussed, the trial court gave

the standard instruction that the jurors “ must decide each count separately” and that their “ verdict

on one count should not control [their] verdict on any other count.” CP at 134. We presume that

jurors follow such instructions. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990).

Given this presumption, this factor weighs against severance.

       4. Admissibility of Evidence on Different Charges in Separate Trials

       The final factor requires us to consider whether the evidence on particular charges would

be admissible in a separate trial on the other charges. Where the State could introduce the

evidence relating to each charge even if tried separately, the defendant incurs no additional risk

of unfair prejudice in a joint trial. See State v. Smith, 74 Wn.2d 744, 756, 446 P.2d 571 (1968),

judgment vacated in part by Smith v. Washington, 408 U.S. 934 (1972). The State argues that

the trial court could have properly admitted evidence concerning the September/October charges

in a separate trial on the June charges because “ Bruce’ s frightening behavior on September 5th



                                                 13
No. 45772-5-II


showed a common scheme on his part of showing up at [ Reid’ s] apartment unannounced and

uninvited and behaving threateningly, if not violently, while seeking entry or after gaining

entry.” Br. of Resp’ t at 17.

       ER 402 provides that “[ e] vidence which is not relevant is not admissible.” 5 ER 403

provides that the trial court may exclude even relevant evidence “ if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury.” Finally, ER 404(b) forbids the admission of propensity evidence; that is, “[ e] vidence

of other crimes, wrongs, or acts . . . to prove the character of a person” for the purpose of

showing that the person acted in conformity with that character on some other occasion.

       ER 404(b) also states that evidence “ may . . . be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” ER 404(b). Our Supreme Court has held evidence of other acts admissible

under the rule if it “serves a legitimate purpose, is relevant to prove an element of the crime

charged, and, on balance, the probative value of the evidence outweighs its prejudicial effect.”

State v. DeVries, 149 Wn.2d 842, 848-49, 72 P.3d 748 (2003). The court has also specified,

however, that “[ i]n cases where admissibility is a close call, ‘the scale should be tipped in favor

of the defendant and exclusion of the evidence.’” Sutherby, 165 Wn.2d at 886-87 (quoting State

v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)).

       Trial courts may admit evidence under ER 404(b) of a defendant’ s other acts “ to show

the existence of a common scheme or plan” in two circumstances: ( 1) “‘ where several crimes

constitute constituent parts of a plan in which each crime is but a piece of the larger plan’” and



5
  ER 401 defines relevant evidence as “ evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more . . . or less probable than
it would be without the evidence.”

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No. 45772-5-II


2) where “‘ an individual devises a plan and uses it repeatedly to perpetrate separate but very

similar crimes.’” State v. Gresham, 173 Wn.2d 405, 421-22, 269 P.3d 207, 214 (2012) (quoting

State v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995)). The State’ s argument appears to

rely on the latter type of circumstance, focusing on the similarities between the June and

September incidents.

       We rejected a similar argument in State v. Harris, 36 Wn. App. 746, 747-48, 751, 677

P.2d 202 (1984), where the defendants faced charges stemming from two very similar rapes in

the same trial. There, the State argued that the rapes were parts of a common scheme or plan

because “ both victims voluntarily entered vehicles with the defendants and in both instances the

defendants drove the victims against their will to a location where the rapes occurred.” Harris,

36 Wn. App. at 751. The Harris court noted that “ the State has fallen into the common error of

equating acts and circumstances which are merely similar in nature with the more narrow

common scheme or plan.” Harris, 36 Wn. App. at 751.

       Our Supreme Court subsequently held that “ admission of evidence of a common scheme

or plan requires substantial similarity between the [ other] acts and the charged crime.” State v.

DeVincentis, 150 Wn.2d 11, 21, 74 P.3d 119 (2003). Other than the fact that it involved the

same victim, Bruce’ s conduct giving rise to the September/October charges, demanding that she

let him in, and sending postcards from jail, has little in common with the June incident, where he

entered Reid’ s home at night while she slept, brought flowers, assaulted her, and took her phone.

The incidents are not sufficiently similar to qualify as a common scheme or plan where an

individual devises a plan and uses it repeatedly to perpetuate separate but very similar crimes.

Gresham, 173 Wn.2d at 422.




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No. 45772-5-II


       The conduct underlying the charges, however, does qualify as a common scheme or plan

where several crimes constitute constituent parts of a plan in which each crime is but a piece of

the larger plan, the other set of circumstances described in Gresham, 173 Wn.2d at 422. That is,

the evidence indicates that all of Bruce’ s efforts to contact Reid served his overarching goal of

convincing or compelling her to resume their intimate relationship. Further, Bruce denied

entering Reid’ s apartment on the night of June 29, assaulting her, leaving flowers, or taking her

phone. His subsequent visits to Reid’ s apartment and the mailing of postcards strongly indicated

that, months later, he remained so determined to resume a relationship with her that he would

disregard the no-contact orders and take extreme measures to rekindle the relationship. The

subsequent visits and the postcards were thus probative as to the veracity of his alibi defense

against the charges arising from the June incident.

       The trial court could have admitted evidence of one set of charges in a separate trial on

the other set. Thus, Bruce fails to show that he necessarily incurred any additional risk of unfair

prejudice by facing the charges in a single trial. This factor also weighs against severance.

       As set out above, a trial court abuses its discretion if its decision is manifestly

unreasonable or based upon untenable grounds or reasons. As just shown, the trial court's denial

of severance is consistent with the criteria in Sutherby.   Further, Bruce fails to meet his burden

of establishing prejudice of the kinds identified in Bythrow, 114 Wn.2d at 718, that require

severance as a matter of law. Thus, the trial court did not abuse its discretion by denying Bruce’ s

severance motion.

                                       II. DOUBLE JEOPARDY

       Bruce argues that entry of convictions for first degree burglary and residential burglary

placed him in double jeopardy because the residential burglary conviction rested on the same



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No. 45772-5-II


evidence used to prove the first degree burglary. He therefore asks us to reverse and dismiss the

residential burglary conviction. The State concedes the error and agrees as to the remedy. We

accept the State’ s concession.

       Because the burglary statutes do not expressly permit multiple punishments for the same

underlying conduct, 6 we determine whether the two convictions amount to double jeopardy using

the “ same evidence” test. State v. Hughes, 166 Wn.2d 675, 681-82, 212 P.3d 558 (2009). Under

this test, “ if the crimes, as charged and proved, are the same in law and in fact, they may not be

punished separately absent clear legislative intent to the contrary.” State v. Freeman, 153 Wn.2d

765, 777, 108 P.3d 753 (2005). In this inquiry, we must “ consider the elements of the crimes as

charged and proved, not merely at the level of an abstract articulation of the elements.”

Freeman, 153 Wn.2d at 777. Absent a clear showing of contrary legislative intent, multiple

punishments for the same act violate the prohibition against double jeopardy if “‘the evidence

required to support a conviction upon one of [the charged crimes] would have been sufficient to

warrant a conviction upon the other.’” In re Pers. Restraint of Orange, 152 Wn.2d 795, 820, 100

P.3d 291 (2004) (emphasis omitted) (alteration in original) (quoting State v. Reiff, 14 Wash. 664,

45 P. 318 (1896)).

       As relevant here, a person commits first degree burglary if “with intent to commit a crime

against a person or property therein, he or she enters or remains unlawfully in a building

and . . . , while in the building . . . assaults any person.” RCW 9A.52.020. A person commits

residential burglary “ if, with intent to commit a crime against a person or property therein, the




6
  A statute does expressly authorize punishment for both a burglary and the crime committed
inside a building that makes the unlawful entry or remaining qualify as a burglary. RCW
9A.52.050. The statute does not purport, however, to allow for two separate burglary
convictions based on the same unlawful entry.

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person enters or remains unlawfully in a dwelling.” RCW 9A.52.025. These may at first appear

different in law, as the first requires proof of an assault, which the second does not, and the

second requires proof of unlawful entry or remaining in a dwelling, while the first requires only

unlawful entry into or remaining in a building.

        As charged and proved here, however, they are the same both in law and fact. The only

building the State alleged Bruce unlawfully entered was Reid’ s residence, a “ dwelling.” RCW

9A.52.025. Thus, the evidence proving the first degree burglary charge plainly sufficed to prove

the residential burglary charge.

        We can discern no clear legislative intent to impose multiple burglary convictions based

on a single unlawful entry. Under the facts presented here, entry of convictions for both

residential burglary and first degree burglary placed Bruce in double jeopardy.

        We reverse and dismiss the residential burglary conviction. We affirm the trial court in

all other respects.

        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 pursuant to RCW 2.06.040, it
is so ordered.



                                                       BJORGEN, J.

 We concur:




 JOHANSON, C.J.




 SUTTON, J.



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