                                                                                                      FLED
                                                                                              COURT OF APPEALS
                                                   D( b' ON I
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                           2015 MAR 10 AM `       38
                                                   DIVISION II
                                                                                              STATE OF •    itj l#

 STATE OF WASHINGTON,                                                              No. 451'
                                                                                                     DEPU

                                     Respondent,                         UNPUBLISHED OPINION


          v.




 MEKO DEAUNTE JONES,


                                     Appellant.


         BJORGEN, A.C. J. —       A jury found Meko Jones guilty of, among other offenses, two counts

of second degree assault, one count of first degree kidnapping, and one count of first degree

robbery. Jones appeals, contending that ( 1) his sentences for the assault convictions were unlawful

because the combined term of confinement and community custody for each conviction exceeded

the   maximum    allowed    by    statute, (     2) his assault and robbery convictions merge, as do his

kidnapping and robbery convictions, and ( 3) his counsel rendered ineffective assistance by failing

to argue at sentencing that Jones' s assault, kidnapping, and robbery offenses encompassed the

same criminal conduct.       In   a pro     se   statement of additional grounds- (SAG),         Jones also alleges


prosecutorial misconduct.




         We hold that ( 1) the sentencing court erred in imposing a combined term of confinement

and community custody that exceeded the maximum allowed for each of the second degree assault

convictions,   requiring   a remand    to   correct   the   unlawful sentence, (   2) none of Jones' s convictions


merge because of the way the State charged and proved each offense, and ( 3) Jones did not receive

ineffective assistance of counsel because his assault, robbery, and kidnapping offenses did not

encompass the same criminal conduct. We decline to address Jones' s prosecutorial misconduct


claim   because he invited any     error.
No. 45143 -3 -II



        We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence

for each of the second degree assault convictions so that the combined term of confinement and


community custody for each conviction does not exceed the statutory maximum.

                                               FACTS


        Kayleigh Littlefield is the mother of Jones' s son. Because of Jones' s behavioral


problems, she cut off his contact with their son around Christmas of 2012.


        In early January 2013, Jones arrived at Littlefield' s school and waited for her, carrying a

pistol that he believed would enhance his persuasiveness in demanding to see his son. When

Littlefield arrived, Jones accosted her, aimed his pistol at her, told her that she could not take his

son from him, and demanded that Littlefield go on a walk with him. Littlefield assented, but

when Jones demanded the keys to her car, Littlefield refused. Though the parties disagree on


what exactly happened next, they do agree that the firearm discharged and the bullet struck

Littlefield in the abdomen. 1 Littlefield then gave Jones the keys.

        Jones demanded that Littlefield get into her car, and she complied out of fear that Jones


would shoot her again. As Jones drove them toward his mother' s house, he repeatedly struck the

butt of his loaded pistol on Littlefield' s dashboard. Again, Jones and Littlefield dispute exactly

what happened, but they agree that at some point in the car ride the firearm discharged again and

the bullet narrowly missed Littlefield as it flew past her, shattering the passenger side window.2


1 Jones testified that the gun went off when Littlefield attempted to grab it. Littlefield testified
that she could not remember exactly what happened, but that she had told the officer
immediately after the incident that Jones had intentionally shot her.

2 Jones contended that the gun again discharged accidentally when he struck it on the dashboard
of Littlefield' s car. Littlefield testified that she could not remember exactly what happened, but
that the gun was close by her face when fired and that she had told the investigating officer soon
after the shooting that it was intentional.

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No. 45143 -3 - II



         Once at Jones' s mother' s house, Jones continued to harangue Littlefield about their son


while they sat outside in Littlefield' s car. Jones eventually asked Littlefield how much money

she had. She replied that she had $ 300 in her bank account. Jones then told Littlefield that he


wanted   money to   get a shotgun   to "   shoot [ her] mom."   V Verbatim Report of Proceedings ( VRP)


at 43.


         Jones then drove Littlefield to .a nearby convenience store where he demanded

Littlefield' s automated teller machine ( ATM) card and her personal identification number (PIN).


Since Jones was still armed with the pistol, Littlefield felt that she had no choice but to comply.

Jones went inside the store and withdrew $200 dollars from Littlefield' s account, watching

Littlefield, who remained in the car, through the store' s window to make sure she did not attempt


to escape.


         Jones let Littlefield go after several more hours. She then drove herself to a hospital,

received treatment for the gunshot wound, and survived.


         Among other crimes, the State charged Jones with one count of first degree assault for the

shooting of Littlefield outside her school, one count of first degree assault for the shot fired in

Littlefield' s car, one count of first degree robbery for taking Littlefield' s ATM card and PIN, and

one count of first degree kidnapping. The State alleged that each of these offenses was a

domestic violence offense and that Jones was armed with a firearm during the commission of

each.




         After a trial, the jury found Jones guilty of, among other crimes, first degree kidnapping,

first degree robbery, and two counts of the lesser included offense of second degree assault. The

jury also found that ( 1) the assault, kidnapping, and robbery offenses were domestic violence




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No: 45143 -3 -II



offenses because Jones and Littlefield were members of the same household and ( 2) Jones was


armed with a firearm during the commission of the assaults, robbery, and kidnapping.

        The sentencing court imposed a high -end standard range sentence for each of Jones' s

convictions, running each sentence concurrently with the sentences for Jones' s other convictions

and consecutively to each of the firearm enhancements, which ran consecutively to each other.

For the two second degree assault convictions, this amounted to a sentence of 84 months of


confinement for each underlying charge and 36 months of confinement for each firearm

enhancement, for a total of 120 months for each conviction. The sentencing court also imposed

an 18 -month term of community custody for each of the second degree assault convictions.

        Jones now appeals.


                                                         ANALYSIS


                                                      I. SENTENCING


        Jones first contends that the trial court imposed a sentence in excess of its statutory

authority for   each of   his   second     degree    assault convictions.      Specifically, Jones argues that the

term of confinement and community custody imposed for each conviction exceeds the statutory

maximum for each offense. The State concedes error. We accept the concession and remand for


correction of his sentence.


        Thomas' s second degree assault convictions are class B felonies. RCW 9A.36. 021( 2)( a).


The   maximum allowed           term for   a class   B   felony   is 120   months.   RCW 9A.20. 021( 1)( b). A


sentencing court " may not impose a sentence providing for a term of confinement or community

custody that    exceeds   the statutory     maximum" prescribed             by RCW    9A.20. 021. RCW


9. 94A. 505( 5).   If the combined term of confinement and community custody for a standard range

sentence exceeds the statutorily permissible time, the sentencing court must reduce the term of



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No. 45143 -3 - II



community custody to             ensure a   lawful      sentence.    RCW 9. 94A.701( 9);         In re Pers. Restraint of

McWilliams, _          Wn. 2d ,            340 P. 3d 223, 225, 2014 WL 7338498 at * 2 ( 2014).


          The sentencing court imposed a term of confinement of 120 months for each of Jones' s

second    degree    assault convictions:             a standard range sentence of 84 months of confinement with


36 months for each firearm enhancement. The trial court also imposed a term of community

custody of 18 months for each conviction. The 138 -month total term for each offense exceeded

the 120 -month term            permitted   by   RCW 9A.20. 021( 1)( b). We therefore remand the matter to the


sentencing court to amend Jones' s term of community custody to comply with RCW

9. 94A. 505( 5)    and . 701(    9). State      v.   Boyd, 174 Wn.2d 470, 473, 275 P. 3d 321 ( 2012) ( per


curiam).




                                                       II. DOUBLE JEOPARDY


          Jones next contends that his sentence violated double jeopardy because several of his

convictions merge together. Specifically, he argues that the assaults and robbery merge because

the assaults were necessary to elevate the robbery to first degree. He argues also that the

kidnapping and robbery merge because the restraint involved in the kidnapping was incidental to

the robbery. We review Jones' s double jeopardy claims de novo, State v. Kelley, 168 Wn.2d 72,

76, 226 P. 3d 773 ( 2010), and hold that none of Jones' s convictions merge.


          Both the state and federal constitutions forbid the State from putting a person in jeopardy

twice for the      same offense.        WASH. CONST.         art.   I, §   9; U.S. CONST. amend. V.3 These

constitutional provisions are coextensive, State v. Turner, 169 Wn.2d 448, 454, 238 P. 3d 461




3
    Article I,   section   9   of the   Washington Constitution             provides   that "[ n] o   person shall   be ...   twice
put   in jeopardy for the        same offense."         The Fifth Amendment to the United States Constitution
provides    the   same guarantee,         stating that "[    n] o person shall    be ...    subject for the same offense to
be twice put in jeopardy of life or limb."


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No. 45143 -3 -II



2010),      and offer "   three   separate constitutional protections."            North Carolina v. Pearce, 395 U.S.


711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 ( 1969),                   overruled on other grounds by Alabama v.

Smith, 490 U. S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 ( 1989).                       They protect against ( 1) a

second prosecution         for the   same offense after an acquittal, ( 2)          a second prosecution for the same


offense after conviction, and ( 3) multiple punishments for the same offense. Pearce, 395 U.S. at


717; Turner, 169 Wn.2d at 454. Jones claims that his sentence violated the third protection


offered by the prohibition on double jeopardy, because he received multiple punishments for the

same offense by virtue of his separate convictions for assault, kidnapping, and robbery.

            The legislature may, without offending the prohibition against double jeopardy, authorize

cumulative punishments for acts that violate multiple criminal statutes. State v. Freeman, 153


Wn.2d 765, 771, 108 P. 3d 753 ( 2005).               Consequently, " the Double Jeopardy Clause does no

more than prevent the sentencing court from prescribing greater punishment than the legislature

intended." Missouri v. Hunter, 459 U. S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 ( 1983).


Thus, the resolution of Jones' s claims require us to examine the legislature' s intent.

            We review de novo whether the legislature intended to permit multiple punishments


using   a   three -part test.   State   v.   Kier, 164 Wn. 2d 798, 804, 194 P. 3d 212 ( 2008). " We first


consider express or        implicit legislative intent based          on   the   criminal statutes   involved." Kier, 164


Wn.2d at 804. Where the legislature' s intent remains unclear, we apply the " same evidence" test

announced in Blockburger v. United States, 284 U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

 1932). Kier, 164 Wn.2d            at   804 ( citations   omitted).     That test examines whether the crimes are


 the   same    in law   and   in fact."      Kier, 164 Wn.2d at 804. Finally, where applicable, we use the

merger doctrine as a means of ascertaining legislative intent regarding multiple punishments

 where      the degree of one offense is          elevated   by   conduct   constituting    a separate offense."   Kier,




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No. 45143 -3 - II



164 Wn.2d at 804. Jones concedes that the first two parts of this test show no double jeopardy

violation. Therefore, like Jones, we limit our analysis to the question of whether his offenses


merge.    State   v.   Knight, 176 Wn. App. 936, 953          n. 17,   309 P. 3d 776 ( 2013), review denied, 179


Wn.2d 1021 ( 2014).


          In State     v.   Berg,       Wn.2d ,      337 P. 3d 310, 314 ( 2014), our Supreme Court


summarized the merger doctrine in the following terms:

          Essentially, the merger doctrine states that where crime A and crime B are charged
          separately and completion of crime A is also an element of crime B, crime A will
          definitely merge into crime B if crime A was incidental to the commission of
          crime B. If crime A was not incidental but rather had an independent purpose .
               courts       may impose     separate punishment.        Thus, the incidental nature of the
          crime is relevant to the application of an exception to the general merger
          doctrine.


We examine Jones' s merger claims under this test.


1.        Assault and Robbery

          Jones first contends that his two assault convictions merge into his robbery conviction

because    they " provided          the force necessary to   elevate   the robbery to first degree."   Br. of


Appellant at 14. Jones' s argument fails under Berg._

          The legislature has provided that the infliction of bodily injury during the commission of

a    robbery   elevates      the robbery to first degree. RCW 9A.56. 200( 1)(        a)(   iii). To determine whether


either of Jones' s assaults merges with the robbery, we look to " the information, instructions,

testimony and jury argument" to determine whether the State charged and proved that Jones

committed first degree robbery because he inflicted bodily injury on Littlefield during

commission of the robbery. State v. Noltie, 116 Wn.2d 831, 848 -49, 809 P. 2d 190 ( 1991).

          The record before us shows conclusively that the State did not charge and prove first

degree robbery by the infliction of bodily injury during the robbery. Instead, the record shows

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No. 45143 -3 -II



that the State charged Jones with first degree robbery because he deprived Littlefield of personal

property by use or threatened use of force and was armed with a deadly weapon when he did so.

The evidence presented by the State at trial was consistent with this election. Littlefield testified

that Jones committed the assaults some time before he robbed her. She testified also that she


complied with Jones' s demands for her ATM card and PIN, not because he assaulted her, but


because he was armed with a firearm when he made the demands. Consistently with that

evidence, the trial court instructed the jury that Jones committed first degree robbery if he

deprived Littlefield of personal property while armed with a firearm. Significantly, the trial

court did not instruct the jurors that the infliction of bodily injury during the robbery would

elevate the robbery to first degree.

         The charges, the evidence, and the jury instructions all show, therefore, that the assaults

were not elements of the robbery and that the assaults had an independent purpose from that of

the robbery. With that, these crimes do not merge under the characterization of merger in Berg,

337 P. 3d at 314.


2.        Kidnapping and Robbery

          Jones next contends that the first degree kidnapping conviction merged into the first

degree robbery conviction because the kidnapping was incidental to the robbery. As our

Supreme Court      stated   in   Berg, "[ t] he law is now settled that just as kidnapping can never merge

into robbery,   neither can      robbery   merge   into   kidnapping." Berg, 337 P. 3d 310, 314 ( citing State

v.   Louis, 155 Wn.2d 563, 571 120 P. 3d 936 ( 2005)).            In light of this settled law, Jones' s claim is

without merit.




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No. 45143 -3 - II



                                       III. INEFFECTIVE ASSISTANCE OF COUNSEL


           Finally, Jones contends that his counsel rendered ineffective assistance by failing to argue

at sentencing that the two assaults, robbery, and kidnapping convictions all encompassed the

same criminal conduct. We review Jones' s claim de novo. State v. Sutherby, 165 Wn.2d 870,

883, 204 P. 3d 916 ( 2009). Because none of Jones' s offenses occurred at the same time or in the


same place as the others, and because many of them involved different criminal intents, Jones' s

crimes do not encompass the same criminal conduct. We therefore reject Jones' s claim, since


counsel cannot have performed deficiently by declining to make a meritless argument. State v.

Brown, 159 Wn. App. 1, 17, 248 P. 3d 518 ( 2010).

           Both the state and federal constitutions guarantee criminal defendants the right to

                                          4
effective assistance of counsel.              State   v.   Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011),         cert.




denied, 135 S. Ct. 153 ( 2014). A claim of ineffective assistance requires the defendant to show


that counsel performed deficiently and that this deficient performance prejudiced the defendant.

Grier, 171 Wn.2d at 32 -33 ( quoting State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d 816

    1987) (   quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

    1984))).   The deficient performance and prejudice showings are conjunctive, and we may

resolve an ineffective assistance claim against a defendant failing to make the necessary showing

on either. State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


           In deciding whether counsel' s performance was deficient, we " strong[ ly] presume[ e] that

counsel " provided proper, professional assistance" and " will not find deficient representation if



4
    Article I,   section   22   of   the Washington Constitution          states   that "[ i] n all criminal prosecutions
the accused shall have the            right   to   appear and   defend in   person, or    by   counsel."   The Sixth
Amendment         of   the United States Constitution           states   that "[ i]n all criminal prosecutions, the
accused shall      enjoy the     right ...    to have the assistance of counsel for his defense."


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No. 45143 -3 -II


counsel' s actions were      tied to      a    legitimate   strategic or    tactical rationale."    State v. Saunders, 120


Wn.   App.    800, 819, 86 P. 3d 232 ( 2004) ( citing               State v. Lord, 117 Wn.2d 829, 883, 822 P. 2d 117

 1991)).    The failure to argue that several crimes encompass the same criminal conduct can


constitute deficient performance. Saunders, 120 Wn. App. at 824 -25.

           Offenses " encompass the same criminal conduct" for sentencing purposes where they

 require the same criminal intent, are committed at the same time and place, and involve the


same victim."      RCW 9. 94A. 589( 1)(            a).   We interpret the " same criminal conduct" language of


RCW 9. 94A. 589( 1)(      a) "   narrowly to disallow most claims that multiple offenses constitute the

same criminal act."       State    v.   Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997).                   Accordingly, a

defendant' s failure to show that offenses involved the same criminal intent, same place and time


of commission, and same victim " prevents a                      finding   of same criminal conduct."        Porter, 133


Wn.2d at 181.


           The " same    criminal       intent" prong       of   RCW 9. 94A. 589( 1)(   a) "   focus[ es] on the extent to


which   the   criminal   intent,   as    objectively      viewed, changed       from   one crime    to the   next."   State v.


Dunaway, 109       Wn.2d 207, 215, 743 P. 2d 1237 ( 1987). Whether a defendant' s criminal intent


changed,      in turn, depends, in       part, on " whether one crime           furthered the     other."   Dunaway, 109

Wn.2d at 215. The fact that Jones' s conduct as a whole may have been motivated by a desire to

see his son is beside the point. We examine instead how Jones' s intent, objectively viewed, may

have changed from one specific crime to the next. Dunaway, 109 Wn.2d at 215.

           The " same time and place" prong of RCW 9. 94A.589( 1)( a) requires that offenses

completely overlap in terms of their times and places of commission in order to constitute the

same criminal conduct.           State    v.   Lessley,   118 Wn.2d 773, 778, 827 P. 2d 996 ( 1992). For


example, in Lessley the defendant broke into his ex- girlfriend' s parent' s house and then



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No. 45143 -3 -II



kidnapped her       and   her   mother.     118 Wn.2d       at   775.   Lessley forced the ex- girlfriend to drive him

to different    places over      the course of the        kidnapping. Lessley,      118 Wn.2d       at   775. On appeal,


Washington' s Supreme Court held that Lessley' s burglary and kidnapping offenses did not

encompass the same criminal conduct because they had different criminal intents, did not occur

at the same time or in the same place, and involved different victims. Lessley, 118 Wn.2d at 778.

The court noted that the burglary was complete at the ex- girlfriend' s parent' s house, but that the

kidnapping " was carried out over several hours' time" in numerous places. Lessley, 118 Wn.2d

at   778.   Accordingly,    the    court   held that "[    t] he burglary and the kidnapping were not confined to

the   same   time   and place."      Lessley, 118 Wn.2d at 778.

A.          The Assaults Do Not Encompass the Same Criminal Conduct


            Generally, " there is one clear category of cases where two crimes will encompass the

same criminal conduct— `             the repeated commission of the same crime against the same victim


over a short period of          time. "'   Porter, 133 Wn.2d at 181 ( quoting 13A SETH A. FINE,

WASHINGTON PRACTICE § 2810,                  at   112 (   Supp.   1996)) (   emphasis omitted).      That rule is not


absolute, however, and repeated commission of the same completed crime against the same


victim in a short period of time does not necessarily encompass the same criminal conduct. State

v. Grantham, 84 Wn. App. 854, 858 -60, 932 P. 2d 657 ( 1997).

            In Grantham, the defendant raped his victim twice in rapid succession. 84 Wn. App. at

856. The State charged Grantham with two counts of second degree' rape for the offenses, a jury

convicted him, and the trial court found that the two offenses did not encompass the same


criminal conduct       for sentencing       purposes.       Grantham, 84 Wn. App. at 857. We affirmed the trial

court' s findings because, after completing the first rape, Grantham " had the time and opportunity

to   pause, reflect, and either cease         his   criminal      activity   or proceed   to   commit a   further   criminal
No. 45143 -3 -II



act."   Grantham, 84 Wn. App. at 859. Because Grantham " chose the latter" option, he formed a

new intent to commit a criminal act. Grantham, 84 Wn. App. at 859.

         In light of Grantham, Jones' s two assaults on Littlefield involved different criminal


intents. Jones committed the first assault when he shot Littlefield. After shooting her, Jones

obtained her car keys, ordered her into the car, drove off toward his mother' s house, and


continued to berate Littlefield loudly and violently for cutting off his access to his son. Jones

had time to pause, reflect, and cease his criminal activity. He did not do so. Instead, he formed

the criminal intent to assault Littlefield again. Under Grantham, the two assaults involved

different criminal intents.


         Jones' s two assaults also did not occur at the same time or place. The first assault

occurred around 7: 00 a.m., when Jones shot Littlefield somewhere near her school. The second


occurred sometime later in Littlefield' s car after Jones drove her away from the school.

         Because Jones' s assaults involved different criminal intents, occurred at different times,


and occurred in different places, they do not constitute the same criminal conduct. Porter, 133

Wn.2d at 181; RCW 9. 94A.589( 1)( a).


         The Assaults and the Kidnapping Do Not Encompass the Same Criminal Conduct

         Even if we were to assume that both assaults shared the same criminal intent with the


kidnapping, 5 the assaults did not occur at the same time and in the same place as the kidnapping.

The first assault began and was completed outside of her school. The second assault began and

was completed in Littlefield' s car between the school and Jones' s mother' s house. The




5 The first assault, objectively viewed, may have furthered the kidnapping because Jones shot
Littlefield to prevent her from resisting the abduction. See State v. Edwards, 45 Wn. App. 378,
382 -83, 725 P. 2d 442 ( 1986), overruled on other grounds by Dunaway, 109 Wn.2d at 215. Jones
makes no substantial argument as to how the second assault did the same, and since Jones had
Littlefield secured in her car and was driving away, such an argument could not be accepted.
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No. 45143 -3 -II



kidnapping began outside the school and continued for six hours, in places as diverse as inside

Littlefield' s car, outside Jones' s mother' s house, in a convenience store parking lot, inside

Jones' s mother' s house, inside Littlefield' s car again, outside a pawn shop, in the alley where

Jones met an acquaintance, and back at Jones' s mother' s house, where the kidnapping ended.

The complete overlap in space and time necessary for a finding that the assaults and kidnapping

encompassed the same criminal conduct was simply not present here. Porter, 133 Wn.2d at 181;

Lessley, 118 Wn.2d at 778; RCW 9. 94A.589( 1)( a).

C.        The Assaults Do Not Encompass the Same Criminal Conduct as the Robbery


          The assaults and the robbery had different criminal intents. Objectively viewed, Jones

assaulted Littlefield to force her to comply with his commands to come with him or to instill fear

in her.   Objectively      viewed,   Jones   committed   robbery to "   acquire   property."   Dunaway, 109

Wn.2d at 216.


          Further, Jones' s assaults and the robbery did not occur in the same place or at the same

time. As noted above, the first assault took place at her school, the second happened later in


Littlefield' s car while Jones drove her to his mother' s house, and the robbery occurred at some

later time in a convenience store parking lot. None of the offenses occurred at the same time or

in the same place as the others. Lessley, 118 Wn.2d at 778. For each of these reasons, the

assault and robbery offenses did not encompass the same criminal conduct. Porter, 133 Wn.2d

at 181; Lessley, 118 Wn.2d at 778; RCW 9. 94A.589( 1)( a).

D.        The Kidnapping Does Not Encompass the Same Criminal Conduct as the Robbery

          In State v. Larry, we held that a continuing kidnapping which shared some temporal

overlap with a robbery did not require the same criminal intent or occur in the same place or at

the   same   time   as   the robbery.   108 Wn. App. 894, 34 P. 3d 241 ( 2001). In Larry, two men



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No. 45143 -3 -II



kidnapped a restaurant manager, robbed him, returned to the restaurant and forced the manager


to open its safe, which they looted. Larry, 108 Wn. App. at 899. The two men then took the

manager to various locations before shooting him and leaving him for dead. Larry, 108 Wn.

App. at 899. We held that the kidnapping and robbery involved different criminal intents.

Larry, 108 Wn. App. at 916. We also held that the robbery and the kidnapping did not occur at

the same place or time because " the kidnapping occurred over a period of time and in several

locations,   whereas   the robbery    occurred at a single    time   and place."   Larry, 108 Wn. App. at 916.

        Here, as in Larry, Jones' s kidnapping and robbery offenses involved different criminal

intents. As in Larry, the kidnapping began before the robbery and continued long after it,

continuing in places where the robbery did not occur. The different intents, places, and times

prevent a finding that the kidnapping and robbery encompassed the same criminal conduct.

Porter, 133 Wn.2d at 181; Lessley, 118 Wn.2d at 778; Larry, 108 Wn. App. at 916; RCW

9. 94A. 589( 1)( a).


                                      IV. PROSECUTORIAL MISCONDUCT


         In his SAG, Jones alleges that the prosecutor committed misconduct by ordering

Littlefield and a police detective not to testify that Jones " was on a crack cocain[ e] b[ i]nge for

day[ s] [ leading]   up to the inc[ i] dent."   SAG at 2. The prosecutor told Littlefield and the detective


not to mention Jones' s drug use in order to comply with the trial court' s order on a motion in

limine. Jones moved for that order. Jones thus set up the error he now complains of, and we

decline to review his claim under the invited error doctrine. City ofSeattle v. Patu, 147 Wn.2d

717, 720, 58 P. 3d 273 ( 2002).




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No. 45143 -3 - II



                                         CONCLUSION


        We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence

for each of the second degree assault convictions so that the combined term of confinement and


community custody for each conviction does not exceed the statutory maximum.

        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:




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