                                                                                                  FILED
                                                                                        COURT OF APPEALS
                                                                                                DIVISION II
                                                                                      2015 FEB 18
                                                                                                  AM 9: 22
                                                                                                              i0H
                                              s"
    IN THE COURT OF APPEALS OF THE STATE OF WA`                                                 lA


                                               DIVISION II

 STATE OF WASHINGTON,                                                        No. 45473 -4 -11


                                      Respondent,


           v.




 CHANARA SOEUN,                                                       UNPUBLISHED OPINION


                                      Appellant.




       LEE, J. —    Chanara Soeun appeals his sentence following his conviction for second degree

robbery.    Soeun argues that the trial court incorrectly calculated his offender score because three

of his prior convictions should have been considered the same criminal conduct. We hold that the


trial court did not abuse its discretion by scoring Soeun' s three prior convictions separately for the

purpose of calculating Soeun' s offender score and Soeun' s sentence. Therefore, we affirm.

                                                      FACTS


        A jury found Soeun guilty         of second   degree robbery. 1   Soeun' s criminal history included

four juvenile convictions and adult convictions for first degree robbery, third degree assault, and

first degree theft. The adult robbery, assault, and theft convictions resulted from a single incident.

Soeun does not dispute the existence of his prior convictions.




1 Soeun does not challenge his conviction for second degree robbery and his same criminal conduct
argument    is based   on   three   prior convictions.   Therefore, the facts underlying his conviction are
unnecessary for resolving Soeun'         s appeal.
No. 45473 -4 -II




         At sentencing, the State argued that Soeun' s offender score should be calculated at 6. The

State   reached   its   calculation    by   counting   a   half   point   for   each   juvenile   conviction (    2   points),   2


points for the first degree robbery conviction, 1 point for the third degree assault, and 1 point for

the first degree theft. Soeun argued that his offender score should be calculated at 4 because the

robbery, assault, and theft convictions were the same criminal conduct and should be counted as 2

points ( scored for the robbery).

         Soeun presented the trial court with the information, probable cause statement, jury

instructions, verdict forms, and judgment and sentence for the robbery, assault, and theft charges.

The State presented the trial court with our opinion affirming Soeun' s prior adult robbery, assault,

and   theft   convictions.   In that opinion, we recited the underlying facts of Soeun' s prior robbery,

assault, and theft convictions as follows:

                   On June 11, 2006, Eli and Carrie Adamson left their residence in a relative' s
         truck to buy hardwood flooring at a hardware store. After they left, Chanara Soeun
         stole the Adamsons' white Honda Accord parked in their driveway. A neighbor
         watched Soeun steal the car and called the Adamsons on their cellular phone. Carrie
         Adamson turned the truck around, while Eli Adamson spoke with police on their
         cellular phone.

                   On their way home, the Adamsons passed Soeun driving their Honda
         towards them in the opposite lane. Carrie Adamson turned the truck around again,
         followed Soeun into a cul -de -sac, and pulled the truck up next to the white Honda
         when Soeun parked it in front of his residence. Eli Adamson got out of the truck,
         yelled at Soeun to get out of the car, pulled open the driver' s side door, and grabbed
         Soeun by his hair. Soeun shifted the Honda into reverse and stepped on the gas
         pedal.


                   The moving Honda pulled Eli Adamson under it and ran over his ankle
         while    he    managed   to   pull   Soeun from the driver' s           seat and out of     the   car.   The

         Honda made two revolutions in reverse, running over Eli Adamson' s torso and
         coming to a stop when it hit a telephone pole. Soeun fled the scene.

State v. Soeun, noted at 146 Wn. App. 1033, 2008 WL 3319819.




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No. 45473 -4 -II




         After reviewing all the information, the trial court found that the prior convictions had been

charged as three separate and distinct acts, and that the jury found Soeun guilty of three separate

distinct acts. And, the trial court noted that, without additional information, it could not come to

a   different   result.     The trial court calculated Soeun' s offender score at 6 and imposed a standard

range sentence. Soeun appeals.


                                                            ANALYSIS


          Soeun argues that the trial court erred by determining that his prior adult robbery, assault,

and theft convictions did not constitute the same criminal conduct, and that the trial court should

have calculated his offender score as 4 rather than 6. We hold that Soeun failed to meet his burden

to   prove   that   his   prior convictions were           the   same criminal conduct.      Thus, the trial court did not


abuse its discretion by determining that Soeun' s prior convictions were not the same criminal

conduct.




          All of a defendant' s prior convictions are counted separately unless some or all of the prior

convictions are       the   same criminal conduct.           RCW 9. 94A.589( 1)(     a).   Prior convictions are the same


criminal conduct if the convictions required the same criminal intent, were committed at the same


time   and place, and           involved the      same victim.     RCW 9. 94A.589( 1)(     a).   If a prior sentencing court

found that the convictions were the same criminal conduct, then the current sentencing court must

count   them     as one offense.          State   v.   Williams, 176 Wn.   App.   138, 141, 307 P. 3d 819 ( 2013),       affd,

181 Wn.2d 795 ( 2014).                However, if a prior sentencing court did not make a same criminal conduct

finding, then the current sentencing court must determine whether the prior convictions are the

same criminal conduct. Williams., 176 Wn. App. at 141. We review the trial court' s same criminal

conduct      finding      for   a '   clear abuse of    discretion   or misapplication of   the law. '   State   v.   Haddock,
No. 45473 -4 -II



141 Wn.2d 103, 110, 3 P. 3d 733 ( 2000) (           quoting State v. Elliott, 114 Wn.2d 6, 17, 785 P. 2d 440,

cert. denied, 498 U. S. 838 ( 1990)).


             Because a same criminal conduct finding lowers the defendant' s presumed offender score,

the defendant bears the burden to prove that his prior convictions are the same criminal conduct.

State   v.   Graciano, 176 Wn.2d 531, 540, 295 P. 3d 219 ( 2013).             If the defendant fails to prove any

of the three statutory elements, the defendant has failed to meet his burden to prove his prior

convictions are the same criminal conduct. Graciano, 176 Wn.2d at 540. If the record before the


sentencing court " supports only one conclusion on whether crimes constitute the ` same criminal

conduct,' a        sentencing   court abuses   its discretion in arriving   at a   contrary   result."    Graciano, 176


Wn.2d        at   537 -38. However, when the record supports either result or the record is unclear, the


trial court does not abuse its discretion by refusing to enter a same criminal conduct finding.

Graciano, 176 Wn.2d at 538, 541.


             Here, the court that sentenced Soeun on the prior adult robbery, assault, and theft

convictions did not make a same criminal conduct finding; therefore, the current trial court

properly conducted a determination of whether Soeun' s prior convictions were the same criminal

conduct.          The only evidence the trial court had regarding the facts of the prior case was the

statement of facts from our opinion and the probable cause statement from the original charging

document, both of which were consistent. The trial court noted that it did not have the trial record


to   make         a more   accurate   determination.   Based on the information before it, the trial court


determined that the          prior convictions were    based    on acts that were separate and           distinct.   Soeun


argues       to the contrary.    However, the record before the trial court can support either conclusion




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No. 45473 -4 -II



under the same criminal conduct analysis. Therefore, the trial court did not abuse its discretion by

not making a same criminal conduct finding.

          A theft becomes a robbery if force is used while effectuating escape because the taking of

property is considered ongoing until the defendant has completed his escape. State v. Truong, 168

Wn.   App.   529, 535 -36, 277 P. 3d          74,   review      denied, 175 Wn.2d 1020 ( 2012); see also State v.


Handburgh, 119 Wn.2d 284, 293, 830 P. 2d 641 ( 1992) ( using                              force against the property owner to

retain   property   initially   taken     outside   the property           owner' s presence    is robbery). The facts of the


prior convictions before the trial court can support a determination that the theft was completed

when     Soeun    parked    the   car    in front   of   his   residence.        Soeun stole the car, obtained exclusive


possession,      drove it away,         and parked the          car       in front   of   his house.   The facts of the prior


convictions also can support a determination that after Soeun completed the theft by parking the

car in front of his own residence, Adamson approached the car, pulled Soeun by the hair, and

Soeun     used   force to    retain possession           of    the    car.    Therefore, because the facts of the prior


convictions      before the trial       court can support either conclusion —that                 the convictions were based


on separate acts or were          the   same criminal conduct—               the trial court did not abuse its discretion by

not making a same criminal conduct finding.

          In addition, the record is unclear whether the prior convictions support the conclusion that


the robbery      and assault      involved the      same criminal            intent.   The underlying facts before the trial

court show that Soeun attempted to retain possession of the car by shifting the car in reverse and

stepping    on   the   gas pedal.       The underlying facts in the record also show that a struggle ensued

between Adamson and Soeun and that Soeun was pulled out of the car by Adamson. However,

the record is unclear whether the car ran over Adamson while Soeun was still in the car trying to



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No. 45473 -4 -II



escape from Adamson or whether the car ran over Adamson after Soeun had been pulled out of

the car. Because the record is unclear, the trial court did not abuse its discretion by finding Soeun' s

adult robbery and assault convictions did not constitute the same criminal conduct.

         Here, the   record   before the trial   court   is   unclear.   At best, the facts before the trial court

could support either result under a same criminal conduct analysis. Therefore, we hold that Soeun

did not meet his burden to prove same criminal conduct, and the trial court did not abuse its


discretion by not making a same criminal conduct finding. Because the trial court did not abuse

its discretion by not entering a same criminal conduct finding, the trial court correctly calculated

Soeun'   s offender score at    6. Soeun' s challenge to the calculation of his offender score fails.


         We affirm.


         A majority of the panel determining that this opinion will not be published in the

Washington Appellate Report, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




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