          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,     )                    No. 74402-0-1                         CZ)           cz,
                             )                                                          Crl
                                                                                      Zzt.
              Respondent,    )                                                        -13     rry
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                             )                    DIVISION ONE                                C)

              v.             )                                                     to

                             )                                                     Zza                11)
CHRISTOPHER VON KEITH COWAN, )                    UNPUBLISHED OPINION
                                                                                  Cip
                             )
              Appellant.     )                   FILED: April 9, 2018            01

                             )
       MANN, J. — Christopher Cowan appeals his convictions for first degree assault,

first degree robbery, and second degree attempted murder for the robbery and stabbing

of Michael Brenick. Cowan contends that(1) he was denied due process due to an

impermissibly suggestive photomontage,(2) the trial court erred in admitting propensity

evidence that he had a knife in his possession at the time of his arrest,(3) the pattern

jury instruction defining a reasonable doubt is unconstitutional,(4) the prosecutor

improperly shifted the burden of proof during rebuttal,(5) several prior out-of-state

convictions were improperly included in his offender score, and (6) the trial court failed

to determine whether his convictions for assault and robbery were the same conduct for

purposes of his offender score.
No. 74402-0-1/2


       We affirm Cowan's convictions. We remand for resentencing, however, because

several of the prior out-of-state convictions were improperly included in Cowan's

offender score and because the trial court failed to determine whether attempted murder

and robbery were the same criminal conduct for the purpose of determining Cowan's

offender score.

                                         FACTS

       At approximately 11:40 p.m. on January 17, 2015, Domino's Pizza delivery driver

Brenick left Domino's to make a delivery and found a man sitting in his car. The man

wore a dark heavy winter coat and a backpack. Brenick grabbed the man by his coat,

pulled him out of the car, and tried to hold him with one hand while he called the police

with the other. Moments later, after he saw a folding knife with a four-inch blade,

Brenick realized something was wrong—he reached down and felt his "intestines"

sticking out of his stomach. As Brenick ran back to Domino's, he saw the man run into

the Park Ballinger apartment omplex behind Domino's. Brenick's coworkers called the

police at 11:42 p.m. The polic arrived minutes later and administered emergency aid

to Brenick. Brenick was then ransported to Harborview Medical Center. At the

hospital, doctors found a chev on-shaped wound eight centimeters long above his belly

button and a stab wound four nches long and four inches deepin his armpit.

      Meanwhile, in the Park Ballinger apartment complex, Cale Stasiak was sitting on

his apartment's stairwell when a man wearing a winter jacket and a backpack

approached. The man moved uneasily at a "sluggish jog" and stopped just over an

arm's length away from Stasi k. Stasiak saw him holding a manila envelope in one

hand and a knife in the other. After the man knocked at the apartment across from

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Stasiak's, he sat down next to tasiak. He told Stasiak that "somebody had just tried to

rob him for his weed," and ask d if he could borrow Stasiak's cell phone to call a cab.

Stasiak did not want to lend th man his phone so he called a cab for him. He called

twice—once at 11:48 p.m. and again at 11:50 p.m.—but got no answer. By the second

call, Stasiak walked away fro   the man so he could call his friend, and as he did so he

saw the man take off his coat, mpty its contents into the backpack, and lay the coat

down on the stairwell. The m n placed the manila envelope in an ashtray and set a

scale down. Stasiak then turn d his back to make the call. When he turned around

again a minute later Stasiak s w the man running north out of the apartment complex.

Moments after this, police offi I. rs, led by a police dog, appeared.

      The canine unit tracked the suspect from the apartment complex, but lost the trail

in the vicinity of a Circle K con enience store down the street. They collected the man's

winter coat, scale, and manila nvelope from the apartment's steps. The coat was gray

with a red trim, and the manila envelope, which contained Brenick's car insurance

documents, was torn. The pol ce eventually found a fingerprint on the envelope that

matched Cowan's left thumbp int.

      After losing the suspect s trail, the police investigated the Circle K convenience

store. The police learned the tore clerk had served a customer around midnight. The

clerk remembered that this cu tomer told him he was unable to get a taxi and asked a

young couple in the store for   ride.

      The next morning, on J nuary 18, another employee at the Circle K found a

pawn slip with Cowan's name n it on the floor in front of the lottery-ticket machine. The



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pawn slip was for a transactio on January 17, 2015, at the Cash America pawn shop

on 170th Avenue and Aurora.

       Edmonds Police Depart ent Sergeant Robert Baker obtained three surveillance

videos from Cash America. T e first video, taken in the early afternoon on January 17,

showed a man wearing a back ack and a very similar winter coat to the one that was

recovered from Stasiak's apa ment. The second video, taken on the evening of

January 8, showed a man we ring a backpack over that same winter coat. The third

video, taken a few days after tte stabbing, on January 20, showed the same man with

the same backpack but withou the winter coat.

       The police used the pa n slip and Cash America's surveillance videos to create

a photomontage to show Bren ck and Stasiak. They obtained Cowan's driver's license

photo and five other photos of men who matched the description that Stasiak gave

them: "a dark skinned black m le, short hair, thin mustache."

       On January 20, Sergea t Baker showed the photomontage to Stasiak, who

positively identified Cowan. P r police instruction, Stasiak looked at the photos one at a

time. He quickly identified Co an. He was "positive" that his identification was correct:

his confidence level was "ten   ut often. Brenick, the victim, who was in the hospital

under "a heavy load of drugs," could not identify Cowan.

       Cowan was arrested o January 21, 2015. Cowan was charged with attempted

first degree murder, first degr e assault, and first degree robbery. Each count carried a

deadly weapon enhancement.

      A jury found Cowan gui ty as charged for the assault and the robbery, however,

on the attempted first degree   urder charge, it found Cowan guilty of the lesser offense

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of attempted second degree murder. The jury found that Cowan was armed with a

deadly weapon during these cr mes. Cowan appeals.

                                        ANALYSIS

                                      Photomontage

       Cowan contends first th t the photomontage was impermissibly suggestive and

consequently that the trial cou 's denial of his motion to suppress, and subsequent in-

court identification, denied his ight to due process. We disagree.

       We review a trial court' denial of a motion to suppress by determining whether

substantial evidence supports he court's factual findings and whether those findings

support the court's conclusion of law. Unchallenged findings are verities on appeal.

State v. Ross, 106 Wn. App.8 6, 880, 26 P.3d 298 (2001). Cowan does not challenge

the trial court's findings. Cons quently, we must determine whether those findings

support the trial court's conclu ions of law. We review conclusions of law de novo.

Ross, 106 Wn. App. at 880.

       An out-of-court photogr phic identification violates due process if it is so

impermissibly suggestive as t give rise to a "substantial likelihood of irreparable

misidentification." State v. Vic ers, 148 Wn.2d 91, 118,59 P.3d 58 (2002). The

defendant must prove that the procedure was "impermissibly suggestive" to establish a

violation. Vickers, 148 Wn.2d at 118. A suggestive identification procedure is one that

"directs undue attention to a p rticular photo." State v. Eacret, 94 Wn. App. 282, 283,

971 P.2d 109 (1999). If the d fendant proves that the procedure was suggestive, then

this court determines whether, based on the totality of the circumstances, the procedure
No. 74402-0-1/6


created a substantial likelihoo of irreparable misidentification. Vickers, 148 Wn.2d at

118.

       Cowan argues that the photomontage was impermissibly suggestive in three

ways. First, he argues that it as suggestive because Stasiak described the suspect as

a "dark skinned black male,' nd out of the six people in the photomontage, Cowan had

the darkest skin complexion. These facts, he argues, are similar to State v. Burrell 28

Wn. App. 606, 610-11, 625 P. d 726 (1981). In Burrell, we held that a photomontage

was suggestive when an eye itness described the suspect as having a "frizzy Afro

hairstyle" and the defendant's photograph was the only one that showed an Afro out of

nine photos. The eyewitness as shown nine different photos, and while all of the

individuals' skin colors were c mparable, none of them closely resembled Burrell.

Burrell, 28 Wn. App. at 610.

       Burrell is distinguishabl . Stasiak described the suspect as a "dark skinned black

male, short hair, thin mustach ." The photomontage given to Stasiak contained six

photos of African American m n with thin mustaches, short hair, and varying

complexions. Cowan's photo hows darker skin, but this feature does not direct undue

attention to his photo like a "fn zy Afro hairstyle" would when compared against eight

different hairstyles. As the St te points out, before Stasiak looked through the

photomontage, he was inform d that the photos "do not always show the true

complexion of a person; it may be lighter or darker than shown." The trial court also

recognized that Cowan's skin complexion was darker than his photo showed:"Cowan[,]

who has been present at both days of this hearing[,] appears to me to be darker



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complected [sic] than the phot that is in Exhibit 4. His skin color is more similar to the

still photos that are reflected i Exhibit 6, 7 and 8."

       Second, Cowan argues that his photo was one of two that showed teeth, the only

one that showed a gap in the eeth, and the only one that showed teeth without gold

dental crowns. Cowan relies n State v. Kinard, 109 Wn. App. 428, 431, 433-34, 36

P.3d 573(2001), and State v. raweek, 43 Wn. App. 99, 103, 715 P.2d 1148 (1986).

The Kinard court held that a photomontage was impermissibly suggestive when the

eyewitness described the sus ect as a "large black man with gapped buckteeth" and

only one of six photos showed a man with prominent gapped teeth. 109 Wn. App. at

431,433-34. Similarly, the Tr week court held that an in-person lineup was suggestive

when the eyewitness describe the suspect as blond and Traweek was the only blond

person in the lineup. 43 Wn. pp. at 103.

       This case is readily dist nguishable from Kinard and Traweek. Here, Cowan's

teeth do not direct undue atte tion to his photo. First, Stasiak described the suspect as

a "dark skinned black male, s ort hair, thin mustache." Stasiak did not mention teeth.

Stasiak only mentioned teeth fter he identified Cowan, which distinguishes Kinard and

Traweek, both cases in which he eyewitnesses gave the police the distinguishing

feature that later singled out t e defendants in either the lineup or the photomontage.

As this court explained in Burr 11, "when at least one witness'[s],description refers to a

particular and somewhat disti ctive characteristic ... and the defendant's is the only

photograph with such a chara teristic, the risk that a misidentification will occur based

solely or primarily upon that c aracteristic is substantially enhanced." 28 Wn. App. at

611.

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No. 74402-0-1/8


       Following the rational o Burrell, because Stasiak did not describe teeth as

Cowan's distinguishing featur to the police before reviewing the photomontage, the risk

of misidentification based on t at feature was small. Second, the presence or absence

of teeth in the photomontage! a minor difference that does little to distinguish the

photos. In his photo, Cowan's lips are partially open and a gap in his teeth is apparent.

The men's facial features, ho ever, are apparent; all six men have similar facial

features, skin complexions, ey colors, facial hair, and hairstyles. Cowan is correct that

he is the only man with a gap n his teeth and without gold dental caps. But he is

incorrect that, in light of the en ire photomontage, this difference draws undue attention

to his photo.

       Third, Cowan argues that Sergeant Baker tainted Stasiak's in-court identification

of Cowan when he confirmed hat Stasiak picked the correct photo out of the

photomontage. At trial, Stasiak testified that Baker confirmed his choice, but Baker

testified that he did not. Cow n provides no evidence besides a defense expert's

testimony at the suppression earing for the proposition that confirming an eyewitness's

identification after it was mad taints any later in-court identification. We find this

argument unpersuasive. The ourt made its ruling to admit the identification based on

the evidence presented at the suppression hearing. At that hearing, Sergeant Baker

testified that he did not confir   Stasiak's pick.

       We conclude that Cow n's photo was not unduly suggestive and that the court

did not abuse its discretion in enying Cowan's motion to suppress.




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                                   Admission of the Knife

       Cowan next contends hat the trial court erred in admitting ER 404(b) evidence

that he had a knife in his pos ession at the time of his arrest because there was no

causal link between the knife nd the crime. We disagree.

       In his January 18, 201 incident statement, and January 28, 2015 recorded

interview with an Edmonds d tective, Stasiak stated that the individual he encountered

during the evening of January 17, 2015, was holding an open folding knife with a black

or dark handle. Cowan was arrested on January 21, 2015. During a search incident to

the arrest, the police recovered a black folding knife in Cowan's pocket. Cowan moved

during pretrial to suppress evi ence that he was in possession of a knife pursuant to ER

404(b). After argument, the tr al court concluded:

       Here we have a knife f und on the defendant three days after the crime
       that is a dark-handled f Iding knife. That knife essentially had no forensic
       evidence on it. It could have been cleaned. Maybe it wasn't the knife in
       question. But we do h ye two witnesses who say that the victim was
       stabbed with a dark-ha died folding knife. That makes the testimony
       relevant. Unlike Hartze I, I think this is totally different. I'll deny [Cowan's
       motion to suppress].

       At trial, Brenick testifie that during his scuffle with his assailant he saw him

holding a knife, "I see him hol ing the knife close to his body and I felt tired and I saw

the knife and that's when I kn w something was seriously wrong." Brenick testified that

it was a "folding knife about fo r inches in length." Brenick could not remember the

color of the knife. Consistent ith his initial interviews, Stasiak also testified at trial that

the person he encountered ne r his apartment was holding a folding knife. Stasiak did

not testify to the size or color f the folding knife. Emergency room Dr. Hugh Foy

testified that he treated Brenic and that Brenick's stab woundsmere 3 to 4 inches

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No. 74402-0-1/10


deep. However, after forensic testing, no blood was found on the knife recovered from

Cowan incident to his arrest.

       Cowan contends that e idence that he possessed a knife at the time of his arrest

was improperly admitted beca se it was used to show he had the propensity to commit

crimes with a knife. Cowan an ues that the trial court abused its discretion by admitting

the evidence which should ha e been excluded under ER 404(b). Washington's ER

404(b) provides:

       Evidence of other crim , wrongs, or acts is not admissible to prove the
       character of a person i order to show action in conformity therewith. It
       may, however, be admi sible for other purposes, such as proof of motive,
       opportunity, intent, pre aration, plan, knowledge, identity, or absence of
       mistake or accident.

       This court reviews deci ions to admit evidence for abuse of discretion.

State v. Luvene, 127 Wn.2d 6 0, 708, 903 P.2d 960(1995). "A court abuses its

discretion if it is exercised on ntenable grounds or for untenable reasons."

State v. Hartzell, 156 Wn. Ap   918, 930, 237 P.3d 928 (2010).

       ER 404(b) is not limited to bad or illegal acts, instead, the rule bars any acts used

to show the character of a per on to prove that the person acted in conformity with it on

a particular occasion. State v. Eve bod alksabout, 145 Wn.2d 456, 466, 39 P.3d 294

(2002). Thus, while possessi n of a knife may be legal and thus not "bad" this does not

mean that legal possession c n be used to demonstrate propensity. Evidence of

weapons entirely unrelated to he crime is inadmissible. State v. Jeffries, 105 Wn.2d

398, 412, 717 P.2d 722, cert. enied, 479 U.S. 922(1986). But "if the jury could infer

from the evidence that the we pon could have been used in the commission of the

crime, then evidence regardin the possession of that weapon is admissible." Luvene,

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127 Wn.2d at 708. Evidence sed for this purpose need not meet the high standard of

similarity required for "signatu e crimes." Hartzell, 156 Wn. App. at 932.

       In Luvene, for example it was sufficient to show that the defendant possessed a

handgun of the same color an, caliber as the one used in the crime. Luvene, 127

Wn.2d at 708. Similarly, in Hdrtzell, this court held that admitting evidence that the

defendants owned guns did n t violate ER 404(b) when the guns were offered to show

that the defendants owned th guns that fired the bullets that were found at the scene,

not to show that the defendan s committed the crime in conformity with being gun users.

153 Wn. App. at 152. Cowan attempts to distinguish his case from Hartzell by arguing

that the presence of a forensi link between the defendants' guns in Hartzell and the

absence of a forensic link be een the knife he was carrying and the knife used to stab

Brenick is dispositive. That th re was no forensic link here, he contends, means that

the court violated ER 404(b) hen it admitted evidence that he was carrying a knife

when he was arrested becaus the knife's only relevance was propensity—that he was

a knife-carrying person.

       Cowan's contention fail    Here, the evidence was admissible because it was

highly relevant. It was directly probative of the crime charged—a stabbing with a folding

knife. At the suppression hea ing, there were three key pieces of evidence before the

court:(1)"two witnesses desc ibe[d] a knife, dark handled, appeared to be a folding

knife,"(2)"[t]he defendant wa found with a folding knife with a dark handle in his

pocket three days after the st bbing," and (3) no forensic evidence was found on the

knife recovered from Cowan.      hile the lack of forensic evidence is highly relevant, this

goes to the weight of the evid nce, not its admissibility. See State v. Duree, 52 Wn.2d

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No. 74402-0-1/12


324, 328, 324 P.2d 1074(1958)(hesitancy of witness to identify knife as the exact knife

used by the defendant went only to the weight to be given the testimony and not to the

issue of its admissibility). Because a jury could infer, based on the first two facts, that

the knife Cowan was arrested with was used to stab Brenick, the trial court did not err in

denying Cowan's motion to suppress the evidence. Luvene, 127 Wn.2d at 708.

       Cowan places great weight on the failure of the State to elicit testimony at trial

from either Brenick or Stasiak identifying the color of the folding knife. Cowan further

emphasizes the State's seeming concession during its closing rebuttal argument that

the knife in Cowan's possession may not have been the knife used in the stabbing:

               But the knife the police collected from the defendant on the 21st I
       would suggest is not the knife that was used on Michael Brenick. My
       suggestion is that like the coat that got shed, the knife that was actually
       used on Brenick got tossed. You don't want to have any evidence on you
       that is going to connect you directly to the assault.

       Cowan's reliance on the trial testimony and closing argument fails for at least

three reasons. First, while the witnesses at trial did not identify the color of the knife,

both witnesses described a folding knife, and Brenick testified that it was approximately

4 inches long—which was consistent with the depth of the stab Wounds described by

Dr. Foy. While there was no blood found on Cowan's knife, this goes to the weight of

the evidence; the jury could still infer that the 4-inch folding knife found in Cowan's

possession was the knife used in the stabbing.

       Second, while the State appeared to minimize the connection between the knife

found in Cowan's possession and the knife used in the stabbing, this statement was




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No. 74402-0-1/13


argument and, as the jury was instructed, argument is not evidence.' Jurors are

presumed to follow the court's instructions. State v. Emery, 174 Wn.2d 741, 766, 278

P.3d 653(2012). Moreover, Cowan did not object, nor move for a mistrial after the

State's rebuttal argument. The trial court is not obligated to declare a mistrial sua

sponte.

       Finally, even if the evidence was improperly admitted, any error was harmless.

Erroneous admission of ER 404(b) evidence is not of constitutiqnal magnitude and

"requires reversal only if the error within reasonable probability, materially affected the

outcome." Everybodytalksabout, 145 Wn.2d at 468-69. The error is harmless "if the

evidence is of minor significance compared to the overall evidence as a whole."

Everybodytalksabout, 145 Wn.2d at 468-69.

       Here, the State's closing argument minimized the importance of the knife found

in Cowan's possession by admitting that without forensic evidence it may not have been

the knife used in the stabbing. In contrast, the remaining evidence was strong. Both

Brenick and Stasiak identified Cowan from the photomontage. the police tracked the

assailant to the Ballinger Park apartments where Stasiak testified that Cowan left

behind his jacket and an envelope with Cowan's fingerprint on it that contained

insurance papers belonging to Brenick. Given the strength of the State's case

implicating Cowan, there is no reason to believe that the outcome would have been

different if evidence of the knife found in Cowan's possession had been excluded.

       The trial court did not abuse its discretion.



       1 See Clerk's Papers at 60-61 (jury instruction 1).
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                                Reasonable Doubt Instruction

       Cowan next argues that the jury instruction defining "a reasonable doubt" is

unconstitutional. We disagree.

       Jury instruction 5 defined a reasonable doubt as "one for which a reason exists

and may arise from the evidence or lack of evidence." Jury instruction 5 was taken

directly from WPIC 4.01.2 Our Supreme Court has directed trial courts to use only

WPIC 4.01 to instruct juries on reasonable doubt. State v. Bennett, 161 Wn.2d 303,

318, 165 P.3d 1241 (2007).

       Cowan attempts to circumvent Bennett by arguing that use of the language "a

reason" in WPIC 4.01 undermines the presumption of innocence and the burden of

proof because it requires the jury to articulate a reason for having reasonable doubt.

We recently rejected this same argument in State V. Lizarraga, 191 Wn. App. 530, 567,

364 P.32 810 (2015); see also, State v. Parnel, 195 Wn. App. 325, 328-29, 381 P.3d

128, review denied, 186 Wn.2d 1031, 385 P.3d 107 (2016).

       The trial court did not err in giving the required pattern jury instruction for defining

reasonable doubt.

                                  Prosecutorial Misconduct

       Cowan next contends that he was denied his right to a fair trial because the

prosecutor shifted the burden of proof during rebuttal closing argument. We disagree.

       During rebuttal, the prosecutor addressed the defense counsel's failure to

address Cowan's winter coat:"One thing I kept waiting for is an explanation for the coat.



       2 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01 (4th ed.
2016)(WPIC).

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No. 74402-0-1/15


How do you counter that coat?" Cowan objected that the argument improperly shifted

the burden of proof. The trial court overruled the objection, stating "It's not burden

shifting." The prosecutor continued by pointing out that the winter coat was collected

from the Ballinger Park apartments, arguing "You have multiple videos of the defendant

wearing that coat prior to the assault."

       In order to prevail on a claim for prosecutorial misconduct "the defendant bears

the burden of proving that the prosecutor's conduct was both improper and prejudicial."

Emery, 174 Wn.2d at 756. Once the defendant demonstrates that a prosecutor's

statements are improper, the standard for demonstrating prejudice depends on whether

the defendant objected to the comments. Where, as here, the defendant objected, the

defendant must show "that the prosecutor's misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury's verdict." Emery, 174 Wn.2d at 760.

       Cowan argues that the prosecutor's statement was misconduct because it shifted

the burden of proof to him to present exculpatory evidence. Cowan relies primarily on

State v. Cleveland, 58 Wn. App. 634,647, 648-49, 794 P.2d 546(1990)(finding

misconduct but not a substantial likelihood that the misconduct affected the jury verdict).

In Cleveland, we held that the prosecutor committed misconduct when he stated in

rebuttal that "Mr. Cleveland was given a chance to present any and all evidence that he

felt would help you decide. He has a good defense attorney, and you can bet your

bottom dollar that Mr. Jones would not have overlooked any opportunity to present

admissible, helpful evidence to you." 58 Wn. App. at 647.

       But unlike Cleveland, the prosecutor did not suggest that Cowan should have

presented evidence; rather, the prosecutor suggested that the evidence presented did

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No. 74402-0-1/16


not support the defense's theory of the case. Rhetorically asking how the coat fit into

the defense's theory of the case was not improper. A prosecutor can certainly "argue

that the evidence does not support the defense theory." State v. Russell, 125 Wn.2d

24, 87, 882 P.2d 747(1994). The prosecutor here simply pointed out the discrepancy

between Cowan's story and the evidence.

       Because this was not misconduct, we do not address Cowan's argument

regarding prejudice.

                                     Cumulative Error

       Cowan contends that cumulative error deprived him of a right to a fair trial. He

cites four errors whose combined effect constituted cumulative error:(1)the suggestive

photomontage,(2) the admission of his knife,(3) the flawed WPIC 4.01 jury instruction

on reasonable doubt, and (4) prosecutorial misconduct.

       Under the cumulative-error doctrine a court may reverse a defendant's conviction

when the combined effect of errors during trial effectively denied the defendant a right to

a fair trial, even if each error standing alone would be harmless. But when "the errors

are few and have little or no effect on the trial's outcome," the doctrine does not apply.

State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813(2010). Here, there were not

multiple and separate errors.

                                      Offender Score

       The trial court counted 11 North Carolina convictions toward Cowan's

Washington offender score: 8 convictions for breaking or entering, 1 conviction for

attempted first degree burglary, 1 conviction for larceny, and 1 conviction for financial



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No. 74402-0-1/17


card theft. Cowan next contends that his out-of-state convictions should not have been

counted in his offender score. We agree in part.

       Washington's Sentencing Reform Act's(SRA)standard sentencing ranges are

calculated according to the seriousness of the crime and the defendant's offender

score. RCW 9.94A.505, .510, .520,.525; State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d

187(2014). The offender score is the sum of points accrued as a result of prior

convictions. RCW 9.94A.525. "Out-of-state convictions for offenses shall be classified

according to the comparable offense definitions and sentences provided by Washington

law." RCW 9.94A.525(3). If a foreign conviction is "comparable" to Washington

offense, then it is included in the defendant's offender score. RCW 9.94A.525(3).

       We review the trial court's calculation of a defendant's offender score de novo.

Olsen, 180 Wn.2d at 472. The State bears the burden of proving the existence and

comparability of the foreign conviction. Olsen, 180 Wn.2d at 472.

       Analysis of the comparability of foreign convictions involves a two-part test that

looks first at the legal comparability and second at the factual comparability:

      Under the legal prong, courts compare the elements of the out-of-state
      conviction to the relevant Washington crime. If the foreign conviction is
      identical to or narrower than the Washington statute and thus contains all
      the most serious elements of the Washington statute, then the foreign
      conviction counts towards the offender score as if it were the Washington
      offense. If, however, the foreign statute is broader than the Washington
      statute, the court moves on to the factual prong—determining whether the
      defendant's conduct would have violated the comparable Washington
      statute.
Olsen, 180 Wn.2d at 472-73 (internal citations omitted).

       In applying the factual prong, we will "consider only facts that were admitted,

stipulated to, or proved beyond a reasonable doubt." Olsen, 180 Wn.2d at 473-74.

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No. 74402-0-1/18


The effect of a guilty plea is assessed under the law of the jurisdiction where the plea

was entered. Olsen, 180 Wn.2d at 478-79(assessing the effect of a plea to California

conviction under California law). In North Carolina, when a defendant pleads guilty to

the indictment, the defendant admits "all of the facts alleged in the indictment." State v.

Thompson, 314 N.C. 618, 336 S.E.2d 78, 81 (1985).

A.     Breaking or Entering: 8 Counts

       Breaking or entering in North Carolina is defined as "Any person who breaks or

enters any building with intent to commit any felony or larceny. . ." N.C. GEN. STAT. §

14-54(a). The most similar statute in Washington is second degree burglary, which

requires that a person enter or remain unlawfully in a building "with intent to commit a

crime against a person or property therein." RCW 9A.52.030(1)(emphasis added).

Because, as the State concedes, a person could theoretically enter a building to commit

a felony that was not against a person or property, breaking or entering under North

Carolina law is broader than second degree burglary. Thus, under the legal prong,

breaking or entering is not comparable to burglary.

       Turning to the factual prong, the State further concedes that in five of Cowan's

North Carolina convictions, the record does not establish findings or admissions

concerning the nature of the felony. We accept the State's concession that those five

convictions are not comparable under Washington law.

      The State maintains, however, that three of the convictions for breaking and

entering with the intent to commit larceny are factually comparable to second degree

burglary in Washington. These are the crimes committed July 4, 2003, June 9, 2003,

and November 8, 2008. We agree with the State.

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       All three indictments allege that Cowan broke and entered into a building with the

intent to commit larceny. In North Carolina, "in felonious breaking or entering cases, as

in burglary cases,'when the indictment alleges an intent to commit a particular felony,

the State must prove the particular felonious intent alleged.'" State v. Silas, 360 N.C.

377, 383,627 S.E.2d 604,608(2006)(quoting State v. Wilkinson, 344 N.C. 198, 222,

474 S.E.2d 375, 388 (1996)). By pleading guilty to these charges, Cowan, therefore,

admitted that he broke and entered with a specific intent—to commit larceny. This act,

if done in Washington, would be factually comparable to second degree burglary. RCW

9A.52.030(1). The three convictions for breaking and entering With intent to commit

larceny were properly counted toward Cowan's offender score.

B.     Attempted First Degree Burglary: 1 Count

       Cowan was convicted of attempted first degree burglary, based on his guilty plea

to an indictment charging first degree burglary for a crime committed on September 14,

2004. Because North Carolina courts have not considered whether the requisite felony

must be one against a person or property, the State concedes that the record does not

establish that this crime was legally or factually comparable to a Washington attempted

burglary. We accept the State's concession.

C.     Larceny: 1 Count

       Cowan was indicted and pleaded guilty in North Carolina for felonious breaking

and entering and felonious larceny for stealing property worth $2,800.98 on September

30, 2004. Under North Carolina law, larceny is a felony without regard to the value of

the property if the larceny was committed pursuant to the commission of a crime of

breaking or entering a building. N.C. GEN. STAT. § 14-72(b)(2). Under Washington law

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as it existed in 2004, theft of property worth more than $1500 was first degree theft.3

The State concedes that because the North Carolina theft statute is broader than

Washington's statute, the crimes are not legally comparable.

       The State argues, however, that this crime is factually comparable to the 2004

first degree theft statute, former RCW 9A.56.030(1)(a), which stated that "A person is

guilty of theft in the first degree if he or she commits theft of[p]roperty or services which

exceed[s] one thousand five hundred dollars in value." We agree with the State.

        In North Carolina when a defendant pleads guilty to larceny and the indictment

includes the value of the stolen property, that plea constitutes an admission of the value

of property stolen. State v. Hendricks, 138 N.C. App. 668, 531 S.E.2d 896, 899(2000).

Cowan was indicted and pleaded guilty to breaking and entering and felonious larceny

for the stealing property worth $2800.98. Cowan's September 30, 2004, conviction for

felony larceny is factually comparable to first degree theft.

D.      Financial Card Theft

        Finally, Cowan was convicted of financial transaction card theft in violation of

N.C. Gen. Stat. § 14-113.9.4 We accept the State's concession that the North Carolina

crime is not legally comparable to any Washington crime and that the record does not

support that the crimes were factually comparable.

        In summary, we accept the State's concession that 7 of the 11 convictions were

improperly included in Cowan's offender score. We find that three counts of breaking




        3 Under current Washington law, theft of property worth more than $750 and less than $5000
would constitute second degree theft. RCW 9A.56.040(1)(a).
        4 This crime was committed on October 26, 2004.


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No. 74402-0-1/21


and entering with intent to commit a larceny and one count of felony larceny were

properly included in Cowan's offender score.

                                  Same Criminal Conduct

       Cowan argues finally that his convictions for assault and robbery are the same

criminal conduct for the basis of his offender score. Because the trial court did not

address this issue, we remand for consideration.

       When a person is sentenced for two or more current offenses, "the sentence

range for each current offense shall be determined by using all other current and prior

convictions as if they were prior convictions for the purpose of the offender score"

unless the crimes involve the "same criminal conduct." RCW 9.94A.589(1)(a). "Same

criminal conduct" means crimes that involved the same victim, were committed at the

same time and place, and involved the same criminal intent. RCW 9.94A.589(1)(a).

       A jury found Cowan guilty of first degree robbery, first degree assault, and

second degree attempted murder. It also found that Cowan was armed with a deadly

weapon during the commission of each crime. At sentencing, Cowan unsuccessfully

argued for vacating the assault conviction as the lesser crime of attempted murder and

asked the court to find that the robbery and the attempted murder charge were the

same criminal conduct. The trial court vacated the attempted second degree murder

charge in favor of the more serious first degree assault charge. The trial court did not,

however, address whether the assault and the robbery were the same criminal conduct.

       Whether two crimes constitute the same criminal conduct involves a

determination of fact as well as the exercise of trial court discretion. State v. Nitsch, 100

Wn. App. 512, 519-20, 997 P.2d 1000(2000). "A trial court abuses its discretion when it

                                          -21-
No. 74402-0-1/22


fails to exercise its discretion, such as when it fails to make a necessary decision."

State v. Stearman, 187 Wn. App. 257, 265, 348 P.3d 394 (2015). As we have

previously explained, "Trial courts should make a finding on same criminal conduct at

sentencing when requested to do so." State v. Salinas, 169 Wn. App. 210, 225, 279

P.2d 917(2012)(remanding where the trial court failed to address defendant's request

to treat three convictions for the same criminal conduct for sentencing purposes). On

remand, the court should consider whether or not Cowan's convictions for assault and

robbery are the same criminal conduct. The trial court should consider the question in

light of State v. Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6(2016).

                             Statement of Additional Grounds

       Cowan raises two additional substantive issues in his pro se statement of

additional grounds under RAP 10.10. He argues that his rights to confrontation and due

process were violated by the State's expert's testimony at trial regarding the latent

fingerprint left on the manila envelope, and that his right to due process was violated

because the State withheld exculpatory evidence. These issues were not raised below.

       An appellant may raise manifest errors that affect constitutional rights for the first

time on appeal. RAP 2.5(a). An error is "manifest" if it actually prejudiced the

defendant. To show actual prejudice, the appellant must make "a plausible showing"

that the "asserted error had practical and identifiable consequences in the trial of the

case." State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756(2009)(internal quotation

marks omitted). Courts analyzing actual prejudice focus on "whether the error is so

obvious on the record that the error warrants appellate review." O'Hara, 167 Wn.2d at

99-100. "[T]o determine whether an error is practical and identifiable, the appellate

                                          -22-
No. 74402-0-1/23


court must place itself in the shoes of the trial court to ascertain whether, given what the

trial court knew at that time, the court could have corrected the error." O'Hara, 167

Wn.2d at 100.

A.     Due Process and the Confrontation Clause

       Cowan argues that his rights to confrontation and due process were violated by

the State's expert's testimony at trial regarding the latent fingerprint left on the manila

envelope. He contends that this right to due process was violated "when [the State's

expert] was allowed to give her 'expert testimony' pertaining to her co-worker and

supervisor, without them ever being cross-examined by Cowan's defense attorney." He

argues that the admission of a lab report violated his confrontation clause rights. He

also challenges the admission of the envelope at trial.

       The State admitted exhibit 151 at trial. This exhibit was a brown bag that

contained various paperwork and a small manila folder. Cowan did not object to the

admission of exhibit 151.

       The State called Stacey Redhead, a forensic scientist at the Washington State

Patrol Crime Laboratory, to testify. Redhead testified that she performed a verification

of a comparison examination that was done by the Edmonds Police Department at the

request of the Edmonds Police Department. She testified that she received pictures of

a latent thumbprint found on the manila envelope and Cowan's known thumbprint. She

also testified that the normal process for examining a print required a review by her peer

and then by her supervisor. At trial, Redhead compared enlarged pictures of Cowan's

known thumbprint with the latent print found on the envelope. After doing so, she



                                           -23-
No. 74402-0-1/24


testified that the latent print matched the known thumbprint. Cowan cross-examined

her, but did not object to any of her testimony on direct examination.

       Here, Cowan cannot show that either the admission of the envelope or

Redhead's testimony was manifest error. First, there is no evidence that, as Cowan

suggests in his SAG,the envelope was clearly a replacement." Although an officer

described the envelope at the scene as a "ripped up manila-type envelope," there was

no evidence that the envelope in exhibit 151 was anything other than the envelope from

the scene of the crime. Second, Redhead's testimony was not manifest error. She

examined an enlarged latent print and an enlarged known print at trial and concluded

that the latent print was made by the same person who made the fingerprint card. She

confirmed that her verification of the Edmonds Police Department's verification was

verified by a senior analyst and then by her supervisor. This was not manifest error.

B.    Disclosure of Exculpatory Evidence

      Cowan argues next that his right to due process was violated in violation of Brady

v. Maryland, 373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because the State

failed to disclose exculpatory evidence—the ripped-up manila envelope. Essentially, he

claims that the manila envelope included in exhibit 151 was not the manila envelope

from the scene.

      Here, Cowan cannot establish manifest error. There is no evidence that the

manila envelope included in exhibit 151 was anything other than the envelope from the

scene of the crime.




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No. 74402-0-1/25


      We affirm Cowan's convictions, but remand for resentencing including a

determination of whether attempted murder and robbery are the same criminal conduct.




                                                4‘mri
WE CONCUR:


      .------ .
          1 1 ilt-i e7 1                          /Lee-el/
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