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                                                         COURT OF APPEALS Dlv
                                                          STATE OF WASHINGTON

                                                          2013 NOV 18 AHI0=5i*




   IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                No. 68809-0-1
                    Respondent,
                                                DIVISION ONE
      v.



JORELL AVERY HICKS,                             UNPUBLISHED OPINION


                    Appellant.                  FILED: November 18. 2013

      Spearman, A.C.J. —A jury convicted Jorell Hicks of several crimes based on

evidence of a drug-related robbery and shooting. Hicks claims the trial court violated

double jeopardy principles by entering convictions for first degree robbery and drive-by

shooting because the underlying conduct was also the basis for his first degree assault

conviction involving the same victims. Hicks also contends he was denied the effective

representation of counsel at sentencing because counsel failed to argue that his

robbery and assault convictions encompassed the same criminal conduct. We reject

his arguments, and affirm.

                                         FACTS

       Coletin Kittleson was, at times, a drug supplier to Erin Gunder. In August 2011,

in need of money, Kittleson and his friend Jorell Hicks devised a plan to rob Gunder of

drugs and resell the drugs for cash. Kittleson arranged for Gunder to procure two
No. 68809-0-1/2


ounces of heroin and sell it to him. Another friend of Kittleson's, Devan Bermodes,

agreed to drive Kittleson and Hicks to meet Gunder.

       Upon arriving at the Walmart parking lot where Kittleson had arranged to meet

Gunder, Kittleson noticed police cars in the vicinity. Kittleson contacted Gunder and

told her to meet him at the Old Spaghetti Factory parking lot instead. Bermodes parked

in a parking lot below the Old Spaghetti Factory parking lot with a staircase connecting

the two lots. Kittleson and Hicks walked up the stairs together and Kittleson pointed out

Gunder to Hicks. Kittleson went back to the car to wait.

      Gunder was out of the car, facing the trunk, when Hicks approached her from

behind and said "'Give me your shit.'" Verbatim Report of Proceedings (VRP) at 31.

Hicks pointed a gun at Gunder, and she gave him the drugs. When Hicks was not

satisfied and continued to demand that she give him everything she had, Gunder

handed Hicks her wallet and purse. Hicks then pointed the gun at Edward Straw,

Gunder's boyfriend, who was sitting in the front passenger's seat. Straw said he had

nothing to give. Hicks ordered Gunder to get in the car. He closed the car door after

her and took off running.

       Gunder immediately started the car, and as she pulled out of the parking lot, she

saw a Cadillac starting to pull out of the lower parking lot. Since itwas the only car in

the parking lot below and Hicks ran in that direction, Gunder assumed the robber must

be in that car. She decided to follow it. Both vehicles pulled out onto the street, and

Gunder got behind the Cadillac and followed it while Straw spoke to a 911 dispatch

operator. Gunder was able to see three people in the car: the person who robbed her
No. 68809-0-1/3


sitting in the front passenger's seat, the driver, who appeared to be Hispanic and had a

shaved head, and a white male in the back seat.

       The group in the Cadillac realized Gunder was following them and tried to elude

her by making several turns. When Gunder continued to follow, Hicks leaned his upper

body out of the window, pointed the gun at Gunder's car, and fired two shots. One bullet

struck the hood of the car on the passenger's side. Gunder stopped the car and flagged

down a passing police officer.1
        A short time later, police officers stopped Bermodes and Kittleson in the

Cadillac described by Gunder and Straw. Gunder's wallet was in the car. Gunder and

Straw identified Bermodes as the driver and Kittleson as the back seat passenger.

Police arrested Hicks at his residence. In the residence, the police recovered a .40

caliber firearm, a hoodie, a bandana, Gunder's purse, a prescription bottle in Gunder's

name, and a package containing nearly an ounce of heroin, in addition to some other

drugs.2 Hicks's right hand tested positive for gunpowder residue.
       The State charged Hicks with five counts: first degree assault, first degree

robbery, unlawful possession of a firearm, drive-by shooting, and possession of a

controlled substance with intent to deliver. With respect to three counts: assault,

robbery, and possession with intent to deliver drugs, the State alleged that Hicks was

armed with a firearm at the time he committed the crimes.




       1Two .40 calibershell casings were recovered from the area where Gunder stopped.

       2 Kittleson testified that he threw his share of the stolen drugs out the window. A second package
was never recovered.
No. 68809-0-1/4


       Kittleson and Bermodes entered guilty pleas and testified at Hicks's trial.3 Hicks
also testified and denied that he had anything to do with the robbery and shooting.

Hicks said that on the day in question, he helped Kittleson move out of his apartment in

the afternoon and then Kittleson showed up at his house later in the evening. The jury

convicted Hicks as charged.

       At sentencing, Hicks's counsel argued that the drive-by shooting and assault

counts encompassed the same criminal conduct. The trial court agreed and counted

those crimes as a single offense for purposes of calculating Hicks's offender score on

the assault count. The court imposed standard range concurrent sentences on four of

the five counts plus three firearm enhancements.4
                                           Double Jeopardy

       Hicks challenges his convictions for robbery and drive by-shooting on double

jeopardy grounds.

       Both the United States and Washington State constitutions protect persons from

being twice put in jeopardy for the same offense. State v. Turner, 169 Wn.2d 448, 454,

238 P.3d 461 (2010); U.S. Const amend, v; Const art. I, § 9. This includes, "being (1)

prosecuted a second time for the same offense after acquittal, (2) prosecuted a second

time for the same offense after conviction, and (3) punished multiple times for the same

offense." State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006) (citing State v.


       3 Kittleson pleaded guilty to second degree robbery with a firearm enhancement and Bermodes
pleaded guilty to second degree robbery.

       4The sentencing court did not impose a sentence on the drive-by shooting conviction,
presumably because of the finding of same criminal conduct. Considering that the State did notobject
below and imposition of a separate concurrentsentence on this count would not change the total
confinement, the State does not assert a cross appeal.
No. 68809-0-1/5


Graham. 153 Wn.2d 400, 404, 103 P.3d 1238 (2005)). However, the State may bring

multiple charges arising from the same criminal conduct in a single proceeding without

offending double jeopardy. State v. Freeman. 153 Wn.2d 765, 770, 108 P.3d 753

(2005). Our supreme court has consistently rejected the notion that "offenses

committed during a 'single transaction' are necessarily the 'same offense'" for purposes

of double jeopardy. State v. Vladovic. 99 Wn.2d 413, 423, 662 P.2d 853 (1983).

Because double jeopardy is a question of law, our review is de novo. Freeman, 153

Wn.2d at 770.


       Our courts employ a three-part framework for double jeopardy analysis.

Freeman, 153 Wn.2d at 771-73. First, if there is clear express or implicit legislative

intent to punish the crimes separately, then we look no further. Freeman, 153 Wn.2d at

771-72. If the legislative intent is unclear, we turn to the "same evidence" test which

asks ifthe crimes are the same in law and in fact.5 State v. Calle, 125 Wn.2d 769, 777-

78, 888 P.2d 155 (1995). Third, if applicable, the merger doctrine may help determine

legislative intent. Vladovic, 99 Wn.2d at 419. Even ifthe two offenses appear to be the

same, when each one has an independent purpose or effect, then the two offenses may

be punished separately. Freeman, 153 Wn.2d at 773.

        Hicks makes no attempt to establish that the offenses of first degree assault, first

degree robbery, and drive-by shooting are legally identical. Instead, Hicks asserts that

the offenses are the same in fact because his single act of firing a gun at Gunder and

Straw was an element of all three offenses.


       5Washington's "same evidence" test is sometimes referred to as the "same elements" test or "the
Blockburaer test." Freeman. 153 Wn.2d at 772 (citing Blockburaer v. United States. 284 U.S. 299, 304,
52 S.Ct. 180, 76 L.Ed. 306 (1932).
No. 68809-0-1/6


      The same evidence test considers "whether each provision requires proof of a

fact which the other does not." Blockburaer v. United States, 284 U.S. 299, 304, 52

S.Ct. 180, 76 L.Ed. 306 (1932). "Ifeach crime contains an element that the other does

not, we presume that the crimes are not the same offense for double jeopardy

purposes." Freeman, 153 Wn.2d at 772. Offenses are not the same in fact and law if

there is an element in each offense which is not included in the other, and proof of one

offense would not necessarily also prove the other. Calle, 125 Wn.2d at 777; Vladovic,

99 Wn.2d at 423. We view the elements "as charged and proved," not in the abstract.

Freeman, 153 Wn.2d at 777.

      As charged in this case, drive-by shooting, first degree assault, and first degree

robbery each contain a statutory element that is absent from the others. See RCW

9A.36.011(1); RCW 9A.36.045; RCW9A.56.190, RCW9A.56.200(1)(a)(i). The

offenses are not the same in law and Hicks does not argue otherwise.

       However, comparison of the statutoryelements at an abstract level does not end

the analysis. In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291
(2004); State v. Nvsta, 168 Wn. App. 30, 46-47, 275 P.3d 1162 (2012). review denied,
177Wn.2d 1008 (2013). We must look at the statutory elements and the facts used to
prove those elements to determine whether each offense required "proof of a fact which
the other d[id] not." Blockburger, 284 U.S. at 304.

       As the offenses were charged and proved in this case, evidence that Hicks fired
a gun was required to prove both his convictions for drive-by shooting and first degree
assault. But each offense also required proof of a fact that the other did not. With

respect to first degree assault, the State was required to prove that Hicks's shooting
No. 68809-0-1/7


was directed at Gunder and Straw with the intent to inflict great bodily harm. To prove

drive-by shooting, the State was required to prove that Hicks discharged a weapon from

a vehicle or in proximity to a vehicle in a manner that created a substantial risk of death

or serious injury to another person.

       As to the robbery, Hicks points out that the jury could have relied on the evidence

that he fired a gun at Gunder's car, and concluded that by doing so, he not only

assaulted the occupants, but also satisfied one of the elements of robbery by using

force to retain their property. But, to prove robbery, the State was also required to

demonstrate that Hicks took property from Gunder's person against her will by using

force or threatening force, violence, or injury.

       In re Pers. Restraint of Orange, 152 Wn.2d at 814-20, is instructive. In that case,

the State charged Orange with both attempted murder and first degree assault for the

single shot that hit a single victim. In the charging document, the State alleged that

Orange committed attempted first degree murder when he acted with premeditated

intent to cause the death of another and "did attempt to cause the death of [M.W.]. In re

Orange, 152 Wn.2d at 814. The State alleged that Orange committed first degree

assault when he "'at the same time as the fattempted murderl, then and there, with

intent to inflict great bodily harm upon another person did intentionally assault [M.W.]

with a firearm.'" In re Orange, 152 Wn.2d at 815 (quoting Opening Br. of Pet'r, App. A

(Second Am. Information) at 1-2). Our supreme court held that in order to determine

whether an attempt crime is the same offense as another crime, the court must

substitute the generic element of a '"substantial step'" for the specific conduct relied

upon to prove the substantial step. Orange, 152 Wn.2d at 818. Because the
No. 68809-0-1/8


substantial step toward murder, shooting the victim, was the same evidence that proved

the assault, and the evidence required to prove attempted murder was sufficient to

prove first degree assault, the crimes were the same offense. Orange, 152 Wn.2d at

820.

       Unlike the circumstances in Orange, this is not a case where evidence of a single

act was required to prove multiple offenses and was the sole available evidence to

prove those charges. The evidence that Hicks fired one bullet at Gunder's car was all

that was required to prove first degree assault. This evidence was available, but not

required, to support either ofthe other two convictions. The crime of drive-by shooting
was also established by evidence that Hicks fired a second bullet. The crime of robbery

was established by the evidence that Hicks robbed Gunder at gunpoint, threatening the

use of force by displaying a firearm, and deploying that threat offorce for the purpose of
obtaining her property and preventing any resistance.

        In sum, first degree robbery, first degree assault, and drive-by shooting were not

the same offenses. It follows that the three convictions did not violate the prohibition

against double jeopardy.

                                       Same Criminal Conduct

        Hicks argues that his trial counsel rendered ineffective assistance because he
failed to argue at sentencing that the robbery and assault counts encompassed the
same criminal conduct.6 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel's performance fell below an objective standard of


        6Adefendant may raise the issue ofsame criminal conduct for the first time on appeal in the
context ofan ineffective assistance of counsel claim, even if he did not raise the argument in the trial
court. See State v. Saunders. 120 Wn. App. 800, 825, 86 P.3d 232 (2004).
                                                     8
No. 68809-0-1/9


reasonableness based on consideration of all the circumstances, and that the deficient

performance caused prejudice. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct.

2052, 80 LEd.2d 674 (1984). If one of the two prongs of the test is absent, we need not

inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166

P.3d 726 (2007).

      We presume effective representation and the defendant bears the burden of

showing the absence of legitimate strategic or tactical reasons for the challenged

conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). To show

prejudice, the defendant must prove that, but for the deficient performance, there is a

reasonable probability that the outcome would have been different. In re Pers. Restraint

of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). In this context, Hicks must show

that it was objectively unreasonable not to raise a same criminal conduct argument, and

that there is a strong probability such an argument would have been successful had it

been raised.

       Multiple current offenses are presumptively counted separately in determining a

defendant's offender score unless the trial court finds that current offenses encompass

the "same criminal conduct." RCW 9.94A.589(1)(a). Crimes constitute the "same

criminal conduct" when 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). The

legislature intended the phrase "same criminal conduct" to be construed narrowly, State

v. Flake, 76 Wn. App. 174, 180, 883 P.2d 341 (1994); ifany one of the factors is

missing, the multiple offenses do not encompass the same criminal conduct. State v.

Lesslev, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Moreover, because a finding by the
No. 68809-0-1/10


sentencing court of same criminal conduct always favors the defendant, "it is the

defendant who must establish [that] the crimes constitute the same criminal conduct."

State v. Graciano. 176 Wn.2d 531, 539, 295 P.3d 219, 223 (2013).

       Hicks cannot establish a likelihood that counsel's argument would have

prevailed. It is likely the court would have concluded that the assault occurred after the

robbery was complete and some blocks away from the parking lot where Hicks took

property from Gunder at gunpoint. There was also evidence that the occupants of the

Cadillac noticed Gunder was following them and had some discussion about what to do.

This evidence suggests that after robbing Gunder, Hicks had the opportunity to reflect

and form a new intent to commit assault. See State v. Wilson. 136 Wn. App. 596, 615,

150 P.3d 144 (2007) (where defendant had time to complete the assault and form a

new intent to threaten the victim, assault and felony harassment had different objective

intents). Also, in assaulting Gunder and Straw with a firearm, Hicks had the objective

intent of inflicting physical injury or fear of injury. When he earlier pointed a gun at them

and demanded their property, he manifested a different intent—to deprive them of

personal property by force.

       Defense counsel had argued successfully that Hicks's convictions for drive-by

shooting and assault were the same criminal conduct for scoring purposes.

Considering that these offenses took place at the same time and place, it was

reasonable for counsel to conclude that this was Hicks's strongest argument and focus

on the issue most likely to benefit his client. Although Hicks claims there was no

legitimate tactical reason for counsel to refrain from making a second same criminal
conduct argument, he overlooks the possibility it could have detracted from his better

                                             10
No. 68809-0-1/11


argument. Because Hicks fails to meet his burden to show that counsel was deficient or

the result of sentencing probably would have been different had counsel raised the

argument, the claim of ineffective assistance of counsel fails.

      We affirm.




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