                                                                                   C 11J    FILED
                                                                                           14O rpP
                                                                                  2013 SEP 24
                                                                                              AM 9:23



      IN THE COURT OF APPEALS OF THE STATE OF WASH

                                         DIVISION II

STATE OF WASHINGTON,                                              No. 42130 5 I
                                                                            - -


                               Respondent,

         PM




AMANDA CHRISTINE KNIGHT,                                     PUBLISHED OPINION




         HUNT, P. . —Amanda Christine Knight appeals two convictions for second degree
                J


assault against two victims, JS and Charlene Sanders, (Counts III and V) during a home
invasion robbery2 ;she also appeals her sentences, arguing that they were based on an incorrect

offender score. Knight argues that there was insufficient evidence to support these convictions

and that they constitute double jeopardy because (1) jury instructions were ambiguous, and
                                                    the

2) assaults should have merged with her first degree robbery convictions committed against
 the

the same two victims (Counts IV and II). also asks us to remand for resentencing because
                                       She

1
  It is appropriate to provide some confidentiality in this case. Accordingly, we use initials to
identify the juveniles involved.
2
    Knight does not appeal her first degree felony murder and other convictions arising from this
same home invasion.

3
  Knight is correct that the information named Charlene as a victim of both robbery (Count IV)
and assault ( ount V). Knight mistakenly asserts that the robbery victim named in Count II
            C            But
James, who was also the murder victim'in Count I)   was also the assault victim named in Count
III (JS), which neither the information nor the facts support. At oral argument, Knight
abandoned this latter argument.
No. 42130 5 II
          - -



the trial court erred in calculating her offender score when it counted several of the convictions

as separate points instead of counting them as one point because they constituted the same

criminal conduct under RCW 9.
                           a).
                           589( 4A. In her Statement of Additional Grounds (SAG),
                              1)(
                              9

Knight asserts that the trial court erred in failing to give a nonunanimity jury instruction for the

special verdicts that enhanced her sentence. We affirm.
                                                      FACTS


                                                     I. CRIMES


        Amanda Christine Knight, Joshua Reese, and Kyoshi Higashi were acquaintances, who,

with another acquaintance, Clabon Berniard, participated in a home invasion robbery in Lake

Stevens   on   April   2010.   Soon thereafter, on April 28, Higashi told Knight that he wanted to

commit another robbery; Knight drove her car to Renton to pick up Higashi and then picked up

Berniard. Higashi had found a Craigslist wedding ring advertisement posted by James Sanders.

Using a non -
            traceable throw away cell phone, Knight contacted Sanders that morning and asked
                            -

whether she and her boyfriend could see the ring to buy for Mother's Day. Wanting to arrive

after dark, Knight claimed that they were coming from Chehalis and could not be there until that

evening.

        Knight drove Higashi, Berniard, and Reese to the Sanders' house at 9:0 PM; she drove
                                                                            0

down the   long driveway and       backed in to       park     to facilitate   a
                                                                                   quick getaway. Higashi was in

possession of Knight's firearm; Reese and Berniard were also armed. They had zip ties and

masks with them. Before entering, Knight covered up her tattoos and put on a pair of gloves,

and   Higashi handed     her several   zip   ties.   They met      James Sanders outside. The three walked


together into the Sanders' kitchen.



                                                         OJI
No. 42130 5 II
          - -




         Inside, James handed an old wedding ring to Knight, who handed it to Higashi. When

Knight and Higashi asked several questions about the ring, James called upstairs to his wife,

Charlene, asking her to come down to help answer the questions. Their two children, JS and CK,

remained upstairs. Knight told James she was interested in buying the ring.

         Higashi   revealed   a
                                  large   amount of cash and asked, How is this ?"
                                                                    "                He also pulled out a

handgun    and   threatened, How about this ?" 5 Verbatim Report of Proceedings (VRP)at 580.
                             "

Charlene and James told Higashi and Knight to take whatever they wanted and to leave. Knight

zip tied Charlene's hands behind her back; Higashi zip tied James's hands behind his back.

Knight removed Charlene's wedding ring from her finger. Knight or Higashi removed James's

wedding ring from his finger. Higashi and Knight ordered James and Charlene to lie down on

their stomachs on the floor.


         Through Knight's Bluetooth headset connection to Reese and Berniard waiting in her car,

they heard that the Sanders adults had been secured; and Knight signaled them to enter. Knight

knew that Reese and Berniard possessed loaded guns and that using these guns was part of the

group's plan to carry out the Sanders' home invasion robbery. Reese and Berniard went upstairs,

brought down the two Sanders boys with their hands behind their heads at gunpoint, and forced

them to lie down on their stomachs on the floor near the kitchen entryway; Knight walked

between them.       Charlene and JS saw Knight and Higashi gather up items from the house,

including from the downstairs laundry room. Knight also ransacked the main bedroom upstairs,

looking for other expensive items to collect.



4
    We use James and Charlene Sanders' first names for clarity. We intend no disrespect.



                                                        93
No. 42130 5 II
          - -



         From upstairs, Knight heard the commotion and screams downstairs as her companions

assaulted the Sanders family. Berniard held a gun to Charlene's head, pulled back the hammer,

began counting down, and asked her, Where
                                    "               is your safe ?"    5 VRP at 586. Charlene responded

that   they   did not   own   a   safe. Berniard kicked Charlene in the head, called her a "b tch,"
                                                                                               *

threatened to kill her and her children. 5 VRP at 586.                According   to   Charlene, "[ Berniard]

kicked [her] so hard that [her] head went up and then [she] hit down              on   the   ground ";   it left a


large "goose egg" on her left temple. 5 VRP at 587. Charlene believed she was going to die.

Eventually, Charlene told the intruders that they kept a safe in their garage.

         While Berniard was forcing James to the garage, James broke free of his zip ties and

began beating Berniard. Bernard shot James in the ear, knocking him unconscious. JS jumped

on Berniard, who threw JS off and began hitting him with the butt of his firearm. Reese then

dragged James's body back through the kitchen and into the adjacent living room, where it was

out of sight. Either Reese or Bernard shot James multiple times, causing fatal internal bleeding.

         Following the gunshots, the four intruders fled immediately. Charlene went to the living

room and found James lying on the floor; his body appeared white, and one of his ears had been

shot off.       Charlene called 911.        The police declared James dead at the scene; autopsy

investigators later recovered three bullets from his body. The police also took JS to the hospital,
                                                                                          .

where he was treated for bruising and bleeding around his left ear; the beating left scars that were

still visible   a   year later.   In addition to the rings, among the items missing from the Sanders'

home were a P1ayStation, an iPod, and a cellular phone.

         Knight dropped Higashi at a friend's house; Knight and Reese went to a hotel. Later that

evening, Higashi called Knight; when they met up, Higashi told Knight and Reese that James


                                                      0
No. 42130 5 II
          - -




had been killed and that they needed to discard the clothing they had been wearing and to "get

rid of any remaining zip ties. 7 VRP at 922. Knight handed over her clothing.

          The following morning, Knight, Reese, and Higashi began driving to California and sold

the Sanders' P1ayStation and Knight's firearm along the way. California police eventually pulled

them over and arrested them on unrelated charges. Knight posted bail,pawned James's wedding

band, and purchased a bus ticket to return to Washington. On hearing the news that she was a

murder suspect, she turned herself in to the Sumner Police Department.

                                           II. PROCEDURE


          The State charged Knight with ( )
                                        1 first degree felony murder of James (Count I);two
                                                                                      2) (
                                 56
counts of first   degree robbery,     against James (Count II)and Charlene (Count IV); ( two
                                                                                     3)

counts of second degree assault, against Charlene (Count V)and JS (Count III); (4)first
                                                                             and
degree burglary (Count VI).Each charge alleged accomplice liability and carried a firearm

enhancement and other sentencing aggravators for manifest deliberate cruelty, a high degree of



5
    Thelegislature amended RCW 9A. 6.in 2011. LAWS OF 2011, ch. 336, § 379. The
                                     190  5
amendments added gender neutral language which did not alter the statute in any way relevant to
this case; accordingly, we cite the current version of the statute.
6
  The State charged Knight's robbery counts under RCW 9A. 6.which provides that a
                                                                 190, 5
person commits robbery "   when he or she unlawfully takes personal property from the person of
another or in his or her presence against his or her will by the use or threatened use of immediate
force, violence, or fear of injury to that person." The corrected second amended information
elevated these robberies to first degree under RCW 9A. 6.
                                                       a)(
                                                       200(       i),
                                                                  1)( Knight, or
                                                                  5          alleging that
an accomplice, had been " rmed with a deadly weapon."2 Clerk's Papers (CP)at 305 06.
                           a                                                               -
7
  The State charged Knight's assault counts under RCW 9A. 6.
                                                          021(  1 which
                                                                3 ), provides that a
person is guilty if he or she "( )
                               a Intentionally assaults another and thereby recklessly inflicts
substantial   bodily harm; or ... ( c)Assaults    another with   a   deadly weapon." The legislature
amended RCW 9A. 6.in 2011. LAWS
            021
              3                              OF   2011, ch. 166, § 1. The amendments did not alter
the statute in any way relevant to this case; accordingly, we cite the current version of the statute.

                                                   9
No. 42130 5 II
          - -




sophistication or planning, and an offender score that would result in some of the current

offenses going unpunished.

        In its   opening statement, the        State   explained   that it would prove the            following: ( 1)

Knight and three accomplices, Higashi, Reese, and Bernard, planned to go to the Sanders'

house, ostensibly to purchase a ring that James had advertised on Craigslist, tie everybody up
                                                                              "

and steal the    expensive    stuff out of the house ...       ransack the place and take what they could ";

2)Knight had later told police that she "wore gloves so she wouldn't leave fingerprints [and]
wore   long   sleeves because she      ha[ ]rather
                                         d             distinctive tattoos   on   her   arms "; (   3)once inside the

house, Knight zip tied Charlene's hands behind her back, ordered her face down on the kitchen

floor, and took Charlene's wedding ring off her hand; 4)
                                                      ( Knight then used a Bluetooth to signal

the others to enter; ( )later the intruders got the idea that there was a safe in the house,
                     5

demanded the safe's location, kicked Charlene in the face, and demanded the combination; 6)
                                                                                         (

they also beat Charlene's stepson JS when he tried to intervene to protect his father, James, who

was also being beaten before being shot three times; and (6)Knight would claim at trial that she

and Reese had been upstairs stealing valuables while JS,.
                                                       Charlene, and James were being beaten
downstairs.


        The jury instructions provided: (1) elevate the robbery to first degree, the jury was
                                           To

required to find that, during the commission of the crime, Knight] or an accomplice [was]
                                                           "[

armed with       a   deadly   weapon    or   inflict[ d] bodily injury." 2 Clerk's Papers ( CP) at 339
                                                    e

Instruction 12); also CP at 354 ( nstruction 26).
               see              I


85VRPat517.

9 5 VRP at 528.


                                                           2
No. 42130 5 II
          - -




         2) " assault
           An            is   an   intentional   touching   or   striking   of another person. ...   An assault is


also an act done with the intent to create in another apprehension and fear of bodily injury."2

CP at 346 (Instruction 18).

         3)A person commits the crime of [a] in the [s] [ d] when she or an
            "                              ssault     econd egree

accomplice intentionally assaults another and thereby recklessly inflicts substantial bodily harm

or assaults another with a deadly weapon."2 CP at 347 (Instruction 19).

         4) "separate crime is charged in each count. You must decide each count separately.
           A

Your verdict on one count should not control your verdict on any other count." 2 CP at 334

Instruction 7).

         During closing argument, the State delineated the elements of each crime as set forth in

the court's jury instructions and summarized the evidence supporting the elements of each crime.

The State specifically argued that it had proved the first degree robbery of Charlene, Count IV,

with evidence that Higashi had pointed a gun at Charlene, while Knight zip tied Charlene and

took her wedding ring, facts that Knight herself later admitted. The State then argued that it
had proven Knight's involvement in the second degree assault of Charlene, Count V, when
Berniard put a gun to Charlene's head and started the countdown, during which she was to reveal

the safe's location and was kicked in the head.


         In her closing argument, Knight expressly admitted her participation in the initial robbery

of the Sanders' rings, including that she had " ie[ ] Charlene Sanders and put her down on the
                                              t d up

floor"to "secur[e] people" so the four invaders could "
                 the                                  go rob the house." 7 VRP at 1036,

1037.     Knight claimed, however, that she had done so under duress from Higashi, who had

to
     The State also noted that Charlene was kicked and beaten.


                                                        7
No. 42130 5 II
          - -



coerced her to participate in the Sanders' home invasion, burglary, and robberies. In contrast,

Knight clearly       distanced herself from Berniard's later "brutal "       assaults of JS and Charlene:


She argued that she had neither planned nor participated in these two assaults, which she did not
               12
even   witness.


         The jury found Knight guilty on all counts. It returned special verdicts on the firearm

enhancements, finding that Knight or an accomplice had been armed during the commission of

the crimes.    It did not return special verdicts finding Knight had committed the crimes with.

deliberate cruelty to the victims or with a high degree of sophistication.

         At sentencing, Knight moved the court to find that her two assault convictions constituted

double jeopardy under the merger doctrine; she also argued that, for sentencing purposes, all of

her convictions      were   based   on   the   same   criminal conduct. The trial court denied the motion.

Based on an offender score of 10, the trial court imposed high end standard-
                                                               -           sentences on all

counts and ran them concurrently; the trial court added firearm enhancements and ran them




117 VRP at 1034.
12
     More specifically Knight argued:
         The [S] has said that it' assault with a deadly weapon and causing serious
                 tate              s
         bodily injury, and we know that that's Berniard. Clabon Berniard was absolutely
         brutal with what he did to Charlene in the kitchen. He kicked her. That's an
          assault. He put the gun to the top of her head and began a countdown. That's an
          assault.
7 VRP at 1034. She then went on to argue that she had been in " n entirely different part of the
                                                              a
house"and had not been involved in Berniard's assault of Charlene.
No. 42130 5 II
          - -


              13
consecutively.

                                           ANALYSIS


                                    I. SUFFICIENT EVIDENCE


       Knight argues that there was insufficient evidence to support her two second degree

assault convictions, against JS (Count III)and Charlene (Count V). disagree.
                                                                 We

                                     A. Standard of Review


       Evidence is sufficient if any rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt; evidence is viewed in the light most favorable to the State.

State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).A defendant claiming that the evidence
                       2              3

was insufficient admits the truth of the State's evidence and all reasonable inferences that may be

drawn from it. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).
                                       2                  2

       Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94

Wn. d 634, 638, 618 P. d 99 (1980). We
  2                  2                         defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64

Wn.App. 410, 415 16,824 P. d 533 (1992).
                 -       2

                                   B. Second Degree Assaults

       To prove that Knight was an accomplice to the assaults on Charlene and JS, the State

needed to show that she (Knight)knowingly "
                                          promote[d]" d]"
                                                   or "facilitate[ the commission of


13 The trial court sentenced Knight as follows: (1)548 months on Count I (first degree felony
murder); ( 171 months on Count II ( irst degree robbery of James); ( 84 months on Count III
        2)                          f                             3)
second degree assault of JS); ( 171 months on Count IV (irst degree robbery of Charlene); (
                            4)                          f                               5)
84 months on Count V (second degree assault of Charlene);and (6)116 months on Count VI
first degree burglary), run concurrently. The trial court imposed firearm enhancements of 60
                      to
months on Counts I,II,IV, and VI, and 36 months on counts III and V, to run consecutively
apparently to each other)for a total confinement period of 860 months.

                                                 6
No. 42130 5 II
          - -



these crimes (1)by soliciting, commanding, encouraging, or requesting another person to

commit the crimes; or ( by aiding or agreeing to aid another in the planning or committing of
                      2)

the crimes. RCW 9A. 8. person aids or abets a crime by associating himself with
                a).
                020(
                   3)(
                   0  A

the undertaking, participating in it as in something he desires to bring about, and seeking by his

action to make it succeed. In re Welfare of Wilson, 91 Wn. d 487, 491, 588 P. d 1161 (1979).
                                                         2                  2

           Knight does not dispute that Berniard's kicking Charlene in the head and hitting JS with

the butt of his firearm satisfied the elements of second degree assault as to each victim. Instead,

she argues that she cannot be culpable as an accomplice to the assaults because they occurred

while she was upstairs gathering property in the Sanders' main bedroom. This argument fails: A

person's physical presence during the offense is not required for accomplice liability. See State

v. Trujillo, 112 Wn. App. 390, 398, 408, 49 P. d 935 (2002) defendant facilitated commission
                                             3               (

of murder by knowingly driving the shooters and their weapons to kill rival gang member,

despite remaining in van during the shooting).

           Knight is correct that "mere presence . at the scene" cannot serve as the basis for

accomplice liability. Br. of Appellant at 9 (citing Wilson, 91 Wn. d at 491 92). Knight was
                                                                 2          -  But

more than merely a present, uninvolved observer. The State presented the following evidence

from which the jury could reasonably infer that Knight knowingly promoted or facilitated the

commission of the assaults: (1)Knight called James to arrange a meeting under the pretense of

purchasing a wedding ring advertised for sale; 2) drove Higashi, Reese, and Berniard to the
                                               ( she



14
     legislature amended RCW 9A. 8.in 2011. LAWS of 2011, ch. 336, § 351. These
     The                          020  0
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




                                                  10
No. 42130 5 II
          - -




Sanders' home; 3)she knew that the plan to obtain the Sanders' ring involved using loaded
               (

guns; 4)
      ( once inside, she tied Charlene's hands behind her back with zip ties and forced her to

the ground; and (5)after Charlene and James were on the ground, Knight used a Bluetooth to

signal   Reese and Berniard to enter the     house, knowing that they    were   both armed. Each act


placed the Sanders in a more vulnerable position and facilitated the commission of the assaults

by allowing Knight's accomplices        to   gain   entrance and to avoid resistance.   Based on this


evidence, we hold that a reasonable jury could infer that Knight promoted or facilitated the

commission of these two assaults by aiding another in planning or committing the assaults.

                                        II. DOUBLE JEOPARDY


         For the first time on appeal, Knight argues that her two second degree assault convictions

against Charlene and James (Counts V and III)and two first degree robbery convictions, also
against Charlene and James (Counts IV and II),
                                             constituted double jeopardy. Specifically, she

argues that (1) jury instructions for her second degree assault convictions were ambiguous,
               the

and (2)the trial court erred in failing to merge these assault convictions into her robbery
              16
convictions.       Again,we disagree.




15
   In her brief, Knight mistakenly refers to James Sanders as the victim of one of the second
degree assault convictions, even though the record shows that JS and Charlene were the only
assault victims and James was the murder victim in Count I. But at oral argument, Knight
withdrew this argument, conceding that she had mistakenly misstated the counts and victims for
this part of her argument. Therefore, we do not further consider it.
16
     The State argues that Knight waived her merger claim. But the record shows that Knight
timely raised this issue below,thus preserving this error for our review.

                                                      11
No. 42130 5 II
          - -



                        A. Failure To Preserve Jury Instruction Challenge

         Generally, a party who fails to object to jury instructions below waives any claim of

instructional error on appeal. State v. Edwards, 171 Wn. App. 379, 387, 294 P. d 708 (2012).
                                                                             3

But a defendant does not waive a manifest. error affecting a constitutional right by failing to

object below. RAP 2. ( v. Walsh, 143 Wn. d 1, 7, 17 P. d 591 (2001).The initial
                  a)(State
                   3);
                   5                   2             3

burden is on Knight to demonstrate that the error is both manifest and is of constitutional

dimension. RAP     a)( State
                   2. (
                    3);
                    5                v.   O' ara, 167 Wn. d 91, 98, 217 P. d 756 (2009). The
                                           H            2                3


determination of whether an error is " anifest"requires an appellant to show " ctual prejudice,"
                                     m                                       a

which we determine by looking at the asserted error to see if it had "practical and identifiable

consequences" at   trial.   State v. Gordon, 172 Wn. d 671, 676, 260 P. d 884 (2011) internal
                                                   2                  3               (

quotation marks omitted).See also State v. Bonds, 174 Wn. App. 553, 569, 299 P. d 663 (2013).
                                                                              3

We narrowly construe exceptions to RAP 2. (State v. Montgomery, 163 Wn. d 577, 595, 183
                                       a).
                                        5                             2

P. d 267 (
 3       2008).

         Our Supreme Court has held that a double jeopardy claim is an error of constitutional

magnitude. But Knight fails to make any showing that the alleged ambiguous jury instruction

error was manifest because she fails to show any prejudice resulting from the jury instruction

that she alleges, for the first time on appeal, was ambiguous. State v. Mutch, 171 Wn. d 646,
                                                                                     2

661, 254 P. d 803 (2011);
          3             State v. Bertrand, 165 Wn. App. 393, 402, 267 P. d 511 ( 2011),
                                                                       3

review   denied, 175 Wn. d
                       2       1014 (2012). We    hold, therefore, that she has failed to carry her

burden to trigger exercise of our limited discretion under RAP 2. ( entertain a non-
                                                               a)( to
                                                                3)
                                                                5

preserved claim of error; thus, we do not address the merits of her instructional challenge.

Bertrand, 165 Wn. App. at 402.



                                                  12

   I
No. 42130 5 II
          - -



                                        B. Merger; Double Jeopardy

         The state and federal double          jeopardy   clauses   provide   the   same   protections.   In re


Orange, 152 Wn. d 795, 815, 100 P. d 291 (2004); U. . CONST. amend. V;WASH. CONST.
              2                  3             see S

art.   I, § If a defendant's acts support charges under two statutes, we ask whether the
           9.


legislature intended   to authorize     multiple punishments        for the crimes in      question.   State v.


Freeman, 153 Wn. d 765, 771, 108 P. d 753 (2005); re Pers. Restraint of Borrero, 161
               2                  3             In

Wn. d 532, 536, 167 P. d 1106 (2007),
  2                  3              cert. denied, 552 U. . 1154, 128 S. Ct. 1098, 169 L.Ed.
                                                       S

2d832( 008).Double jeopardy principles also bar courts from entering multiple convictions for
     2

the same offense. State v. Womac, 160 Wn. d 643, 650 51, 160 P. d 40 (2007).We consider
                                        2            -        3

the elements of the crimes as charged and proved, not merely at the level of an abstract

articulation of the elements. Freeman, 153 Wn. d at 777 (citing State v. Hadovic, 99 Wn. d
                                             2                                         2

413, 421, 662 P. d 853 (1983);
               2             Orange, 152 Wn. d at 817 18).
                                           2          -  Double jeopardy is a question of

law,which we review de novo. Freeman, 153 Wn. d at 770.
                                            2

         In State v. Calle, our Supreme Court set forth a three part test for double jeopardy claims.
                                                                -

125 Wn. d 769, 776, 888 P. d 155 (1995); also State v. Kier, 164 Wn. d 798, 804, 194 P. d
      2                  2             see                         2                  3

212 ( 2008).    First, we search for express or implicit legislative intent to punish the crimes

separately; if this intent is clear, we look no further. Calle, 125 Wn. d at 776. Second, if there is
                                                                      2

no clear statement of legislative intent, we may apply the "same evidence" Blockburger test,

which asks if the crimes    are   the   same   in law and in fact.     Calle, 125 Wn. d at 777 78 (
                                                                                    2          - citing

Blockburger v. United States, 284 U. .299, 304, 52 S. Ct. 180, 76 L.Ed. 306 (1932)).
                                   S                                              Third, we

may use the merger doctrine to discern legislative intent where the degree of one offense is

elevated by conduct constituting a separate offense. Kier, 164 Wn. d at 804 (citing Hadovic, 99
                                                                 2


                                                      13
No. 42130 5 II
          - -




Wn. d 419). But even if two convictions appear to merge on an abstract level, the State may
  2

punish    them    separately   if each conviction has         an   independent purpose   or   effect.   Kier, 164

Wn. d at 804;Freeman, 153 Wn. d at 773.
  2                         2

         Under the merger doctrine, when a criminal act forbidden under one statute elevates the

degree of a crime under another statute,the courts presume that the legislature intended to punish .

both acts   through    a   single    conviction for the greater crime.      Freeman, 153 Wn. d at 772 74
                                                                                           2          -

when assault elevates robbery to first degree, generally the two crimes constitute the same

offense for double jeopardy purposes). The Freeman Court did not, however, adopt a per se

rule; instead, it underscored the need for a reviewing court take a "hard look at each case"based

on its facts and charged crimes. Freeman, 153 Wn. d at 774.
                                                2

         Knight argues that her convictions for second degree assault and first degree robbery of

Charlene (Counts V and          IV)should      merge. 17 Because the later second degree assault was not
                                                                                                          18
necessary    to   elevate the       degree   of the earlier   robbery,   this merger argument fails.           See


Freeman, 153 Wn. d at 772 73;State v. Esparza, 135 Wn. App. 54, 57, 143 P. d 612 (2006).
               2          -                                              3



17
     Because Knight argues that her convictions constitute double jeopardy under only the merger
doctrine, we confine our analysis to that issue. RAP 10. (
                                                     6).
                                                       3
18
     The instant case differs from Kier, in which our Supreme Court held that Kier's first degree
robbery and second degree assault convictions merged. Kier, 164 Wn. d at 801 02. Kier was
                                                                  2          -
also charged with being armed with or displaying a deadly weapon. Kier pointed a gun at the
assault victims, forced them out of their car, and drove their car away. Id. at 802 03. The Court
                                                                                    -
concluded that Kier's threatened use of force, a necessary element in both the second degree
assault and the first degree robbery as charged and proved, was satisfied by only one act: Kier's
being armed with or displaying a gun. Id. at 805 06.The Court explained,
                                                  -
        The merger doctrine is triggered when second degree assault with a deadly
        weapon elevates robbery to the first degree because being armed with or
        displaying a firearm or deadly weapon to take property through force or fear is
          essential to the elevation.


                                                         14
No. 42130 5 II
          - -



       The information alleged that Knight was guilty of robbery under RCW 9A. 6.
                                                                           190,
                                                                             5 which

provides that a person commits robbery " hen he or she unlawfully takes personal property from
                                       w

the person of another or in his or her presence against his or her will by the use or threatened use

of immediate force, violence, or fear of injury to that person." The information elevated this

robbery to the first degree by alleging that Knight, or. her accomplice, was "armed with a
deadly weapon" while taking Charlene's wedding ring.           2 CP at 305.     Consistent with the


information, the jury instructions specified that to elevate robbery to the first degree, the jury had

to find that, during the robbery, Knight] or an accomplice [was] armed with a deadly weapon
                                  "[

or inflict[ d]bodily injury."2 CP at 339 (Instruction 12) emphasis added); also CP at 354
          e                                               (              see

Instruction 26).The State charged and produced evidence for only the first alternative, armed

with a deadly weapon; and the record shows that this first degree robbery was completed when

Higashi threatened Charlene with a firearm and Knight removed Charlene's wedding ring, at

which point no one had inflicted bodily injury on Charlene.




Id. at 806 ( mphasis added).
           e
        Unlike Kier, where the deadly weapon element of the second degree assault conviction
necessarily elevated the degree of the robbery (because there were no other acts that the jury
could have used to enhance the degree of the robbery),   here, the State proved the first degree .
robbery of Charlene and the second degree assault of Charlene based on separate criminal acts,
separated in time and with separate purposes. As we discussed previously, Higashi's early use of
a firearm to steal Charlene's wedding ring from her finger elevated the robbery to first degree,
Count IV;the State proved the second degree assault based on Berniard's later kicking Charlene
in the head, Count V,in an attempt to get her to divulge the location of the safe. Thus, Knight's
second degree assault was not essential to the elevating of her robbery conviction to the first
degree.

19 RCW 9A. 6.
       a)(
       200(
          i).
          1)(
          5


                                                  15
No. 42130 541
          -




         The information also alleged that Knight was guilty of second degree assault in that she

intentionally assault[ed]Charlene Sanders, and thereby recklessly inflict[ d]substantial bodily
                                                                         e

harm, contrary to RCW 9A. 6. or did intentionally assault Charlene Sanders with
                      a),
                      021(
                         1)(
                         3 and /
a   deadly weapon, to   wit:   a   handgun. " 2 CP at 307 (emphasis added).The trial court instructed

the jury on the first and third common law definitions of assault "
                                                          "

                An assault is      an   intentional touching   or   striking   of another person. ...   An

         assault is also an act done with the intent to create in another apprehension and
         fear of bodily injury.

and


               A person commits the crime of assault in the [s] [d] when she
                                               [ ]               econd   egree
         or an accomplice intentionally assaults another and thereby recklessly inflicts
         substantial bodily harm or assaults another with a deadly weapon.

2 CP at 346 (Instruction 18), (Instruction 19),
                            347               respectively. The "to convict"instructions for

second degree assault contemplated Knight's or her accomplices' using a handgun as the means

of proving second degree assault or an unlawful touching or striking, as provided as an

alternative means under RCW 9A. 6.
                            a).
                            021(
                               1)(
                               3

         Knight's merger argument would be compelling if the second degree assault of Charlene
could have involved only Higashi's pointing Knight's gun at Charlene when they robbed

Charlene of her wedding ring at the beginning of the home invasion; but such were the not the

21
   RCW 9A. 6.
         021( 1 provides that a person is guilty if he or she "( ) [ ntentionally assaults
              3 )                                                      a i]
another andthereby recklessly inflicts substantial bodily harm; or ... ( c) [ ssaults another with
                                                                           a]
a deadly weapon."Emphasis added).
                   (

21 In the absence of a statutory definition of "
                                               assault,"Washington courts use common law
definitions, which include: "(1) unlawful touching (actual battery);2)an attempt with
                                an                                  (
unlawful force to inflict bodily injury upon another, tending but failing to accomplish it
attempted battery); (3)
                   and     putting another in apprehension of harm."State v. Elmi, 166 Wn. d
                                                                                         2
209,215, 207 P. d 439 (
               3       2009); also Kier, 164 Wn. d at 806.
                              see                   2

                                                        16
No. 42130 5 II
          - -




facts here. On the contrary, accomplice Berniard's later assaults of Charlene (with a different

firearm and by kicking her in the head) support the second degree assault conviction,

independent of the firearm threat that Knight and Higashi had earlier used to take Charlene's ring
during the robbery. Both the State's and Knight's closing arguments support the jury's treatment

of Higashi's earlier firearm threat while removing Charlene's wedding ring from her finger as

separate from Berniard's later threatening Charlene by pointing a gun at her head to force her to

reveal the location of the safe and kicking her in the head. For example, two main points during

Knight's closing argument were (1) open admission that she had participated in the initial
                                  her

robbery of Charlene's ring while Higashi pointed the gun, claiming, however, that the others had

forced her to participate in that robbery and the burglary; and ( ) had no prior knowledge of,
                                                                2 she

she had been nowhere near, and she had not in any way participated in Berniard's later brutal

assaults of Charlene, JS, and James.

         As our Supreme Court admonished in Freeman and Mutch, when considering double
                                                       22
jeopardy, we    take   a " hard   look" at the facts        and a "rigorous" review of the "entire trial

record. 23 We focus on the crimes as charged and instructed to the jury,the evidence in the case,
        ,




22
     Freeman, 153 Wn. d at 774.
                    2
23
     Mutch, 171 Wn. d at 664.
                  2



                                                       17
No. 42130 5 II
          - -



                                    24
and the   closing arguments.             Here, Berniard's pointing his gun at Charlene and kicking her in

the head to force her to reveal the location of a safe provided an "independent purpose" and

support for a separate conviction for this later second degree assault, independent of Knight's

and    Higashi's   earlier   completed robbery           of Charlene's   ring   at   gunpoint. See Freeman, 153

Wn. d at 778 79 ( independent
  2          -    "                          purpose or effect" exception is "less focused on abstract

legislative   intent and     more   focused   on   the facts of the individual       case ");   State v. Prater, 30 Wn.

App. 512, 516, 635 P. d 1104 (1981) separate injury and intent justified separate assault
                    2               (

conviction where defendant struck victim after completing a robbery).Berniard's later assault of

Charlene to locate the       family safe "was       no   part of the robbery "       of her wedding ring by Knight

and Higashi earlier.

          We hold, therefore, that under the facts here, 1) second degree assault ( ount V)and
                                                         ( the                    C

the first degree robbery (Count IV) do not merge; and (2)proof that Knight and/ r her
                                                                              o

accomplices committed the crime of second degree assault was not necessary to elevate the

robbery to first degree. Esparza, 135 Wn.App.at 66 (citing Freeman, 153 Wn. d at 777 78).
                                                                          2          -




24
     As the Supreme Court explained in Mutch:
                 While the court may look to the entire trial record when considering a
          double jeopardy claim, we note that our review is rigorous and is among the
      strictest. Considering the evidence, arguments, and instructions, if it is not clear
      that it was "manifestly apparent to the jury that the State [was] not seeking to
      impose multiple punishments for the same offense"and that each count was based
      on a separate act, there is a double jeopardy violation.
Mutch, 171 Wn. d at 664 (alteration in original) quoting State v. Berg, 147 Wn. App. 923, 931,
               2                                  (
198 P. d 529 ( 008)).
     3       2
25
     Prater, 30 Wn. App. at 516.

                                                             18
No. 42130 5 II
          - -



                               III. EFFECTIVE ASSISTANCE OF COUNSEL


        Knight next argues that she received ineffective assistance when her trial counsel

allegedly failed to inform the trial court that it could impose an exceptional sentence downward.

Knight's argument fails.

                                       A. Standard of Review


        To prevail on a claim of ineffective assistance of counsel, a defendant must show that ( )
                                                                                               1

her counsel's representation was deficient, falling below an objective standard of reasonableness;

and (2) deficient performance prejudiced her. State v. Sutherby, 165 Wn. d 870, 883, 204
       the                                                             2

P. d 916 (2009) citing State v. McFarland, 127 Wn. d 322, 33435, 899 P. d 1251 ( 1995)
 3              (                                2           -        2

citing Strickland v. Washington, 466 U. .668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984))).
                                      S

A petitioner's failure to prove either prong ends our inquiry. State v. Hendrickson, 129 Wn. d
                                                                                           2

61, 78,917 P. d 563 (1996)
            2
        A   standard   range    sentence   is   generally   not   appealable.   RCW   585( 4A.
                                                                                      9. ).
                                                                                         1
                                                                                         9

Nevertheless, a defendant may appeal the trial court's procedure in imposing his sentence. State

v.   Ammons, 105 Wn. d 175, 183, 713 P. d 719, 718 P. d 796 ( 1986). Here, Knight
                   2                  2             2


encompasses her sentencing challenge within an ineffective assistance of counsel claim.




26
  Overruled on other grounds by Carey v. Musladin, 549 U. .79, 127 S. Ct. 649, 166 L.Ed. 2d
                                                        S
482 ( 006).
    2



                                                    19
No. 42130 5 II
          - -



                                               B. No Prejudice Shown

           Even assuming, without deciding, that the trial court could have imposed an exceptional

sentence downward under former RCW 9.
                                   535 (
                                     94A.                        2008)we hold that (1)Knight fails to
                                                                                              28
show that her counsel's failure to inform the court of this          possibility prejudiced her, and ( )
                                                                                                     2 her

reliance    on   State   v.   McGill   is   misplaced .   The trial court in McGill " rroneously believed it
                                                                                    e

could not depart from a standard range sentence even though it expressed a desire to do so."

McGill, 112 Wn. App. at 97. Hers, in contrast with McGill, there is no indication that the trial

court would have considered or imposed even a low end standard sentence, let alone an

exceptional sentence downward 31 Instead, the trial court's imposition of a high end standard -
                              .                                                  -
range sentence expressed quite the opposite. Knight has failed to show that her counsel's failure




27
      legislature has since amended this statute in 2013. LAWS of 2013, ch. 256 § 2. The
     The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.


28 We agree with the State that defense counsel has no obligation to advocate for an exceptional
sentence below the standard range in general, much less in every case.
29
     State V. McGill, 112 Wn.App.95, 47 P. d 173 (2002).
                                         3

30 A jury convicted McGill of three cocaine -delivery crimes. McGill, 112 Wn. App. at 98. The
trial court imposed a low end standard sentence, stating it had "no option but to sentence
McGill] within the range." McGill's counsel failed to inform the trial court that there were
other permissible bases for imposing an exceptional sentence downward. McGill, 112 Wn. App.
at 97. On appeal, Division One held that McGill received ineffective assistance because the trial
court's comments indicated that it would have considered an exceptional sentence had it known
it could. McGill, 112 Wn. App. at 100 01.
                                      -
31
  Moreover, there is nothing in the record to suggest that the court relied on an impermissible
basis for refusing to impose an exceptional sentence, as was the case in McGill. McGill, 112
Wn. App. at 100 (citing State v. Garcia-
                                       Martinez, 88 Wn.App. 322, 329, 944 P. d 1104 (1997),
                                                                                2
review denied, 136 Wn. d 1002 (1998)).
                       2

                                                          20
     No. 42130 5 II
               - -



     to inform the court of the possibility of an exceptional sentence downward prejudiced her.

     Accordingly,her ineffective assistance of counsel.challenge fails.

                                              IV. OFFENDER SCORE


              Finally, Knight argues that the trial court erred in calculating her offender score because

     several of her current convictions were based on the "same criminal conduct" under RCW


     a).
     589( 4A. We disagree.
     9. 1)(
        9

                                             A. Standard of Review


              Where two or more offenses encompass the same criminal conduct, the sentencing court

     counts   them   as   a   single   crime when   calculating   the defendant's offender   score.   RCW


     a).
     589( 4A. Same criminal conduct" for offender score calculation purposes means "two
     9. 1)(
        9                         "

     or more crimes" that (1)require the "same criminal intent," ( were committed at the "same
                                                               2)

     time and place," ( )
                    and 3 involved the " ame victim."
                                       s            RCW 9.
                                                        a).
                                                        589( 4A. If any one of these
                                                           1)(
                                                           9

     elements is missing, the sentencing court must count the offenses separately in calculating the

I'   offender score. State v. Maxfield, 125 Wn. d 378, 402, 886 P. d 123 (1994); also State v.
                                              2                  2             see

     Dunaway, 109 Wn. d 207, 216, 743 P. d 1237, 749 P. d 160 (1988).But absent an abuse of
                    2                  2              2

     discretion or misapplication of the law,we may not reverse a trial court's determination of what

     constitutes the same criminal conduct for offender score calculation purposes. State v. Tili, 139

     Wn. d 107, 122, 985 P. d 365 (1999).
       2                  2

                                 B. Crimes Not Based ' n Same Criminal Conduct
                                                     o


              Knight argues that the trial court erred in failing to treat the following pairs of crimes as

     the "same criminal conduct"for offender score purposes because they occurred at the same time

     and place and her "objective intent throughout the incident never changed from completing the


                                                         21
No. 42130 5 II
          - -




robbery " (   1)first degree robbery and felony murder of James (Counts II and I), (2)
                                                                                and   first

degree robbery and second degree assault of Charlene (Counts IV and V). also argues that
                                                                      She
first degree burglary should have counted as the same criminal conduct as her other crimes

because it, too, occurred at the same time and place and her "objective intent throughout the

incident never changed." Br. of Appellant at 31. At sentencing, the trial court rejected Knight's

same criminal conduct argument, stating:

        T] e robbery, that is, of the ring, was completed before the assaults and the
         h
       murder occurred. Therefore, although they occurred in the same place, Counts .   I
       and II and IV and V do not occur at the same time. The robbery of James Sanders
       was completed, as well as the robbery of Charlene Sanders, at the time their rings
       were stolen. And therefore, the murder and the assaults would not be the same
        criminal conduct because of that.
              In addition, we have a different person involved in the assaults, which is
        Clabon Berni'ard, and therefore, it' a completely separate criminal act for that
                                           s
       purpose.


8 VRP at 1090 (emphasis     added). We adopt the trial court's rationale as it pertains to our

offender score analysis here.




32
  Br. of Appellant at 31. Knight further argues that ( ) was upstairs when her accomplices
                                                      1 she
committed the violent acts against Charlene and JS; 2) had been unarmed during the earlier
                                                     ( she
robbery of the Sanders' wedding rings; and (3) never physically harmed any of the victims.
                                                  she
This argument, however, has no bearing on the same criminal conductoffender score issue. As
                                                                          /
the trial court properly instructed the jury, it could convict Knight based on her accomplice
liability for all counts charged; and as we have already explained, the State's evidence supported
her convictions as an accomplice. Because she was culpable for the acts and intentions of her
accomplices, her contention that she personally did not intend their criminal acts does not
support her "same criminal conduct" offender     score   argument. See State v. McDonald, 138
Wn. d 680, 688, 981 P. d 443 ( 1999) an accomplice and principal are equally culpable
   2                      2                (
regardless of which one actually commits the criminal act or the degree of participation of each).

33 As Knight correctly concedes, C] against separate victims could not constitute the same
                                 "[ rimes
criminal conduct."Br. of Appellant at 31.



                                               22
No. 42130 5 II
          - -



                                  1. Robbery and murder of James

       Our Supreme Court has previously addressed and rejected the notion that robbery and

murder share the same criminal intent for "same criminal conduct" offender score purposes,

holding, When viewed objectively, ...
         "                                  the intent behind robbery is to acquire property while

the intent behind   attempted   murder is to kill   someone. "   Dunaway, 109 Wn. d
                                                                                2      at 216.   In


addition, here, James's later murder did not further the commission of either earlier robbery

because both robberies were completed once Knight's accomplice took James's and Charlene's

wedding rings, well before Berniard's later assault of Charlene and before Berniard and Reese

brought   the children downstairs.    Thus, Knight fails to show that the trial court abused its

discretion in concluding that the murder and robbery of James did not occur at the "same time."

RCW 9.
    a).
    589( 4A.
       1)(
       9



34
 Our Supreme Court expressly noted in Dunaway:
     Green and Franklin each committed armed robbery and then each attempted to
     murder his victim. The murders were attempted after receiving the money but
     before leaving the premises. When viewed objectively, the criminal intent in
     these cases was substantially different: [T] e intent behind robbery is to acquire
                                                  h
     property while the intent behind attempted murder is to kill someone. RCW
      190;
      9A. 6.RCW 9A. 2. The defendants have argued that the intent behind
            5           030.  3
     the crimes was the same in that the murders were attempted in order to avoid
     being caught for committing the robberies. However, this argument focuses on
     the subjective intent of the defendants, while the cases make clear that the test is
      an objective one. State v. Huff, 45 Wn. App. 474, 478 79, 726 P. d 41 (1986);
                                                               -           2
     State v. Edwards, 45 Wn. App. 378, 382, 725 P. d 442 (1986);
                                                      2               State v. Calloway,
      42 Wn. App. 420, 424, 711 P. d 382 ( 1985). Additionally, neither crime
                                        2
      furthered the commission of the other. While the attempted murders may have
      been committed in an effort to escape the consequences of the robberies, they in
      no way furthered the ultimate goal of the robberies. Clearly, the robberies did not
      further the attempted murders. Accordingly, we hold that these crimes did not
      encompass the same criminal conduct.
Dunaway, 109 Wn. d at 216 17.
                 2         -



                                                    23
No. 42130 5 II
          - -



                              2. Robbery and assault of Charlene

       In our evidence sufficiency analysis, we held that Knight was an accomplice to the

assault on Charlene based on Berniard's kicking Charlene in the head. We rejected her argument

that, because this assault occurred while Knight was upstairs gathering property in the Sanders'

main bedroom, she could not be       culpable   as   an   accomplice. The robbery of Charlene was

complete once Knight removed the ring from Charlene's finger while Higashi held the firearm.

This later assault— s kicking Charlene in the head in an attempt to get the safe -does
                  Berniard'                                                        --

not constitute the same criminal conduct as the earlier robbery because, as the trial court

similarly concluded,these two crimes did not occur at the same time. Thus,they could not count

as the same criminal conduct for offender score purposes under RCW 9.
                                                                   a).
                                                                   589( 4A.
                                                                      1)(
                                                                      9

                                3. Burglary anti-
                                                merger statute

       Knight's final argumentthat the burglary constituted the same criminal conduct as all
                               —
of her other convictions —ignores   the trial court's independent legislative authority to punish the

burglary separately under the burglary anti-
                                           merger statute:

       Every person who, in the commission of a burglary shall commit any other crime,
       may be punished therefor[e] well as for the burglary, and may be prosecuted
                                   as
       for each crime separately.

RCW 9A. 2. This statute gives a trial judge discretion to punish a burglary separately, even
    050.
      5

where the burglary and another crime encompassed the same criminal conduct. State v. Lessley,

118 Wn. d 773, 781 82, 827 P. d 996 (1992).The trial court here had authority under RCW
      2            -        2

050
9A. 2.to impose a separate sentence for Knight's burglary conviction, regardless of whether
  5

the burglary constituted the same criminal conduct as any of her other convictions.




                                                     24
No. 42130 5 II
          - -



       We hold that Knight fails to show that the trial court abused its discretion in denying her

request to treat any of her convictions as the same criminal conduct for offender score

calculation purposes under RCW 9.
                               a).
                               589( 4A.
                                  1)(
                                  9

                   V. REMAINING SAG ISSUE: SPECIAL VERDICT UNANIMITY


       In her SAG, Knight asserts for the first time that her sentence violated her right to a jury

trial under the Washington Constitution, article 1, section 21, because the jury was not properly

instructed it could vote "no" the special verdict forms for her firearm enhancements. SAG at
                             on

1. She is incorrect.


       Knight fails to show how this alleged jury instruction error prejudiced her or that it was

manifest for purposes of the RAP 2. (
                                 a)( exception to the preservation requirement. Mutch,
                                  3)
                                  5

171 Wn. d at 656; Bertrand, 165 Wn. App. at 402 (special verdict jury instruction incorrectly
      2

stating that jury must unanimously answer "no"is not of constitutional magnitude);State v.

Grimes, 165 Wn. App. 172, 182 84, 267 P. d 454 (2011),
                              -        3             review denied, 175 Wn. d 1010
                                                                          2

2012).Thus, she cannot raise this challenge for the first time on appeal, and we do not further




                                                25
No. 42130 5 II
          - -



address it." 2. (
           RAP a)(Bertrand, 165 Wn.App. at 402.
                3);
                5
         We affirm. <
                                                                          3
                                                     1
                                                     11




                                                  Hunt, P. .
                                                         J




35 Even were we to consider the merits of Knight's challenge to the special verdict instructions,
the trial court here gave the proper instruction, as follows:
                 You will also be given special verdict forms for the [charged crimes]. If
         you find the defendant not guilty of any of these crimes, do not use the special
         verdict forms for that count.   If you find the defendant guilty of any of these
         crimes, you will then use the special verdict forms. In order to answer the special
         verdict forms "yes," twelve of you must unanimously be satisfied beyond a
                               all
         reasonable doubt that "yes"is the correct answer. If you do not unanimously
         agree that the answer is "yes"then the presiding juror should sign the section of
         the special verdict form indicating that the answer has been intentionally left .
         blank.
2 CP at 365 (Instruction 35).Thus, contrary to Knight's assertion, the jury instruction properly
informed the jury that (1)it should sign the special verdict forms only if it was unanimously
satisfied that the answer was "yes "; and (2) it was not unanimous, it should leave the form
                                              if
blank. This instruction comports with the instruction approved by our Supreme Court in State v.
Nunez, 174 Wn. d 707, 710, 719, 285 P. d 21 (2012).
             2                       3
36
     See also O' ara, 167 Wn. d at 98 (manifest constitutional errors "may still be subject to a
               H            2
harmless error analysis ").

                                                KO
