       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 69543-6-1

                     Respondent,                      DIVISION ONE

             v.



ZACHARY DANIEL NGUYEN,                                UNPUBLISHED

                     Appellant.                       FILED: April 28, 2014




       Cox, J. - Zachary Nguyen appeals his judgment and sentence entered

after his convictions for first degree burglary, attempted first degree robbery, and

second degree assault. The State properly concedes that the assault conviction

must be vacated under the merger doctrine, and we accept this concession. But

a unanimity jury instruction was not required because the evidence indicates an

ongoing course of conduct. Nguyen makes additional claims in his Statement of

Additional Grounds, but none have merit.

       We vacate the assault conviction and remand for resentencing. We affirm

the other two convictions.


       In 2011, Philip Maxie had a party at his home while his parents were out of

town. M.M. and B.C. attended this party.

       The next day M.M. and B.C. were with Nguyen and three other males.

The group went to Maxie's home, and M.M. and B.C. knocked on the door.
No. 69543-6-1/2



While M.M. and B.C. were talking with Maxie, three of the males, including

Nguyen, entered the home.

      Maxie testified that a male with a gun told him to "get on the ground." He

heard the gun click but no shot was fired. The male then hit him with the gun.

Maxie was eventually able to run to a neighbor's home and call for help.

      M.M. and B.C. testified that Nguyen hit Maxie with the gun.

      After the incident, Maxie told the prosecutor that nothing was missing from

the home. M.M. testified that the three males were mad because "they didn't get

anything out of the house." Maxie's mother testified that when she returned to

her home after being out of town, she discovered that she was missing property.

       By amended information, the State charged Nguyen with first degree

burglary, first degree robbery, and second degree assault, each with firearm

enhancements. The jury was instructed on these charges along with the lesser-

included offense of first degree attempted robbery.

       The jury convicted Nguyen of first degree burglary, attempted first degree

robbery, and second degree assault. It also found that Nguyen was armed with a

firearm for these convictions.

       Nguyen appeals.

                                 MERGER DOCTRINE

       Nguyen argues that his conviction for second degree assault "violated the

prohibition against double jeopardy, when the assault merged into the attempted
robbery conviction." The State concedes this point, and we accept the

concession.
No. 69543-6-1/3



       "The guaranty against double jeopardy protects against multiple

punishments for the same offense."1 A determination of whether a defendant's

double jeopardy rights were violated turns on whether the legislature intended to

authorize multiple punishments for the crimes at issue.2 "If the legislature

authorized cumulative punishments for both crimes, then double jeopardy is not

offended."3

       For double jeopardy claims, a court engages in a "three-part test" to

determine the legislature's intent:

       First, the court searches the criminal statutes involved for any
       express or implicit legislative intent. Second, if the legislative intent
       is unclear, the court turns to the "same evidence" Blockburqer test,
       which asks if the crimes are the same in law and in fact. Third, the
       merger doctrine may be an aid in determining legislative intenU41

Here, the parties concentrate only on the third part of this test—the merger

doctrine. Thus, we focus our analysis on this doctrine.

       Under the merger doctrine, "when the degree of one offense is raised by

conduct separately criminalized by the legislature, we presume the legislature




       1 State v. Esparza. 135 Wn. App. 54, 59, 143 P.3d 612 (2006).



       3 State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005).

       4 State v. Chesnokov. 175 Wn. App. 345, 349, 305 P.3d 1103 (2013)
(citing State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008); State v. Calle.
125 Wn.2d 769, 776, 888 P.2d 155 (1995); Blockburqer v. United States, 284
U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Freeman, 153 Wn.2d at 772-
73).
No. 69543-6-1/4



intended to punish both offenses through a greater sentence for the greater

crime."5

         There is an exception to this doctrine. Even if two convictions appear to

be for the same offense or for charges that would merge, "ifthere is an

independent purpose or effect to each, they may be punished as separate

offenses."6

         In State v. Zumwalt, a consolidated case within State v. Freeman, the

supreme court considered whether Zumwalt's convictions for first degree robbery

and second degree assault merged.7 There, Zumwalt punched the victim in the

face and robbed her.8 The robbery charge was based on the infliction of bodily

injury, and the assault charge was based on the reckless infliction of bodily

harm.9

         First, the supreme court looked to the statutes and concluded that there is

"no evidence that the legislature intended to punish second degree assault

separately from first degree robbery when the assault facilitates the robbery."10

Then, the court noted that in order to prove first degree robbery as charged and

proved by the State, the State had to prove that Zumwalt committed an assault in

         5 Freeman, 153 Wn.2d at 772-73.

         6 Id, at 773.

         7 153 Wn.2d 765, 770, 108 P.3d 753 (2005).

         *\±

         9 State v. Zumwalt, 119 Wn. App. 126, 131 -32, 82 P.3d 672 (2003).

         10 Freeman, 153 Wn.2d at 776.
No. 69543-6-1/5



furtherance of the robbery.11 Accordingly, the court concluded that the merger

doctrine applied.12 Finally, the court determined that because there was no

evidence in the record that the violence used to complete the robbery had some

independent purpose or effect, the exception to merger did not apply.13

       Here, as the State properly concedes, Nguyen's convictions for attempted

first degree robbery and second degree assault violate double jeopardy. As

charged and proved, Nguyen was guilty of attempted first degree robbery

because he inflicted bodily injury on Maxie. The State was required to prove that

Nguyen engaged in conduct amounting to second degree assault in order to

elevate his attempted robbery conviction to the first degree. Additionally, the

evidence at trial established that the assault on Maxie had no purpose other than

to further the attempted robbery.

       Because the second degree assault conviction merges with the attempted

first degree robbery conviction, the proper remedy is to vacate the assault

conviction and remand for resentencing.14

                        UNANIMITY JURY INSTRUCTION

       Nguyen next argues that his constitutional rights were violated because

the jury instructions failed to require unanimity as to what act constituted the


       11 ]d at 778.

       12 Id,

       13 Id, at 779.

       14 See State v. Portrev, 102 Wn. App. 898, 906-07, 10 P.3d 481 (2000);
Freeman, 153 Wn.2d at 774-76.
No. 69543-6-1/6



"substantial step" toward the commission of attempted robbery in the first degree.

We disagree.

       Criminal defendants have a right to a unanimous jury verdict.15 Where the

State alleges multiple acts and any one of them could constitute the crime

charged, the jury must be unanimous as to which act or incident constitutes the

crime.16 The constitutional requirement of unanimity is assured by either (1)

requiring the State to elect the act upon which it will rely for conviction, or (2)

instructing the jury that it must be unanimous that the same criminal act has been

proved beyond a reasonable doubt.17 The instruction is based on State v.

Petrich and its progeny.18

       The Petrich rule applies "only where the State presents evidence of

'several distinct acts.'"19 It does not apply where the evidence indicates a

"'continuing course of conduct.'"20 To determine whether criminal conduct

constitutes one continuing act, the facts must be evaluated in a commonsense

manner.21 Courts may consider whether the acts occurred at different times or


      15 State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (citing U.S.
Const, amend. 6; Const, art. 1, § 22).

       16 Id, at 411.

       17 State v. Barrinqton. 52 Wn. App. 478, 480, 761 P.2d 632 (1988).

       18 101 Wn.2d 566, 683 P.2d 173 (1984).

       19 State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (internal
quotation marks omitted) (quoting Petrich, 101 Wn.2d at 571).

       20 jd. (quoting Petrich, 101 Wn.2d at 571).

       21 Id
No. 69543-6-1/7



places, whether they involved the same victim, and whether in each act the

defendant intended to secure the same objective.22

       Here, viewing the evidence in a commonsense manner, it shows a series

of acts that intended to achieve the objective of taking property from the Maxie

home. Moreover, these acts occurred during a short timeframe and involved the

same victim. Because the evidence indicates an ongoing course of conduct, the

Petrich rule does not apply.

       Nguyen does not explain how the State presented evidence of "'several

distinct acts,' each of which could be the basis for a criminal charge."23 Instead,

he argues that "the prosecutor never elected which act or acts it was relying upon

to establish a 'substantial step' for the inchoate offense." But the prosecutor did

not need to make such an election because, as just discussed, the evidence

indicates a continuing course of conduct. A unanimity instruction was not

required "because there [was] no danger that some jurors would have found the

occurrence of one crime while other jurors found the occurrence of a different

crime."24

                   STATEMENT OF ADDITIONAL GROUNDS

       Nguyen raises a number of issues in his statement of additional grounds.

None are persuasive.




       22 State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

       23 Petrich, 101 Wn.2d at 571.

       24 State v. Simonson, 91 Wn. App. 874, 884, 960 P.2d 955 (1998).
No. 69543-6-1/8



       First, Nguyen argues that the prosecutor committed misconduct because

she expressed a personal opinion about the credibility of two of the State's

witnesses. To establish a prosecutorial misconduct claim, the State must show

misconduct and resulting prejudice.25 "Counsel are permitted latitude to argue

the facts in evidence and reasonable inferences."26 Additionally, "counsel may

comment on a witness' veracity as long as he does not express it as a personal

opinion and does not argue facts beyond the record."27

       Here, there was no misconduct. The prosecutor did not give her personal

opinion about the witnesses. Rather, she was explaining the circumstances of

the pre-trial interviews with the witnesses, which was part of the witnesses'

testimony. Thus, this argument fails.

       Second, Nguyen asserts that a witness testified about an unrelated

incident in this case, which violated an order in limine. Nguyen does not

specifically identify the "unrelated incident" in his brief, but the part of the record

he cites references a prior conviction. A review of the witness's testimony shows

that the witness did not actually discuss any unrelated incident. The witness

asked for clarification of a question during cross-examination without revealing

any unrelated incident. Thus, this argument is not persuasive.

       Third, Nguyen contends that his right to due process was violated

because one juror saw him in shackles, and the trial court did not conduct "an

       25 State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985).

       26 id,

       27 Id. at 510-11.
No. 69543-6-1/9



inquisition to detect if the jury pool was tainted by the juror." After a court recess

during the voir dire process, an officer informed the court that "Juror No. 7 was

sitting outside the courtroom and saw Mr. Nguyen brought up in restraints." The

trial court decided that the proper remedy was to dismiss Juror No. 7. Counsel

agreed with this remedy.

       Nguyen cites no authority to support his assertion that an "inquisition" of

the jury pool was necessary. Moreover, "Passing glimpses of a defendant in

restraints are insufficient on their own to find the existence of prejudice."28 For

these reasons, this argument fails.

       Fourth, Nguyen claims his counsel was ineffective because he failed to

move for a mistrial after the juror saw him in restraints or to request an

"inquisition" of the jury pool. But, given the previous discussion, Nguyen is not

able to show that his counsel's performance fell below an objective standard of

reasonableness and that this prejudiced his trial.29 Thus, this claim also fails.

       Fifth, Nguyen argues that a unanimity jury instruction should have been

given at trial. We need not address this argument as it is adequately addressed
in his appellate counsel's brief.30


       28 In re Crace, 157 Wn. App. 81, 103, 236 P.3d 914 (2010). reversed on
other grounds, 174 Wn.2d 835, 280 P.3d 1102 (2012).

       29 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).

       30 See, e.g., State v. Gomez, 152 Wn. App. 751, 754, 217 P.3d 391 (2009)
(refusing to review a defendant's statement of additional grounds because he
raised no new issues).
No. 69543-6-1/10



      We vacate the assault conviction and remand for resentencing. We affirm

the other two convictions.

                                                      6cxt J~-
WE CONCUR:




                                           ^J^^dlJL.




                                     10
