 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 80635-1-I
                       Respondent,
                                               DIVISION ONE
             V.
                                               UNPUBLISHED OPINION
EDWARD JUNIOR PINKNEY Ill,

                       Appellant.              FILED: January 21, 2020


       LEACH, J.   —   A jury convicted Edward Pinkney of two Counts of second

degree assault, harassment, third degree theft, third degree malicious mischief,

and interfering with domestic violence reporting following an altercation between

Pinkney and his girlfriend, Sharon Smith. Pinkney contends that the two assault

convictions violate double jeopardy and that the assault and harassment

convictions should have been considered as the same criminal conduct for

sentencing purposes. We remand to strike the criminal filing fee and the DNA

(deoxyribonucleic acid) collection fee and to correct a clerical error in the

judgment and sentence. In all other regards, we affirm.
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                                        FACTS

       Pinkney and Smith began a dating relationship in January 2017. During

the relationship, Pinkney called Smith disrespectful names and frequently

threatened to hit her. Smith described Pinkney as “rough” and “controlling.”

       On July 15, 2017, Pinkney and Smith ran errands together. According to

Smith, Pinkney “started drinking before he got up that morning.” On the bus,

Pinkney called Smith names and shoved her in the back, causing her to stumble.

       After returning to Smith’s apartment around 4:30 p.m., Pinkney drank a

six-pack of beer and a bottle of vodka. As he drank, Pinkney became paranoid

that Smith was going to call the police and have him arrested. At some point,

Pinkney cut the cord to Smith’s landline telephone.

       Later that evening, police officers arrived at Smith’s apartment complex for

an unrelated matter. Pinkney said, “Oh, you called the police on me, bitch.” Both

Smith and Pinkney went outside. Smith approached Officer Jordan Reisher and

said quickly, in a hushed voice, “He’s torturing me.” Smith had her head down

and looked concerned. Officer Reisher asked Smith if she wanted him to help

her. Smith declined help and told Officer Reisher, “Just play it off like I didn’t tell

you anything.” Officer Reisher asked Smith again if she needed help, and she

said, “Just forget I said anything.” Smith and Pinkney returned to her apartment

together. Pinkney told Smith “he could do anything he wanted to do” and that

police officers “would never help [her]”.




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        Smith went into the bedroom and called 911.         However, she hung up

because she was scared Pinkney would catch her. When the 911 dispatcher

called back, Smith said, “Don’t call back.” Pinkney came into the bedroom and

said, “Bitch, you calling the police on me?” Smith insisted she had not because

her cell phone battery was dead.

        Pinkney said, “Bitch, I’m going to give you something to cry for.” Smith

testified she was frightened by Pinkney’s expression and knew “he was going to

do something to [her].” Pinkney grabbed Smith around the neck with both hands

and squeezed. He told her, “Bitch, I’ll kill you and your mom and spend the rest

of my life in prison.” Pinkney pushed Smith into a sliding closet door, knocking it

loose and denting a trash can. Smith tried to tell Pinkney to stop but could not

breathe. Pinkney let go and pushed Smith onto the bed. Pinkney then left the

room.

        Smith curled up on the bed, “crying and begging for god and asking

[Pinkney] to leave.” Pinkney came back into the bedroom and said, “You going

to need god.” Smith got up, and Pinkney again put his hands around her neck

and squeezed.        He said, “I told you bitch I will kill you.”   Smith described

Pinkney’s demeanor as more serious than the first time, “[hike he would do it, you

know.” Smith testified that the second incident lasted approximately 10 to 15

seconds, longer than the first incident. She said the second incident was worse

because Pinkney squeezed tighter and she had more difficulty breathing.

Pinkney eventually let go and left the room again.


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         Smith ran out of the bedroom, grabbed a baseball bat near the front door,

and fled through the apartment’s front door. Pinkney came out of the apartment,

holding Smith’s cell phone, and called out to Smith, “Yeah, bitch. I got your

phone.” Smith ran back into the apartment, locked the door behind her, and

called 911. She told the 911 dispatcher that Pinkney choked her and she had

bruises on her neck. The 911 dispatcher told Smith that police officers were on

the way. Smith said, “I got a bat. I’m not worried about him.   .   .   .   He’s trying to get

away.”

         Officer Brenda Anderson responded to Smith’s apartment.                  Smith was

disheveled, flustered, and crying.    Smith described two separate incidents in

which Pinkney put his hands around her neck. Smith also told Officer Anderson

that Pinkney made threats to kill her and her family.     Officer Anderson noted

some redness on Smith’s neck and chest and bruises on Smith’s arm and hip.

         The State charged Pinkney with two counts of second degree assault,

harassment, third degree theft, third degree malicious mischief, and interfering

with domestic violence reporting. The State alleged that all of the charges were

crimes of domestic violence and further alleged the aggravating circumstances of

an ongoing pattern of abuse and recent release from incarceration.

         A jury convicted Pinkney as charged. At sentencing, Pinkney argued that

the two assault convictions subjected him to double jeopardy.                  Pinkney also

claimed that the assault and harassment convictions constituted the same

criminal conduct for this purpose of calculating his offender score. The court


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rejected both arguments. The court imposed an exceptional sentence based on

the rapid recidivism aggravating factor. Pinkney appeals.

                                      ANALYSIS

           Pinkney contends that his two assault convictions violate double jeopardy

because they constituted a single course of conduct. We disagree.

       Both the state and federal constitutions prohibit a court from enforcing

multiple punishments against the same individual for the same offense.1         We

review alleged double jeopardy violations de novo.2

       Assault is a course of conduct crime, which “helps to avoid the risk of a

defendant being ‘convicted for every punch thrown in a fistfight.”3 “There is no

bright-line rule for when multiple assaultive acts constitute one course of

conduct.”4 The factors to consider in making this determination include (1) the

length of time over which the assaults took place, (2) whether the assaults took

place in the same location, (3) the defendant’s intent or motivation for the

different assaultive acts, (4) whether the assault were uninterrupted or whether

there were any intervening acts or events, and (5) whether there was an

opportunity for the defendant to reconsider his or her actions.5 No single factor is




       1    u~s~
              CONST. amend. V; WASH. CONST. art. I, § 9; State v. Calle, 125
Wn.2d 769, 772, 888 P.2d 155 (1995).
      2 State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
      ~ State v. Villanueva-Gonzalez, 180 Wn.2d 975, 984-85, 329 P.3d 78
(2014) (quoting Statev. Tili, 139 Wn.2d 107, 116, 985 P.2d 365 (1999)).
      ~ Villanueva-Gonzalez, 180 Wn.2d at 985.
      ~ Villanueva-Gonzalez, 180 Wn.2d at 985.


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dispositive, and “the ultimate determination should depend on the totaHty of the

circumstances, not a mechanical balancing of the various factors.”6

       Pinkney compares this case to State v. Villanueva-Gonzalez,7 in which the

defendant head-butted his girlfriend, breaking her nose, and then grabbed her by

the neck. A jury convicted the defendant of two separate counts of assault.8 The

Washington Supreme Court held the convictions violated double jeopardy

because the assaults took place in the same location over a short time period

and because there were no intervening events or an opportunity for the

defendant to reconsider his actions.9

      We distinguish Villanueva-Gonzalez. Here, both assaults occurred in the

same location: Smith’s bedroom. And while Smith did not testify how much time

elapsed between the first and the second assault, the record implies they took

place over a short time period. But, in contrast to Villanueva-Gonzalez, Pinkney

left the bedroom between the first and the second assault. He only returned to

the bedroom a second time after hearing Smith praying and crying.          This

demonstrates that Pinkney stopped assaulting Smith, had the opportunity to

reconsider his actions, and made the decision to assault her again. Moreover,

Pinkney had a different motive for each assault.    The first time, Pinkney was

angry at Smith because he believed she had called the police. The second time,



      6 Villanueva-Gonzalez, 180 Wn.2d at 985.
      ~180 Wn.2d 975, 978, 329 P.3d 78(2014).
      8 Villanueva-Gonzales, 180 Wn.2d at 979.
      ~ Villanueva-Gonzales, 180 Wn.2d at 986.


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Pinkney was angry because Smith was crying and begging him to leave her

apartment. Finally, Smith testified that Pinkney’s intent during the second assault

appeared different than the first assault.       She stated that the second time,

Pinkney seemed more serious and determined to cause her harm. Considering

the totality of the circumstances, we conclude that Pinkney’s two assault

convictions did not violate double jeopardy.1°

       Pinkney argues that even if his convictions do not violate double jeopardy,

the court should have calculated his offender score as if the assault and

harassment convictions were the same criminal conduct.

      “Whenever a person is to be sentenced for two or more current offenses,

the sentence range for each current offense shall be determined by using all

other current and prior convictions as if they were prior convictions for the

purpose of the offender score” unless they involve the “same criminal conduct.”11

Multiple convictions constitute the same criminal conduct if they “require the

same criminal intent, are committed at the same time and place, and involve the

same victim.”12 If any of these elements is missing, the convictions are not the


      10  Pinkney also cites as persuasive authority an unpublished decision of
Division Two, State v. Carpenter, No. 43878-0-Il, (Wash. Ct. App. Aug. 18, 2015)
(unpublished), http://www.courts.wa.gov/opinions/pdf/438780.pdf. In Carpenter,
the defendant assaulted his girlfriend several times in the same room over the
course of an evening. But Carpenter is also distinguishable. There, the
defendant’s intent and motivation remained the same throughout the assaults.
Moreover, while there were interruptions in the form of other witnesses
attempting to intervene, the defendant himself never left the room or
reconsidered his actions. Carpenter, slip op. at 3-4.
       ~ RCW 9.94A.589(1)(a).
       12 RCW 9.94A.589(1)(a).



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No. 80635-1-1/8


same criminal conduct.13 We construe the requirements of RCW 9.94A.589(1)(a)

narrowly “to disallow most claims that multiple offenses constitute the same

criminal act.”14 We review a trial court’s determination on the issue for an abuse

of discretion or misapplication of the law.15

       Here, the trial court calculated Pinkney’s offender score as 18 on the

assault convictions and 17 on the harassment conviction. A trial court’s failure to

properly treat both crimes as the same criminal conduct is harmless if the

defendant’s offender score already exceeds            9~16   Even if the trial court

considered Pinkney’s convictions as the same criminal conduct, Pinkney’s

standard range would remain the same.17 Any error was harmless.18

       Pinkney challenges the criminal filing fee and DNA collection fee imposed

as part of his sentence. Pinkney contends, and the State concedes, that both

fees must be stricken because he is indigent and because his DNA was collected

following a prior felony conviction. Although these fees were mandatory when



      13   State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
        14 State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
        15jjjJ, 139 Wn.2d at 122.
        16 State v. Bobenhouse, 166 Wn.2d 881, 896-97, 214 P.3d 907 (2009).
        1 The trial court declined the State’s request to impose an exceptional
sentence based on the “free crimes” aggravating factor of RCW 9.94A.535(2)(c).
        18 Citing RCW 9.94A.525(5)(a)(i), Pinkney contends that he nevertheless
is entitled to review of his same criminal conduct claim because “a future
sentencing court would be bound by the current sentencing court’s same criminal
conduct determination.” But Pinkney misstates the law. A prior court’s
determination that convictions are the same criminal conduct is binding on future
courts. RCW 9.94A.525(5)(a)(i). But a determination that convictions are not the
same criminal conduct, as here, is not binding. RCW 94A.525(5)(a)(i); State v.
Johnson, 180 Wn. App. 92, 101, 320 P.3d 197 (2014).

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No. 80635-1-I / 9


imposed, the Washington Supreme Court has since held in State v. Ramirez19

that courts may not impose discretionary legal financial obligations on an indigent

criminal defendant. We accept the State’s concession and remand for the trial

court to strike these fees from the judgment and sentence. Pinkney also notes

that the judgment and sentence incorrectly lists a conviction for a second count

of felony harassment instead of the conviction for interfering with domestic

violence reporting. On remand, the trial court shall correct the error.

       In a statement of additional grounds, Pinkney challenges the sufficiency of

the evidence supporting the assault convictions. Pinkney argues that Smith had

no hemorrhaging or bruises on her neck and admitted she was not afraid of him.

        Sufficient evidence supports a conviction if, after viewing the evidence in

the light most favorable to the State, it allows any rational trier of fact to find all of

the elements of the crime charged beyond a reasonable doubt.2° A defendant

claiming insufficiency of the evidence admits the truth of the State’s evidence and

all inferences that can reasonably be drawn from that evidence.21                  When

reviewing the sufficiency of the State’s evidence, we consider circumstantial

evidence and direct evidence as equally reliable.22 We defer to the trier of fact

on issues of conflicting witness testimony, witness credibility, and the




       19   191 Wn.2d 732, 746-50, 426 P.3d 714 (2018).
       20   State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       21   Salinas, 119 Wn.2d at 201.
       22   State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).


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persuasiveness of the evidence.23 The sufficiency of the evidence is a question

of constitutional law that we review de novo.24

       As charged here, a person is guilty of second degree assault if he or she

‘[a]ssaults another by strangulation or suffocation.”25        RCW 9A.04.110(26)

defines “strangulation” as “to compress a person’s neck, thereby obstructing the

person’s blood flow or ability to breathe, or doing so with the intent to obstruct the

person’s blood flow or ability to breathe.”

       The record contains sufficient evidence that Pinkney assaulted Smith.

Smith testified that Pinkney put his hands around her neck and squeezed. She

also testified that she was unable to breathe while he was doing so.            While

Pinkney denies that any of these things happened, we do not review a jury’s

credibility determinations.

       We affirm Pinkney’s convictions. We remand for the trial court to strike

the criminal filing fee and DNA collection fee from the judgment and sentence

and to correct the clerical error.




WE CONCUR:




       23   State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
       24   State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
       25   RCW9A.36.021(1)(g).


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