                                                                                        1Lii
                                                                                    CCM OF APP ' ;         S.




                                                                                   2. 1. 4 SEP 30   AM 9: 07

                                                                                   STATE OF WASHINGTON
                                                                                     f


                                                                                                uuTY




                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                               DIVISION II



 STATE OF WASHINGTON,                                                       No. 44596 - -II
                                                                                      4


                                    Respondent,


           v.




 GREG LEE HALE,                                                     UNPUBLISHED OPINION


                                    Appellant.


         JOHANSON, C. J. —           Greg Lee Hale appeals his jury trial conviction for reckless

endangerment and his sentences for the reckless endangerment and unlawful possession of a


controlled substance convictions. 1 He argues that ( 1) the evidence was insufficient to prove the

reckless   endangerment    charge, (   2) the trial court erred in including a second degree assault

conviction in his criminal history when he stipulated only to a prior conspiracy to commit second

degree   assault conviction, ( 3)   his 8 -point   offender score was   incorrect, ( 4) the trial court abused


its discretion when it failed to consider whether his three 2010 offenses were same criminal


conduct, and ( 5) his trial counsel was ineffective for failing to argue that the 2010 offenses were

same criminal conduct. We affirm the conviction and sentences but remand for the trial court to




1 Hale does not challenge his conviction for unlawful possession of a controlled substance
 methamphetamine).
No. 44596 -4 -II



correct the judgment and sentence to reflect that the second degree assault conviction in Hale' s


criminal history was a conspiracy offense rather than a completed crime.

                                                          FACTS


                                                    I. BACKGROUND


         On August 21, 201.2, Bremerton Police Department Officer Lawrence Green was on patrol


when he noticed Hale walking down the sidewalk with a small child.2 Aware that there was an
active arrest warrant for Hale, Officer Green pulled his patrol car into the street in front of Hale,

got out of the car, and approached Hale. At this point, Officer Green had a stun gun in his hand,

but he kept the stun gun out of Hale' s sight.


         When Officer Green called out Hale' s name and told him that there was a warrant for his

arrest, Hale    responded, "[`]   No that'   s not me.     You know,       at   least let   me get          my   wife.[']"   Report


of   Proceedings .(RP) ( Feb. 12, 2013)        at   46.   When Officer Green instructed Hale to turn around


and put   his hands behind his back, Hale did              not   comply.        Instead, he picked up the child and

attempted to walk past Green.


          Officer Green told Hale that he           would " give [   the]       child   to [ Hale'     s]   wife."     When Hale


continued to attempt to walk past him, Officer Green displayed the stun gun at this side and told


Hale that he     was not    free to leave.   According      to Officer Green, "[          a] t   that   point, [    Hale] became


excited, and    he   was   desperate to leave."     RP ( Feb. 12, 2013) at 49. When Hale continued to try to

walk past     him, Officer Green     reiterated     that Hale    was not   free to leave         and    directed him to "[ p] ut


the   child   down."   RP ( Feb. 12, 2013) at 49. Hale had moved the child into his left arm, positioning

the child between him and the officer. It appeared to Officer Green that Hale " was using the child



2 The child was 22 months old.

                                                             2
No. 44596 -4 -II



as a shield,"    and "   that his intent    was   to   use   the   child   to   try   to   protect    himself to try to ...          flee the


situation."    RP ( Feb. 12, 2013) at 49.


           When Hale still continued to try to walk past him, Officer Green pinned him against the

rock wall     bordering     the   sidewalk.       Officer Green simultaneously pinned the child against Hale

with his forearm. Hale then reached into his pocket with his free hand. Concerned that Hale was


reaching for a weapon, Officer Green ordered Hale to show his hands. When Hale did not comply,

Officer Green shot the stun gun' s " probes" into the rock wall behind Hale and then used the stun


gun   in   a manner   that   allowed   him to apply the "           stun"       directly    to Hale'       s shoulder.       The child did


not appear to be affected by the stun gun.

           While he was stunning Hale, Officer Green saw Hale remove a " methamphetamine pipe"

from his    pocket and attempt        to    crush   it. RP ( Feb. 12, 2013)                at   51.    Hale then         started   to " slump


down," and Officer Green grabbed the child and placed her on the ground, where she sat without


crying. RP ( Feb. 12, 2013)           at   51.    He then pinned Hale to the ground and put him in restraints.


The   child' s mother arrived, and           Officer Green          allowed        her to take the              child.    During a search

incident to arrest, another officer discovered methamphetamine on Hale' s person.


                                                        II. PROCEDURE


           The    State     charged        Hale     with     unlawful           possession            of    a     controlled       substance




 methamphetamine) 3 and reckless endangerment.4 The case went to a jury trial.




3 RCW 69. 50. 4013( 1).

4 RCW 9A.36. 050( 1).

                                                                    3
No. 44596 -4 -
             II


                                           A. OFFICER GREEN' S TESTIMONY


           During trial, Officer Green testified to the facts as set out above. 5 He also testified that the
stun gun was a "      very   safe   tool," that it    could    be "   applied   to ...   small children, pregnant women,"




that he had not seen any " incident where a [ stun gun] has caused any harm to someone, other than

the   actual contracture of their muscles."               RP ( Feb. 12, 2013) at 52 -53. Additionally, Officer Green

also testified that although he also carried an expandable baton and a firearm, he chose to use the

stun gun against Hale rather than his other weapons to lessen the risk of putting the child in danger.

On cross -examination, he agreed that he was " not going to place that child in danger of death or

any kind     of serious physical        injury." RP ( Feb.        12, 2013)       at   69. He also agreed that this is what


one would expect from any police officer in a similar situation.

           But on redirect, when the State asked him if Hale' s behavior " put the child in danger" or


created an " unsafe situation,"          Officer Green         responded, "      Without       question."     RP ( Feb. 12, 2013)


at   70.   Officer Green testified that when Hale refused to stay where he was and then picked the

child up and appeared to be using the child as a. shield, Hale was attempting to use the child to

protect    himself.    Officer Green further stated that Hale' s behavior created an unsafe situation


because he ( Officer Green) did not know if Hale was armed and when people are attempting to

flee there is always a possibility they will use any means possible.

           Additionally, when the State asked Officer Green whether, despite the fact he was able to

use   the stun gun, the child         was " still    in   an unsafe situation,"        the   officer stated, "   Absolutely."   RP


 Feb. 12, 2013)       at   71.   He   stated   that   if Hale had         escalated    the   situation, "[   t]he child could have


been killed." RP ( Feb. 12, 2013)              at   71.   He further testified that by using the child as a shield and




5 Hale did not testify.
                                                                      4
No. 44596 -4 -II



refusing " to     surrender and      continuing to try to flee the       scene,"    Hale put the child at risk given that


he ( Officer Green) was armed and had no way of knowing whether Hale was armed. RP ( Feb. 12,

2013)   at    74 -75.    The jury found Hale guilty of reckless endangerment and unlawful possession of

a controlled substance.



                                                      B. SENTENCING


         At sentencing, Hale stipulated to the following criminal history:

         1.             Residential burglary (committed August 14, 2010),
         2.             Second degree possession of stolen property ( committed August 14, 2010),
         3.             Second degree theft (committed August 14, 2010),
         4.             Conspiracy to commit second degree assault,
         5.             Forgery,
         6.             Second degree theft, and
         7.             A drug offense.

The   stipulation also         stated   that Hale   was "[   o] n community custody /prison -
                                                                                            based [ drug offender

sentencing       alternative]"     when   he   committed     the   current offenses.      Clerk' s Papers ( CP) at 52. The


stipulation      did    not   include   an offender score.     Nor did it state whether any of the 2010 offenses

were same criminal conduct or whether Hale served concurrent or consecutive sentences for these

convictions.



         The sentencing            court sentenced    Hale based       on an   8 -point   offender score:   1 point for each


of the seven prior offenses and an additional point because he had committed the current offenses

while on       community custody.              But the judgment and sentence lists Hale' s prior conspiracy to

commit second            degree    assault as a completed second          degree    assault.    Hale appeals his reckless


endangerment conviction and his sentences.


                                                        DISCUSSION


         Hale argues that the evidence was insufficient to prove the reckless endangerment charge,


challenges his offender score, and claims ineffective assistance of counsel related to one of his

                                                                   5
No. 44596 -4 -II



offender    score    arguments.        Although Hale establishes a minor clerical error in regard to his


sentencing, his arguments otherwise fail.

                           I. SUFFICIENT EVIDENCE OF RECKLESS ENDANGERMENT


         Hale first contends that the evidence was insufficient to prove reckless endangerment. He


argues that his actions were not reckless and did not create a substantial risk of death or serious


injury, primarily because Officer Green confirmed during his testimony that neither he nor any

other officer was "'     going to do anything ...              that    would      have    placed   this   child   in danger. "' Br. of


Appellant    at   6 ( alteration in   original) ( quoting        RP ( Feb. 12, 2013)          at   69). We disagree with Hale.


         We    review     claims      of   insufficient        evidence      to determine          whether, "      after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond    a reasonable       doubt."       State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                      We


draw all reasonable inferences from the evidence in favor of the State and against the defendant..

Salinas, 119 Wn.2d at 201.


         To prove reckless endangerment, the State had to prove that Hale recklessly engaged in

conduct    that    created   a substantial risk of             death      or serious physical        injury   to the    child.   RCW


9A. 36. 050( 1). "    A person is reckless or acts recklessly when he or she knows of and disregards a

substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a

gross   deviation from       conduct   that   a reasonable person would exercise                   in the   same situation."     RCW


9A.08. 010( 1)( c).


          Hale' s argument that Officer Green' s testimony that neither he nor any other officer was

 going to do anything ...          that     would       have   placed      this   child   into danger" ( RP ( Feb. 12, 2013) at


69) established that Hale did not do anything that created a substantial risk of death or serious

physical injury to the child ignores that Hale, rather than the officer, was the one who placed the

                                                                      6
No. 44596 -4 -II



child in potential danger. A reasonable person would understand that failing to stop when ordered

to do so by an armed police officer who was trying to arrest him or her, physically struggling with

the officer, and then attempting to take something                    out of    his   or   her   pocket — all while holding a

small child   in   a   way that    attempted     to   use   the   child as a shield —could create a risk of serious




physical injury to the child. The armed officer could not assume that Hale was not reaching for a

weapon, and the situation could easily have escalated if Hale had not responded to the stun gun

application the way he did. In fact, Officer Green testified that Hale' s behavior created an unsafe

situation   for the    child and   that Hale'    s    behavior    created a risk       that "[ t]he child could have been


killed." RP ( Feb. 12, 2013) at 71.


         That Officer Green handled the situation without harming the child does not mean Hale' s

actions did not create a substantial risk of serious injury to the child. Even though Officer Green

was ultimately able to control the situation without additional struggle or the use of more
dangerous weapons, there was still the risk that the situation could have escalated had Hale reacted


differently. If the situation had escalated and Officer Green was required to use greater force

against Hale, the fact that Hale was using the child as a shield certainly created a risk that the child

could   be seriously injured       by   the   officer.    For instance, if the situation had escalated, Hale could


have dropped the        child, and a    fall   could     have   resulted   in   serious     injury   to the   child.   Taking the

evidence in the light most favorable to the State, a reasonable jury could find that Hale created a

substantial risk of serious injury to the child, that a reasonable person would apprehend and avoid

this risk, and that using a child as a shield against an armed officer was a gross deviation from

reasonable conduct. Accordingly, this argument fails.




                                                                  7
No. 44596 -4 -II



                                                 II. SENTENCING


        Hale   next   contends    that ( 1)   the trial court erred in including a second degree assault

conviction in his criminal history when he stipulated only to a conspiracy to commit second degree

assault conviction, (   2) his 8 -point offender score was incorrect because he had only seven prior

convictions, (   3) the trial court abused its discretion by failing to consider whether the three 2010

convictions were same criminal conduct, and ( 4) his trial counsel was ineffective for failing to

argue that the 2010 offenses were same criminal conduct. Hale establishes that the judgment and

sentence contains a minor clerical error, but these arguments otherwise fail.


                                    A. PRIOR SECOND DEGREE ASSAULT


        Hale argues that the State failed to prove the existence of the prior second degree assault


conviction that the trial court included in his offender score when he stipulated only to a conspiracy

to commit second degree assault charge and there was no additional proof of a second degree


assault conviction.     The State acknowledges that the stipulation noted that the second degree


assault was a conspiracy offense. But it argues that the inclusion of a second degree assault rather

than a conspiracy to commit second degree assault prior conviction on the judgment and sentence

is merely   a clerical error.    The State further notes that this error is irrelevant to Hale' s sentence


because second degree assault and conspiracy to commit second degree assault are scored the same

since they are both felony offenses. The State is correct.

         When sentencing a defendant, the sentencing court "may rely on the defendant' s stipulation

or acknowledgment of prior convictions           to    calculate   the offender   score."   State v. James, 138 Wn.


App.   628, 643, 158 P. 3d 102 ( 2007),       review   denied, 163 Wn.2d 1013 ( 2008). Here, Hale stipulated


that he had a prior conspiracy to commit second degree assault conviction. Hale is correct that the

judgment and sentence incorrectly states that he had a prior second degree assault conviction rather

                                                            8
No. 44596 -4 -II



than listing this prior offense as a conspiracy offense. But this error appears to be a clerical error,

and it does not affect Hale' s offender score calculation because the completed offense and the


conspiracy   offense are scored    the   same.   RCW 9. 94A. 525( 4) ( " Score   prior convictions for felony

anticipatory offenses ( attempts, criminal solicitations, and criminal conspiracies) the same as if

they   were convictions   for   completed offenses. ").      Although Hale fails to show that his offender


score is incorrect on this basis, we must remand this case for the trial court to correct this clerical

error in the judgment and sentence.


                                         B. TOTAL OFFENDER SCORE


         In two footnotes, Hale appears to argue that his 8 -point offender score is incorrect because


he had only   seven prior offenses.       Hale fails to recognize that he received an extra point because


he stipulated that he was on community custody at the time he committed the current offenses.

RCW 9. 94A.525( 19) ( " If the present conviction is for an offense committed while the offender


was under    community custody,      add one point. ").     Thus, the 8 -point offender score was correct.


                                               C. 2010 OFFENSES


         Hale next argues that ( 1) the trial court abused its discretion when it failed to consider


whether his three 2010 offenses were same criminal conduct, and ( 2) his trial counsel provided


ineffective assistance of counsel by failing to argue that the 2010 convictions were same criminal

conduct. These arguments fail.


                                         1.   SAME CRIMINAL CONDUCT


         Hale argues that RCW 9. 94A. 525( 5)( a) required the trial court to determine whether the


2010 offenses were same criminal conduct and that the court abused its discretion in failing to

make this determination. We disagree.


         RCW 9. 94A. 525( 5)( a) provides,


                                                        9
No. 44596 -4 -II



          In the case of multiple prior convictions, for the purpose of computing the offender
          score, count all convictions separately, except:
                   i) Prior offenses which were found,                       under      RCW 9. 94A.589( 1)(     a),   to
          encompass the same criminal conduct, shall be counted as one offense, the offense
        that yields the highest offender score. The current sentencing court shall determine
          with respect to other prior adult offenses for which sentences were served
          concurrently or prior juvenile offenses for which sentences were served
          consecutively, whether those offenses shall be counted as one offense or as separate
          offenses   using        the "       same     criminal      conduct"          analysis   found    in   RCW
          9. 94A. 589( 1)( a),   and if the court finds that they shall be counted as one offense,
          then the   offense     that   yields   the highest       offender score shall      be   used.   The current

          sentencing court may presume that such other prior offenses were not the same
          criminal conduct from sentences imposed on separate dates, or in separate counties
          or jurisdictions, or in separate complaints, indictments, or informations.

          Under this      statute,   the trial       court   is   required   to ( 1)    count all prior offenses that had


previously been found to be the same criminal conduct as one offense, and ( 2) make a same

criminal    conduct      determination if the          sentences     for the   prior offenses were concurrent.             RCW


9. 94A. 525( 5)(   a).   Nothing in the record shows that the 2010 convictions were previously found to

be same criminal conduct or that Hale was sentenced to concurrent sentences for those crimes.


Thus, even presuming, but not deciding, that Hale preserved this argument, he fails to establish on

the record before us that the trial court was required to consider whether these offenses were same


criminal conduct. Accordingly, this argument fails.

          Furthermore, to the extent Hale is also arguing that these offenses were same criminal

conduct, the record fails to support that argument. To be same criminal conduct, the offenses must


have the same criminal intent, be committed at the same time and place, and involve the same

victim.    RCW 9. 94A.589( 1)(          a).   None of this information is in the record.




                                                                   10
No. 44596 -4 -II



                             2. No INEFFECTIVE ASSISTANCE OF COUNSEL


         Finally, Hale argues that his trial counsel provided ineffective assistance when he failed to

argue that the 2010 offenses were same criminal conduct. This argument also fails.

         To prevail on an ineffective assistance of counsel claim, Hale must show both deficient


performance    and   resulting   prejudice;   failure to    show either   prong defeats this   claim.   State v.


McNeal, 145 Wn. 2d 352, 362, 37 P. 3d 280 ( 2002).              We review ineffective assistance claims de


novo, beginning with a strong presumption that trial counsel' s performance was adequate and

reasonable and giving exceptional deference when evaluating counsel' s strategic decisions. State

v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).           To establish prejudice, Hale must show that


but for his counsel' s unprofessional errors, the result of the proceeding would have been different.

Grier, 171 Wn.2d at 34. Hale fails to meet this burden.

          Whether multiple offenses are same criminal conduct is, in part, a factual determination.


State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000, review denied, 141 Wn.2d 1030 ( 2000).

Again, because the record contains no information about the 2010 convictions, Hale fails to

establish that the trial court would have determined that these offenses were same criminal


conduct. Accordingly, he does not establish prejudice and this argument fails.




                                                           11
No. 44596 -4 -II



        We affirm the conviction and sentences but remand for the trial court to correct the


judgment and sentence to reflect that the second degree assault offense in Hale' s criminal history

was for conspiracy to commit second degree assault.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




                                                 12 .
