                                  • r\ i L




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                     No. 70148-7-1
                     Respondent,
                                                     DIVISION ONE
       v.



RONALD R. BROWN,                                     UNPUBLISHED OPINION


                     Appellant.                      FILED: July 27, 2015

       Spearman, C.J. — Brown appeals his convictions of two counts each of

robbery in the first degree, kidnapping in the first degree, and assault in the

second degree and one count of burglary in the first degree on numerous

grounds. We agree with him that instructional error requires reversal of the two

kidnapping convictions. We also agree that the two assault convictions must be

reversed due to a double jeopardy violation. We otherwise affirm and remand with

instructions.


                                             FACTS

       In late 2011, Jeff Brinkley and Ethan Mattox were living in a trailer on

property adjoining the residence of their friends, Louis and Susan Munson. Their

tenancy proved troublesome to the Munsons. Both Brinkley and Mattox were

using and selling drugs and their trade often attracted unsavory characters to the

Munson property. Drug users and suppliers regularly visited the property at all
No. 70148-7-1/2


hours of the night. 1 Verbatim Report of Proceedings (VRP) at 73-79.1 In

response to this situation, Mr. Munson demanded that he be advised of any

visitors to the property before they arrived. The person could either call him

directly, or they could call Mattox, who would advise the Munsons of the planned

visit.


         On one occasion, Kenneth Easley showed up unannounced at the

Munson residence. Easley was a middleman who supplied Brinkley and Mattox

with methamphetamine, which he, in turn, obtained from the defendant, Ronald

Brown. Easley explained to Mr. Munson that he was there to collect a debt owed

by Mattox. Mr. Munson told Easley that in the future he should call first and, if

Mattox was home, Mattox would arrange to meet Easley at another location.

         Nevertheless, on December 1, 2011, Easley again showed up at the

Munson home unannounced, claiming that Brinkley and Mattox owed him

money. Mr. Munson was angry that Easley had ignored his request to call in

advance. The two men nearly came to blows, but Brinkley and Mattox intervened

and took Easley into the basement. There they beat him, and robbed him of

$4700 in cash, four ounces of methamphetamine and other drugs, a gun, and his

jewelry. The men discussed killing Easley, but decided against it. Instead, they

drove Easley to one of his friends' house and released him, but kept his car and

the other items they had stolen. They did not return to the Munson home.



        1The verbatim report of trial proceedings is contained in seven continuously paginated
volumes, dated 1VRP (January 10, 2013), 2VRP (January 11, 2013), 3VRP (January 14, 2013),
4VRP (January 15, 2013), 5VRP (January 16, 2013), 6VRP (January 17, 2013), and 7VRP
(January 18, 2013). In this memorandum they are cited by volume and page number.
No. 70148-7-1/3


      After his release, Easley telephoned Mr. Munson, asking if he knew what

Brinkley and Mattox had done or where they were. Mr. Munson apologized for

what had happened to Easley and told him that Brinkley and Mattox were not at

the house. Easley's father also called Mr. Munson, threatening retaliation and

warning Mr. Munson that "first the boys are coming over, then the real men are

going to come over." 1VRP at 98. After these calls, Mr. Munson called Brinkley

and Mattox and told them to come home to handle the situation, but they did not

return. Mr. Munson also called his wife, who was away at a dinner party, and

asked her to pick him up.

       Because Brown supplied Easley with the drugs he sold, Easley called him

to report what had happened. According to Easley, Brown suggested they

arrange a meeting with Brinkley and Mattox. With Brown on the line, Easley

called and spoke to the men. Brinkley and Mattox invited Brown and Easley to

meet at the Munson home. Before heading to the Munson's, Easley and Brown

assembled a group of men at the home of Easley's father to plan their strategy

for the meeting. When they left, the group included three men recruited by Brown

who were carrying sawed-off shotguns, Kevlar vests and guitar cases loaded

with automatic rifles.

       Easley testified that the group planned to get his property back and to

make "an example" of the people who robbed him. Otherwise, he'd be a "mark," a

person that others would take advantage of. 3VRP at 445. Danny Fordham, one
of Brown's men, testified that the group decided on a "good cop, bad cop"

approach. Fordham testified that he played the "attack dog," while Brown, who
No. 70148-7-1/4


was "the boss," played "the one that was more mellow" and "in control." 5VRP at

759-61. After about an hour of planning, the heavily armed group drove to the

Munson house.


       Mr. Munson, who had been wary that Easley might return and attempt to

retaliate for the incident earlier in the night, was still home alone waiting for his

wife. When he noticed the group's three vehicles pull into his driveway, he knew

he could not fend them off on his own and decided not to try. Instead, he opened

his back door and called out to Easley to "go ahead and come on in. You know,

just come on in, you know, I don't want no trouble, you know." 1VRP at 100.

Brown entered the house first, wielding a shotgun. He pushed the gun into Mr.

Munson's stomach and said, "Brother, if you have a gun tell me now or I'm going

to kill you." 1VRP at 107. Brown walked Munson into the living room at gunpoint

and ordered him to sit down on the couch. Meanwhile, the rest of the group made

sure no one else was home. As Brown looked on, Fordham and another member

of the group took Munson's wallet, money, and watch. But when they attempted

to take his wedding ring, Brown intervened and stopped them. 1VRP at 118.

       Later in the evening, Susan Munson arrived home to find her husband

detained on the living room sofa with several armed individuals guarding him and

the rest of the house. Brown, who was no longer carrying a firearm, asked her to

have a seat with her husband. According to Mrs. Munson, she and her husband

were held in their living room for five or six hours. During this time, Brown asked

Mrs. Munson what she would do if the cops came. She asked what he wanted
No. 70148-7-1/5


her to do. He answered, "I want you to get rid of them, otherwise, there's going to

be two dead cops." 1VRP at 130.

      At some point in the evening, Mrs. Munson became worried about her dog

and asked Brown if she could bring the animal in from the backyard. Brown gave

her permission to do so. Shortly thereafter, she asked Brown for permission to

use the bathroom, which he granted. As Mrs. Munson returned to the living room,

she heard people in the bedroom going through her things. Brown told them not

to take anything from the room, but they did so anyway. She returned to the living

room and sat down.


      Throughout the group's occupation of the Munson's home, Fordham,

played the "bad cop" role. He walked through the house brandishing an assault

rifle and making threats. Fordham told the Munsons that ifthey called the police,

he would find someone to kill them. He found and took their address book from

the bedroom, as well as their daughter's picture off the wall, which had her name

and address on the back. He said that if the Munsons ever said anything, their

families would be killed. Mr. Munson, who has a heart condition, testified that he

began having heart palpitations and was afraid he would have a second heart

attack because "Fordham, the crazy guy, every five minutes is coming up

pointing the gun at me accusing me of something, and it's just driving my blood

pressure rate up." 1VRP at 121. In an apparent attempt to calm Mr. Munson,

Brown told him, "that's [Fordham's] job, he's supposed to be an intimidator."

1VRP at 122. Brown assured Mrs. Munson that the men were not there for them,

but they needed to get "ahold of Ethan [Mattox] and Jeff [Brinkley]." Id,
No. 70148-7-1/6


       During this incident, Brown had Mr. Munson try and call Mattox. Mr.

Munson reached Mattox and handed the phone to Brown. After talking on the

phone, Brown reported that Mattox and Brinkley were going to be coming back to

the Munson home. Mrs. Munson testified that each time the group of assailants

thought Brinkley and Mattox were arriving they dimmed the lights and went to

designated battle stations in the house. But Brinkley and Mattox never returned.

       Patrick Buckmaster, whom Easley had called for backup earlier in the

night, did arrive at the Munson house that night, armed with a kitchen knife. He

entered the house, apologized for being late, and showed Easley his weapon.

Easley introduced Buckmaster to Brown and Fordham, who had come out of a

bedroom. Then Buckmaster walked down a hallway out of the living room. About

ten minutes later, there was a loud boom, like a gunshot. Mr. Munson thought to

himself that one of the assailants might have accidentally fired off a round in the

house. Brown immediately told the rest of the group to grab their things and go.

      The Munsons remained seated on the sofa. As Brown, Fordham, and the

rest of the group were leaving, Fordham pointed his gun at Mr. and Mrs. Munson,

told them not to move, and threatened that if they called the police he would

return and kill them. The Munsons believed Fordham and were afraid to move for

some time after the group had departed. Eventually, Easley called and spoke

with Mr. Munson, who testified that Easley told him:

      to look and see if there's a body in the hallway. And I go, what? And
      he goes, I need you to go look and see if there's a body in the
      hallway. So I stood up on the couch. I didn't go anywhere, and I can
      look—I could look through this area and I could see some white
      tennis shoes and bare legs. And I said, oh, my God, I said, yeah, I
      said, I think it's your friend [Buckmaster].
No. 70148-7-1/7



1VRP at 140. Easley told Mr. Munson that the group would be coming back to

take care of the body. The Munsons left their home immediately after the call

because they were afraid the group intended to kill them.

         Subsequently, Brown, Easley, and Easley's wife returned to the Munson

home. Buckmaster, who had been shot in the face, was dead. They wrapped his

body in blankets and buried it in the mountains. They also made an extensive

effort to remove evidence of the shooting, tearing out carpet, removing blood

stained floorboards, and dismantling part of a wall in the Munson home, then

rebuilding everything.

         About one month later, when Easley was detained by police for an

unrelated incident, he told the officers what had happened at the Munson house.

The ensuing investigation resulted in the arrest of eight people, including Brown.

Brown was ultimately charged with two counts of first degree kidnapping, two

counts of first degree robbery, two counts of second degree assault, one count

each for Mr. and Mrs. Munson. He was also charged with one count of first

degree burglary. The State also alleged firearm enhancements on each of the

seven counts. A jury found Brown guilty as charged. He appeals.

                                     DISCUSSION

                                    Jury Instructions

         Brown contends that the "to convict" instruction for the first degree

kidnapping charges was improper because it included an alternative means of

committing first degree kidnapping that was not charged in the information. We

agree.
No. 70148-7-1/8


       Criminal defendants have the right to be notified of the nature and cause

of the accusation against them. See, Wash. Const, art. I, § 22; amend IV U.S.

Const.; State v. Kiorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). This right

precludes the State from arguing an alternative means of commission of a crime

that is not set forth in the charging information. In the Matter of the Personal

Restraint of Brockie. 178 Wn.2d 532, 538, 309 P.3d 498 (2013). An error in

offering an uncharged alternative means as a basis for conviction is presumed

prejudicial and the State bears the burden of proving it was harmless beyond a

reasonable doubt. Id. Such an error requires reversal if it is possible the jury

convicted the defendant under the uncharged alternative. State v. Laramie, 141

Wn. App. 332, 343, 169 P.3d 859 (2007).

       In this case, the information charged two alternative means of committing

first degree kidnapping with respect to each count: abducting a person with intent

to facilitate the commission of a felony and abducting a person with intent to inflict

extreme emotional distress. See RCW 9A.40.020(1 )(b), (d). The jury instructions

omitted the first "intent to commit a felony" alternative. Clerk's Papers (CP) at

121,127. However, they included two additional uncharged alternatives: abducting

a person with intent to hold the person for ransom or reward and abducting a

person with intent to hold the person as a shield or hostage. The State concedes
that the instructions improperly included two uncharged alternatives. However, the

State contends that the error was harmless. We disagree.

       Although the evidence presented to the jury and the State's argument

supported conviction under the "intent to inflict extreme emotional distress"


                                           8
No. 70148-7-1/9


alternative means, it also plainly supported conviction under the uncharged

"ransom/reward" and "shield/hostage" means. The jury heard testimony that

Brown and his accomplices went to the Munson house to get Easley's belongings

back from Brinkley and Mattox. When they realized Brinkley and Mattox were not

there, they detained the Munsons at gunpoint and had Mr. Munson call Mattox to

try and persuade him and Brinkley to come home. This evidence was sufficient to

support an inference by the jury that the Munsons were held as ransom for

Easley's stolen property or as a shield from any violence Mattox or Brinkley might

perpetrate in order to retain the stolen goods.

       Moreover, in closing argument, the State urged the jury to find Brown

guilty under any of the three alternatives contained in the "to convict" instructions,

including the two uncharged alternatives. Specifically, the State argued that

Brown and the other participants

       were holding Susan and Chuck ransom for their stuff. They were
       holding them with the intent to use the fact that they were there to
       get Ethan and Jeff to come back and give them their stuff. You can
       use that and say that's a ransom, you can say it's a hostage
       situation. Either way. If you want to say, oh, it was their stuff, is it
       really a ransom? It's splitting hairs. They're both there.

7VRP at 984. Based on this record, it is entirely possible that the jury convicted

Brown under one of the uncharged alternatives. Accordingly, the error in

instructing the jury based on those alternatives was not harmless.

       Brown also assigns error to the "to convict" instructions for the first degree

robbery charges and the special verdict forms for the firearm enhancements on

the same grounds. He points out that according to the information the sole basis

for elevating the robbery counts to robbery in the first degree is the allegation that

                                           9
No. 70148-7-1/10


he displayed what appeared to be a firearm. The "to convict" instruction,

however, authorizes the jury to convict him of the crime on that basis and also on

the uncharged statutory alternative ground that during the course of the crime, he

inflicted bodily injury. But because Brown proposed a robbery "to convict"

instruction that was identical to the one given by the trial court, he is precluded

from challenging the instruction on appeal under the invited error doctrine. As

such, we decline to review this issue. State v. Miller, 40 Wn. App. 483, 486, 698

P.2d 1123(1985).

       Brown argues that the invited error doctrine is not a bar to his claim

because submission of the offending instruction by his attorney constituted

ineffective assistance of counsel. See, State v. Doogan, 82 Wn. App. 185, 188,

917 P.2d 155 (1966). This argument fails because, even assuming his attorney's

performance was deficient in this regard, Brown cannot show that he was

prejudiced by defense counsel's conduct. See, jd. at 189-90; Strickland v.

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

ineffective assistance of counsel a defendant must show both deficient

performance and resulting prejudice); State v. Jeffries, 105 Wn.2d 398, 418, 717

P.2d 722 (1986) (adopting the Strickland test).

       To show prejudice in an ineffective assistance of counsel claim, a

defendant must show there is a reasonable probability that, but for counsel's

error, the result of the proceeding would have been different. Doogan, 82 Wn.

App. at 189. "The error of offering an uncharged means as a basis for conviction
is prejudicial if it is possible that the jury might have convicted the defendant


                                          10
No. 70148-7-1/11


under the uncharged alternative" instead of a charged alternative. Id. Brown

claims that this is possible here because the State argued that the "bodily injury"

element was satisfied by the killing of Patrick Buckmaster during the robbery. But

since it was undisputed that Buckmaster died from a gunshot wound perpetrated

by one of Brown's accomplices, any juror relying on Buckmaster's death for the

"bodily injury" element would also necessarily have found that Brown or one of

his accomplices displayed what appeared to be a deadly weapon. Because there

is no way a rational juror could find the uncharged "bodily injury" alternative

proved in this case without also finding proof of the charged "deadly weapon"

alternative, there is no reasonable probability of a different outcome at trial,

despite the error.2 As Brown cannot show prejudice, his ineffective assistance

claim fails and his challenge to the robbery "to convict" instruction is barred under

the invited error doctrine.3




         2 For the same reasons, Brown's challenge to the robbery to-convict jury instruction fails
even in the absence of invited error. Assuming, arguendo, that he had not proposed the offending
instruction, the State has established that the error in including the uncharged "bodily injury"
alternative was harmless. See, In re Brockie, 178 Wn.2d at 539 (explaining that, on direct appeal
in an uncharged alternative means case, the State has the opportunity to show harmlessness).

         3We also reject Brown's challenge, in his statement of additional grounds, to the special
verdict forms on the ground that they applied the nonunanimity rule overruled in State v. Nunez,
174 Wn. 2d 707, 709, 285 P.3d 21 (2012). The claim is waived on appeal because Brown did not
objectto the forms at trial. See, State v. Guzman Nunez, 160 Wn. App. 150, 159, 162-63, 248
P.3d 103(2011). affirmed, 174 Wn.2d 707.




                                                11
No. 70148-7-1/12


                                      Double Jeopardy

       Next, Brown challenges his convictions for second degree assault. He

contends that conviction for the assaults in addition to his kidnapping and

robbery charges was a double jeopardy violation. We agree.

       The double jeopardy provisions of the federal and state constitutions

"protect a defendant from being punished multiple times for the same offense."

State v. Allen, 150 Wn. App. 300, 312, 207 P. 3d 483 (2009) (citing State v. Adel,

136 Wn.2d 629, 632, 965 P.2d 1072 (1998)). We review claims of double

jeopardy violations de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d

753 (2005).

       When considering whether multiple punishments for the same conduct

violate double jeopardy, our primary inquiry is whether the legislature intended

that multiple punishments be imposed. Freeman, 153 Wn.2d at 771. The merger

doctrine provides one basis for ascertaining legislative intent not expressly stated

or implicit from the language of the statute.4 \± at 772-73; State v. Vladovic, 99

Wn.2d 413, 422, 662 P.2d 853 (1983)). Brown contends that the assault charges

in this case merged with either the robbery or kidnapping charges.

       As a general rule, the merger doctrine applies "where the Legislature has

clearly indicated that in order to prove a particular degree of crime (e.g., first


        4The State suggests that because second degree robbery and third degree assault
constitute separate offenses under the "same evidence" Blockburqertest, we need not consider
the merger doctrine in determining whether a double jeopardy violation exists. See, Blockburqer
v. United States. 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Calle. 125 Wn.2d
769, 777, 888 P.2d 155 (1995) ("same evidence" test). Because the "same evidence" Blockburqer
test is merely one of several means of determining legislative intent to impose multiple
punishments for the same offense, the argument is notwell taken. See, Freeman, 153 Wn.2d at
772.


                                               12
No. 70148-7-1/13


degree rape) the State must prove not only that a defendant committed that

crime (e.g., rape) but that the crime was accompanied by an act which is defined

as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping)." State

v. Davis. 177 Wn. App. 454, 460-61,311 P.3d 1278 (2013) review denied, 179

Wn.2d 1025, 320 P.3d 719 (2014) (quoting Vladovic. 99 Wn.2d at 421). In

determining whether crimes merge, we do not focus narrowly on the express

designation of various degrees of a crime in the criminal statutes. Rather, we

inquire as to the "manner in which the offenses are charged and proved in a

particular case and whether the State was required to prove the act constituting

the merging crime to elevate the other crime."5 Id. at 463. Thus, the essential

inquiry in our merger analysis here is whether the kidnapping and robbery

charges required proof of the same conduct that formed the basis for the assault

charges.

       The information charged two alternative means of committing first degree

kidnapping with respect to each count: abducting a person with intent to facilitate

commission of a felony and abducting a person with intent to inflict extreme

emotional distress. See RCW 9A.40.020(1)(b)(d). The jury was instructed that,

to-convict, it must find beyond a reasonable doubt that the defendant or an

accomplice intentionally abducted the Munsons. It was also instructed that to

"[ajbduct means to restrain a person by using or threatening to use deadly force."

CP at 121, 123, 127. And the State presented ample evidence that Brown and



       5 Accordingly, we have held that a second degree assault that elevates unlawful
imprisonment to second degree kidnapping merges with the kidnapping charge. State v. Davis,
177 Wn. App. at 460-61.

                                             13
No. 70148-7-1/14


his accomplices repeatedly pointed their guns at the Munsons and threatened

them with deadly force. Thus, as charged and proved in this case, the kidnapping

charges involved proof of second degree assaults.6

        With respect to the first degree robbery charges, the information alleged:

        That the defendant, on or about the 1st day of December, 2011,
        with intent to commit theft, did unlawfully take personal property of
        another...from the person or in the presence of [the
        Munsons]...against [the Munsons'] will, by use or threatened use of
        immediate force, violence, and fear of injury...and in the
        commission of said crime and in immediate flight therefrom, the
        defendant was armed with a deadly weapon and displayed what
        appeared to be a firearm or other deadly weapon; proscribed by
        RCW 9A.56.200, a felony; and that at the time of the commission of
        the crime, the defendant or an accomplice was armed with a
        firearm, as provided and defined in RCW 9.94A.533(3), RCW
        9.41.010, and RCW 9.94A.825.

CP at 925-26.

        The jury was instructed that, to convict, it must find, among other

elements, that "the defendant or an accomplice unlawfully took personal property

from the person or in the presence of [the Munsons]," that "the taking was

against [the Munsons'] will by the defendant's use or threatened use of

immediate force, violence, or fear of injury," and that "in the commission of these

acts or in immediate flight therefrom the defendant or an accomplice was armed

with a deadly weapon," "displayed what appeared to be a firearm or other deadly


         6 Washington courts recognize three definitions of assault: "(1) an attempt, with unlawful
force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with
criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the
actor intends to inflict or is capable of inflicting that harm [common law assault]." State v. Wilson,
125 Wn. 2d 212, 218, 883 P.2d 320, 323 (1994).
         Under RCW 9A.36.021 (1), "A person is guilty of assault in the second degree if he or
she, under circumstances not amounting to assault in the first degree:... (c) Assaults another with
a deadly weapon." No Washington statute defines the term "assault."


                                                 14
No. 70148-7-1/15


weapon," or inflicted bodily injury. CP at 133.

       The court's instruction sets forth several statutory alternative means to

convict for first degree robbery.7 But, the State clearly elected the "deadly

weapon" alternatives in particular. The narrow language of the charging

information indicates that the State was relying on the "deadly weapon"

alternatives. And the State provided evidence in support of these alternatives in

the form of testimony from multiple witnesses that Brown and/or his compatriots

threatened the Munsons with guns as they stole Mr. Munson's personal

belongings and ransacked the house. Thus, as charged and proved, the

robberies in this case involved second degree assaults in furtherance of them.

       The State concedes that the basic requirements for merger are present in

this case, but argues that a double jeopardy problem is avoided here under an

exception to the merger doctrine that applies where two offenses involve injury to

the person or property of the victim or others that is separate and distinct from

and not merely incidental to the crime of which itforms an element. See.

Freeman. 153 Wn. 2d at 778. This exception will "allow two convictions even

when they formally appear to be the same crime under other tests." |d_. For

example, if a defendant struck the victim after completing a robbery, there was a


         Under RCW 9A.56.200:

       (1) A person is guilty of robbery in the first degree if:
          (a) In the commission of a robbery or of immediate flight therefrom, he or she:
          (i) Is armed with a deadly weapon; or
          (ii) Displays what appears to be a firearm or other deadly weapon; or
          (iii) Inflicts bodily injury; or
          (b) He or she commits a robbery within and against a financial institution



                                                  15
No. 70148-7-1/16


separate injury and purpose justifying a separate assault conviction, because the

assault did not further the robbery. State v. Knight. 176 Wn. App. 936, 952-53,

309 P.3d 776 (2013) review denied. 179 Wn.2d 1021, 318 P.3d 279 (2014);

State v. Prater, 30 Wn. App. 512, 516, 635 P.2d 1104 (1981).

       In its oral ruling at Brown's sentencing hearing, the trial court agreed with

the State. It found that the second degree assault charges against Brown

stemmed from Fordham's act of pointing his gun at and threatening the Munsons

as the group exited the Munson residence. The court found that this act was

committed in an effort to prevent the Munsons from reporting the crimes to police

rather than in furtherance of the robbery or the kidnapping and thus,

distinguishable from the many other assaults that occurred during the course of

the evening. In the trial court's view, Fordham's final assaults involved a purpose

and injury to the victims that was separate and distinct from the kidnappings and

robberies, and thus the crimes did not merge.

       But even if we accept the trial court's conclusion, it is insufficient to cure

the double jeopardy violation here. At issue is whether the evidence, arguments
of counsel, and jury instructions made it '"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. . .." State v. Mutch. 171

Wn.2d 646, 664, 254 P.3d 803 (2011) (quoting State v. Berg, 147 Wn. App. 923,

931, 198 P.3d 529 (2008). They did not.

       The evidence regarding Fordham's last assault did not naturally segregate

itself from the previous assaults. The jury was not instructed on the need to find

                                           16
No. 70148-7-1/17


that each count arises from a separate and distinct act in order to convict. And

the State did not argue that Fordham's assault on the Munsons as he left their

house was the specific criminal act that constituted second degree assault, as

opposed to any of the other assaults committed by Brown and his accomplices

that night. Because there was no basis for the jury to distinguish between the

many assaults committed by Brown and his accomplices and the assaults were

the basis for elevating the kidnapping and robbery charges to first degree, we

conclude the assault convictions violated double jeopardy. Accordingly, on

remand we direct the trial court to enter orders vacating those conviction and

resentence Brown. See, State v. Weber. 159 Wn.2d 252, 269, 149 P.3d 646

(2006) (explaining that the remedy for a double jeopardy violation is to vacate the

offense carrying the lesser sentence).

                                Sufficiency of the Evidence

        Brown challenges the sufficiency of the evidence supporting his first

degree robbery and first degree burglary convictions.8 In reviewing a challenge to

the sufficiency of the evidence, we 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). A claim of insufficiency admits the truth of the State's evidence and

all reasonable inferences from the evidence must be drawn in favor of the State

and interpreted most strongly against the defendant. JcL


       8 He also challenges his first degree kidnapping convictions on this basis. However, since
we vacate those convictions on other grounds, we do not address his challenge to the sufficiency
of the evidence here.



                                               17
No. 70148-7-1/18


       As to the two counts of first degree robbery, the State charged Brown

based on a theory of accomplice liability, the requirements of which are set out in

RCW 9A.08.020(3) as follows:

       A person is an accomplice of another person in the commission of
       a crime if:
       (a) With knowledge that it will promote or facilitate the commission
       of the crime, he or she:
       (i) Solicits, commands, encourages, or requests such other
       person to commit it; or
       (ii) Aids or agrees to aid such other person in planning or
       committing it; . . .

These requirements were set out for the jury in Instruction 10. Brown contends

the State failed to meet its burden of establishing he was an accomplice to the

robberies in this case, claiming that he was just a bystander to the robberies, with

no intent to facilitate, aid, or abet those crimes. He also claims his admonitions to

his cohorts that they should not take anything from the Munsons is evidence that

he did not share their intent to commit the robberies.

       But there was significant countervailing evidence in this case. Easley and

Fordham testified that Brown and his accomplices spent nearly an hour planning

the events that unfolded at the Munson home, with the notable exception of the

shooting of Patrick Buckmaster. Fordham testified that Brown deliberately played

the "good cop" to his "bad cop" in order to facilitate their plan. Fordham and

Easley also testified that the group recognized Brown as their leader, who

controlled the movements of both his accomplices and the victims. This

testimony was corroborated by Mr. Munson, who testified that other members of

the group followed Brown's order not to take his wedding ring, and Mrs. Munson,

who testified that she had to get Brown's permission to bring her dog inside and

                                         18
No. 70148-7-1/19


use the bathroom. Given this evidence, a reasonable jury could infer that Brown

was not merely a bystander to the robberies, but an active party who knew of the

crimes being committed and took action to facilitate their commission. Viewed in

the light most favorable to the State, the evidence is sufficient to support the

jury's finding that Brown was guilty as an accomplice of both counts of first

degree robbery.

       In a statement of additional grounds (SAG) for Appeal, Brown also

challenges the sufficiency of the evidence supporting his first degree burglary

conviction. To convict Brown as charged, the State bore the burden of proving he

or an accomplice entered or remained in a building unlawfully with intent to

commit a crime against a person or property therein and, while in the building or

in immediate flight therefrom, was armed with a deadly weapon. See also. RCW

9A 52.020; State v. Gohl. 109 Wn. App. 817, 823, 37 P.3d 293 (2001). Entry is

unlawful if made without invitation, license, or privilege. Gohl. 109 Wn. App. at

823.

       Brown contends that there was no unlawful entry here because Brinkley

and Mattox had invited him and Easley to the Munson home in order to discuss

conciliation. However, it is undisputed that Brinkley and Mattox neither owned nor

resided in the Munson home. Instead, they were boarders in a trailer located

elsewhere on the Munsons' property. And there was no evidence presented at

trial that Brinkley and Mattox had any right of access in the Munson home, let

alone the authority to invite others onto the property. On the contrary, Mr.

Munson testified that Brinkley and Mattox were not allowed to have any visitors


                                          19
No. 70148-7-1/20


to the property without his prior knowledge and approval. Thus, Brown's

argument lacks merit.

       Brown also argues that Mr. Munson personally invited him and the rest of

the group in after they arrived on his property. But Mr. Munson testified that

Brown arrived wielding a shotgun and as he entered the house, he pushed the

weapon into Mr. Munson's stomach. He also testified that he did not want Brown

or his accomplices there and only invited them to enter, in an effort to deescalate

a potentially violent situation. Under these circumstances, no reasonable juror

could conclude that a reasonable person would believe Mr. Munson's "invitation"

was the product of his own free will.

       We conclude there was ample evidence to support the jury's finding that

Brown's entry into the Munson home was unlawful. Because that is the only

basis upon which Brown argues the evidence is insufficient, we reject his

challenge to the jury's guilty verdict on the charge of burglary in the first degree.

                              Prosecutorial Misconduct

       Brown claims he was denied a fair trial due to repeated instances of

misconduct by the prosecutor throughout the proceeding. We engage in a two-

part analysis of a prosecutorial misconduct claim. First, we determine whether

the defendant has established that the prosecutor's conduct was improper. State

v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012) (citing State v. Thorgerson.

172 Wn.2d 438, 442, 258 P.3d 43 (2011)). Next, we determine whether the

defendant was prejudiced by the misconduct under one of two standards of

review. Id. at 760. Ifthe defendant objected at trial, he must show that the


                                          20
No. 70148-7-1/21


misconduct resulted in prejudice that had a substantial likelihood of affecting the

jury's verdict. Id. (citation omitted). Ifthe defendant did not object, he is deemed

to have waived any error unless the prosecutor's misconduct was so flagrant and

ill-intentioned that an instruction could not have cured the resulting prejudice, ]d.

at 760-61 (citing State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)).

In that case, the defendant must show that: (1) no curative instruction would have

obviated any prejudicial effect on the jury; and (2) the misconduct resulted in

prejudice that had a substantial likelihood of affecting the verdict. Id. (citing

Thorgerson. 172 Wn.2d at 445)). In assessing whether the alleged misconduct

requires reversal, we review the improper statements in the context of the entire

case. Thorgerson, 172 Wn.2d at 443 (citing State v. Russell, 125 Wn.2d 24, 86,

882 P.2d 747 (1994)).

       In this case, Brown contends that the prosecutor's explanation of

accomplice liability as "in for a penny, in for a pound" during closing arguments

was misconduct. 7VRP at 990-91. The State concedes that the argument was

improper, as it misstates the law of accomplice liability. See. State v. Roberts.

142 Wn.2d 471, 510-13, 14 P.3d 713 (2000); State v. Cronin. 142 Wn.2d 568,

579, 14 P.3d 752 (2000). However, we agree with the State that Brown's

misconduct claim is waived because the argument was not flagrant or ill-

intentioned and could have been cured by an instruction to the jury.

       Brown cites State v. Fleming. 83 Wn. App. 209, 213, 921 P.2d 1076

(1996), for the proposition that a misstatement of established law is per se

flagrant and ill-intentioned misconduct. But his reliance on the case is misplaced,


                                          21
No. 70148-7-1/22


as our holding was limited to improper comments regarding the role of the jury

and the burden of proof. Because the prosecutor's statements in this case do not

concern either issue, Fleming is inapposite.

       Moreover, even if the prosecutor's improper argument was flagrant and ill-

intentioned, there is nothing in the record to suggest that the jury would have

been unable or unwilling to follow a curative instruction containing the correct law

had the trial court provided one. See. State v. Swan. 114 Wn.2d 613, 661-62,

790 P.2d 610 (1990), (explaining the presumption that the jury will follow the

court's instructions to disregard an improper argument). Because Brown fails to

establish that the prosecutor's improper argument was incurable and prejudicial,

he has waived his right to challenge it on appeal.

      And we find no merit in Brown's claim that this waiver is the result of

ineffective assistance of counsel. In order to prevail on an ineffective assistance

of counsel claim, a defendant must show that his trial attorney's performance

was deficient and that he was prejudiced as a result. Strickland, 466 U.S. at 687;

Jeffries, 105 Wn.2d at 418. Here, even if Brown could establish that defense

counsel's failure to object to the prosecutor's arguments was an oversight rather

than a strategic decision, he cannot show that he was prejudiced by his

attorney's performance. The jury was expressly instructed to disregard any

argument that was not supported by the law in the court's instructions, which,

unlike the State's closing argument, set out the proper requirements for

accomplice liability. And it is presumed to have disregarded the prosecutor's




                                         22
No. 70148-7-1/23


arguments insofar as they contradicted the court's instructions. See, e.g.. Emery.

174 Wn.2d at 764; State v. Imhoff. 78 Wn. App. 349, 352, 898 P.2d 852 (1995).

         In his SAG, Brown claims several other statements made by the

prosecutor constitute misconduct and we have considered each of them.9 But

even if we assume that each statement was improper, the claims must still fail.

Brown did not object to the statements10 and he does not explain how the

statements were so flagrant and ill-intentioned that any prejudice from the

alleged error was incurable with a proper instruction. Moreover, even assuming

some prejudice resulted from the alleged errors, the record does not show that it

had any likelihood of affecting the verdict.11

                                       CrR 4.7 Protective Order12

         Brown argues that the trial court erred when it granted the State's request


         9 Brown claims the following comments by the State were improper: (1) referring to
Patrick Buckmaster as "the victim" during examination of one of the State's witnesses; (2) arguing
that shooting Buckmaster could satisfy the "bodily injury" requirement for first degree robbery; (3)
in explaining the knowledge requirement of unlawful imprisonment the prosecutor said "if you
accidentally locked someone in a room it wouldn't be a crime because you wouldn't have done it
knowingly." 7VRP at 985; (4) "[y]ou know don't look at a dog when it's about to - you know when
it's aggressive towards you." 7VRP at 996; (5) arguing that Fordham enjoyed playing the role of
enforcer; 6) arguing that Mr. Munson's testimony that he feared reprisal for the assault on Easley
was believable; 7) allegedly misrepresenting facts in order to obtain a continuance of the trial
date.

        10 We note, however, that Brown did object to the prosecutor's attempt to explain to the
jury why Buckmaster's death was not a homicide under Washington law. Although the court
sustained the objection, Brown did not request a curative instruction and none was given. And
Brown fails to explain how the irrelevant comment resulted in prejudice that had a substantial
likelihood of affecting the verdict.
        11 We also reject Brown's argument that his attorney provided ineffective assistance
when he failed to object to the prosecutor's alleged improper comments. In light of the
overwhelming independent evidence of Brown's guilt, even assuming the comments were
improper, they were unlikely to affect the outcome of trial. Thus, Brown cannot establish the
prejudice prong of his ineffective assistance claim. See, Jeffries, 105 Wn.2d at 418; Strickland,
466 U.S. at 687.

         12 The remaining arguments were asserted by Brown in his statement of additional
grounds.


                                                  23
No. 70148-7-1/24


for a protective order and order enjoining disclosure of certain records. We

disagree.

      As a general rule, a prosecutor is obliged to disclose to the defendant any

documents which the prosecutor intends to use in trial. CrR 4.7(a). However,

      Upon a showing of cause, the court may at any time order that
      specified disclosure be restricted or deferred, or make such other
      order as is appropriate, provided that all material and information to
      which a party is entitled must be disclosed in time to permit the
      party's counsel to make beneficial use thereof.

CrR 4.7(h)(4)(Protective Orders). We review a trial court's discovery order for

abuse of discretion. T.S. v. Boy Scouts of America. 157 Wn.2d 416, 423, 138

P.3d 1053(2006).

       In this case, the records subject to the protective order were documents

related to pending federal charges against Easley and Fordham and related plea

negotiations, all arising from the incident at the Munson residence. The trial court

had authority under CrR 4.7(h)(4) to enter an order limiting disclosure of these

sensitive records. Moreover, because the express terms of the order required the

State to provide Brown's defense attorney with a copy of the protected

documents, Brown's argument that the order violated his right to disclosure of

evidence is unfounded.

                                Evidentiary Rulings

       In his SAG, Brown assigns error to several of the trial court's evidentiary

rulings. We review for an abuse of discretion. State v. Finch. 137 Wn.2d 792,

810, 975 P.2d 967 (1999).




                                         24
No. 70148-7-1/25


       First, Brown challenges, ostensibly on relevance grounds, the trial court's

admission of exhibits 84 and 85, respectively, a firearm and bullet proof vest

discovered in Fordham's possession when he was arrested some three months

after the incident at the Munson house. He also challenges the trial court's

admission of Mrs. Munson's statement that Brown told her there would be "two

dead cops" should she fail to get rid of any investigating police officers. Because

Brown did not object to this evidence at trial, the alleged errors have not been

preserved for review.13 ER 103(a)(1); State v. Adams, 138 Wn. App. 36, 155

P.3d 989 (2007).

        Next, Brown assigns error to the trial court's admission of several

photographs related to the investigation of the shooting of Patrick Buckmaster.

Brown objected to the photos before trial on the grounds that the evidence was

irrelevant and unfairly prejudicial. The trial court admitted the evidence over

Brown's objection, reasoning that it was probative of whether one of the firearms

used in the incident was operational, an essential element of the firearm

enhancements, as well as Brown's consciousness of guilt. We agree with the trial

court's reasoning and find no abuse of discretion. See RCW 9.41.010(9)

(defining "firearm" as "a weapon or device from which a projectile or projectiles

may be fired by an explosive such as gunpowder.")



        13 In his SAG, Brown contends that his attorney rendered ineffective assistance by failing
to object to these items of evidence. But even if Brown can establish that his attorney's
performance was deficient, given the weight of the evidence against him, there is no reasonable
probability that the jury would have returned a different verdict but for the admission of the
objectionable evidence. Because he cannot show prejudice, his ineffective assistance claimsfail.
See, Jeffries. 105 Wn.2d at 418; Strickland. 466 U.S. at 687.


                                                25
No. 70148-7-1/26


       Brown also assigns error to the trial court's failure to give a limiting

instruction to the jury with regard to evidence of Buckmaster's shooting. This

claim fails because, since Brown did not request such instruction, the trial court

had no duty to give one. ER 105; State v. Noves. 69 Wn.2d 441, 446-47, 418

P.2d 471 (1966); accord. State v. Russell, 171 Wn.2d 118, 123-24, 249 P.3d 604

(2011) ("Since Noves. this court has continued to hold that absent a request for a

limiting instruction, the trial court is not required to give one sua sponte.") (Citing

State v. Athan. 160 Wn.2d 354, 383, 158 P.3d 27 (2007)).

       Finally, Brown assigns error to the trial court's ruling that Mr. Munson's

1980 and 1989 armed robbery convictions were inadmissible as impeachment

evidence. We conclude that the ruling was not an abuse of discretion. ER 609

allows prior convictions for the purpose of impeaching a witness's credibility,

subject to a time limit of ten years from the latter of conviction or release from

confinement. Here, Brown indicated his intent to use the convictions to

demonstrate Mr. Munson's propensity for armed robbery and inculpate him in the

attack on Easley that led to the events of this case. This is an improper purpose

under ER 609(a). Furthermore, both convictions were well beyond the 10 year

time limit imposed by ER 609(b). The trial court's decision to exclude the

convictions was not error.

                                     Speedy Trial

       The Sixth Amendment to the U.S. Constitution and article I, section 22 of

the Washington Constitution guarantee a criminal defendant a speedy and public

trial. Brown claims that the numerous continuances in this case violated this right.


                                           26
No. 70148-7-1/27


We review his claim de novo. State v. Iniguez. 167 Wn.2d 273, 280, 217 P.3d

768 (2009).

       In determining whether a delay violates a defendant's speedy trial rights,

our first step is a fact-specific inquiry as to whether a delay is presumptively

prejudicial, id. Our Supreme Court has explained that the length of delay, the

complexity of the charges, and the reliance on eyewitness testimony are all

factors to be considered, id. In this case, these factors do not support a finding

that the delay was presumptively prejudicial. The charges arose from a criminal

enterprise involving no fewer than eight criminal actors. During the pretrial

phases, many of the eight codefendants and their multiple attorneys were

engaged in ongoing negotiations with the State regarding whether they would

testify or accept plea agreements. And at least two of the codefendants were

simultaneously defending federal charges. In light of these circumstances, the

roughly eleven month delay in commencing trial was not presumptively

prejudicial.

       Even if Brown could show a presumptively prejudicial delay, under the

Barker14 test adopted by our Supreme Court in Iniguez. he still fails to establish a

speedy trial violation that warrants dismissal with prejudice. The Barker analysis
"involves a more searching examination of the circumstances, including the

length of and reasons for delay, whether the defendant asserted his speedy trial
rights, and prejudice to the defendant." Iniguez. 167 Wn. 2d at 292.



       14 Barker v. Winqo. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


                                             27
No. 70148-7-1/28


       In this case, the Barker factors do not weigh in favor of dismissal.

Although Brown spent the delay in prosecuting his case in custody, much of the

delay was necessitated by the ongoing negotiations with Brown's codefendants,

as well as the need for defense counsel to prepare for trial. Brown's argument

that the delays were the result of misconduct and false statements by the

prosecutor is not borne out by the record. One of the continuances was

requested by Brown's attorney and another by his codefendants. The court

granted both over Brown's objection. The remaining continuances were granted

on the State's motion, again over Brown's objection. Those continuances were

necessary as part the State's effort to try the codefendants together, secure the

attendance of its witnesses, and resolve scheduling conflicts. Brown's cites

nothing in the record to support his claim that the State's continuance requests

were made to intentionally interfere with his speedy trial rights. And although

Brown argues that the delay presumptively prejudiced his right to a fair trial, he

does not show that the delay caused him to lose potential testimonial or other

evidence.

       As in Iniguez. we conclude "[t]he trial court had good reasons for granting

each of the continuances...and acted within the constitutional limits in balancing

the competing interests of trying the codefendants jointly, accommodating trial

preparation and scheduling concerns, and securing the defendant's constitutional

rights." \&, at 295-96. Brown's right to a speedy trial was not violated.




                                          28
No. 70148-7-1/29


                     Right to Present and Confront Witnesses

       Under the State and federal constitutions an accused has the right to

confront adverse witnesses and to compulsory process to compel the attendance

of witnesses on his or her own behalf. Wash. Const, art. I, § 22; U.S. Const,

amend VI. Brown claims the trial court violated these rights, but the argument is

not borne out by the record.

       Contrary to Brown's assertions, the trial court did not preclude the

testimony of all of his witnesses. The testimony of Howard Coleman, Brown's

expert on the DNA testing methodology used by the state crime lab, was allowed.

But Brown elected not to call him, presumably because his expected testimony

largely duplicated that of the State's DNA expert. The trial court did exclude four

of Brown's proposed witnesses, Shawana Fly, Simone Lyons, Tom Jackson, and

Carol Davis. But because it is evident from the record that these witnesses only

purported to offer impeachment on collateral matters, the ruling was well within

the trial court's discretion. State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617,

618 (1963). Finally, to the extent Brown asserts he intended to call any other

witnesses or testify himself, he expressly declined to do so during a colloquy with

the trial court on the matter before resting his case.

                                     Conclusion


       We reverse the kidnapping convictions and remand for retrial. Should the

issue arise on remand, we note that the "mandatory joinder rule" precludes the

State from amending the information to include the alternative means that were




                                         29
No. 70148-7-1/30


not originally charged.15 State v. Russell. 101 Wn.2d 349, 352-53, 678 P.2d 332

(1984); CrR 4.3.1(b)(3). We also reverse the assault convictions and remand with

instructions that the trial court enter orders vacating these convictions and for

resentencing.




WE CONCUR:
                                                                 >$CcJ (+\/^j, C\o *


     lr* ok^|                ^j




        15 CrR 4.3.1(b)(3) provides:

        A defendant who has been tried for one offense may thereafter move to dismiss
        a charge for a related offense, unless a motion for consolidation of these
        offenses was previously denied or the right of consolidation was waived as
        provided in this rule. The motion to dismiss must be made prior to the second
        trial, and shall be granted unless the court determines that because the
        prosecuting attorney was unaware of the facts constituting the related offense or
        did not have sufficient evidence to warrant trying this offense at the time of the
        first trial, or for some other reason, the ends of justice would be defeated if the
        motion were granted.

Two offense are "related offenses" for purposes of the rule "if they are within the
jurisdiction and venue of the same court and are based on the same conduct." CrR
4.3.1(b)(1). Statutory alternative means of committing the same crime are "related
offenses" for purposes of the rule. Russell, 101 Wn.2d at 352.


                                                 30
