      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 75735-1-1

                      Respondent,                    DIVISION ONE

               V.

 RICHARD DANIEL ARGO,                                UNPUBLISHED

                      Appellant.                     FILED: May 29. 20113



       Cox, J. — Richard Argo appeals his judgment and sentence based on

convictions for first degree robbery, first degree theft, and first and second

degree assault. He argues that his convictions for robbery and burglary must be

set aside because the jury instructions were broader than the charging

document. Thus, he claims that he was convicted of uncharged crimes and

deprived of his right to a unanimous jury. Because any variances between the

charging document and the jury instructions were harmless beyond a reasonable

doubt, we disagree.

       For the first time on appeal, he also challenges the adequacy of the jury

instructions on unanimity. On this record, we reject this claim.
No. 75735-1-1/2

       Finally, he claims that the trial court abused its discretion by declining to

merge his robbery and burglary convictions in calculating his offender score at

sentencing. The trial court did not abuse its discretion in this respect. And

Argo's counsel did not provide ineffective assistance of counsel in connection

with this claim.

       We affirm in all respects.

       In December 2011, Argo, Louis Crawford, and three other accomplices

decided to rob Kathryn Wetzler. According to Crawford, Wetzler had drugs and

cash in a bank-deposit bag in her mobile home. Argo, Kristina McDonald, and

Derek Donnelly forced their way into Wetzler's mobile home. Once inside,

Donnelly stabbed and struck Wetzler while Argo guarded the exit Donnelly

demanded Wetzler's "money bag." Her housemate, Martha Mills, found the bag

hidden between the cushions on the couch. As Mills grabbed the bag, Donnelly

stabbed her in the face and back. Mills threw the bag at Argo, who was at the

door of the mobile home. Argo and Donnelly took the bag and fled.

       Mills suffered multiple stab wounds to her mouth and back and a

collapsed lung. Wetzler had a punctured cheek, broken bones in her face, five

broken ribs, and internal bleeding, including a subdural hematoma.

       After making several stops, Crawford, Argo, and the other three

accomplices divided up the items found in the bag. The items included $800,

some jewelry, and a "bit" of heroin.

        The State charged Argo with first degree robbery, first degree burglary,

and two counts of first degree assault, alleging that all four crimes were


                                              2
No. 75735-1-I/3

committed with a deadly weapon. His accomplices were also charged, but they

accepted plea agreements that included testifying truthfully against Argo at trial.

Argo testified in his own defense and denied any involvement in the crimes.

      The jury convicted Argo on all counts except first degree assault against

Wetzler. It found by special verdict that Argo committed all three first degree

crimes while armed with a deadly weapon. It convicted Argo of second degree

assault against Wetzler without possession of a deadly weapon.

       At sentencing, the trial court vacated the second degree assault

conviction, merging it with the first degree robbery conviction. The court declined

to merge the robbery and burglary convictions.

       Argo appeals.

                    CONVICTION OF UNCHARGED CRIMES

       Argo argues that his convictions for first degree burglary and first degree

robbery must be reversed. This is based on variances between the charging

document and the jury Instructions. The charging document names a particular

victim. The Instructions do not. Thus, Argo claims that it was possible for the

Jury to convict him of uncharged crimes and deprive him of his constitutional right

to a unanimous jury. Because these variances were harmless beyond a

reasonable doubt, we disagree.

       °ripe sixth amendment to the United States Constitution and article 1,

section 22 of the Washington Constitution guarantee criminal defendants the

right to be informed of the nature of the charges against them."1 Thus, Tit is a



       1 State v. Moton, 51 Wn. App. 455,458-59,754 P.2d 687(1988).
                                             3
No. 75735-1-1/4

well-settled rule in this state that a party cannot be convicted for an offense with

which he was not charged."2 And,"when an information alleges only one crime,

it Is constitutional error to instruct the jury on a different, uncharged crime."3

       Article 1, section 21 of the Washington Constitution also guarantees

criminal defendants the right to jury unanimity.4 It is constitutional error if the

instructions allow the defendant to be convicted without a unanimous jury

verdict.5

       A constitutionally erroneous Instruction "is presumed prejudicial unless it

affirmatively appears that the error was harmless."6 "A constitutional error is

harmless if the appellate court Is convinced beyond a reasonable doubt that any

reasonable jury would have reached the same result In the absence of the

error."2 And the State has the burden to prove that the error was harmless

beyond a reasonable doubt,

       In the amended information, Argo was charged with first degree robbery

based upon allegations that:



       2 State   v. Garcia,65 Wn. App.681,686,829 P.2d 241 (1992).
       3 State   v. Kirwin, 166 Wn. App.659,669, 271 P.3d 310(2012).
           v. Woodivn, 188 Wn.2d 157, 162-63, 392 P.3d 1062(2017);
       4 State
Moton 51 Wn. App. at 458.
       5 State v. Kitchen, 110 Wn.2d 403, 410,756 P.2d        105(1988).

       6 State   v. Jain, 151 Wn. App. 117, 121, 210 P.3d 1061 (2009).
        7 Id. at 121-22 (quoting   State v. Gulov, 104 Wn.2d 412,425,705 P.2d
1182(1985)).
            Gulov, 104 Wn.2d at 425.

                                               4
No. 75735-1-1/5

      together with another,... on or about December 4, 2011,[he] did
      unlawfully and with intent to commit theft take personal property of
      another, to wit: U.S. Currency,jewelry and drugs, from the person
      and in the presence of Kathryn Susan Wetzler, who had an
      ownership, representative, or possessory interest in that property,
      against her will, by the use or threatened use of immediate force,
      violence and fear of injury to such person or her property and to the
      person or property of another, and in the commission of and in
      Immediate flight therefrom,[Argo] and another participant in the
      crime Inflicted bodily injury on Kathryn Susan Wetzlertgl

      The amended information also alleged that Argo and Donnelly were

armed with a deadly weapon during the commission of the crime.10

      The trial court instructed the jury that to convict Argo of first degree

robbery, the State had to prove beyond a reasonable doubt that:

      (1) [O]n or about December 4, 2011,[Argo] or an accomplice
      unlawfully took personal property from the person or in the
      presence of another,
      (2) That the person from whom or in whose presence the
      property was taken had an ownership, representative, or
      possessory interest in that property;
      (3) That[Argo] or an accomplice intended to commit theft of the
      property;
      (4) That the taking was against the person's will by [Argo's] or
      an accomplice's use or threatened use of immediate force, violence
      or fear of injury to that person or to that person's property or to the
      person or property of another;
      (5) That force or fear was used by[Argo] or and [sic] accomplice
      to obtain or retain possession of the property or to prevent or
      overcome resistance to the taking;
      (6) (a) That in the commission of these acts or In immediate
      flight therefrom(Argo)or an accomplice was armed with a
      deadly weapon or(b) That in the commission of these acts or
      In immediate flight therefrom(Argo]or an accomplice
       displayed what appeared to be a firearm or other deadly
       weapon or(c) That the commission of these acts or in
      Immediate flight therefrom(Argo]or an accomplice inflicted
       bodily injury; and

      9 Clerk's Papers at 21 (emphasis added).

      10 Id.
No. 75735-14/6

      (7) That any of these acts occurred in the State of
      Washington.1111

      The jury was further instructed that it "need not be unanimous as to which

alternatives 6(a),6(b) or 6(c), has been proved beyond a reasonable doubt, as

long as each juror finds that at least one alternative has been proved beyond a

reasonable doubt."12

      As to first degree burglary, the amended information alleged that Argo:

      together with another,... on or about December 4, 2011, did enter
      and remain unlawfully in a building located at 2200 NE 88th Street,.
      .. with intent to commit a crime against a person or property
      therein, and in entering, and while in such building and in
      immediate flight therefrom,[Argo] and another participant in the
      crime was armed with a deadly weapon and did assault a person,
      to-wit: Kathryn Susan Wetzler1131

      The amended information also alleged that Argo and Donnelly were

armed with a deadly weapon during the commission of the crime."

      The trial court instructed the jury that to convict Argo of first degree

burglary, it had to find beyond a reasonable doubt that:

      (1) [Oln or about December 4, 2011,[Argo] or an accomplice
      unlawfully entered a building;
      (2) That the entering was with intent to commit a crime against a
      person or property therein;
      (3) That in so entering or while in the building or in immediate
      flight from the building [Argo] or an accomplice in the crime charged
      was armed with a deadly weapon or assaulted a person; and



       11 Id. at 146-47(emphasis added); see WPIC 37.02.
       12 Clerk's Papers at 147.

       13 Id. at 22(emphasis added).

       14 Id.

                                             6
No. 75735-1-1/7

      (4) That any of these acts occurred in the State of
      Washington.1151

       Argo claims that because the amended information identified Wetzler as

the victim of the first degree robbery and burglary crimes, the jury had to

unanimously find that Wetzler, not Mills, was the victim of those crimes. He

argues that, because the jury instructions failed to specifically identify Wetzler as

the victim, he could have been convicted of crimes not charged—robbery and

burglary with Mills as the victim. And he argues that his constitutional right to a

unanimous jury was violated because the jury did not have to be unanimous as

to whether Wetzler or Mills was the victim of the robbery and burglary.

         We assume, without deciding, that these variances between the charging

document and the instructions rise to the level of constitutional claims.

Nevertheless, we conclude the variances are harmless beyond a reasonable

doubt.

         State v. Nicholas is instructive." There, Duane Nicholas was charged

with four counts of first degree robbery while armed with a deadly weapon." On

count one, the jury was instructed that it could convict Nicholas if it found that he

was either armed with a deadly weapon or displayed what appeared to be a

firearm or deadly weapon.18 Nicholas claimed that his first degree robbery



         15 Id. at 156(emphasis added); see WPIC 60.02.

         16 55 Wn. App. 261,776 P.2d   1385(1989).

         17 Id. at 262-63(emphasis added).

         la   Id. at 272(emphasis added).

                                              7
No. 75735-1-1/8

conviction had to be reversed because the jury was instructed on an alternative

means that was never charged—that he committed the crime while displaying

what appeared to be a firearm or deadly weapon."

       This court recognized that the instruction "erroneously submitted to the

jury the uncharged alternative means of committing first degree robbery."20 It

then held that even assuming the error was of "constitutional magnitude it was

harmless beyond a reasonable doubt."21

       The error was harmless beyond a reasonable doubt because the jury had

found by special verdict "that Nicholas was'armed with a deadly weapon at the

time of the commission of the crime.'"22 Because "[t]he jury was instructed that

the State had to prove this fact beyond a reasonable doubt,... there[was] no

possibility that Nicholas was impermissibly convicted on [the uncharged

alternative]."23

       As to count four, Nicholas argued that his constitutional right to a

unanimous jury verdict was violated because the information charged him with

robbing two named clerks but the jury was instructed that it could convict

Nicholas if he took the property "from the person or in the presence 'of




       19 id.


       20 Id. at 273.
       21   Id.
       22 Id.


       23 Id.


                                             8
No. 75735-1-1/9

another.'"24 He argued that some jurors may have found that he robbed one

clerk while others found that he robbed the other.25

      This court again held that"even assuming that this issue is truly of

constitutional magnitude, the error, if any, was harmless beyond a reasonable

doubt."28 Both clerks Identified Nicholas as the robber, their accounts were

virtually identical, whether both clerks were robbed was not in dispute, and "the

sole issue was the identity of the robber:22 Thus, the jury could not have had a

reasonable doubt about the victims of the robbery.28

       First degree robbery is an alternative means crime because it may be

committed by a defendant who is armed with or displays a deadly weapon or a

defendant who inflicts bodily harm.29 In the amended information, the State

alleged that Argo committed first degree robbery while armed with a deadly

weapon. The court's instructions to the jury mirrored this allegation of the State.

In the special verdict, the jury unanimously found that Argo committed the crime

while using a deadly weapon. Thus, it is clear that the jury unanimously

convicted him based on this means whether or not it found that Argo also inflicted



       24 id.


       25 Id. at 273-74.

       26 Id. at 274.

       27 Id.

       28 Id.

       29 RCW 9A.56.200; see    In re Pers. Restraint of Brockie, 178 Wn.2d 532,
535, 309 P.3d 498(2013).

                                             9
No. 75735-1-1/10

bodily harm. Therefore, the failure to identify a victim in the jury instructions was

harmless beyond a reasonable doubt.

       First degree burglary is also an alternative means crime because it can be

based on a defendant's actions of assaulting a person while committing burglary

or being armed with a deadly weapon while committing the burglary." In the

amended information Argo was charged with committing the burglary while being

armed with a deadly weapon. The court's instructions to the jury mirrored this

allegation. The jury then found by special verdict that Argo or an accomplice was

armed with a deadly weapon when Argo committed the crime of burglary.

Because the jury unanimously found that Argo committed the burglary while

armed with a deadly weapon, whether or not it also found that Argo assaulted

anyone, the failure of the jury instructions to identify a victim of the burglary was

harmless beyond a reasonable doubt.

       Finally, the amended information charged Argo with committing two

counts of assault during the robbery, one against Wetzler and one against Mills.

The jury unanimously found that Argo committed both crimes. So, as in

Nicholas, the jury could not have a reasonable doubt that both Wetzler and Mills

were victims of the robbery.3I




       30 SeeRCW 9A.52.020(1); State v. Williams, 136 Wn.App. 486,498, 150
P.3d 111 (2007).
       31   See 55 Wn. App. at 274.

                                              10
No. 75735-1-1/11

       We also affirm because Wetzler's identity as a victim of the robbery and

burglary was superfluous information in the charging document that did not need

to be repeated in the jury instructions.

      "An information must state all the essential statutory and nonstatutory

elements of the crimes charged."32 But any surplus language in the information

may be disregarded.33 The surplus language is not an element of the crime so it

need not be proved unless it is repeated In the jury instructions or the defendant

is somehow prejudiced by the inclusion of that language?4

       [The unit of prosecution for robbery Is each separate forcible taking of

property from or from the presence of a person having an ownership,

representative, or possessory interest in the property, against that person's

will."36 There may only be one single count for each taking even if a number of

people are put in fear.36 Thus,"[p]roof of robbery does not require the specific

Identity of the victim or victims" and the victim's name is not an element of the




       32 State v. Tvedt, 153 Wn.2d   705,718, 107 P.3d 728(2005)(internal
citations omitted).
       33 Id.

       34 Id.
        35 Id. at 714-15.

        36 State   v. Kier, 164 Wn.2d 798, 812, 194 P.3d 212(2008).

                                             11
No. 75735-1-1/12

crime." Likewise, the unit of prosecution for burglary is each illegal entry

regardless of the number of people inside."

       State v. Tvedt is instructive." Ronald Tvedt was charged with 12 counts

of first degree robbery, and two of those counts were based on taking cash from

two different locations.40 The information alleged that Tvedt took the cash from

or from the presence of two named persons at each location.41 However,

Identifying one person at each location was sufficient to state the elements of the

offenses charged.42 The names of the additional people could be disregarded as

surplusage.43 Here, even if the amended information had specifically identified

both Wetzler and Mills, that information would have been surplusage.

       Argo claims that State v. Kier44 supports his argument that the

discrepancies between the amended information and the jury instructions

violated his right to a unanimous verdict. This Is incorrect.

       In Kier, Herbert John Kier was convicted of first-degree robbery for

carjacking a vehicle from the driver Qualagine Hudson, and his passenger,



      "Id.; see State v. Lew, 156 Wn.2d 709, 722, 132 P.3d 1076 (2006).
       38 State   v. Brooks, 113 Wn. App. 397, 399-400,53 P.3d 1048(2002).
       33 153 Wn.2d    705, 107 P.3d 728(2005).
       40 Id. at 708-09, 718-19.

       41   Id. at 718-19.
       42 Id. at 719

       43 id.


       44 164 Wn.2d    798, 194 P.3d 212(2008).

                                             12
No. 75735-1-1/13

Carlos Ellison.° He was also convicted of second degree assault for pointing a

gun at Ellison.° He was not charged with assaulting Hudson. The criminal

information named both Hudson and Ellison as victims of the robbery, and the to

convict instruction required the jury to find that Kier took personal property from

"the person or in the presence of another!"41

       The supreme court noted that, because the prosecution unit for robbery Is

a single taking regardless of how many victims are placed in fear of harm,

"whether the robbery victim was Hudson or Ellison, or both, was not essential to

Kier's conviction?" But, because the jury heard evidence describing both

Hudson and Ellison as victims of the robbery and the instruction did not specify a

victim, the basis for Kier's conviction was ambiguous.° If the jury based its first

degree robbery conviction on a finding that Kier assaulted Ellison, the second

degree assault conviction would merge into the robbery conviction.50 If the jury

based the robbery conviction on a finding that Kier assaulted Hudson, the second

degree assault conviction with Ellison as the victim could be upheld.51 Because




       45 Id. at 802-03.


       46   Id.
       47 Id. at 803, 808.
       45 Id. at 812.


       49 Id. at 812-13.

       50 Id. at 813-14.
       51   id.

                                             13
No. 75735-1-1/14

the basis for conviction was not clear, Kier's conviction for second degree assault

had to be reversed.52

       As in Kier, we may affirm Argo's first degree robbery conviction because

for purposes of that conviction, it Is not relevant whether Wetler or Mills was the

victim of that crime.53 And, consistent with Kier, the trial court here merged

Argo's conviction for second degree assault into the first degree robbery

conviction.

       Argo also argues that State v. Brown" and State v. Jain,55 support his

claim that the jury could have wrongfully convicted him of uncharged crimes, but

neither case Is persuasive. In Brown, Stanley Christiansen challenged his

conviction for criminal conspiracy to commit first degree theft." The information

named 12 co-defendants who were involved in the conspiracy, but the jury was

instructed that it only had to find that Christiansen conspired with "one or more

persons."52 Because several uncharged witnesses had testified to their

Involvement in the conspiracy, this court reversed Christiansen's convictions."

This court reversed because conspiracy requires an agreement, and



       52 Id

       53 See Id. at 812.

       54 45 Wn. App. 571,726 P.2d 60(1986).

       55 151   Wn. App. 117,210 P.3d 1061 (2009).
       56 45 Wn. App. at 572.


       51 1jat 572-73, 576.

       5° Id   at 576-77.

                                             14
No. 75735-1-1/15

Christiansen could have been convicted based on an agreement with persons

who were not identified in either the charging documents or the instructions.59

       Unlike Brown Argo could not have been convicted of offenses against

victims that were never identified in either the amended information or

Instructions. State v. Garcia is instructive." There, the amended information

charged Roberto Garcia with delivering a controlled substance to Officer C.W.

Trebesh while the evidence at trial indicated that Garcia had delivered it to a "Mr.

Rutherford."61 The jury instructions required the jury to only find that Garcia

"delivered a controlled substance:132

       Garcia argued that his due process rights were violated because he was

convicted of a crime not charged in the information." This court disagreed." It

determined that the error was merely technical in part because Garcia had full

notice of the charges against him." This court distinguished Brown in part

because Garcia did not rely on the incorrect information that stated that he had

made the delivery to Officer Trebesh." Also, Garcia was charged with only one



       59 Id. at 576.

       6065 Wn. App. 681, 829 P.2d 241 (1992).

       Gi lt at 684-85.

       62 Id. at 685.

       63 Id. at 685-86.

       64   Id. at 686.
       65 Id.

       66 Id. at 688.


                                             15
No. 75735-1-1/16

delivery while Christiansen was charged with entering into agreements with a

number of persons." It was beyond a reasonable doubt that the jury convicted

Garcia for his delivery to Rutherford because there was no conflicting evidence

regarding a delivery to any other party.88

       Likewise here, Argo was charged with, and convicted of, one robbery and

one burglary. And he was fully aware that the robbery and burglary charges

arose out of actions involving both Wetzler and Mills. Both women were

identified as victims of assault in the charging document and the jury

unanimously found Argo guilty of assaulting both women during the robbery.

Moreover, Argo took Wetzler's property while it was in Mills' possession,69 and

his defense was that he did not participate in the crimes, and he was not even

present in the mobile home. Therefore, any error in failing to name the victims in

the jury instructions in no way prejudiced his defense."

       Jain is similarly distinguishable. A drug task force had investigated Yatin

Jain for spending significantly more than could be traced to his legitimate income

including his purchase of various properties.71 He was charged with money




       67 Id. at 687-88.

       66 Id. at 688.

       69 See Tvedt, 153 Wn.2d   at 718-19; State v. Rune, 101 Wn.2d 664,693,
683 P.2d 571 (1984).
       79 See   Garcia 65 Wn.App. at 688.
       71   Jain 151 Wn.App. at 120-21.

                                             16
No. 75735-1-1/17

laundering based on his purchase of two pieces of unimproved property.72 At

trial, the State introduced evidence of five other properties that he had purchased

that were not identified in the information." The jury was instructed that it could

convict Jain on each money laundering count upon finding that Jain "conducted a

financial transaction" Involving "proceeds of specified unlawful activity."74 This

court reversed Jain's convictions for two counts of money laundering because

Jain could have been convicted based upon transactions involving properties that

were never named in the information."

       Unlike Jain Argo was charged with, and the jury unanimously decided that

Argo committed, only one act of first degree robbery and one act of first degree

burglary.

                  UNANIMITY DURING JURY DELIBERATIONS

       Argo argues for the first time on appeal that the trial court erred in failing to

Instruct the jury that it could only deliberate when all twelve jurors were present.

Because this claimed error is not manifest under RAP 2.5(a), we decline to

consider it.

       Article 1, section 21 of the Washington constitution guarantees criminal

defendants the right to a unanimous jury verdict." An essential part of that right


       77 Id. at 121.

       73 Id. at 123.

       74   Id.
       73 Id. at 124.

        78 Woodlvn, 188 Wn.2d at 162-63.

                                              17
No. 75735-1-1/18

is that the jury deliberations leading to a unanimous verdict be "the common

experience of all [jurors]?"

       This court reviews de novo whether Argo was denied his constitutional

right to a unanimous jury.78

       Under RAP 2.5(a)(3), a party may raise, for the first time on appeal, a

manifest error affecting a constitutional right. In order to claim a manifest error

affecting a constitutional right, the party "must Identify the constitutional error and

show that it actually affected his or her rights at trial." This requires the party to

"make a plausible showing that the error resulted in actual prejudice, which

means that the claimed error had practical and identifiable consequences in the

trial."80 "If the facts necessary to adjudicate the claimed error are not in the

record on appeal, no actual prejudice is shown and the error is not manifest."'

       After the jury was seated, the trial court instructed it that "Ninth you are in

the jury room for those deliberations, you must not discuss the case with the

other jurors or with anyone else or remain within hearing of anyone discussing




     "State v. Lamar, 180 Wn.2d 576, 585, 327 P.3d 46(2014)(quoting
People v. Collins 17 Ca1.3d 687,693, 552 P.2d 742, 131 Cal. Rptr. 782(1976)).
       78 State   v. Armstrong, 188 Wn.2d 333, 339, 394 P.3d 373(2017).
       78 Lamar, 180 Wn.2d     at 583.
       8° Id

       81 State v. McFarland, 127 Wn.2d 322, 333,899 P.2d 1251 (1995).

                                              18
No. 75735-1-1/19

it."82 Then, before the parties' closing arguments, the trial court instructed the

jury that:

              As jurors, you have a duty to discuss the case with one
       another and to deliberate in an effort to reach a unanimous verdict
       Each of you must decide the case for yourself, but only after you
       consider the evidence impartially with your fellow jurors. During
       your deliberations, you should not hesitate to reexamine your own
       views and to change your opinion based upon further review of the
       evidence and these instructions. You should not, however,
       surrender your honest belief about the value or significance of
       evidence solely because of the opinions of your fellow jurors. Nor
       should you change your mind just for the purpose of reaching a
       verdict1831

       The jury was also instructed on how to initiate and carry out the

deliberative process and that each juror had a right to be heard.

       Argo argues that these instructions were insufficient to guarantee

unanimity. He contends that the trial court should have Informed the jury at each

recess not to discuss the case between themselves or with any other persons.

He further argues that the trial court should have instructed the jury after closing

arguments of its constitutional duty to deliberate only when all 12 jurors were

present. He argues that in the absence of such instruction, "there is no valid

basis to assume the verdicts rendered were the result of'the common

experience of all of[the jurors],' which our State constitution requires."84




       82 Report of Proceedings(May 17, 2016)at 181.

       83 Clerk's Papers at 133.

      "Appellant's Opening Brief at 32(quoting Lamar, 180 Wn.2d at 585).

                                             19
No. 75735-14120

       This court recently rejected this argument in State v. Sullivan.88 This court

observed that RAP 2.5(a) precluded Kevin Sullivan "from raising this issue for the

first time on appeal unless he c[ould]show that failure to provide the additional

instruction [was]a 'manifest error affecting a constitutional right.'"86 This court

further observed that "[f]or an error to be manifest, there must be evidence of

'actual prejudice' having 'practical and identifiable consequences [at] trial.'"87

       The court then considered Sullivan's argument and determined that he

had offered "no evidence that the jury failed to deliberate as a whole."88 Instead,

he relied "entirely on speculation:88 The court held that such speculation was

"'insufficient to warrant review under RAP 2.5(a)(3)78°

       Here, although Argo argues that m[i]t is safe to assume one or more jurors

left the jury room [at some point] during deliberations,[at least] to use a

bathroom,"91 there is nothing in this record to support this assumption. Because

"the facts necessary to adjudicate the claimed error are not in the record on




       65   No. 76358-0-1 (Wash. Ct. App. April 30, 2018).
       88 Id. at 2-3(quoting   RAP 2.5(a)(3)); see Lamar, 180 Wn.2d at 583.
      67 Sullivan, slip. op. at 3(quoting State v. O'Hara, 167 Wn.2d 91, 98-99,
217 P.3d 756(2009)).
       °8 1d. at 4.

       68 Id.

       88 Id.(quoting   State v. St. Peter, 1 Wn. App.2d 961,963,408 P.3d 361
(2018)).
       61   Appellants Opening Brief at 35.

                                              20
No. 75735-1-1/21

appeal, no actual prejudice is shown and the error is not 'manifest.'"92 As in

Sullivan "without evidence to demonstrate that the jury did not deliberate as a

whole, the asserted error is not manifest.“93

       Therefore, we decline to address Argo's argument for the first time on

appeal under RAP 2.5(a)(3).

       Argo further argues that even if he cannot show prejudice, reversal is still

warranted because "[t]he failure to instruct a jury in a criminal trial how to achieve

constitutional unanimity constitutes structural error for which reversal is required

without the need to show actual prejudice."°4 The problem with this argument Is

that it assumes we reach the merits of this claim. Because we do not reach the

merits, we need not address this structural error claim.

                                   SENTENCING

       Argo argues that the trial court abused its discretion by failing to recognize

or consider the possibility of merging his robbery and burglary convictions as the

same criminal conduct for purposes of his offender score at sentencing. The

court did not abuse its discretion.

       Under the general rule set forth in RCW 9.94A.589(1)(a),"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



       92 Sullivan, slip. op. at 3(quoting   McFarland, 127 Wn.2d at 333).
       93 Id. at 5.

      94 Appellant's Opening Brief at 36-39; see State v. Wise, 176 Wn.2d 1, 13-
14, 288 P.3d 1113(2012).

                                               21
No. 75735-1-1/22

convictions as if they were prior convictions for the purpose of the offender

score." But, "if the court enters a finding that some or all of the current offenses

encompass the same criminal conduct then those offenses shall be counted as

one crime."95

       If one of the current offenses is burglary, the burglary antimerger statute

applies which provides that "[e]very person who, in the commission of a burglary

shall commit any other crime, may be punished therefor as well as for the

burglary, and may be prosecuted for each crime separately."98 Under the

antimerger statute, a sentencing court has the discretion to count both a

conviction for burglary and a conviction for another crime committed during a

burglary toward the defendant's offender score even if those crimes encompass

the same criminal conduct.°

       This court reviews for abuse of discretion the trial court's determination of

same criminal conduct and its calculation of the offender score.98

       A trial court abuses its discretion if it "categorically refus[es]" to exercise its

discretion or fails to recognize that it has discretion.99 Abuse of discretion means

that no reasonable judge would have ruled the way the trial court did)"


       95 ROW 9.94A.5119(1)(a).

       96 ROW 9A.52.050.

       97 See State   v. Lesslev, 118 Wn.td 773, 781-82, 827 P.2d 996(1992).
       98 See Id. at 780-81.

       99 State   v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183(2005).
       10 State v. Arredondo, 188 Wn.2d 244, 256, 394 P.3d 348(2017)

                                               22
No. 75735-1-1/23

       During the first sentencing hearing on June 29, 2016, the parties and trial

court mostly discussed Argo's request to merge the first degree assault and

robbery convictions. The State argued that only the second degree assault

conviction should merge with the robbery, and the trial court asked for additional

briefing on this issue.

       The parties also addressed whether the trial court should exercise its

discretion and merge the first degree robbery and burglary convictions as the

same criminal conduct. The State urged the trial court to apply the antimerger

statute and not merge the convictions because of the multiple acts of violence

Inside of the mobile home. The State recited the antimerger statute, and argued

at length why the robbery and burglary were two discrete offenses and should be

scored as two.

       The trial court wondered how the two crimes could be considered as

separate courses of conduct. It then asked the State what Argo's offender score

would be if the robbery and burglary convictions were merged as the same

criminal conduct. The State responded that the score would drop from six to

four, but there would still be a weapon enhancement on each charge. It informed

the trial court that it would seek the same prison term given the severity of the

crimes. Specifically, if the offender score was four instead of six, the range for

first degree assault would drop from 129 to 171 months instead of 162 to 216

months. The sentence for burglary would not change because it would be

served concurrently with the first degree assault except for the 24 month firearm

enhancement which would stay the same. The trial court then noted that the


                                            23
No. 75735-1-1/24

State was recommending 162 months, the lower end if Argo's offender score was

six and the upper end if it was four.

       Defense counsel then urged the court to exercise its discretion, merge the

charges, and not apply RCW 9A.52.050. He reminded the court that Donnelly,

not Argo, had injured the victims.

       The trial court noted that even if the burglary and robbery counts merged,

the effect on the sentence would be minimal because of the deadly weapon

enhancements. It indicated it would take everything "under advisement" and set

over sentencing.

       At the second sentencing hearing on August 29, 2016, defense counsel

agreed with the State that only the second degree assault conviction could

merge with robbery.101 The State then advised the trial court that Argo had an

offender score of six for the three remaining convictions—first degree robbery,

first degree burglary, and first degree assault.

       The State recommended that the trial court impose the low end of the

standard range for each offense totaling 234 months of incarceration. Defense

counsel replied that, in light of this low end recommendation, he would

recommend that as well. He also reminded the trial court that Argo did not

personally harm anyone and had had no history of violence.

       The trial court recognized Argo's limited role, but also observed that this is

"the risk you take when you hook up with people like (Donnelly]," he didn't need

to stab the "two elderly ladies" and "you were there and were playing a part in


       101 See State v. Freeman, 153 Wn.2d 765, 778, 108 P.3d 753(2005).

                                             24
No. 75735-1-1/25

that, no matter how small of a role."102 It considered the letters written on Argo's

behalf, and the defense's presentence and amended presentence reports. It

then concluded that it "was pleased that the State was asking for the low end

because that had been my thoughts before this... hearing ... and I think that's

entirely appropriate to impose for each count the low end of each one."103

       The trial court vacated the second-degree assault conviction and, based

on an offender score of six, imposed the low-end standard sentence range for

each remaining count and 72 months in deadly weapon enhancements for a total

sentence of 234 months.

       Argo argues that because the issue of whether the trial court should

exercise its discretion to merge the burglary and robbery convictions was never

discussed during the second sentencing hearing, the trial court forgot about that

possibility. He argues that, had the court remembered, there was a "reasonable

probability" it would have exercised its discretion and merged those crimes for

purposes of sentencing. This record does not support this argument.

       The record shows that the trial court exercised Its discretion in considering

whether to merge the robbery and burglary convictions for purposes of Argo's

offender score. At the first sentencing hearing, it considered the impact of

applying the antimerger statute and the State's position that its recommendation

as to sentencing would be the same either way. At both sentencing hearings, the

trial court considered Argo's involvement in the crimes, and the appropriate


       102   Report of Proceedings (August 29, 2016) at 1677.
       103 Id. at 1678.


                                             25
No. 75735-1-1/26

sentence given that involvement. It provided reasons for agreeing with the State

not to merge the robbery and burglary convictions but to impose a sentence at

the bottom of the higher range.

       Argo relies on In the Matter of the Personal Restraint of Mulholland as

support for his contention that the trial court failed to recognize and act on its

discretion to disregard RCW 9A.52.050 and merge the robbery and burglary

convictions)" His reliance is misplaced.

       There, Daniel Mulholland was convicted of six counts of first degree

assault.105 The trial court ordered that all of Mulholland's first degree assault

sentences be served consecutively and expressly concluded that it lacked

discretion to impose concurrent sentences.1°5 The supreme court granted

Mulholland's personal restraint petition and remanded for resentencing because

the trial court failed to recognize that it had the discretion to impose concurrent

sentences.107

       Here, there is no such error because the trial court sentenced Argo after

being advised that it had the discretion to decide whether to count the robbery

and burglary convictions as one crime for purposes of the offender score. The

record also shows the court took into consideration whether to merge the two

and decided not to do so.


       104 161 Wn.2d 322, 166 P.3d 677(2007).
       1°5 Id. at 324.
       106 Id. at 324, 326.

       107 Id. at 334-35.

                                              26
No. 75735-1-1/27

                   INEFFECTIVE ASSISTANCE OF COUNSEL

      Argo argues that his trial counsel was ineffective for failing to re-raise the

issue of merging his robbery and burglary convictions at the second sentencing

hearing. This claim is without merit.

      To prevail on an ineffective assistance of counsel claim, the defendant

must show both deficient performance and resulting prejudice.'" Performance is

deficient if it falls "below an objective standard of reasonableness71°8 Deficient

performance is not shown by matters that go to trial strategy or tactics, and this

court presumes counsel's performance was reasonable."°

       To establish prejudice, the defendant must show "there is a reasonable

probability that, but for counsel's error, the result would have been different."111

       This court reviews de novo whether a defendant received ineffective

assistance of counse1.112

       Argo acknowledges that the trial court was on notice after the first hearing

that he wanted it to exercise its discretion to merge the burglary and robbery

convictions. But he argues that his trial counsel was ineffective in failing to re-

argue for merger at the time of the second hearing. He argues there was "no


       108 State v. Townsend, 142 Wn.2d 838,843, 15 P.3d 145(2001).
       102 Statev. Grier 171 Wn.2d 17, 33, 246 P.3d 1260(2011)(quoting
Strickland V. Washington,466 U.S. 668,688, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
       110 Id. at 33-34.

       111 Townsend, 142 Wn.2d at 844.
       112 See   State v. Cross, 156 Wn.2d 580,605, 132 P.3d 80(2006).

                                             27
No. 75735-1-1/28

reasonable strategic basis for defense counsel not to argue in favor of merger at

the second hearing. He is wrong.

      During the first sentencing hearing, the issue of whether to merge the

robbery and burglary convictions was fully addressed by both parties. And the

State told the trial court that it would seek the same sentence whether or not the

robbery and burglary counts merged. Argo's counsel could have made the

strategic decision not to continue to seek merger given the State's

recommendation. Thus, Argo has failed to establish that the failure to repeat

arguments previously made at the first hearing "fell below an objective standard

of reasonableness under professional norms."113

       Argo further argues that counsel's deficient performance prejudiced him.

He claims that had counsel raised the issue of merger at the second hearing, the

court would have exercised its discretion to disregard RCW 9A.52.050 and

merge the burglary and robbery convictions. Because Argo failed to show that

his counsel was deficient, we need not need address his arguments regarding

prejudice.

       We affirm the judgment and sentence.
                                                          eSiI



WE CONCUR:




       113 Townsend, 142 Wn.2d    at 843-44.

                                            28
