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                                                                                       17 PT OF APPEALS
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                                                                                    20 13 SEP 17     AM 8= 0
                                                                                                          4


    IN THE COURT OF APPEALS OF THE STATE OF W

                                        DIVISION II

STATE OF WASHINGTON,                                              No.429?


                              Appellant,

       v




RONNIE JOHN MULLALLY,                                      UNPUBLISHED OPINION




       JOHANSON A. .
                J. Ronnie John Mullally appeals his jury trial convictions for second
                 C   —


degree robbery and third degree assault and various aspects of his sentence. He argues that (1)

the trial court erred in refusing to instruct the jury on the lesser included offense of attempted

second degree robbery, 2) of the jury instructions was a judicial comment on the evidence,
                       ( one

and (3) legal financial obligations (LFOs)are improper on several grounds. In his statement
       his

of additional grounds' SAG), contends that (1) 63 month sentence for third degree assault
                       (   he                the -
exceeds the five year statutory maximum for the offense, 2) convictions for both robbery
                 -                                       ( his

and assault violate double jeopardy, 3) received ineffective assistance of counsel on several
                                     ( he

grounds, and (4) robbery conviction is not supported by sufficient evidence. We affirm the
                the

convictions, but remand for resentencing.




1 RAP 10. 0.
        1
No. 42939 0 II
          - -



                                                              FACTS


                                                    I. BACKGROUND


         On April 5, 2011, Target Store loss prevention investigator Seth Aaron Kelton observed

Ronnie John     Mullally       select several items ,     place them in his hand basket, and then walk toward
the front doors.      Suspecting that Mullally was going "to do a grab and run,"
                                                                               Kelton followed

Mullally and positioned himself outside the store. 1 Verbatim Report of Proceedings (VRP)at



         When Mullally exited the store without paying for the items in his basket, Kelton

approached      him and identified himself               as    Target security.   Mullally did not respond and

attempted to walk past Kelton. Kelton again identified himself as security and told Mullally to

get against the wall."1 VRP at 138, 141. Kelton briefly pushed Mullally, trying to get him up

against the wall, but Mullally " ush[ d]off the wall,"
                               p e                   forced himself past Kelton, and continued

to try to walk past Kelton. 1 VRP at 101, 103. Kelton attempted to knock the hand basket out of

Mullally's hands; Kelton succeeded                 on   the third    try. After dropping the basket, Mullally hit

Kelton in the right shoulder. Mullally then drew back his arm as if he was going to try to hit

Kelton again, and Kelton backed away. Mullally ran 30 or 40 feet into the parking lot where he

was    picked   up   by   a   waiting   car; the   car   sped   away.    The State charged Mullally with second

degree robbery and third degree assault.




2
    Kelton later testified that these items were valued at approximately $ 40.
                                                                         5




                                                                 2
No. 42939 0 II
          - -



                                          II. PROCEDURE


                                              A. Trial


       At trial, Kelton testified as described above. The State also showed the jury a security
video of the entire incident.


       The State proposed a lesser included offense instruction on attempted second degree

robbery. After discussing the instruction at length, the trial court found that it was not factually

supported. After the trial court made its decision, defense counsel responded, " agree with
                                                                               I

you." VRP at 237.
    2

       The trial court gave the jury the following instruction,jury instruction 13:

               A merchant, or employee of a merchant, has a lawful right to apprehend or
       detain a person they have probable cause to believe has committed theft.

Clerk's Papers (CP)at 32. Mullally objected to this instruction, arguing that the instruction was

not appropriate because the trial court had not allowed Mullally's self defense instruction.
                                                                        -

Mullally did not argue that the instruction was an incorrect statement of the law or that it was a

judicial comment on the evidence. The jury convicted Mullally of second degree robbery and

third degree assault.

                                          B. Sentencing

       The trial court sentenced   Mullally   to 63 months   on   each count.   In the judgment and




3 The State's only other witness was the driver of the car that picked up Mullally and drove
away. This witness testified that he had driven Mullally to the store to run " rrands."1 VRP at
                                                                             e
164. Mullally did not present any witnesses.




                                                 3
No. 42939-
    11-  0



sentence, the trial court also imposed $ 150 in LFOs. These fees included: 1)a $
                                       4,                                  (   500 victim

assessment fee; 2)450 in court costs (a $00 filing fee and a $
                (  $                    2                    250 jury demand fee), ( a
                                                                                 3)

1, court appointed attorney fee, 4) $ 200 "[ rial per diem," ( 400 for court appointed
 000                             ( a 1, t]                 5) $

defense expert and other defense costs, 6)a $
                                        (   500 fine under RCW 9A. 0.and (7) $
                                                               021,
                                                                 2          a 100

DNA collection fee. CP at 43 44.
                             -


         At the sentencing hearing, the only mention of LFOs occurred when a "Ms. Clark "

advised the trial court, There's a trial per diem here indicating $ 200. I get paid a dayand a-
                         "                                        1,                     -   -

half for what happened in this case."2 VRP at 316 17. The trial court did not orally address any
                                                  -

other LFO or Mullally's ability to pay on the record, and Mullally did not object to any LFOs.

Additionally, on the judgment and sentence, the trial court did not check the box indicating that it

had considered Mullally's ability or likely future ability to pay his LFOs. Mullally appeals his

convictions and his sentence.


                                            ANALYSIS


                         1. ATTEMPTED SECOND DEGREE ROBBERY INSTRUCTION


         Mullally first argues that the trial court erred when it refused to instruct the jury on the

lesser included offense of attempted second degree robbery. This argument fails.

         The record shows that the State originally proposed a lesser included offense instruction

on    attempted   second   degree robbery. The trial court refused to give this instruction, and




4
    The record does not identify who Ms. Clark is or what a " rial per diem"is. Nor do the parties
                                                            t
clarify this   in their briefs.
No. 42939 0 II
          - -



Mullally's counsel expressly agreed that the trial court's decision was correct. Thus, under the

invited error doctrine, Mullally has waived this issue and we do not consider it further. State v.

Wakefield, 130 Wn. d 464, 475, 925 P. d 183 ( 1996) the invited error doctrine prohibits
                 2                  2               (

setting    up   an error   at   trial and then   complaining     of it   on   appeal "') (quoting State v. Pam, 101

Wn. d 507, 511, 680 P. d 762 (1984),
  2                  2             overruled on other grounds by State v. Olson, 126 Wn. d
                                                                                       2

315, 321, 893 P. d 629 (1995)); re Dependency of K. ., Wn. d 129, 147, 904 P. d 1132
               2             In                   R 128  2                  2

1995)courts " ill deem an error waived if the party asserting such error materially contributed
      (     w

thereto. ")


                                  II. NO JUDICIAL COMMENT ON THE EVIDENCE


        Mullally next argues that jury instruction 13 was a judicial comment on the evidence.
Mullally did not object to jury instruction 13 on this ground at trial. Accordingly, we must first

determine whether this is a manifest constitutional error that he can raise for the first time on

appeal.    RAP     a)( State
                   2. (
                    3);
                    5                   v.   Kirkman, 159 Wn. d 918, 926, 155 P. d 125 ( 2007). We
                                                            2                  3


conclude that it is not and that Mullally has failed to preserve this issue for appellate review.

          A judicial comment on the evidence has constitutional implications, so our first inquiry is

whether the trial court in fact commented           on   the evidence. See WASH. CONST. art. IV, §16. We


hold that it did not. Trial judges are prohibited from commenting upon the evidence presented at




5
  Mullally also argues that this instruction was irrelevant. But a person commits third degree
assault if he assaults another with intent to prevent or resist lawful apprehension or detention,
thus   this     instruction     was   clearly    relevant   to   the     third   degree   assault   charge.   RCW
03 I ( )(
9A. 6. 1a).
  3




                                                            R
No. 42939 0 II
          - -



trial. WASH. CONST. art. IV, § State
                              16;              v. Deal, 128 Wn. d 693, 703, 911 P. d 996 (1996).An
                                                              2                  2               "

impermissible comment is one [that] conveys to the jury a judge's personal attitudes toward the

merits of the case or allows the jury to infer from what the judge said or did not say that the

judge personally believed the testimony in question." State v. Swan, 114 Wn. d 613, 657, 790
                                                                           2

P. d 610 (1990),
 2             cent. denied, 498 U. . 1046 (1991).A jury instruction that does no more than
                                  S

accurately state the law pertaining to an issue does not constitute an impermissible comment on

the evidence by the trial judge. State v. Woods, 143 Wn. d 561, 591, 23 P. d 1046, cent. denied,
                                                       2                 3

534 U. . 964 ( 001)..
     S       2

       Jury instruction 13 stated:

               A merchant, or employee of a merchant, has a lawful right to apprehend or
       detain a person they have probable cause to believe has committed theft.

CP at 32. This instruction is a correct statement of the law. State v. Miller, 103 Wn. d 792, 698
                                                                                     2

P. d 554 (1985) store personnel may detain a suspected shoplifter if they have reasonable
 2              (

grounds   to believe the person is   committing   or   attempting   to   commit theft   or   shoplifting).

       Mullally also argues that this instruction "removed a disputed issue from the jury's

consideration   by   in .essence   informing    the   jury   that Kelton's actions      were   lawful." Br. of


Appellant   at 15.   But the instruction merely established that Kelton had the legal authority to

detain Mullally if he (Kelton) had probable cause to believe Mullally had committed theft;

whether the State had proven probable cause was left to the jury.




6
  Mullally does not argue that the instruction's use of the probable cause standard rather than the
reasonable grounds standard established in Miller was error.




                                                        N
No. 42939 0 II
          - -



        Because the instruction was a correct statement of the law and the instruction did not


convey the trial court's personal attitudes towards this case, Mullally fails to show that the

instruction was an impermissible comment. Having failed to show any error, Mullally also fails

to establish a manifest constitutional error, and he cannot raise this issue for the first time on

appeal.

                                 III. LEGAL FINANCIAL OBLIGATIONS


          Mullally next argues that (1) trial court failed to make any findings about his current
                                       the

or future ability to pay LFOs and there is no evidence that the trial court considered his ability to

pay before ordering the LFOs, 2) " rial per diem fee"was not statutorily authorized (quoting
                              ( the t

CP at 43), (3)the State failed to present any evidence supporting several of the LFOs.
         and

Because the State has not yet sought to enforce the LFOs, Mullally is not an aggrieved parry and

this issue is not yet ripe. RAP 3. ;State v. Hathaway, 161 Wn. App. 634, 251 P. d 253, review
                                 1                                            3

denied, 172 Wn. d 1021 (2011); also State v. Lundy, No. 42886 5 II,2013 WL 4104978 at
              2              see                              - -

  Wash. Ct. App. Aug. 13, 2013).
5 (                                       Furthermore, Mullally did not object at his sentencing

hearing to the imposition of these costs.' RAP 2. (
                                               a).
                                                5
          Here, the record shows Mullally had previously been employed, and there was no

indication that Mullally would necessarily be unemployable in the future; additionally, the

judgment     and sentence did not state that   Mullally   had to start payments at any time. Thus,




We note that although we addressed a trial court's finding of current or future ability to pay in
State v. Bertrand, 165 Wn. App. 393, 404, 267 P. d 511 (2011),
                                                     3           review denied, 175 Wn. d 1014
                                                                                        2
2012),   despite Bertrand's failure to object as required by RAP 2. (
                                                                 a),rule" not compel
                                                                   5 that       does
us   to do   so   in every case." State
                                     v. Blazina, 174 Wn. App. 906, 911, 301 P. d 492 (2013),
                                                                             3
petition for review filed,No. 89028 5 Wash. July 8,2013).
                                    - (




                                                   7
No. 42939 0 II
          - -



Mullally has not shown that RAP 2. (or RAP 3. should not apply here Accordingly, his
                                a)
                                 5          1
LFO challenges are not properly before us.

           As to Mullally's argument that the record does not support the imposed LFOs, because

we remand for resentencing on the third degree assault conviction and Mullally did not object to

these LFOs below, the State may want to make a more complete record regarding Mullally's

ability    to pay and    present any relevant evidence   to   support the   amount   of the LFOs.   For


example, it is not, clear from the record what costs the "trial per diem fee" represents and

therefore we cannot determine whether that fee is statutorily authorized. See State v. Thiefault,

160 Wn. d 409, 417 n. , 158 P. d 580 (2007)remand with an opportunity for the State to prove
      2             4        3              (

classification of an offense at a sentencing hearing is appropriate when the defendant failed to

objector otherwise put the State on notice as to any potential defects).

                                                 IV. SAG


                      A. Third Degree Assault Sentence Exceeds Statutory Maximum

           In his pro se SAG, Mullally next contends that his 63 month sentence on.his third degree
                                                                 -

assault conviction exceeds the statutory maximum for the offense. He is correct.

           Third degree assault is a class C felony. RCW 9A. 6. The statutory maximum
                                                         031(
                                                            2).
                                                            3

for   a   class C   felony   is 60 months. RCW   9A. 0. Thus, the trial court erred when it
                                                 c).
                                                 021(
                                                    1)(
                                                    2

imposed a 63 month sentence on the third degree assault conviction. Accordingly, we vacate
             -

this sentence and remand for resentencing.


8
  We acknowledge that Division One of this court has addressed objections to LFOs differently
in State v. Calvin, _   Wn. App. _,       302 P. d 509 (2013).We decline to follow Calvin. Not
                                               3
only is our current case law on this issue contrary to Calvin, but unlike in Calvin, the trial court
did not enter any finding regarding Mullally's ability to pay for us to consider.
No. 42939 0 II
          - -



                                        B. No Double Jeopardy

       Mullally further contends that his second degree robbery and third degree assault

convictions violate double jeopardy under the merger doctrine because the robbery was based on

the assault. Mullally is incorrect.

       We review double jeopardy claims de novo. State v. Freeman, 153 Wn. d 765, 770, 108
                                                                         2

P. d 753 ( 2005). Under
 3                            the merger doctrine, when separate criminal conduct raises another

offense to a higher degree, the court presumes that the legislature intended to punish both

offenses   only   once.   Freeman, 153 Wn. d 765, 772 73. Here, the assault did not elevate the
                                         2            -


robbery to a higher degree, so the merger doctrine does not apply.

       Furthermore, a defendant may commit robbery without committing an assault, but this

requires that the State prove a separate act of force to prevent double jeopardy from precluding

two convictions.     State v. Smith, 9 Wn. App. 279, 511 P. d 1032 (1973),
                                                          2              review denied, 82

Wn. d 1013 ( 1973). Here, the
  2                                   act of force necessary to commit the robbery was Mullally's

pushing past Kelton and resisting Kelton's attempts to knock the hand basket out of his hand.

The later acts of force, Mullally's punching Kelton in the shoulder, and Mullally drawing back

his arm as if he was going to try to hit Kelton again, causing Kelton to back away, occurred after

Mullally dropped the merchandise and was to ensure Mullally's escape, not to facilitate the

robbery. Thus the third degree assault had an independent purpose, and the two convictions do

not violate double    jeopardy.    Freeman, 153 Wn. d at 778 79 (
                                                  2          - citing 'State v. Prater, 30 Wn.

App. 512, 516, 635 P. d 1104 (1981) when the defendant struck the victim after completing a
                    2               (




                                                   E
No. 42939 0 II
          - -



robbery, there was a separate injury and intent justifying a separate assault conviction, especially

when the assault did not further the robbery),
                                             review denied, 97 Wn. d 1007 (1982)).
                                                                 2

                               C. Ineffective Assistance of Counsel


        Mullally next contends that he received ineffective assistance of counsel on • several

grounds. Again, we disagree.

        To establish ineffective assistance of counsel, Mullally must show that (1)counsel's

performance was objectively unreasonable; and (2)the deficient performance prejudiced the

defense. State v. Jeffries, 105 Wn. d 398, 418, 717 P. d 722, cent, denied 479 U. . 922 (1986)
                                  2                  2                          S

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

Mullally bears the burden of proving both parts, and failure to establish either part defeats the

ineffective assistance of counsel claim. Jeffries, 105 Wn. d at 418 (citing Strickland, 466 U. .at
                                                         2                                   S

687).

        Furthermore:


                 The threshold for the deficient performance prong is high, given the
        deference afforded to defense counsel's decisions in the course of representation.
        State v. Grier, 171 Wn. d 17, 33, 246 P. d 1260 (2011) adhered to in part on
                              2                3
        remand, 168 Wn. App. 635, 278 P. d 225 (2012). To prevail on an ineffective
                                       3
        assistance claim, a defendant alleging ineffective assistance must overcome a
        strong presumption that counsel's performance was reasonable. Grier, 171
        Wn. d at 33, 246 P. d 1260. Also, counsel's performance is not deficient when
            2               3
        her or his conduct can be characterized as legitimate trial strategy or tactics. State
        v. Kyllo, 166 Wn. d 856, 863, 215 P. d 177 (2009).
                        2                     3

State v. Embry, 171 Wn. App. 714, 761, 287 P. d 648 (2012),
                                            3             review denied, 177 Wn. d 1005
                                                                               2

2013).




                                                  10
No. 42939 0 II
          - -



       Mullally first asserts that his counsel was ineffective for failing to obtain an expert to

examine the      security   videos and, apparently, to   lip   read to determine what Kelton   was   saying.

But there is nothing in the record supporting Mullally's assertion that Kelton failed to identify

himself, accordingly Mullally cannot show prejudice based on this record.

       Mullally next asserts that his counsel should have proposed a lesser included offense

instruction   on   third   degree   theft.   But, c]
                                                  s decision to not request an instruction on a
                                                  "[ ounsel'

lesser -included offense does not constitute ineffective assistance 'of counsel if it can be

characterized as part of a legitimate trial strategy to obtain an acquittal."Embry, 171 Wn. App.

at 761 (citing State v. Hassan, 151 Wn. App. 209, 218, 211 P. d 441 (2009)).
                                                            3             Here, a]
                                                                                "[ lthough

risky, an all or nothing approach" on the more serious offense, " as at least conceivably a
                                                                w

legitimate trial strategy." Grier, 171 Wn. d at 42. Thus, Mullally does not establish ineffective
                                         2

assistance of counsel on this ground. .

       Finally, Mullally argues that his counsel was ineffective in failing to propose any jury

instructions. But defense counsel proposed            some      instructions.   Furthermore, other than his

reference to the third degree assault instruction, which we address above, Mullally fails to

identify   any     specific   instruction counsel    should have      proposed.    Without knowing what

instructions Mullally believes his counsel should have proposed we cannot determine whether

Mullally was prejudiced. Accordingly, Mullally's ineffective assistance of counsel claims fail.



9
  During the trial, Mullally moved to dismiss defense counsel, arguing that, among other things,
that although he had asked counsel to " nhance[]" video, counsel had failed to do so. 2 VRP
                                      e            the
at 212. Mullally also suggested that counsel should have found someone to testify about what
Kelton had said on the video.




                                                       11
No. 42939 0 II
          - -



                                          D. Sufficiency

        Finally, Mullally argues that the evidence is insufficient to support the second degree

robbery conviction because there is no evidence that he used force to obtain or retain possession

of the property or prevent or overcome resistance and because he " elinquished the property then
                                                                 r

took off."
         SAG. Once again, we disagree.

         We review insufficient evidence claims for whether, when viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the essential elements

of the charged crime beyond a reasonable doubt. State v. Yarbrough, 151 Wn. App. 66, 96, 210

P. d 1029 ( 2009).
 3                     Sufficiency challenges admit the truth of the State's evidence and all

reasonable inferences drawn from it.      Yarbrough,    151 Wn.   App.   at 96.   In determining the

sufficiency of the evidence, we do not consider circumstantial evidence any less reliable than

direct evidence. Yarbrough, 151 Wn. App. at 96.

         To prove second degree robbery, the State had to prove beyond a reasonable doubt that

Mullally used or threatened the use of force, violence, or fear of injury and that that force or fear

was used to obtain or retain possession of the property or to prevent or overcome resistance to

the   taking; the degree
              "            of force is immaterial." RCW 9A. 6. 210.
                                                        190, .
                                                          5                       Kelton's testimony,

taken in the light most favorable to the State, was sufficient to allow the jury to find that Mullally

pushed past Kelton and held onto the hand basket despite Kelton's attempts to knock it out of his

hand.    Because the degree of force is immaterial, this evidence is sufficient to support this

element and Mullally's insufficient evidence argument fails.




                                                  12
No.42939 0 II
         - -



       We affirm the convictions but vacate the third degree assault sentence and remand for

resentencing.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                                       r



                                                              Johanson, A. .
                                                                        J.
                                                                         C
We concur:




                Quinn-
                     Brintnall, J.

                                7
                 Forbes, J. .
                         T.
                          P




                                             13
