                                                                     FILED
                                                                  MARCH 21, 2017
                                                             In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                            )         No. 33987-4-111
                                                )
                      Respondent,               )
                                                )
              V.                                )         UNPUBLISHED OPINION
                                                )
JOSHUA CALEB SNYDER,                            )
                                                )
                      Defendant,                )
                                                )
SHANE SAYER MORGAN,                             )
                                                )
                      Appellant.                )

       LAWRENCE-BERREY, J.      - Shane Sayer Morgan appeals his convictions for second

degree theft, three counts of second degree identity theft, two counts of third degree theft,

and two counts of attempted third degree theft. Mr. Morgan argues (1) the evidence was

insufficient to convict him of any of the eight charges for which he was convicted, (2) the

trial court erred when it instructed the jury on various uncharged alternate means for

committing theft for counts 1, 3, 4, 6, and 8, (3) the trial court violated his constitutional

right to a unanimous jury verdict by not giving a unanimity instruction for counts 1, 3, 4,

6, and 8, (4) the trial court violated his constitutional right to a unanimous jury verdict by
No. 33987-4-III
State v. Morgan


not giving a unanimity instruction for count 2, (5) he was denied effective assistance of

counsel when his attorney failed to object to the video of Josh Snyder's police interview,

(6) the trial court erred at sentencing when it failed to treat counts 5 and 7 as the same

criminal conduct, and (7) the trial court erred when it imposed a total term of confinement

and community service that exceeds the statutory maximum. He also raises four separate

arguments in his statement of additional grounds for review (SAG).

       We agree with Mr. Morgan's second and seventh arguments, conclude the third is

moot, but otherwise affirm. We therefore reverse his convictions on counts 1, 3, 4, 6, and

8, and remand for retrial on those counts.

                                             FACTS

       Background facts

       On June 11, 2014, Maureen Webb lent her Chase Bank credit card to her daughter

so she could purchase gas for her car. Hours later, Chase Bank fraud protection sent a

text to Ms. Webb, asking if she made a recent purchase at Fred Meyer in Ellensburg. Ms.

Webb then asked her daughter about the card. Her daughter said she did not make any

purchases at Fred Meyer. She then looked for the card, and said she no longer had it.

Ms. Webb called the police and reported her card was stolen.




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No. 33987-4-III
State v. Morgan


      The investigating officer obtained information from Chase Bank and learned the

times of the Fred Meyer transactions. She then used those times and Fred Meyer video

surveillance to determine that Mr. Morgan and Joshua Snyder had used Ms. Webb's

missing credit card. The first video showed the men approaching a self-checkout kiosk

with two drinks, Mr. Snyder scanning the drinks and the credit card, Mr. Morgan pushing

buttons on the kiosk, Mr. Snyder retaining the credit card, and then each man walking

away, each with one drink. The second video showed Mr. Snyder purchasing clothes and

shoes at a check-out counter with the credit card, with Mr. Morgan standing close to the

counter.

      The investigating officer learned from Fred Meyer records that Ms. Webb's credit

card was used at the store four times that day. The first time was the purchase of the two

drinks for $4.61. The second time was the purchase of clothes and shoes for $539.23.

The third time was an attempted purchase of an iPad for $538.92. The attempted

purchase was declined. Twenty-two seconds after the card was first swiped, the card was

again swiped in an attempt to purchase the same iPad. This second attempted purchase

also was declined.

      The investigation to obtain the previously described facts took several months. On

March 1, 2015, the investigating officer interviewed Mr. Snyder and asked questions



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State v. Morgan


about his June 2014 purchases at Fred Meyer with Mr. Morgan. Mr. Snyder denied being

friends with Mr. Morgan, and said he did not even like Mr. Morgan. Mr. Snyder denied

purchasing over $500 of clothes at Fred Meyer. He said he wished he had nice clothes,

but he only had rags. Mr. Snyder also denied attempting to purchase an iPad. When

confronted with the fact that the investigating officer had video surveillance of him using

a stolen card at Fred Meyer, Mr. Snyder denied it was him.

       Charges and pretrial hearing

       The State charged Mr. Morgan and Mr. Snyder with 16 counts as being a principal

or an accomplice to a series of thefts involving Ms. Webb's credit card. Mr. Snyder

eventually pleaded guilty to some or all of the charges. Mr. Morgan chose to go to trial.

       On the morning of trial, the State gave notice it intended to admit the video of Mr.

Snyder's police interview. Mr. Morgan's attorney objected. The prosecutor said he

would talk with defense counsel later and try to resolve his concerns. The trial court did

not rule on the objection.

       Trial summary

       At trial, Ms. Webb, her daughter, and the investigating officer testified to the facts

stated above. A Fred Meyer loss prevention specialist also testified. He testified about

the contents of the June 2014 surveillance videos as summarized above. He also testified



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No. 33987-4-III
State v. Morgan


the videos showed the two men walking together from one area of the store to another,

and shopping together for men's apparel using one cart. He admitted Fred Meyer was

paid by Ms. Webb's credit card company for the items purchased. In addition to these

testimonies, the State played the video of Mr. Snyder's police interview. Mr. Morgan did

not object.

       The State also called Mr. Snyder, but as an adverse witness. Mr. Snyder said he

found the credit card on top of a gas pump and took the card for his own use. He then

drove his Jeep and picked up Mr. Morgan in Cle Elum, drove around, and just ended up

approximately 30 miles away at Fred Meyer. He admitted he knew Mr. Morgan for

approximately 10 years, and that they were friends and occasionally saw each other. He

also testified that in those 10 years, he had never shopped with Mr. Morgan before. He

explained Mr. Morgan probably pushed the buttons at the kiosk because he had a "brain

fart" and probably could not remember how to use a self-service kiosk. Report of

Proceedings at 199. He also testified that the clothes and shoes he purchased were for

him and his brother. He said he did not recall using the card to try to purchase the iPad,

and recalled he probably threw the card out the Jeep window later that night. He testified

he pleaded guilty to various theft crimes involving Ms. Webb's card. When questioned

by defense counsel, Mr. Snyder said Mr. Morgan did not know that the card was stolen.



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No. 33987-4-III
State v. Morgan


       After all the evidence was presented, the trial court held a jury instruction

conference to discuss what instructions it should give the jury. During the conference, the

State discussed amending the information to include all three of the statutory means for

committing theft. Mr. Morgan objected on the basis that the State had only charged one

of the three means in the information. The trial court overruled Mr. Morgan's objection,

and instructed the jury on all three of the statutory means for committing theft.

       The jury returned convictions on counts 1-8, and acquitted on counts 9-16. For

ease of our analysis below, we set forth counts 1-8 below, and summarize in

parentheticals their factual bases as noted in the final information:

       Count 1: Second degree theft (stolen credit card)
       Count 2: Second degree identity theft (unauthorized use of card)
       Count 3: Third degree theft (purchase of drinks)
       Count 4: Third degree theft (purchase of clothes)
       Count 5: Second degree identity theft (unauthorized use of card for iPad)
       Count 6: Attempted third degree theft (attempted purchase of iPad)
       Count 7: Second degree identity theft (unauthorized use of card for iPad)
       Count 8: Attempted third degree theft (attempted purchase of iPad)

       Sentencing

       At sentencing, Mr. Morgan argued the four felony convictions (counts 1, 2, 5 and

7) should be considered the same criminal conduct for purposes of calculating the current

offense portion of his offender score. The trial court took the matter under advisement

and later issued a memorandum decision stating that "each use of the credit card was a

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No. 33987-4-III
State v. Morgan


distinctive act that furthered a different, distinct criminal purpose." Clerk's Papers (CP)

at 590. The trial court calculated the current offense portion of Mr. Morgan's offender

score consistent with its memorandum decision, and calculated a total offender score of

11. The trial court imposed a sentence of 57 months of confinement and 12 months of

community custody, with a note that the total period of confinement and community

custody could not exceed the statutory maximum. The trial court also denied Mr.

Morgan's request for a drug offender sentencing alternative (DOSA) sentence.

                                         ANALYSIS

       1.     SUFFICIENCY OF THE EVIDENCE


       Mr. Morgan first contends the evidence was insufficient to convict him of the

offenses for which he was convicted.

       Evidence is sufficient to convict if it permits a rational trier of fact to find the

essential elements of the crime proved beyond a reasonable doubt. State v. Munoz-

Rivera, 190 Wn. App. 870,882,361 P.3d 182 (2015). This court "must draw all

reasonable inferences from the evidence in favor of the State and interpret the evidence

most strongly against the defendant." Id. Direct and circumstantial evidence carry the

same weight. Id. Reviewing courts also must defer to the trier of fact "on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence."


                                               7
No. 33987-4-III
State v. Morgan


State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). An appellate court's role

is not to reweigh the evidence and substitute its judgment for that of the jury. State v.

Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

              a.     Count I: Theft of credit card

       To find Mr. Morgan guilty of second degree theft, count 1, the jury had to find

each of the following proved beyond a reasonable doubt:

              (1)    That on or about June 11, 2014 the defendant
                     (a)    wrongfully obtained or exerted unauthorized control
                     over property of another; or
                     (b)    by color or aid of deception, obtained control over
                     property of another; or
                     ( c)   appropriated lost or misdelivered property of another;
              and
              (2)     That the property was [a credit card];
              (3)     That the defendant intended to deprive the other person of [a
              credit card]; and
              (4)     That this act occurred in the State of Washington.

CP at 336 Uury instruction 20).

       Mr. Morgan argues the evidence was that Mr. Snyder wrongfully obtained or

appropriated the lost card. He argues his mere presence with Mr. Snyder in Fred Meyer

was insufficient evidence as a matter of law. He argues to support his conviction as an

accomplice, the State was required to present evidence he was "ready to assist" or




                                              8
No. 33987-4-III
State v. Morgan


intended to encourage the conduct of Mr. Snyder. See State v. Aiken, 72 Wn.2d 306, 349,

434 P.2d 10 (1967).

      The State responds that it presented sufficient evidence that Mr. Morgan exerted

unauthorized control over the credit card. The State argues the jury could infer Mr.

Morgan agreed to go with Mr. Snyder to Fred Meyer to purchase items with the credit

card that Mr. Morgan knew was stolen. To support this inference, the State argues Mr.

Snyder admitted he had known Mr. Morgan for 10 years, yet this was the first time the

two ever shopped together. And for this first time shopping together, it was beyond

coincidence that Mr. Snyder happened to have a stolen credit card.

       Although Mr. Snyder testified Mr. Morgan did not know the card was stolen, the

State argues the jury could have disbelieved him. Given Mr. Snyder's explanation that

they just happened to drive 30 miles to Fred Meyer late at night, that his statements were

very different from what he told the investigating officer, and the unusualness of

purchasing or attempting to purchase a total of over $1,000 of goods, we agree the jury

did not need to believe Mr. Snyder.

       We note that Mr. Morgan pushed the buttons at the self-service kiosk and thus

assisted Mr. Snyder in his theft of the drinks. We also note that Mr. Morgan was with

Mr. Snyder throughout the store and was near him when the clothes and shoes were



                                             9
No. 33987-4-III
State v. Morgan


purchased. A reasonable finder of fact could find the inferences advanced by the State,

that it was not a mere coincidence that the two traveled to Fred Meyer in Ellensburg that

night with a stolen or lost credit card. The State presented sufficient evidence for a jury

to find Mr. Morgan, as an accomplice, exerted unauthorized control over the card and

knew the card was stolen.

              b.     Counts 3, 4, 6 and 8: Third degree theft and attempted third degree
                     theft

       Mr. Morgan argues there was no evidence the jury could find that Fred Meyer was

the victim of the thefts. Mr. Morgan argues the jury instructions required the jury to find

that Fred Meyer was the victim of the theft, and the loss prevention officer testified Fred

Meyer did not sustain a loss.

       The State accurately responds that the jury instructions did not identify the victim

of the loss. The instructions merely required the jury to find Mr. Morgan intended to

deprive the owner of the owner's property or services.

       Mr. Morgan cites State v. Graham, 182 Wn. App. 180,327 P.3d 717 (2014) for his

argument that Fred Meyer was not a victim of theft. There, Chantell Graham removed

items from a shelf at Wal-Mart, "returned" them to customer service and obtained a gift

card. She used the gift card to purchase items, and later returned the items and obtained

cash. In Graham, we held the facts did not establish trafficking in "stolen property," but

                                             10
No. 33987-4-III
State v. Morgan


they did establish "theft." Id. at 185. Graham does not assist Mr. Morgan in this case, a

case involving charges of theft.

              c.     Counts 2, 5 and 7: Second degree identity theft

       Mr. Morgan reiterates his argument there were insufficient facts that he knew the

credit card used by Mr. Snyder was stolen. We earlier rejected the argument.

       2.     INSTRUCTING ON ALTERNATIVE MEANS NOT CHARGED IN INFORMATION


       Mr. Morgan contends the trial court erred when it instructed the jury on alternative

means not charged relating to counts 1, 3, 4, 6 and 8, and reversal is required unless the

State can show the error was harmless.

       It is error for a trial court to instruct the jury on uncharged alternative means. In re

Pers. Restraint of Brockie, 178 Wn.2d 532, 536, 309 P.3d 498 (2013) (citing State v.

Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942)). When the charging document alleges

only one alternative means of committing a crime, "it is error for the trial court to instruct

the jury on uncharged alternatives, regardless of the strength of the trial evidence." State

v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). When reviewing instructions to

the jury on uncharged alternative means, this court presumes prejudice unless the State

can show that the error was harmless. Brockie, 178 Wn.2d at 538-39; Chino, 117 Wn.

App. at 540. This error may be harmless if other instructions specifically and clearly limit



                                              11
No. 33987-4-III
State v. Morgan


the crime to the charged alternative. Severns, 13 Wn.2d at 548-49; Chino, 117 Wn. App.

at 540.

          The charging document states only the alternative means of "wrongfully

obtain[ing] or exert[ing] unauthorized control" for counts 1, 3, 4, 6 and 8. CP at 304-07.

The to-convict jury instructions include all three of the alternative means for committing

theft. RCW 9A.56.020(1); CP at 336,343. The jury instructions also include the

definitions for all of the alternative means. Because the instructions do not "clearly and

specifically" define the charged crime, the error is not harmless. It is possible that the

jury convicted Mr. Morgan under the uncharged means. Chino, 117 Wn. App. at 540-41.

          The State argues the underlying purpose of the rule is to provide the defendant

notice of the crimes charged. The State argues the underlying purpose of the rule was

satisfied here because Mr. Morgan obtained notice of the alternative means relied on

when the State and Mr. Morgan debated amending the information during the jury

instruction conference. The State provides no authority that a discussion that occurs after

all the evidence is concluded satisfies the underlying purpose of notice. Mr. Morgan may

have prepared his defense differently, and he may have questioned witnesses differently,

had he been given earlier notice that the State intended to argue all three alternative




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No. 33987-4-III
State v. Morgan


means for committing theft. We, therefore, reverse Mr. Morgan's convictions for counts

1, 3, 4, 6 and 8, and remand for retrial on those counts.

       3.     FAILURE TO GIVE UNANIMITY INSTRUCTION FOR COUNTS           1, 3, 4, 6 AND 8

       Mr. Morgan contends the trial court violated his right to a unanimous jury verdict

on counts 1, 3, 4, 6 and 8 when it failed to given an instruction on unanimity. Because of

how we resolved the last issue, this issue is moot. Further, because the evidence might be

different between the two trials, we decline to give an advisory opinion.

       4.     FAILURE TO GIVE A UNANIMITY INSTRUCTION FOR COUNT 2


       Mr. Morgan next argues the trial court violated his right to a unanimous verdict by

failing to give a unanimity instruction for second degree identity theft, as charged in count

2. This count relates to the purchases of the two drinks.

       The State responds that second degree identify theft is not a multiple means crime,

citing State v. Butler, 194 Wn. App. 525, 374 P.3d 1232 (2016). Mr. Morgan agrees with

the State's citation to Butler, but contends his argument is a multiple acts argument, not a

multiple means argument. Mr. Morgan's argument is that the trial court was required to

give a unanimity instruction because the State argued that three separate acts could

support conviction on count 2.




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No. 33987-4-III
State v. Morgan


       Criminal defendants in Washington have a right to a unanimous jury verdict.

CONST. art. I,§ 21; State v. Ortega-Martinez, 124 Wn.2d 702,707,881 P.2d 231 (1994).

In multiple acts cases, the State must elect which of the acts it is relying on for a

conviction, or the court must instruct the jury to agree on a specific criminal act. State v.

Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007). Failure to give a necessary

unanimity instruction is constitutional error, and constitutional harmless error analysis

applies. State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). In order to find

a constitutional error harmless, this court must find the error harmless beyond a

reasonable doubt. State v. Camarillo, 115 Wn.2d 60, 64, 794 P.2d 850 (1990). This court

can only overcome the presumption of error if no rational juror could have a reasonable

doubt as to any of the incidents alleged. Coleman, 159 Wn.2d at 512. This issue may be

raised for the first time on appeal. RAP 2.5(a); Bobenhouse, 166 Wn.2d at 892 n.4.

       In count 2, the State charged Mr. Morgan with second degree identity theft as a

principal or accomplice for "knowingly obtain[ing] or possess[ing] a means of

identification or financial information of another person, living or dead, with the intent to

commit or to aid or abet any crime, to-wit: Maureen Webb's credit card." CP at 304. The

State did not argue there were multiple acts that supported count 2. Instead, the State




                                              14
No. 33987-4-III
State v. Morgan


argued that Mr. Morgan committed count 2 as an accomplice when he assisted Mr.

Snyder's commission of crimes with the credit card, which Mr. Morgan knew was stolen.

           5.     INEFFECTIVE ASSISTANCE OF COUNSEL


           Mr. Morgan next argues he was denied effective assistance of counsel when his

attorney failed to object during trial to the video of Mr. Snyder's police interview. Mr.

Morgan asserts that an objection would have been sustained on three possible bases:

(1) hearsay, (2) unduly prejudicial, and (3) improper rebuttal, given Mr. Snyder had yet to

testify.

           A criminal defendant has a Sixth Amendment to the United States Constitution

right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A claim of ineffective assistance of counsel is

an issue of constitutional magnitude that may be considered for the first time on appeal."

State v. Ky/lo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). The claim is reviewed de novo.

State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To establish ineffective

assistance of counsel, a defendant must prove the following two-pronged test:

           (1) [D]efense counsel's representation was deficient, i.e., it fell below an
           objective standard of reasonableness based on consideration of all the
           circumstances; and (2) defense counsel's deficient representation prejudiced
           the defendant, i.e., there is a reasonable probability that, except for
           counsel's unprofessional errors, the result of the proceeding would have
           been different.

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No. 33987-4-III
State v. Morgan


State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). There is a strong presumption

that counsel's performance was reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d

1260 (2011). To rebut this presumption, the defendant bears the burden of establishing

that no conceivable legitimate tactic exists to explain counsel's performance. Id.

       We first note that defense counsel was aware of the potential evidentiary

objections and did object during the pretrial conference. The prosecutor said he would

discuss the objection with defense counsel and try to resolve it.

       We next note that Mr. Snyder's statements during the police interview were

statements of a coconspirator made during and in furtherance of the conspiracy, and

therefore not hearsay under ER 801(d)(2)(v). 1 We also doubt an objection that the video

was unduly prejudicial would have been sustained, given the relevance and inconsistency

of Mr. Snyder's anticipated testimony. For these reasons, we conclude that Mr. Morgan's

attorney was not deficient for failing to object at trial to the video of Mr. Snyder's police

interview.




       1
        Although the thefts were committed months prior, conspiracy extends to
statements made to conceal the crime and avoid conviction. United States v. Herrero,

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No. 33987-4-III
State v. Morgan


       6.     SENTENCING ERROR-SAME CRIMINAL CONDUCT ( COUNTS 5, 7)

       Mr. Morgan contends that the trial court erred in sentencing when finding that

counts 5 and 7 did not constitute the same criminal conduct. He argues that both attempts

to purchase the iPad involved the same criminal intent, victim, time, and location.

       A court may consider current convictions involving the same criminal conduct as

one crime for sentencing purposes. RCW 9.94A.589(l)(a). '"Atrial court's

determination of what constitutes the same criminal conduct for purposes of calculating

an offender score will not be reversed absent an abuse of discretion or misapplication of

the law."' State v. Tili, 139 Wn.2d 107, 122,985 P.2d 365 (1999) (quoting State v.

Walden, 69 Wn. App. 183, 188, 847 P.2d 956 (1993)).

       Same criminal conduct requires: (1) the same criminal intent, (2) commission at

the same time and place, and (3) the same victim. RCW 9.94A.589(1)(a). "Although the

statute is generally construed narrowly to disallow most claims that multiple offenses

constitute the same criminal act," there is one clear exception: the repeated commission of

the same crime against the same victim over a short period. State v. Porter, 133 Wn.2d

177,181,942 P.2d 974 (1997).




893 F .2d 1512, 1528 (7th Cir. 1990), abrogated by United States v. Durrive, 902 F .2d
1221 (7th Cir. 1990) (on other grounds).

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No. 33987-4-111
State v. Morgan


       Crimes may involve the same criminal intent if they were part of a "continuing,

uninterrupted sequence of conduct." Id. at 186. When "an offender has time to 'pause,

reflect, and either cease his criminal activity or proceed to commit a further criminal act,'

and makes the decision to proceed, he or she has formed a new intent to commit the

second act." Munoz-Rivera, 190 Wn. App. at 889 (quoting State v. Grantham, 84 Wn.

App. 854, 859, 932 P.2d 657 (1997)).

       Mr. Morgan and Mr. Snyder attempted to purchase an iPad with the stolen credit

card. The first time the card was swiped, the transaction was declined. Twenty-two

seconds after the first swipe, a second swipe occurred and the transaction was again

declined. Mr. Snyder and Mr. Morgan had time to pause and reflect after the first

transaction. In its memorandum decision, the trial court determined that "each use of the

credit card was a distinctive act that furthered a different, distinct criminal purpose." CP

at 590. Because of the discretion we give to trial courts in making these types of

determinations, and because 22 seconds is a sufficient pause to consider the criminality of

one's actions, we conclude the trial court did not abuse its discretion when it determined

that both swipes were not the same criminal offense for purposes of sentencing.




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No. 33987-4-111
State v. Morgan


          7.       SENTENCING ERROR-EXCEEDS STATUTORY MAXIMUM


          Mr. Morgan next argues the trial court sentenced him to a term of confinement in

excess of the statutory maximum for class C felonies of 60 months, when it sentenced

him to 57 months of confinement and 12 months of community custody and included a

Brooks 2 notation. The State correctly concedes error.

          A defendant may challenge sentencing error for the first time on appeal. State v.

Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). A defendant's sentence cannot exceed

the statutory maximum term for the class of crime for which the offender was convicted.

RCW 9A.20.021(1). Terms of confinement and community custody are both included in

the calculation of the statutory maximum term, and the combination of the two cannot

exceed the statutory maximum. RCW 9.94A.505(5); State v. Boyd, 174 Wn.2d 470,473,

275 P.3d 321 (2012). Brooks notations no longer comply with statutory sentencing

requirements. Boyd, 174 Wn.2d at 472. The trial court must reduce the amount of

community custody in order to avoid a sentence in excess of the statutory maximum. Id.

at 473.




          2
              In re Pers. Restraint ofBrooks, 166 Wn.2d 664,674,211 P.3d 1023 (2009).

                                               19
No. 33987-4-111
State v. Morgan


       SAG ISSUE I: VINDICTIVE PROSECUTION

       Mr. Morgan argues in his statement of additional grounds for review (SAG) that

the State vindictively added several additional charges after Mr. Morgan refused to accept

a plea deal.

       The term prosecutorial vindictiveness describes the actions of the government

when it '" acts against a defendant in response to the defendant's prior exercise of

constitutional or statutory rights."' State v. Korum, 157 Wn.2d 614,627, 141 P.3d 13

(2006) (quoting United States v. Meyer, 258 U.S. App. D.C. 263, 810 F.2d 1242, 1245

(1987)). The action is vindictive only"' if designed to penalize a defendant for invoking

legally protected rights."' Id. (quoting Meyer, 810 F.2d at 1245). Prosecutorial

vindictiveness may be actual or presumptive. Id. "A presumption of vindictiveness arises

when a defendant can prove that 'all of the circumstances, when taken together, support a

realistic likelihood of vindictiveness.'" Id. (quoting Meyer, 810 F .2d at 1246). Filing

additional charges cannot support a presumption of vindictiveness without additional

facts. Id. at 634.

       Mr. Morgan fails to allege any facts other than the filing of additional charges in

support of his argument. The record reflects that the State told Mr. Morgan during plea

negotiations that potential additional charges existed, and the State was attempting to



                                            20
No. 33987-4-III
State v. Morgan


work a "global resolution" with Mr. Morgan on this and another case. CP at 123. A long

line of cases supports the State in this matter. See State v. Bonisisio, 92 Wn. App. 783,

790-92, 964 P.2d 1222 (1998) (finding no prosecutorial vindictiveness when the State

charged the defendant with 10 additional counts after the defendant rejected a plea

agreement); State v. Lee, 69 Wn. App. 31, 35-38, 847 P.2d 25 (1993) (finding no

prosecutorial vindictiveness when the State increased the charge after defendant refused

to plead guilty); State v. Lass, 55 Wn. App. 300, 306, 777 P.2d 539 (1989) (filing a more

serious charge after the defendant elects to go to trial does not amount to prosecutorial

vindictiveness); State v. Fryer, 36 Wn. App. 312, 316-17, 673 P.2d 881 (1983) (finding

no prosecutorial vindictiveness when the prosecutor carried out a threat to file an

additional charge against the defendant if he refused to plead guilty to two lesser

charges); State v. Serr, 35 Wn. App. 5, 10-11, 664 P.2d 1301 (1983) (finding no

prosecutorial vindictiveness when the State carried out a threat to file a habitual criminal

charge against the defendant if he refused to plead guilty); State v. Penn, 32 Wn. App.

911, 913-14, 650 P.2d 1111 (1982) (finding no prosecutorial vindictiveness when the

State filed additional charges after the defendant elected to go to trial). Mr. Morgan fails

to show vindictiveness.




                                             21
No. 33987-4-111
State v. Morgan


       SAG ISSUE II: EVIDENTIARY ERROR

       Mr. Morgan next contends the State did not establish a chain of custody before

presenting exhibits at trial, specifically receipts and surveillance video. Mr. Morgan does

not appear to argue that anyone fabricated or altered the evidence.

       Mr. Morgan stipulated to the authenticity and admissibility of the receipts. Mr.

Morgan also did not object to the admission of the surveillance videos at a pretrial

hearing when given the opportunity, and the record reflects the parties admitted them by

agreement.

       This court may refuse to review unpreserved claims of error on appeal. RAP

2.5(a). Especially given the stipulation to the receipts and the agreement concerning the

videos, we decline to review the asserted errors.

       SAG ISSUE III: PROSECUTORIAL MISCONDUCT

       Mr. Morgan next argues he was the victim of prosecutorial misconduct. He

contends the misconduct happened when the State improperly questioned Mr. Lomax

about what red flags two males shopping together might raise and also when the State

made false statements of fact and law during closing arguments.

       To prevail on a claim of prosecutorial misconduct, a defendant must show that in

the context of the record and all of the circumstances of the trial, the prosecutor's conduct



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No. 33987-4-III
State v. Morgan


was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d

43 (2011). Misconduct is prejudicial if there is a substantial likelihood it affected the

verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). However, a

defendant waives any error by failing to object to the prosecutor's improper conduct,

unless that conduct was so flagrant and ill intentioned that an instruction could not have

cured the resulting prejudice. Id. at 760-61.

       The record shows Mr. Morgan did object to the State's question about how often

Mr. Lomax saw two older males shopping together. Mr. Morgan asserts such questions

and argument by the prosecutor is an affront. The problem with Mr. Morgan's argument

is there was no testimony that he and Mr. Snyder were romantically involved.

       Mr. Morgan also asserts the prosecutor, during closing, misstated the law of

accomplice liability and also misstated various facts. We reviewed the prosecutor's

arguments made at the pages cited by Mr. Morgan. The prosecutor does not misstate the

law of accomplice liability, and he did not argue Mr. Morgan was guilty because he was

present with Mr. Snyder. Further, ifthere were misstatements of facts, which we do not

see, they were not so flagrant that an instruction could not have cured any minimal

prejudice.




                                                23
No. 33987-4-III
State v. Morgan


       SAG ISSUE IV: JUDICIAL MISCONDUCT

       Mr. Morgan next argues the trial court committed judicial misconduct when it

denied his CrR 7.4 motion for arrest of judgment and when it denied his request for a

DOSA sentence.

              1.     Arrest ofjudgment

       CrR 7.4(a)(3) allows a defendant to bring a motion for arrest of judgment for

"insufficiency of the proof of a material element of the crime." Review of a trial court

decision denying a motion for arrest of judgment requires the appellate court to engage in

the same inquiry as the trial court. State v. Longshore, 141 Wn.2d 414,420, 5 P.3d 1256

(2000). "The evidence presented in a criminal trial is legally sufficient to support a guilty

verdict if any rational trier of fact, viewing the evidence in a light most favorable to the

[S]tate, could find the essential elements of the charged crime beyond a reasonable

doubt." Longshore, 141 Wn.2d at 420-21 (citing State v. Bourne, 90 Wn. App. 963, 967-

68, 954 P.2d 366 (1998)).

       We earlier rejected Mr. Morgan's first argument on appeal and found there was

sufficient evidence on each and every count. We also reject his argument that the trial

court committed misconduct when it denied his motion for arrest of judgment.




                                              24
No. 33987-4-III
State v. Morgan


              2.     DOSA request

       Generally, a trial court's decision to deny a DOSA is not reviewable. State v.

Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003); State v. Smith, 118 Wn. App. 288,

292, 75 P.3d 986 (2003); RCW 9.94A.585(1). However, "appellate review is still

available for the correction of legal errors or abuses of discretion in the determination of

what sentence applies." State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003). A

trial court a~uses its discretion when its decision is "manifestly unreasonable or based

upon untenable grounds or reasons." State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d

1239 (1997). A decision is based on untenable grounds or made for untenable reasons

when it was reached by applying the wrong legal standard. State v. Quismundo, 164

Wn.2d 499, 504, 192 P.3d 342 (2008).

       A sentencing court shall waive the imposition of a standard range sentence in favor

of a DOSA sentence "[i]f the sentencing court determines that the offender is eligible ...

and that the alternative sentence is appropriate." RCW 9.94A.660(3). The legislature has

granted trial courts the discretion to impose a DOSA. State v. Gronnert, 122 Wn. App.

214, 226, 93 P.3d 200 (2004).

      The trial court determined that a DOSA was inappropriate. It noted the following

factors to show that the community would not benefit from a DOSA: no evidence that Mr.



                                             25
No. 33987-4-111
State v. Morgan


Morgan's drug use caused him to commit these crimes, his lengthy criminal history that

indicates an unwillingness to abide by the rules of society, and his failure to otherwise

avail himself of treatment programs. These are tenable grounds or reasons for denial,

well within the trial court's discretion in deciding whether an alternative sentence is

appropriate.

       APPELLATE COSTS


       Mr. Morgan requests that this court not impose costs on appeal in the event the

State prevails. This court generally awards costs to the party that substantially prevails.

RAP 14.2. Of the eight charges that are the subject of this appeal, five will require retrial.

We determine that the State has not substantially prevailed. For this reason, we do not

award it appellate costs.

       Affirmed in part, reversed and remanded.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



WE CONCUR:




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