                                                                     FILED
                                                                  JULY 16, 2019
                                                          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. 35958-1-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
LICO LAVAR MCKINNIE,                          )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — A trial court found Lico McKinnie guilty of

attempted first degree assault and first degree robbery. McKinnie appeals, and argues

double jeopardy jurisprudence requires his attempted first degree assault conviction to be

vacated. We agree and vacate that conviction. By motion, McKinnie requests that we

direct the trial court to strike the criminal filing fee cost and the deoxyribonucleic (DNA)

collection fee. The State does not oppose McKinnie’s motion, and we grant it.
No. 35958-1-III
State v. McKinnie


       In a statement of additional grounds for review (SAG), McKinnie raises six

grounds for reversing one or both of his convictions. We decline to reverse his

conviction for first degree robbery.

                                           FACTS

       On August 31, 2016, Desirae McMichael left her apartment with a bag of garbage,

got in her car, and stopped near the apartment complex’s dumpster to dispose of the trash.

She left her car door open and her car running. McKinnie jumped inside and began to

drive away.

       McMichael then jumped on the hood of her car, but McKinnie accelerated.

Multiple witnesses saw McKinnie repeatedly swerving and driving very fast through the

parking lot while McMichael held onto the hood of her car. McMichael screamed for

help and for McKinnie to stop. As McKinnie turned out of the parking lot, McMichael

fell to the ground and was struck by a tire.

       Ten minutes later, McKinnie crashed McMichael’s car into another car.

McMichael’s car was severely damaged, and McKinnie did not flee far. A nearby officer

apprehended McKinnie and later learned that the damaged car was stolen.

       McMichael sustained serious injuries, including abrasions to her face and knee, a

concussion, and permanent nerve damage to her leg.


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No. 35958-1-III
State v. McKinnie


        Trial

        The State charged McKinnie with attempted first degree assault of McMichael and

first degree robbery of her car. McKinnie waived his right to a jury trial. The State’s

witnesses testified consistent with the facts above.

        McKinnie also testified. He testified he was visiting a friend on the second floor

of the apartment complex. Outside his friend’s window, he saw a short Hispanic man

with a bandana around his face holding a pistol. He then jumped out the window, hurt his

ankle, and saw the Hispanic man and others. Thinking they were going to kill him, he

made use of McMichael’s car after she hopped out. He testified he did not stop after

McMichael jumped on the car because he was being chased by a truck and feared for his

life.

        No witness testified to seeing a Hispanic man with a bandana or a truck chasing

McKinnie. One witness testified to seeing McKinnie drop from an upper floor window,

hurt himself, and then wait around for about 10 minutes before taking McMichael’s car.

        The trial court did not find McKinnie’s story credible. It found McKinnie guilty of

both charges and entered findings of fact and conclusions of law.

        Thereafter, the trial court entered a judgment of conviction for both offenses. The

judgment reflects McKinnie’s offender score of 9+ for both offenses. For the attempted


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No. 35958-1-III
State v. McKinnie


first degree assault conviction, the judgment shows a seriousness level of XII, a standard

range of 180-238.5 months, but a maximum term of 120 months. For the first degree

robbery conviction, the judgment shows a seriousness level of IX, and a standard range of

129-171 months. The trial court imposed a sentence of 120 months for the attempted first

degree assault conviction, and 165 months for the first degree robbery conviction. It

ordered the sentences to be served concurrently for a total sentence of 165 months.

       McKinnie appealed to this court.

                                       ANALYSIS

       McKinnie contends that his conviction for attempted first degree assault violates

the prohibition against double jeopardy.

       A.     DOUBLE JEOPARDY

       Standard of Review

       The proper interpretation and application of the double jeopardy clauses of the

Fifth Amendment to the United States Constitution and article I, section 9 of the

Washington Constitution are questions of law that are reviewed de novo. In re Pers.

Restraint of Francis, 170 Wn.2d 517, 523, 242 P.3d 866 (2010).




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State v. McKinnie


              1.     Reviewability of unpreserved error

       Citing RAP 2.5(a), the State correctly notes that this court generally refrains from

reviewing unpreserved errors. But RAP 2.5(a)(3) permits review of unpreserved claims

of error if they involve a manifest error affecting a constitutional right. The State argues

the purported error is not prejudicial because McKinnie has an offender score of 9+ and

vacation of his assault conviction would not reduce his sentence. McKinnie responds that

he is prejudiced by a conviction that the legislature did not intend.

       One consideration for whether a claim is manifest is whether the facts are

sufficiently developed to review it. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d

1251 (1995). Because the facts are sufficiently developed for us to review McKinnie’s

constitutional claim, we exercise our discretion and review it.

              2.     General principles of double jeopardy

       The guarantee against double jeopardy protects persons from multiple punishments

for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). “A court

entering multiple convictions for the same offense violates double jeopardy.” Francis,

170 Wn.2d at 523. “Because the legislature has the power to define offenses, whether

two offenses are separate offenses hinges upon whether the legislature intended them to

be separate.” Id.


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State v. McKinnie


              3.     Express or implied legislative intent

       Washington courts look first to the statutory language to determine if the

legislature expressly intended multiple punishments for two offenses. State v. Jackman,

156 Wn.2d 736, 746, 132 P.3d 136 (2006). Here, the relevant statutes provide no

express statements whether attempted first degree assault and first degree robbery are

intended to be punished separately. See RCW 9A.36.011(1)(a); RCW 9A.28.020(1);

RCW 9A.56.200.

       Washington courts also look to any implied legislative intent to determine if the

legislature intended multiple punishments for two offenses. State v. Freeman, 153 Wn.2d

765, 775, 108 P.3d 753 (2005). When a court vacates a conviction on double jeopardy

grounds, it usually vacates the conviction for the crime that forms part of the proof of the

other. Id. This is because the greater offense typically carries a penalty that incorporates

punishment for the lesser included offense. Id.

       The Freeman court noted that when first degree assault raises a robbery to first

degree, the case is atypical because first degree assault carries a longer standard range

sentence than first degree robbery. Id. The Freeman court concluded that this sentencing

anomaly implied the legislature intended to punish first degree assault and first degree

robbery separately. Id. at 776.


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No. 35958-1-III
State v. McKinnie


       The State argues that Freeman requires us to affirm the attempted first degree

assault conviction; whereas McKinnie argues that Freeman supports the opposite result.

Despite the parties’ arguments, we do not discern any implied legislative intent in this

situation. Like the result in Freeman, the seriousness level for attempted first degree

assault, XII, is higher than that for first degree robbery, IX. But unlike the result in

Freeman, because attempted first degree assault is a class B felony, the maximum

sentence of 10 years is shorter than McKinnie’s standard range sentence for first degree

robbery, given his 9+ offender score. The evidence of implied legislative intent is mixed,

so we do not discern any implied legislative intent.

                4.     Other evidence of legislative intent

       If it is unclear whether the legislature intended to punish the two crimes separately,

we discern legislative intent by first applying the Blockburger1 test and then the merger

doctrine. Francis, 170 Wn.2d at 523. These two considerations inform but do not

compel our outcome. Id. The underlying question remains whether the legislature

intended the offenses to be the same. Id. This determination is made on a case-by-case

basis. Id.




       1
           Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 305 (1932).

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No. 35958-1-III
State v. McKinnie


                     a.      Blockburger test

       Under Blockburger, also known as the “same evidence” test, if each crime contains

an element that the other does not, we presume the crimes are not the same offense for

double jeopardy purposes. Freeman, 153 Wn.2d at 772. We look to the nature of the

offenses as they were actually charged and proved. Francis, 170 Wn.2d at 535 (Madsen,

C.J., concurring).

       Here, attempted first degree assault contains different elements than first degree

robbery. As charged and proved, attempted first degree assault required the State to

prove that McKinnie, with intent to commit the crime of first degree assault, intended to

inflict great bodily harm on McMichael by force or means likely to produce great bodily

harm or death. As charged and proved, first degree robbery required the State to prove

that McKinnie, with the intent to commit theft, took McMichael’s car by use of

immediate force and inflicted injury upon her. Here, proof of great bodily harm was

required to obtain a conviction for attempted first degree assault, but such proof was not

required to obtain a conviction for first degree robbery. In addition, proof that McKinnie

intended to commit theft was required for first degree robbery, but such proof was not

required to obtain a conviction for attempted first degree assault. Under the Blockburger

test, the two crimes are thus separate.


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No. 35958-1-III
State v. McKinnie


                     b.     Merger doctrine

       The merger doctrine is a tool of statutory interpretation used to determine whether

the legislature intended to impose multiple punishments for a single act that violates

several statutory provisions. State v. Michielli, 132 Wn.2d 229, 238, 937 P.2d 587

(1997). When the conduct of one offense elevates the degree of the second offense, the

offenses merge to avoid double jeopardy. State v. Vladovic, 99 Wn.2d 413, 419, 662 P.2d

853 (1983). Here, it is clear that an assault elevates the degree of robbery from second

degree to first degree.

       But there exists a well-established exception to the merger doctrine: when the two

crimes have an independent purpose or effect, they can be punished separately even

though one crime forms part of the other. Freeman, 153 Wn.2d at 773.

               An assault is frequently committed as part of the commission of
       some other crime. In such a case, the defendant cannot be convicted of
       both assault and the other crime, unless the assault involves some injury
       that is separate and distinct from the other crime, and not merely incidental
       to it. This remains true even if the assault involved the infliction of bodily
       harm beyond the minimum required to constitute the other crime. On the
       other hand, a defendant can be separately convicted for an assault that did
       not further the commission of the underlying crime. There can also be a
       separate conviction for an assault committed after completion of the other
       crime, whether for the purpose of escape or to aid commission of a new
       crime.




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No. 35958-1-III
State v. McKinnie


13A SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINAL LAW

§ 305(5) at 45-46 (2d ed. 1998) (emphasis added).

       Here, McKinnie did not commit first degree robbery until he used actual force to

take McMichael’s car. That is, first degree robbery did not occur by virtue of McKinnie

jumping into McMichael’s open and running car. First degree robbery occurred only

when McMichael jumped on the hood of her car and McKinnie used force by swerving

and accelerating the car in an attempt to dislodge her. Here, McMichael’s injury was not

separate and distinct from the conduct that formed first degree robbery.

       Under the particular facts here, where the acts that underlie the attempted first

degree assault conviction were not separate and distinct from the acts that underlie the

first degree robbery conviction, we conclude that the legislature did not intend to punish

offenders separately for attempted assault. We, therefore, conclude that McKinnie’s

conviction for attempted first degree assault must be vacated so as not to offend double

jeopardy.

       McKinnie concedes that resentencing is not required because the vacated sentence

was a lesser concurrent sentence. We nevertheless direct the trial court to enter either an

amended judgment or an order noting that the attempted first degree assault conviction

has been vacated.


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No. 35958-1-III
State v. McKinnie


       B.     STRIKING OF CRIMINAL FILING FEE AND DNA COLLECTION FEE

       McKinnie filed a motion requesting that we direct the trial court to strike the $200

criminal filing fee cost and the DNA collection fee imposed by the trial court. By letter

dated October 23, 2018, we directed the State, if it wished to respond to McKinnie’s

motion, to do so in its respondent’s brief. The State declined to respond.

       In State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), the court held that

House Bill 1783 applies prospectively to cases pending on direct review as of June 7,

2018, when the bill was enacted. This case was pending on direct review as of that date.

House Bill 1783 therefore applies to this case.

       House Bill 1783 prohibits a trial court from imposing the $200 criminal filing on

indigent defendants. Id. at 749. Here, McKinnie is indigent. We therefore grant

McKinnie’s request and direct the trial court to strike the $200 criminal filing fee.

       House Bill 1783 also prohibits a trial court from imposing the $100 DNA

collection fee against an offender whose DNA has been previously collected. LAWS OF

2018, ch. 269, § 18. Since 1994, persons convicted of a felony have been required to

provide a DNA sample. See RCW 43.43.754(1)(a). McKinnie, who has a 9+ offender

score, has been convicted of numerous felonies. It is almost certain that McKinnie’s

DNA has been previously collected. On remand, we direct the trial court to strike the


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No. 35958-1-III
State v. McKinnie


$100 DNA collection fee unless the State establishes that McKinnie has not had his DNA

previously collected.

       C.     STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       McKinnie submits six additional grounds for this court’s review.

              SAG 1: REASONABLE DOUBT OF ATTEMPTED FIRST DEGREE ASSAULT

       McKinnie claims that the court erred by convicting him of attempted first degree

assault. Because we conclude that this conviction must be vacated, SAG 1 is moot.

              SAG 2: PROSECUTORIAL MISCONDUCT

       McKinnie contends the prosecutor committed misconduct by withholding medical

records from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.

Ed. 2d 215 (1963). He claims that these medical records contradicted the victim’s

testimony regarding her injuries.

       Issues that involve facts or evidence not in the record are properly raised through a

personal restraint petition, not an SAG. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d

345 (2008). Because McKinnie refers to medical records that are not part of the record,

we will not address this claim.




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No. 35958-1-III
State v. McKinnie


                SAG 3: MIRANDA2 VIOLATION

       McKinnie claims that law enforcement committed a Miranda violation following

the car accident and prior to his arrest. He alleges the trial court erred by concluding that

he was not in custody when he made voluntary statements to law enforcement.

       Following a CrR 3.5 hearing as to the admissibility of McKinnie’s prearrest

statements, the court made the following findings of fact:

       1.       On August 31, 2016, Trooper Taylor responded to a location on State
                Route 2 regarding a 2-car collision.
       2.       The defendant was observed driving a silver vehicle that was
                involved in the collision.
       3.       The defendant got out of the car and walked towards Trooper Taylor.
       4.       Trooper Taylor noticed that the defendant was slightly limping.
       5.       Trooper Taylor then questioned the defendant regarding his
                involvement in the collision and his association with the silver
                vehicle.

Clerk’s Papers (CP) at 59-60 (Findings of Fact and Conclusions of Law—CrR 3.5

Hearing). From the foregoing findings of fact, the court made the following conclusions

of law:

       1.       The defendant was not under arrest when he initially contacted
                Trooper Taylor.
       2.       Trooper Taylor’s questioning of the defendant was part of a routine,
                general investigation in which the defendant voluntarily cooperated.
       3.       The defendant’s statements to Trooper Taylor were made knowingly
                and voluntarily given.

       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 35958-1-III
State v. McKinnie


       4.     Trooper Taylor was not required to advise the defendant of his
              Miranda warnings.
       5.     The defendant’s statements are admissible in the State’s case in
              chief.
       6.     There is no 5th Amendment violation which would warrant the
              suppression of the defendant’s voluntary statements in the case at
              bar.

CP at 60.

       We review alleged Miranda violations de novo. State v. Dykstra, 127 Wn. App. 1,

7, 110 P.3d 758 (2005). CrR 3.5 provides that when the State will offer a statement of the

accused as evidence, the court must hold a hearing to determine whether the statement is

admissible. State v. Ustimenko, 137 Wn. App. 109, 115, 151 P.3d 256 (2007). Generally,

statements made while an accused is in custodial interrogation are not admissible unless

the accused was first advised of his or her constitutional right to counsel and privilege

against self-incrimination. Id. This court reviews the trial court’s custodial determination

de novo. Id. To determine whether a person is in custody for Miranda purposes, we ask

whether a reasonable person in the individual’s position would believe he or she was in

police custody to a degree associated with formal arrest. Id.

       In the present case, Trooper James Taylor arrived at the scene of a car accident and

observed two cars that had been in an accident. The people gathered around the cars

informed him that a third car had been involved in the accident, but had left the scene. As


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No. 35958-1-III
State v. McKinnie


Trooper Taylor was speaking with the witnesses, the third car came driving by, “spouting

smoke,” and the witnesses informed him that it was the car involved in the accident.

Report of Proceedings (Oct. 2, 2017) at 20. The car headed toward the south entrance of

the parking lot, made a u-turn and approached Trooper Taylor. As Trooper Taylor

walked toward the car, McKinnie exited and limped toward Trooper Taylor. Trooper

Taylor asked if McKinnie was okay and asked about the car collision. McKinnie

acknowledged that he hit one of the cars and then he gave an account of how he had

jumped out of an apartment building because he was being chased.

       Trooper Taylor asked if McKinnie was the registered owner of the car and

McKinnie acknowledged that he was not, but that the owner had winked and nodded to

give him permission to drive it.

       The conversation paused while Trooper Taylor approached the car McKinnie had

been driving. The car was still running and was emitting large amounts of smoke.

Trooper Taylor then saw a woman’s purse and wallet lying on the passenger’s seat.

       McKinnie was then transported to Sacred Heart Medical Center for his injuries.

       The court held that Trooper Taylor was at the scene to investigate the traffic

collision. McKinnie voluntarily exited his car and walked toward Trooper Taylor.

Trooper Taylor only asked routine questions about the collision and attempted to


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No. 35958-1-III
State v. McKinnie


determine McKinnie’s identity and the identity of the registered owner of the car. For

purposes of Miranda, the court held that McKinnie was not subjected to custodial

interrogation.

       We agree that McKinnie was not in custody when the questioning occurred.

Trooper Taylor’s questions were focused on investigating the collision, and Trooper

Taylor was not asking questions that would elicit an incriminating response from

McKinnie with respect to the present charges. Accordingly, a reasonable person in

McKinnie’s position would not have felt that he or she was in police custody to a degree

associated with formal arrest. Thus, the court did not err by ruling that McKinnie’s pre-

Miranda statements were admissible.

                 SAG 4: SPEEDY TRIAL RIGHT

       McKinnie claims that the trial court abused its discretion and violated his speedy

trial rights by putting him through frivolous mental health competency proceedings.

       This court reviews alleged speedy trial violations de novo. State v. Harris, 122

Wn. App. 498, 504, 94 P.3d 379 (2004).

       If a defendant pleads not guilty by reason of insanity, or if the court has reason to

doubt the defendant’s competency to stand trial, the court must order an expert evaluation

of the defendant’s mental condition. RCW 10.77.060(1)(a). The court may do this on its


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No. 35958-1-III
State v. McKinnie


own motion. RCW 10.77.060(1)(a). The “reason to doubt” language “vests a large

measure of discretion in the trial judge.” City of Seattle v. Gordon, 39 Wn. App. 437,

441, 693 P.2d 741 (1985).

       The court rules provide that proceedings related to competency toll the time for

trial. CrR 3.3(e)(1).

       The following periods shall be excluded in computing the time for trial:
              (1) Competency Proceedings. All proceedings relating to the
       competency of a defendant to stand trial on the pending charge, beginning
       on the date when the competency examination is ordered and terminating
       when the court enters a written order finding the defendant to be competent.

CrR 3.3(e).

       In light of the bizarre explanation that McKinnie gave law enforcement as to how

and why he stole McMichael’s vehicle, the court was well within its discretion to order a

competency proceeding. McKinnie’s time for trial was tolled during the pendency of the

proceedings. McKinnie’s argument that his speedy trial rights were violated fails.

              SAG 5: TROOPER TAYLOR’S TESTIMONY

       McKinnie claims that the trial court abused its discretion by using Trooper

Taylor’s testimony to make its findings of guilt. He avers that the court erroneously

considered CrR 3.5 statements to make findings when the court stated that it would not.




                                            17
No. 35958-1-III
State v. McKinnie


       “[T]he appellate court will not consider a defendant’s statement of additional

grounds for review if it does not inform the court of the nature and occurrence of alleged

errors.” RAP 10.10(c). Insofar as McKinnie claims that the court improperly considered

his pre-Miranda statements or Trooper Taylor’s statements when making a determination

of guilt, we reject his claim. The trial court found McKinnie’s testimony at trial not

credible because it contradicted numerous other witnesses who testified. We otherwise

reject this additional ground for review because it fails to inform this court of the nature

of the alleged error.

              SAG 6: MOTION FOR NEW TRIAL: INEFFECTIVE ASSISTANCE OF COUNSEL

       McKinnie claims that his motion for a new trial should have been granted based on

newly discovered evidence—namely, the medical records of the victim. McKinnie filed a

pro se motion for new trial on February 7, 2018. The court’s ruling on the motion was

not made part of the record. The medical records of the victim are also not part of the

present record.

       Issues that involve facts or evidence not in the record are properly raised through a

personal restraint petition, not a SAG. Alvarado, 164 Wn.2d at 569. Accordingly, we

will not consider McKinnie’s claim concerning the victim’s medical records.




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No. 35958-1-III
State v. McKinnie


       McKinnie next claims that he received ineffective assistance of counsel when his

attorney withdrew from representation and he was not appointed new counsel. To protect

a defendant’s right to counsel, a defendant has the right to receive effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). An allegation of ineffective assistance of counsel is a mixed question of law and

fact that we review de novo. Id. at 698. To determine whether counsel provided effective

assistance, we apply a two-pronged test: (1) whether counsel’s performance was

deficient, and (2) whether that deficient performance prejudiced the defendant to an

extent that changed the result of the trial. Id. at 687. We can address the second prong

initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice.” Id. at 697. Even if trial counsel performed deficiently by

withdrawing, McKinnie has not established prejudice. McKinnie has not explained what

arguments his attorney could have made to merit a new trial. Accordingly, we reject his

claim that he received ineffective assistance of counsel.

       We affirm McKinnie’s conviction for first degree robbery, vacate his conviction

for first degree attempted assault, and direct the trial court to strike the criminal filing fee

and the DNA collection fee.




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No. 35958-1-111
State v. McKinnie


       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.


                                            L.... .,_1.r,, "· - (st1vt.. t t · C.. ~ .
                                          Lawrence-Berrey, C.J.

WE CONCUR:




Fearing, J.                               Pennell, J.




                                            20
